Spencer v. State, 444

• Decision Date: 15 July 1970
• Docket Number: No. 444,444
• Citation: 10 Md.App. 1,267 A.2d 323
• Parties: Paul Wilbur SPENCER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 1

10 Md.App. 1

267 A.2d 323

Paul Wilbur SPENCER v. STATE of Maryland.

No. 444.

Court of Special Appeals of Maryland.

July 15, 1970.

Certiorari Denied Oct. 13, 1970.

Alan M. Wilner, Baltimore City, for appellant.

James F. Truitt, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty., and Edward A. DeWaters, Jr., Asst. State's Atty. for Baltimore County, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

Paul Wilbur Spencer, tried by the court in the Circuit Court for Baltimore County, was found guilty of making an assault upon Nancy Anne Davis with intent to murder her.

Appellant firstly contends that the evidence was not sufficient to sustain the conviction. His argument goes to the corpus delicti and not to his criminal agency. He claims that based upon the court's findings and the evidence supporting them, he was 'simply charged with and convicted of the wrong crime.' He urges, in effect, that the crime on the facts found by the court was assault with intent to rape. In rendering its verdict the court said:

'There's no question in my mind, and I find as a fact, that this Defendant knew that Mrs. Davis lived in the apartment across the street from him, that she was separated from her husband, that she had a boyfriend who visited her-I make no apologies for what she obviously was conducting as her way of life, that is up to her-but there's no question in my mind, and I find as a matter of fact, that the Defendant did indeed enter Mrs. Davis's apartment by way of cutting the screen, and that he did indeed have in his mind an intention to have sexual intercourse with her. There is no question in my mind, and I find as a fact, that pursuant to that intention he had with him a knife, with which he threatened her of death and destruction unless she yielded-although, perhaps he did not specifically express his intentions-but unless she yielded to his desires. I find as a matter of fact that on the early morning of July 4th Mr. Spencer, in the words of the indictment, did feloniously make an assault upon Nancy Anne Davis with intent then and there feloniously, willfully and of malice aforethought to murder said Nancy Anne Davis.'

We cannot say that this judgment of the court on the evidence was clearly erroneous. Maryland Rule 1086. The evidence established that a man, positively identified at trial by the victim as appellant, broke into her apartment about 4:30 in the morning, held a knife at her throat, told her if she screamed one more time he was going to cut her throat, and later told her he was going to take her down to the basement and cut her throat. It may be that he intended to rape her, but we think the evidence, in law, was sufficient, as the court found, to establish that he also intended, during the assault on her, to murder her.

Appellant secondly presents questions concerning the admissibility of the judicial identification of him by the victim. He claims that it was tainted by an illegal pretrial confrontation. Evidence of the pretrial identification was not adduced by the State but by appellant on cross-examination of the victim and of the arresting officer. As the State did not offer it either as substantive evidence of identification or as corroborative evidence of a judicial identification, its admissibility is not at issue. When appellant told the victim he was going to take her down to the basement and cut her throat he marched her toward the door. '(A)s we were going out the door he had ahold of my one arm, and he had put this knife in his back pocket, and the door opens this way and he was standing on the side of me, and I just took the door and pushed him out of the apartment with it; and so that's how he got out of the apartment. Then I started hollering and screaming and my neighbors, all came running * * * I called the police right away.' The police arrived promptly and were told what had happened by the victim. As a result of information received from a neighbor an officer walked across the street and found appellant 'stooping down' in the bushes. A knife about six inches long, 'a silver knife with a black handle', was found 3 to 5 feet from appellant. The officer told appellant to come out. 'When he was walking out of the bushes, the victim, who was standing on her porch, said 'he was the subject responsible." The victim said she was 15 or 20 feet from appellant when he came out of the bushes. The police did not bring him over to her; they said, 'Is this the one?' 'And I looked at him, and, I said, 'Yes, that's the man.' And I'm not very likely to ever forget him.'

The answer to appellant's argument that this confrontation was illegal because of the absence of counsel representing him is that a confrontation under such circumstances is simply not within the contemplation of ...