Sears v. State

• Decision Date: 27 April 1970
• Docket Number: No. 236,236
• Citation: 264 A.2d 485,9 Md.App. 375
• Parties: Louis Joseph SEARS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 375

9 Md.App. 375

264 A.2d 485

Louis Joseph SEARS v. STATE of Maryland.

No. 236.

Court of Special Appeals of Maryland.

April 27, 1970.

Stanley S. Cohen, Baltimore, on brief for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., and Stephen Montanarelli, Asst. State's Atty., for Baltimore City, on brief for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ANDERSON, Judge.

Appellant, Louis Joseph Sears, was indicted in the Criminal Court of Baltimore upon three indictments. Indictment #3676 charged him with assault with intent to murder (first count) and common law assault (second count). Indictment #3677 charged him with attempted incest (first count), assault with intent to rape (second count), assault with intent to have carnal knowledge of a female child under the age of 14 years (third count), and common law assault (4th count). Indictment #3678 charged him with an unnatural and perverted sexual practice.

Appellant entered written pleas of (1) not guilty by reason of insanity at the time of the alleged offenses; (2) insane now; and (3) not guilty in each of the three indictments. Before the trial began the trial judge held an evidentiary hearing on appellant's competency to stand trial and, after receiving testimony and evidence, found that appellant was able to understand the nature or object of the proceedings against him and to assist in his defense and met the test as set forth in Article 59, § 7, Maryland Code.

Appellant was tried on January 21, 1969 by a jury, Judge Albert L. Sklar presiding. After the jury was sworn and empanelled, the jury was excused and the trial court proceeded, out of the presence of the jury, to determine preliminarily whether there was sufficient proof to raise a doubt to appellant's sanity in the minds of reasonable men in accordance with the procedure laid down by this Court in Strawderman v. State, 4 Md.App. 689, 244 A.2d 888; Rozzell v. State, 5 Md.App. 167, 245 A.2d 917. From the testimony the trial court found that the proof produced insupport of the plea of insanity by appellant was sufficient to raise a doubt as to the sanity of the accused in the minds of reasonable men as set forth in Article 59, § 9, Maryland Code, and that evidence on this issue should now be introduced before the jury as to the matter of insanity at the time of the commission of the crimes alleged in the indictments.

On the issue of sanity, the jury found appellant to be sane at the time of the acts alleged to have been committed under each of the three indictments. The jury further found appellant guilty of common law assault under Indictment #3676 (second count); guilty of attempted incest under Indictment #3677 (first count); guilty of assault with intent to have carnal knowledge of a female child under the age of 14 years (third count); and guilty of an unnatural and perverted sexual practice under Indictment #3678. Appellant was sentenced to a term of five years under Indictment #3676 (assault), ten years under the first count of Indictment #3677 (attempted incest) twenty years under the third count of Indictment #3678 (assault with intent to have carnal knowledge of a female child under the age of 14 years), and ten years under Indictment #3678 (unnatural and perverted sexual practice); all sentences to run concurrently.

Appellant raises three questions upon this appeal:

1) Was there an improper consolidation of unrelated offenses which prejudiced the appellant at the time of trial?

2) Did the trial court err in its instructions to the jury?

3) Did the trial court err in admitting over objection alleged hearsay testimony to the prejudice of the appellant?

Rosemary Jean Sears, the complaining witness, testified that she was 11 years of age and had been living, off and on, with her father, the appellant, prior to June of 1968; that on June 9, 1968, while living with her father, her father had taken her to a bar known as Mike's Cafe at approximately 6:00 p. m., where they remained until 9:00 p. m., after which the two of them went home to watch television, and later returned to the bar at approximately 11:00 p. m. They stayed in the bar until 1:00 or 2:00 a. m. and during the time they were in the bar she had some soda to drink while the appellant was drinking beer and playing pool. They then returned home and her father went into the kitchen where he got a knife, pushed her down on a couch and told her he was going to kill her. She was cut on the upper left breast, after which she passed out. When she regained consciousness her father was crying. She then asked that she be allowed to go to the bathroom, to which her father finally consented. After she reached the bathroom, she climbed out of a window and fled down the fire escape and ran to the Southern Baltimore Police station where she related what had happened. She was then taken to the hospital where she received treatment and was then taken to the home of a Mrs. Dyson where her sister lived. She further testified that on May 31, 1968, between 1:00 and 2:00 a. m., appellant had compelled her to commit certain perverted sexual acts by forcing her to take his organ in her mouth and had also placed it in her privates and that this had occurred on a number of other occasions.

I

Appellant's first contention is that the three indictments were improperly consolidated for trial. At the time the appellant was arraigned and prior to the jury being sworn there was no request by appellant for a severance of the three indictments. In fact, the record discloses that both the appellant and the State were satisfied to have the three indictments tried at the same time. The three indictments involved the same parties and all involved related events that took place between them, out of which the charged arose.

Maryland Rule 734 provides: 'The court may order two or more indictments to be tried together if the offenses and the defendants, if there be more than one, could have been joined in a single indictment.' While the court passed no formal order that the three indictments be tried together, it is apparent from the record that the joinder was with the consent of the appellant and the State. Since the trial judge concluded that neither the accused nor the State would be prejudiced by a joinder for trial, as provided in Maryland Rule 735, we find that the trial judge acted properly in consolidating the indictments and there was no abuse of his discretion. See Wilson et al. v. State, 8 Md.App. 653, 262 A.2d 91; Briscoe v. State, 3 Md.App. 462, 240 A.2d 109; McLaughlin v. State, 3 Md.App. 515, 240 A.2d 298.

II

Appellant's second contention is that the trial court erred in its instructions to the jury, in that it failed to inform the jury that any instructions on the law given by the trial court are merely advisory in nature. Maryland Rule 756(b). We find no merit to this contention. The instructions given by the trial court on the issue of insanity and the other issues involved were full and comprehensive. In his opening instructions to the jury the trial judge stated: '* * * However, in criminal cases, under the existing law in Maryland you, as jurors, are both the judge of the law and the facts. Therefore, anything I say to you about the facts, as I said, is merely advisory. Concerning the applicable law, it is intended to help you but you are at liberty to reject the Court's instruction on the law and to arrive at your own independent conclusion of the law if you desire to do so in your own wisdom.' After next explaining to the jury that appellant had filed a plea of not guilty by reason of insanity, the court read to the jury the applicable statute relating to the test of responsibility for criminal conduct as set forth in Article 59, § 9(a) of the Code as follows: 'A defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. As used in this section, the terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or other anti-social conduct.' The trial court then went on to fully explain the statute as it applied to appellant's criminal responsibility. During his explanation of the wording of the statute, the trial judge...