Midgett v. State

• Decision Date: 20 October 1960
• Docket Number: No. 10,10
• Citation: 223 Md. 282,164 A.2d 526
• Parties: Curtis Edward MIDGETT v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 282

223 Md. 282

164 A.2d 526

Curtis Edward MIDGETT v. STATE of Maryland.

No. 10.

Court of Appeals of Maryland.

Oct. 20, 1960.

Leonard J. Kerpelman, Baltimore, for appellant.

James H. Norris, Jr., Sp. Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Saul A. Harris, State's Atty., and James W. Murphy, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

The appellant, Curtis E. Midgett, was indicted on charges (a) of kidnapping (Indictment No. 1157 of 1959), (b) of armed robbery and simple assault (as well as other charges abandoned by the State at and after Midgett's first trial, below mentioned) (Indictment No. 250 of 1957), and (c) of conspiracy (Indictment No. 2120 of 1958), and was tried in a single proceeding on all of these charges before Judge Allen and a jury in the Criminal Court of Baltimore. He was (a) found guilty under both counts of the kidnapping indictment (kidnapping with intent to carry the victim within the State and kidnapping with intent to conceal him within the State), (b) found not guilty of armed robbery but guilty of assault, and (c) found guilty of conspiracy. His motion for a new trial was denied and he was sentenced to a total of thirty-five years' imprisonment--thirty years for kidnapping and five years for conspiracy, these sentences to run consecutively, and five years for assault, this sentence to run concurrently with the others. He appeals

The first indictment pertained to the kidnapping of one Charles W. Zeller, an officer of the Baltimore City Police Department, the second to the disarming of that officer, and the third to a conspiracy to rob employees of a chain of restaurants. The execution of that plan was interrupted by the police officer's arrival on the scene of intended action.

The present appeal is a sequel to Midgett v. State, 216 Md. 26, 139 A.2d 209. In that case Midgett's prior convictions on charges of kidnapping and of armed robbery were reversed and a new trial on each charge was awarded. Midgett, one Morris Ruckle and one John R. Davis had been indicted and tried together in 1957 under an indictment (No. 446 of 1957), which undertook to charge them with kidnapping. The opinion of this Court commented upon the inadequacy of that indictment to support some of the instructions given. Midgett, Ruckle and Davis were also charged in separate indictments against each of them with robbery with a deadly weapon, etc., that against Midgett being No. 250 of 1957, on which he was retried in the present case. All three were found guilty at the original trial on the kidnapping and robbery charges. Davis did not appeal. Midgett and Ruckle did. No conspiracy indictment was involved in that trial.

Following the remand Midgett moved to dismiss the kidnapping indictment (No. 446 of 1957), which had been criticized but not actually held invalid by this Court on Midgett's first appeal. After full argument of the matter, Judge Allen, on March 9, 1959, granted the motion and dismissed that indictment. He directed, however, that Midgett be held in substantial bail (which he did not furnish) pending re-indictment within a limited time. Within that time Midgett and Ruckle were re-indicted by Indictment No. 1157 of 1959, and Midgett was tried thereunder. Midgett also filed motions to dismiss the other indictments against him, but these were denied.

On the above motions, Midgett was represented, at his request, by the same court-appointed counsel who had represented him on his first appeal. Such counsel was appointed only for this purpose. Otherwise, Midgett flatly declined the appointment of counsel on more than one occasion, including his rearraignment at the start of the trial out of which this appeal grows. He elected to try his own case. On this appeal he is again represented by court-appointed counsel (apparently appointed at Midgett's request or with his consent), who has discharged his duties with diligence and ability.

The facts as developed in the present cases are essentially the same as those on Midgett's first appeal and are fully set out in this Court's opinion in that case, which was written by Judge Horney. (See 216 Md., bottom of page 30--top of page 34, 139 A.2d at pages 211, 213). They will not be here repeated at length. In brief, there is evidence showing: (1) that Midgett, Ruckle and Davis entered into a conspiracy, originally made in Pennsylvania which they renewed and attempted to carry into effect in Maryland, to rob employees of the White Coffee Pot restaurants in Baltimore of cash receipts of such restaurants; (2) that in furtherance of this plan, on the night of January 16, 1957, they went to a vacant lot adjacent to the commissary of the White Coffee Pot in Baltimore, intending to rob a collector for the restaurants there; (3) that they were interrupted in this enterprise by Officer Zeller who arrived on the scene alone in a police car; (4) that while he was investigating their presence and was inquiring of Midgett as to their purpose in being on the lot and was asking to see Midgett's driver's license (Midgett then being at the wheel of Ruckle's car), Ruckle appeared from a place beside the car where he had been hiding, covered the officer with a 38 pistol and backed him up against a wall; (5) that Midgett, or Midgett and Davis, acting in accordance with Ruckle's instructions, then disarmed the officer, taking his belt, holster, pistol and flashlight, which they placed in Ruckle's car; (6) that Midgett, Ruckle and Davis then put Officer Zeller in Ruckle's car, drove him out into the country, bound his hands and feet, gagged him, tied him to a tree and left him there.

