Pinkney v. State, 688

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Argued before MURPHY; GILBERT
• Citation: 12 Md.App. 598,283 A.2d 800
• Parties: George Ervin PINKNEY v. STATE of Maryland.
• Docket Number: No. 688,688
• Decision Date: 05 August 1971

Page 598

12 Md.App. 598 283 A.2d 800 George Ervin PINKNEY
v.
STATE of Maryland. No. 688. Court of Special Appeals of Maryland. Aug. 5, 1971.
Certiorari Denied Nov. 9, 1971.

Page 599

[283 A.2d 802] Frank Cannizzaro, Jr., Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Alfred T. Truitt, Jr., State's Atty., for Wicomico County, and Charles E. Moylan, Jr., State's Atty., for Baltimore City all on the brief, for appellee.

Argued before MURPHY, C. J., and ORTH, and GILBERT, JJ.

GILBERT, Judge.

George Ervin Pinkney was convicted by the Circuit Court for Wicomico County jury of murder in the first degree without capital punishment. His contentions on appeal to this court are:

1. He was convicted solely on the testimony of an accomplice.

2. The errors of the trial judge denied him a fair and impartial trial.

3. That the evidence was insufficient to convict.

4. Violation of Rule No. 753 (sequestration of witnesses) and denial of a motion for mistrial.

5. The court's refusal to allow the Appellant to testify out of the presence of the jury concerning a search of his person.

The facts of the case are that on September 5, 1968, at approximately 7:00 p. m., the Harlem Liquors, a package

Page 600

goods store in Baltimore City, was robbed at gun point and Robert Branch, a 70 year old man was shot to death by the robber. The owner of the liquor store, Philip R. Weiner, testified that 'a man entered the store, ran up to my clerk, put a gun in his face and said, 'This is a stickup' and two shots were heard.' The gunman took one or two shots at Weiner but fortunately missed. Weiner obtained a revolver from behind the counter, fired one time, and struck the felon on the right side in the region of his arm and shoulder. 'He put up his hand and turned around and ran toward the door and I fired two, three shots more. By that time he fell flat on his face in the store and stretched out as if he were dead.' Weiner then went to assist Robert Branch and while he was doing that the holdup man fled. He described the holdup man as a black man, wearing sunglasses. The sunglasses and revolver used by the robber, and which had been dropped at the time he was shot by Weiner, were recovered. At the trial Weiner was unable to identify the Appellant. Mr. Branch died four hours later as a result of a gunshot wound through the brain.

Baskerville, an employee of Weiner, was in the store at the time and he too was unable to identify the gunman. He fled when the shooting started.

The State produced Robert Lee Robinson, an admitted accomplice in the crime, who testified that he met Pinkney the night of the crime in a house belonging to Joe Moore, and that the three of them, Pinkney, Moore and Robinson drove to West Baltimore, and that he (Robinson) and Moore went into the liquor store in order to 'case the place.' While he was in there Pinkney came in and said, 'This is a stickup.' Robinson stated he 'didn't have no idea no stickup was coming' and that neither he nor Moore were armed. He and Moore 'took cover in the store. Next, I heard two shots fired. Then I heard several more shots fired.' He identified Pinkney as the man who fired the first shots and said they were fired toward the counter at the man who was 'waiting on me.' While Weiner was bending over to help Branch,

Page 601

the victim, Robinson returned to the front of the store and found Pinkney lying on the floor. He then ran. Robinson later went back to Moore's house. [283 A.2d 803] Moore was already there, as was Pinkney. Also present was James Ashe.

Ashe testified that he was a student at the University of Maryland School of Nursing and had been prior to that time employed at the Good Samaritan Hospital in Baltimore City as a licensed practical nurse. He stated that on the evening of September 5, 1968, around 8:00 p. m., he received a phone call from a friend he had known for 20 years, asking him if he would see 'a friend.' At about 9 o'clock he received a second phone call from the same person, repeating the request. Subsequently, a third phone call was received in which he was told that the person he was to see 'had been playing around with a gun and he was shot.' Ashe states he advised the caller to take the injured person to the nearest hospital. In response to a fourth call, the person later identified to be the Appellant, was taken to Ashe's home. Ashe identified the Appellant in open court and testified that the Appellant was wounded in the right upper arm in the area of the bicep and in the upper part of his right hip below the belt. He advised that Pinkney be removed to the hospital, which advice was refused. Appellant was then removed from Ashe's home. Later that night, somewhere between 10:30 and 11:00 Ashe received another telephone call and suggested certain medication. In response to this call, he went to a house on South Paca Street where he treated Appellant. He described the wounds, after qualification, as 'gunshot wounds.' In addition to Appellant, there were two other persons there, one of whom he had known all his life and identified as Robert Lee Robinson, the accomplice. Robinson was brought into the courtroom for the specific purpose of having Ashe identify him, which he readily did.

The police had ascertained Ashe's identity as a result of their investigation and he gave them a statement. He also admitted he was paid for his services to Pinkney.

Page 602

Appellant's attorney moved for a mistrial at this stage on the ground that the sequestration rule was violated, and his motion was denied.

Thereafter, the State produced Sgt. George Christian, a detective of the Baltimore City Police Department, Homicide Squad, of 12 years experience as a police officer and 4 years in homicide. He testified that he had seen 400 to 500 gunshot wounds during his experience with the homicide squad.

At 4:50 a. m. on May 1, 1969, armed with a warrant for Appellant's apprehension, he went to the apartment of Mattie Brown, Appellant's girl friend, on Springdale Avenue in Baltimore, and was admitted into the apartment by Miss Brown, who directed him to the bedroom where he observed Pinkney lying in bed. Christian testified that the Miranda ¹ rights were read in toto to Appellant and that no statement was obtained. At the time of the making of the arrest, the Sergeant stated that he observed that Pinkney was limping and he asked him to pull down his shorts; whereupon he observed a bullet hole 'in his right buttocks.' According to Christian, Pinkney stated, 'That was foreign matter and let it go at that.' Christian testified, 'It appeared to be healing-have healed up.' Objection was made by the defense as to any testimony of Sergeant Christian relative to his search of Pinkney at the time of the arrest, but the objection was overruled after some discourse, upon which we will comment more fully later on herein, and the Sergeant was allowed to testify. Christian denied under cross-examination that he had yanked or pulled down Pinkney's underwear.

Appellant testified in his own behalf and admitted that the wound in his buttocks and arm were gunshot wounds. He denied any participation in the robbery-murder and stated that he had received the gunshot wounds as a result of selling fake packages of dope to an irate purchaser who shot him. Appellant acknowledged that he

Page 603

[283 A.2d 804] had been treated by Ashe and did not testify concerning his search by Sergeant Christian at the time of the arrest other than to say that the gunshot wounds in his body were the same ones that Sergeant Christian had observed. He did not know the name of the person to whom he sold the 'dummy' bags of drugs, and admitted that he had used hereoin. He said that he was shot about an hour and a half after he had made the 'sale' at Portland and Emory Streets...