Tann v. State

• Decision Date: 11 October 1979
• Docket Number: No. 14,14
• Citation: 43 Md.App. 544,406 A.2d 448
• Parties: Bruce Lee TANN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 544

43 Md.App. 544

406 A.2d 448

Bruce Lee TANN v. STATE of Maryland.

No. 14.

Court of Special Appeals of Maryland.

Oct. 11, 1979.

Alan H. Murrell, Public Defender, and Michael R. Malloy, Asst. Public Defender, for appellant.

Stephen H. Sachs, Atty. Gen., Kathleen M. Sweeney, Asst. Atty. Gen., William A. Swisher, State's Atty. for Baltimore City, and Gary S. Bernstein, Asst. State's Atty. for Baltimore City, for appellee.

Submitted to MORTON, THOMPSON and MOORE, JJ.

THOMPSON, Judge.

Bruce Lee Tann, the appellant, was convicted of transporting a handgun in violation of Md. Code, Ann., Art. 27, § 36B ¹ by the Criminal Court of Baltimore, Judge Shirley B. Jones presiding without a jury. A sentence of three years was imposed. In his appeal appellant presents the following questions:

"1. Did the administrative judge abuse his discretion in declining to grant a postponement requested by appellant?

"2. Did the trial judge abuse her discretion in failing to grant a new trial?

"3. Did appellant's conviction violate due process because it was based on an unconstitutional 'rebuttable presumption' set forth in Art. 27, § 36B (b)?

"4. Did the trial court err by considering at sentencing a crime for which appellant was neither charged nor convicted?

"5. Were the handguns improperly admitted into evidence because the police did not have a reasonable basis for an investigatory stop?"

On February 1, 1978, at about 2:30 a. m. Officer Cole of the Baltimore City Police saw a car circle the block on which an all night carry out shop was located. Within the next hour the car passed the carry out shop three times. When the car stopped in a nearby parking lot Cole requested reinforcements who came and blocked the car. At trial, Cole testified that when he asked the men to step out of the car he saw the appellant, who was seated in the back seat, drop a handgun to the floor of the car. A second gun was found on the floor on the passenger side of the front seat of the car. Both guns were loaded. Warren Nelson was the driver of the car and William McCoy was a passenger in the front seat. The three co-defendants' trial was set for June 28, 1978, but before that date, McCoy escaped from the City Jail and neither his co-defendants nor the State knew where he was on the day of the trial. The State agreed to a postponement requested by defense counsel. A few days before November 2, 1978, when the case was rescheduled for trial, the State informed appellant's counsel that McCoy was in the hands of federal authorities in North Carolina. At trial the State objected to another postponement and the administrative judge denied appellant's request for postponement.

Appellant and Nelson testified that the three men had gone to pick up a friend of McCoy's who would be getting off the bus near the carry out shop. Appellant testified, denying that the car circled the block on which the carry out shop was located and denying he was in possession of a gun.

The first two issues on appeal are both related to the absence of McCoy as a witness. Appellant argues that the administrative judge abused his discretion in declining to grant a postponement in order to obtain the presence of McCoy and that the trial judge abused her discretion by failing to grant a new trial because of the administrative judge's error in denying the postponement. In the absence of a record as to what transpired before the administrative judge there is nothing to review. See Lang v. Catterton, 267 Md. 268, 274, 297 A.2d 735, 739 (1972) and Casson v. Joyce, 28 Md.App. 634, 638, 346 A.2d 683 (1975). We will, however, review the action of the trial judge in denying the motion for a new trial, but it should be noted that the denial of a motion for a new trial is almost never reversed on appeal. Crawford v. State, 37 Md.App. 1, 375 A.2d 240 (1977), Aff'd, 282 Md. 210, 383 A.2d 1097 (1978). In making the ruling in the present case the judge said:

"He (the missing witness) was on escape status and then finally he was picked up in another state. So, the matter was held over until November the 2nd, which was, I think, a fair amount of time to try to have some communication with this missing witness, and indeed the defendant, even though he has known where this witness is now for over a month or six weeks, there has still been no communication with him. What I'm saying is that there is no documentation and indeed no proffer that even if this defendant, this witness, Mr. McCoy, appeared, that he would incriminate himself and lay himself wide open to conviction in favor of absolving this defendant.

"In the absence of such a proffer or any information whatever to document that theory, I am not prepared to say that the trial should have been delayed and that a new trial should be granted, and on that account, I am going to deny the new trial motion because under all of the circumstances, I don't think that Mr. Tann has been deprived of a witness material to his case, a witness who would have come in and testified. There's simply no showing that McCoy would have done so."

We see no abuse of discretion. Although we have found no Maryland case in point, cases from other jurisdictions have held that the trial judge did not abuse his discretion by not granting a postponement when the absent witness was a co-defendant. In Funderburk v. State, 219 Miss. 596, 69 So.2d 496 (1954) the defendant asked for a continuance because of the absence of a witness who was a co-defendant. In that case, the co-defendant was also a fugitive from justice. The court reasoned that the continuance was properly refused because the absent witness, as a co-defendant, could not be compelled to testify.

In State v. Cain, 307 So.2d 621 (La.1975) the court held that the denial of a postponement was proper because the absent witness, also a fugitive from justice, was a co-defendant. The court stated that nothing in the record indicated that either of the co-defendants would have testified that the contraband belonged to them, or that either would waive his privilege against self-incrimination. Thus, the trial court correctly...