Nadolski v. State

• Decision Date: 19 May 1967
• Docket Number: No. 167,167
• Citation: 1 Md.App. 304,229 A.2d 598
• Parties: Harry Hoffman NADOLSKI v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 304

1 Md.App. 304

229 A.2d 598

Harry Hoffman NADOLSKI v. STATE of Maryland.

No. 167.

Court of Special Appeals of Maryland.

May 19, 1967.

John H. Garmer, Towson, for appellant.

Alfred J. O'Ferrall, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., R. Randolph Victor, Asst. Atty. Gen., Frank H. Newell, III, State's Atty., Richard D. Byrd, Asst. State's Atty., Baltimore, on brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and GEORGE L. RUSSELL, Jr., Special Judge.

ORTH, Judge.

On May 23, 1966 appellant was convicted by a jury in the Circuit Court for Baltimore County, Jduge John E. Raine, Jr., presiding, of aiding and abetting Ronald Albert Duncan in his escape from the Spring Grove State Hospital and of assault on a psychiatric aide at the Hospital. He was sentenced to seven years imprisonment on the aiding and abetting conviction which sentence was modified by the court to four years on August 22, 1966. Sentence on the assault conviction was suspended.

Appellant's only contention on this appeal is that his arrest was illegal and for that reason his oral confession and testimony that he was identified at a lineup were improperly admitted in evidence. He does not contend that the confession was not freely and voluntarily given and the record discloses legally sufficient evidence for the trial court to find, as it did, that the 'voluntariness test' was met. He does not allege that any rules of law enunciated by Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) were violated. He is not within the ambit of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, decided June 16, 1966 as Miranda is not retroactive. Meadows v. Warden, 243 Md. 710, 222 A.2d 249 (1966). He does not contend that there was anything improper in the conduct of the lineup. Appellant filed a Motion to Dismiss the information and indictment on the ground his arrest was illegal. The motion was properly denied by the trial court. An illegal arrest does not affect the jurisdiction of the court, is not a ground for dismissing an information or indictment and does not preclude trial and conviction for the offenses. Matthews v. State, 237 Md. 384, 206 A.2d 714 (1965). Although the confession and testimony that appellant was identified in a lineup were admitted in evidence without objection and therefore the question of their admission is not properly before us, we deem it desirable to consider the contention as the question of the legality of the arrest was raised below in the Motion to Dismiss. Maryland Rule, 1085.

The short answer is that the confession and testimony were properly admissible even if the arrest was illegal. Neither the confession nor the testimony in question were the fruits of an unreasonable search and seizure and being otherwise admissible were not rendered inadmissible by an illegal arrest. Stewart v. State, 232 Md. 318, 193 A.2d 40 (1963); Prescoe v. State, 231 Md. 486, 191 A.2d 226 (1963). Belton v. State, 228 Md. 17, 178 A.2d 409 (1962), relied on by appellant, is not apposite as it concerned evidence obtained as the result of an unreasonable search and seizure under the impact of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) and related cases. In Prescoe v. State, supra, the Court of Appeals established that Mapp did not change the 'voluntariness test' for the admissibility of confessions sought to be admitted in state criminal prosecutions and we do not find that it compels the exclusion of testimony as to the...