Stocker v. State

• Court: Maryland Court of Appeals
• Writing for the Court: Before MURPHY; MURPHY
• Citation: Stocker v. State, 242 A.2d 588, 4 Md.App. 275 (Md. App. 1968)
• Decision Date: 04 June 1968
• Docket Number: No. 246,246
• Parties: John M. STOCKER, Jr. v. STATE of Maryland.

Page 275

4 Md.App. 275

242 A.2d 588

John M. STOCKER, Jr. v. STATE of Maryland.

No. 246.

Court of Special Appeals of Maryland.

June 4, 1968.

Beverly S. Pearson, Rockville, for appellant.

Bernard L. Silbert, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Baltimore, William Linthicum, Andrew L. Sonner and William Cave, State's Atty., Deputy State's Atty. and Asst. State's Atty. for Montgomery County, Rockville, on the brief, for appellee.

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

MURPHY, Chief Judge.

Appellant was convicted of statutory nighttime burglary ¹ of the dwelling of Ernest Burgdorf by a jury in the Circuit Court for Montgomery County, Judge John P. Moore presiding, and was sentenced to the custody of the Department of Correction for twenty years. He contends on this appeal:

1. That the trial court erred in allowing the prosecution, over appellant's objection and after the State presented its case, to abandon count 5 of the indictment, charging the appellant with the lesser offense of receiving stolen goods.

2. That the arrest of appellant was unlawful, and evidence obtained by search of his person should have been excluded.

3. That appellant was prejudiced by the trial court's refusal to hear testimony relating to a motion to suppress evidence out of the presence of the jury.

4. That there was insufficient evidence for the jury to find that the breaking and entry took place in the nighttime rather than in the daytime.

The record discloses that on September 17, 1966 at approximately 10:00 p. m., Henry Lehr, a resident of 4114 Edgevale Court in Chevy Chase, observed three men walking past the Clarkson home, four doors away. Lehr testified that he became suspicious because the three were only fifteen feet from the Clarkson house and appeared to be 'sneaking around' as if 'they did not want to be seen.' When two of the men proceeded to the rear of the Clarkson home, Lehr called the police.

Captain Leahy of the Montgomery County Police Department heard a call over his car radio that three prowlers had been observed in Edgevale Court. Being in that vicinity, Leahy promptly responded to the call and was approximately one block from the origin of the complaint when he saw a man, who he later identified as the appellant, emerge from behind some shrubbery. Leahy shone his car lights on appellant and when appellant came near his car, Leahy shone his flashlight on him, told him he was a police officer, and asked whether he could be of help. Appellant responded to Leahy's statements by immediately fleeing in the direction of the East West Highway and the railroad bridge. Leahy testified that he had an opportunity to observe the appellant for approximately forty seconds and that he broadcast a description of him as being wanted for 'investigation of prowling,' that description being:

'Man, five foot eight, well dressed, wearing a gray suit, no hat, and running in the general direction of the bridge-a white subject.'

After broadcasting the description, Leahy proceeded to the Clarkson residence to investigate the prowler call, at which time he observed that 'the Clarkson house had been entered by the back door,' which had been 'jimmied open' and 'ripped off.' Leahy then rebroadcast appellant's description over his police radio, this time stating that he was wanted for investigation of burglary. Within three minutes after this broadcast, Leahy was advised that Officers Kiliany and Greeley had apprehended a suspect on East West Highway. Upon going to the scene of the arrest, Leahy observed that it was the appellant whom the officers had arrested. Eleven minutes had passed from the time Leahy first saw appellant to the time of his arrest.

Each arresting officer testified at the trial that they received a call over their car radio describing a suspect wanted for burglary; that the description was for a white male, neatly dressed, five foot, ten inches, dark hair, and wearing a gray suit. Within a few minutes thereafter, as they were near the bridge on East West Highway, the officers observed a person answering the description of the suspected burglar. When they approached him, he ran behind a car and was about to jump over a fence when he was arrested by the officers.

Appellant was preliminarily searched at the scene, and a large number of coins were discovered in his pockets. A more thorough search ensued at the police station, where the police removed his wallet containing $300.00 and $23.35 in coins, consisting of one 1900 silver dollar, $13.00 in half-dollars, $2.50 in Kennedy half-dollars, $4.75 in 1964 quarters, and $2.10 in 1964 dimes.

At a few minutes past eleven on the same evening, Mrs. Ernest C. Burgdorf, of 8107 Kentberry Drive, Bethesda, reported to the police that the kitchen door to her home had been broken open, the bedrooms ransacked and the following items taken: a mink stole, a watch, a diamond and sapphire ring, and $23.35 in coins of the denominations found in the appellant's pocket. Though the ring and watch were never recovered, the mink stole was later found in the front yard of 4107 Edgevale Court.

During the investigation of the Burgdorf burglary, Lt. LaMaster removed a pink angora sweater from the bedroom, which had been thrown on the floor during the ransacking, and had it forwarded to the F.B.I. laboratory for processing, along with articles of appellant's clothing. The laboratory report indicated that approximately a dozen hairs which could have come from the sweater were located on appellant's jacket.

The sole witness for the defense was a numismatist who testified that the particular coins found on the appellant at the time of his arrest had no particularly distinctive markings which would make them readily identifiable.

I

We see no merit in appellant's contention that the trial court committed prejudicial error by allowing the State to abandon the fifth count of the indictment (receiving stolen goods) after the trial had begun. Maryland Rule 711 provides that a nolle prosequi of the indictment may be entered by the State's Attorney only in open court. In Boone v. State, 3 Md.App. 11, 25, 237 A.2d 787, we held that if a nolle prosequi is entered without the consent of the defendant after trial has begun, jeopardy attaches because it operates as an acquittal. See Hochheimer, The Laws of Crime and Criminal Procedure, 2d Ed. § 152, p. 171. It is thus clear that appellant's argument that he might be subjected to a future indictment on the abandoned count is entirely groundless. In its brief, and in oral argument, the State conceded that its 'abandonment' of the fifth count was the equivalent of its entering a nolle prosequi, and for the purposes of this case, we so consider it.

Appellant also maintains that the State's abandonment of the receiving count during trial constituted prejudicial error in that it removed his right to have the jury pass on the...