Royal v. State

• Decision Date: 11 November 1964
• Docket Number: No. 33,33
• Parties: Doyle D. ROYAL, etc. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 443

236 Md. 443

204 A.2d 500

Doyle D. ROYAL, etc. v. STATE of Maryland.

No. 33.

Court of Appeals of Maryland.

Nov. 11, 1964.

Stanley J. Schapiro, Baltimore, for appellant.

Thomas B. Finan, Atty. Gen., David T. Mason, Asst. Atty. Gen., William J. O'Donnell and Andrew J. Graham, State's Atty. and Asst. State's Atty., respectively, for Baltimore City, Baltimore, for appellee.

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

HORNEY, Judge.

The principal question presented by appellate counsel for the defendant (Doyle D. Royal) on this appeal from convictions of armed robbery and for carrying a deadly weapon relates to the propriety of the trial court allowing codefendants to invoke the privilege against self-incrimination. Additional questions concern the sufficiency of the evidence to sustain the verdicts of guilty, the failure of the court to caution the jury that it should not draw an unfavorable presumption or inference against the defendant because the codefendants refused to testify, and the refusal of the court to quash the indictments.

In the early evening of a day in August 1962, a supermarket on Belair Road was held up and robbed by two men. One of them pointed a pistol at the manager and demanded money. He gave them all he had and the robbers put it in a cardboard box and fled. A short time later, the police, converging on the scene of the crime in response to a radio message as to the robbery, apprehended the defendant and his codefendants (Richard Elliott and James Robert Gale) in an automobile fitting the description and license number of one observed leaving the supermarket after the hold up. A cardboard box (containing $2300 in cash) was found in the automobile and a pistol was removed from the belt of the defendant. At the trial, the store manager identified the defendant as the one who held the gun. Three of the store clerks and a customer also identified him.

The defendant testified that he was not a party to the robbery, that he had not participated in it in any way, and that he had no knowledge of the crime. While he admitted being with the codefendants all day in a downtown bar until late afternoon, he claimed that he was let out of the automobile in Hamilton, he to get something to eat, they to go borrow some money; that the codefendants picked him up about twenty-five minutes later on the way to a baseball game at the stadium as previously arranged; and that while proceeding to their destination they were apprehended by the police. The defendant further claimed that although the police had searched him three times and found nothing, one of them came up to him a fourth time with the pistol, 'pulled it out from the front' of the defendant, and stated that he had found the weapon on the defendant.

The day before he was scheduled to be tried, the defendant escaped from jail. He was subsequently apprehended by the federal authorities in Nevada and taken to New Jersey to await trial on a federal charge of bank robbery. After he had been sentenced to the federal penitentiary at Atlanta, he demanded a speedy trial and, subsequently filed a motion to quash all indictments then pending against him in Baltimore City on the ground that the State of Maryland had relinquished and waived its claim to jurisdiction over him by failing to make demand for him and permitting him to be prosecuted in a district court in New Jersey.

(i)

Under the circumstances of this case we find no impropriety in the trial court not requiring the witnesses called by the defendant to testify in his behalf. The claim of error is based on the contention that the witnesses, though they were codefendants, were compellable witnesses since they had been previously tried and convicted and because there was nothing to show that they were subject to further prosecution or punishment. The record does not support the contention: instead in appears that each witness invoked the privilege because other criminal proceedings were pending against them and that, if they testified, their testimony might incriminate them.

As each witness was sworn, the trial court undertook to advise him that he had a right to refuse to take the stand and inquired as to his desire. Even though a witness cannot be compelled to give self-incriminating testimony, Article 22 of the Declaration of Rights, he should be called to the witness stand and sworn. Midgett v. State, 223 Md. 282, 289, 164 A.2d 526 (1960). See also Adams, Nelson, and Timanus v. State, 200 md. 133, 88 A.2d 556 (1952). This is so because the privilege is not a prohibition of inquiry, but is an option of refusal. See 8 Wigmore, Evidence (McNaughton rev.), § 2268. And while it is proper in some instances for the court to advise a witness of his privilege against self-incrimination (see, for example, Midgett v. State, supra, 223 Md. at p. 291, 164 A.2d 526), it is ordinarily not necessary for the court to inform an accomplice called as a witness, as was the case here, of his constitutional right to claim immunity from testifying. See Forrester v. State, 224 Md. 337, 167 A.2d 878 (1961). See also Butz v. State, 221 Md. 68, 156 A.2d 423 (1959). This is so because the privilege against self-incrimination is a personal one and only the witness may assert it. The proper course of procedure is for the witness to wait until a question has been propounded which tends to incriminate him and then decline to answer it. Midgett v. State, supra, 223 Md. at p. 289, 164 A.2d 526. Likewise, if further interrogation is pressed as is often the case, the witness should answer the questions, one by one when propounded, or claim his privilege to decline answering; otherwise, since it cannot be known beforehand which he will do, the court would be unable to rule whether an answer to the particular question might incriminate the witness. This, of course, is a matter for the trial judge to determine as and when each claim of privilege is invoked. Midgett v. State, supra, at p. 289, 164 A.2d 526.

It appears that in the case at bar each witness, after stating his desire to refuse to take the stand or to testify, in response to the court's inquiry, was nevertheless sworn and subjected to examination by counsel for the defendant and answered all questions propounded to him. When the codefendant Elliott was asked why he refused to take the stand, he stated that he had other legal matters pending in court, some of which were an outgrowth of this case and others that were not yet in court. When the codefendant Gale was asked why he refused to testify, he replied that there were 'things' that could incriminate him. In both instances, trial counsel asked no further questions, apparently, as the record indicates, because he realized that further questioning would have been futile.

Although the record is silent as to what proceedings were then pending, or likely to be thereafter filed, against the codefendants and as to how their testimony in this case could incriminate them, it may well be, since no objection was made to the invocation of the privilege, that counsel for the defendant as well as the trial court, were aware of the situation. In...