Sizemore v. State
Decision Date | 04 December 1968 |
Docket Number | No. 118,118 |
Parties | Jimmy Keith SIZEMORE v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Donald C. Cole, Jr., and Julius A. Jodlbauer, State's Atty., and Asst. State's Atty., for Cecil County respectively, on brief for appellee.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.
Six questions are presented on this appeal relating to the following issues:
I Change of venue.
II Variance between the allegata and the probata.
III The admission of evidence.
IV The legality of the arrest and the reasonableness of the search and seizure.
V The sufficiency of the evidence.
VI Prejudice from the State's Attorney's comments to the jury.
The appellant was found guilty by a jury in the Circuit Court for Cecil County of grand larceny charged in the 5th count of the indictment, drawn under Md. Code, Art. 27, § 340, and larceny of a motor vehicle charged in the 9th count of the indictment, drawn under Md. Code, Art. 27, § 348. He was sentenced to 12 years on each conviction, the sentence on the 9th count to run concurrently with that on the 5th count.
Prior to trial the appellant filed a motion for a change of venue and a hearing was held thereon. Linda L. Boulden, called by the appellant, testified that she resided in Earleville. She identified a placard as being in most stores around the area. The placard offered a reward to anyone having information about the large number of robberies in the area. She said that the general feeling of the people in the community was that they were upset and bothered about the robberies and wanted to 'put an end to it.' The appellant introduced four newspapers containing reports of crimes, articles on crime and letters to
the editor on the subject. Three of the newspapers were circulated prior to the date of the commission of the crimes with which the appellant was charged. The other, published on the date of his crimes, bore a front page headline, 'Police capture thief suspects.' The lower court found that none of the newspapers were inflammatory 'or in any way remotely prejudicial' to the appellant, including the one carrying the factual report of the capture [248 A.2d 420] of the appellant and other suspects. It felt that the evidence-the newspapers, the placard and the testimony of the witness-did not meet the burden of persuasion that the appellant had been prejudiced. Holding that the appellant could receive a fair and impartial trial in Cecil County and his rights could adequately be protected by a full and complete examination of prospective jurors on their voir dire, it denied the motion. Whether or not non-capital cases should be removed is a matter within the sound discretion of the lower court. McLaughlin v. State, 3 Md.App. 515, 240 A.2d 298. The burden was on the appellant to show that he had been prejudiced by adverse publicity and that the voir dire examination of prospective jurors, available to him, would not be adequate to assure him a fair and impartial jury. See Seidman v. State, 230 Md. 305, 187 A.2d 109; Gray v. State, 224 Md. 308, 167 A.2d 865; Walter v. State, 4 Md.App. 373, 243 A.2d 626. We cannot say that the lower court was clearly erroneous in its judgment on the evidence and find no abuse of discretion in the denial of the motion for a change of venue. Md. Rules, 1086.
The 5th count of the indictment charged that the appellant 'unlawfully did steal, take and carry away' specified goods over the value of $100 of Warren Jay Gerhardt. The count listed certain particularly described goods as stolen and also alleged that goods generally described as particularly described in the count and certain tools contained therein, which would be included in the general designation of 'tools' in the count, were the property of Warren Jay Gerhardt; the other goods were shown to be the property of Cecilton 'In any indictment for any felony or misdemeanor wherein it shall be requisite to state the ownership or possession of any property whatsoever * * * which shall belong to or be in possession of more than one person, whether such persons be partners in trade, joint tenants, parceners, tenants in common or trustees, it shall be sufficient to name one of such persons, and to state such property to belong or to be in possession of the person so named, and another or others as the case may be; and whenever in any indictment * * * it shall be necessary to mention for any purpose whatever any partners, joint tenants, parceners, tenants in common or trustees, it shall be sufficient to describe them in the manner aforesaid.'
Farm & Home Supply, a partnership, the partners being Warren Jay Gerhardt and his father. The appellant claims that the count was defective as not in accordance with Md. Code, Art. 27, § 605, which provides, in relevant part:
The contention of the appellant under this issue, that the contents of the tool box were inadmissible for the reason that the chain of custody was not established, is rendered moot by our finding in II, supra.
THE LEGALITY OF THE ARREST AND THE REASONABLENESS OF THE
During the trial the appellant moved 'to suppress all tangible evidence' on the ground that the search and seizure of it without a warrant was unreasonable because his arrest was illegal. See Md. Rules, 729. After receiving testimony out of the presence of the jury, the lower court denied the motion,...
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Lakeysha P., In re
...observation in a footnote about a merger versus inconsistency issue that had not been raised by the appellant); Sizemore v. State, 5 Md.App. 507, 515-16, 248 A.2d 417, 422 (1968) (legal sufficiency of evidence to support conviction for automobile larceny); Anderson v. State, 3 Md.App. 85, 8......
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...163 Md. 267, 276, 162 A. 705, 708 (1932). See also Wilkerson v. State, 171 Md. 287, 290, 188 A. 813, 814 (1937); Sizemore v. State, 5 Md.App. 507, 519, 248 A.2d 417, 424 (1968); and Rule 756 e, recognizing the right of counsel to argue contrary to the court's advisory instructions when such......
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Waine v. State
...of the prospective jurors, available to him, would not be adequate to assure him a fair and impartial trial. Sizemore v. State, 5 Md.App. 507, 511, 248 A.2d 417 (1968); Mason v. State, 12 Md.App. 655, 678, 280 A.2d 753 (1971), cert. denied, 263 Md. 717. As a general rule to meet this burden......
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