This appeal presents a number of questions. The first is whether or not Morris Ruckle, Midgett's codefendant in the kidnapping and conspiracy cases, was properly allowed to refuse, on the ground of possible self-incrimination, to testify on behalf of Midgett. A consideration of this question calls for some examination of Ruckle's status with regard to these charges. Following their original trial both Midgett and Ruckle appealed. While the appeal was pending, Ruckle proceeded, of his own motion, to dismiss his appeal. Following the reversal of Midgett's convictions and the award of a new trial as to both the kidnapping and robbery charges, Ruckle sought through Post Conviction Procedure Act proceedings to obtain his own outright release. Judge Tucker held that Ruckle was entitled to relief against the judgment rendered at the first trial, since Ruckle, like Midgett, had been 'denied the absolute right to be present at every stage of his trial from the time the jury is impaneled until it reaches a verdict or is discharged.' He concluded that an appropriate order under the Post Conviction Procedure Act (Code, Art. 27, Sec. 645G) was to set aside the judgment and sentence against Ruckle and to grant him a new trial, which was the same relief as had been granted to Midgett by this Court, but that Ruckle was not entitled to the preferred status for which he contended. Ruckle applied for leave to appeal from Judge Tucker's order entered in accordance with this decision and this application was pending when Midgett was retried in June, 1959. This Court agreed with Judge Tucker's conclusion and accordingly denied Ruckle's application for leave to appeal. Ruckle v. Warden, 220 Md. 683, 155 A.2d 69. [This Court suspended the operation of its order to allow Ruckle time to apply to the Supreme Court of the United States for a writ of certiorari which was denied on October 10, 1960, 81 S.Ct. 97.]

Midgett's chief ground of complaint as to the allowance of Ruckle's claim of privilege is that Ruckle was not sworn and that he could not claim the privilege except under oath. It would have been the proper practice first to have had him called to the stand and sworn. His interrogation should then have proceeded to the point where he claimed the privilege as a ground for not answering a question. Chesapeake Club of Annapolis City v. State, 63 Md. 446; Adams et al. v. State, 200 Md. 133, 88 A.2d 556; 3 Wharton, Criminal Evidence (12th Ed.), p. 37. Indeed, the latter work states 'The privilege can only be claimed after the witness has been sworn and at the time the questions are put.' People v. Weiger, 100 Cal. 352, 34 P. 826, is cited in support of this statement. That case seems to hold that this is the only manner in which the witness can effectively invoke the privilege, and that if he fails to claim the privilege in this way and proceeds to testify, the testimony so given is deemed voluntary and may be used against him.

The bases for the rule are (i) that the witness has the right to determine whether or not to invoke the privilege, not that the rule is for the exclusion of unreliable evidence, and (ii) that the court must be in a position to determine whether the claim of privilege is in good faith or lacks any reasonable basis. Butz v. State, 221 Md. 68, 156 A.2d 423, makes the first basis for the rule abundantly clear. We there overruled a holding in the Chesapeake Club case, which had permitted the defendant to take advantage on appeal of the erroneous denial of the privilege of a witness. The rule adopted in the Butz case that the privilege is that of the witness and not of the defendant and that the defendant cannot take advantage of the privilege if the witness does not, is in accord with the English rule and the majority rule prevailing in this country. ¹

The instant case presents the converse of the situation in both the Chesapeake Club and the Butz cases in that in each of those cases the testimony was admitted despite the defendant's objection, but in the instant case the privileged testimony was excluded despite the defendant's effort to obtain it. The rule of the Butz case is, therefore, not applicable here. Our question is whether the defendant Midgett has been...