Tender v. State

• Decision Date: 09 January 1968
• Docket Number: Nos. 49,50,s. 49
• Citation: 2 Md.App. 692,237 A.2d 65
• Parties: Angelo TENDER a/k/a John Paul Roberts, Larry Jerome MacDonald and David Ray Williams v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 692

2 Md.App. 692

237 A.2d 65

Angelo TENDER a/k/a John Paul Roberts, Larry Jerome MacDonald and David Ray Williams v. STATE of Maryland.

Nos. 49, 50.

Court of Special Appeals of Maryland.

Jan. 9, 1968.

Peter G. Angelos, Richard K. Jacobsen, Baltimore, on brief for appellant.

Donald Needle, Asst. Atty. Gen., on brief with Francis B. Burch, Atty. Gen., Baltimore, Samuel A. Green, Jr., Frank H. Newell, III, Thomas L. Hennessey, State's Atty., former State's Atty., and Asst. State's Atty., for Baltimore County, respectively, Towson, for appellee.

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

ORTH, Judge.

The appellants were charged under an indictment containing five counts, each pertaining to offenses against Conrad Otis McClung: (1) robbery with a deadly weapon; (2) robbery; (3) attempted robbery with a deadly weapon; (4) assault with intent to rob; and (5) assault. They were tried in the Circuit Court for Baltimore County by the court. The verdict as to each appellant was 'Guilty,' Williams and MacDonald being convicted on February 10, 1966 at a joint trial and Tender, having been granted a separate trial, on March 10, 1966. Williams and MacDonald were each sentenced to imprisonment for a term of 18 years and Tender for a term of 20 years.

It is contended on this appeal that:

I. in-court identifications of the appellants and testimony as to the identification of them at lineups were improperly admitted in evidence because:

A. counsel representing the appellants was not present at the lineups;

B. the appellants were illegally arrested.

II. the evidence was not sufficient to sustain the convictions.

I

A. The appellants rely on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, both decided June 12, 1967. The holdings in Wade and Gilbert were that a 'post indictment pretrial lineup at which the accused was exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denied the accused his Sixth Amendment right to counsel (absent an intelligent waiver) ¹ and calls in question the admissibility trial of the in-court identifications of the accused by witnesses who attended the (illegal) lineup.' Gilbert v. State of California, 87 S.Ct. at 1956. For such testimony to be admissible it must be established '* * * by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.' United States v. Wade, 87 S.Ct. at 1939. But testimony as to identification of the accused at an illegal lineup is per se excluded both at the guilt stage and penalty stage of the proceedings, as 'come at by exploitations of (the primary) illegality,' and the State is therefore 'not entitled to an opportunity to show that that testimony had an independent source.' ² Gilbert v. State of California, 87 S.Ct. at 1957, citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, also decided June 12, 1967, determined the extent to which the rules announced in Wade and Gilbert were to be applied retroactively. It held that they affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after June 12, 1967. We adopt this rule for the reasons stated in Stovall and conclude as did the Supreme Court that no distinction is justified between convictions final as of June 12, 1967 and convictions at various stages of trial and direct review. We apply the principles of Wade and Gilbert only to lineups conducted after June 12, 1967. As the lineup in the instant case was conducted prior to that date, Wade and Gilbert afford the appellant no relief.

B. The basis of the contention of the appellants that the in-court identifications of them and testimony relating to the identifications of them at lineups were inadmissible as resulting from an illegal arrest is under the doctrine of Wong Sun v. United States, supra, and the cases following its principles. It has been held that the doctrine of Wong Sun was not intended to and does not, control prosecutions in state courts, Crowe and Williston v. State, 240 Md. 144, 150, 213 A.2d 558, and this Court has held that Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 did not compel the exclusion of testimony as to the identification of an accused in a lineup, as such testimony was not 'tangible' evidence which was the fruit of an unlawful search. Nadolski v. State, 1 Md.App. 304, 308, 229 A.2d 598. There is nothing per se unconstitutional about a lineup and it is not here alleged that the lineups were unfair or unreliable. See Powell v. State, 1 Md.App. 495, 231 A.2d 737. We find that the in-court identifications and the testimony as to the identifications of the appellants at the lineups were properly admissible under the rules of law then applicable, even assuming that the arrests were illegal.

II

The appellants' brief contains no argument in support of the contention that the evidence was not sufficient to sustain the conviction as required by Md.Rule 1031 c 4. In any event, it suffices to say that the record discloses ample evidence to sustain the convictions. The corpus delicti was proved and at the trials the appellants were positively identified as the criminal agents. See Reed v. State, 1 Md.App. 662, 232 A.2d 550. The robbery was carefully planned and skillfully consummated. About 9:00 P.M. on July 18, 1965 Tender and Williams gained access to the McClung home by a ruse and they later admitted MacDonald. They held McClung, the assistant manager of Hutzler's Towson store, his wife and two sons prisoner at gun point all night, obtaining information about the store and its safe, assuring McClung's co-operation by threats of harm to his wife and children. The next morning the appellants forced McClung, his wife and children to drive with them in the McClung automobile to the store. MacDonald remained in the automobile with Mrs. McClung and the children and Tender and Williams, under the guise of auditors, went into the store with McClung before it was open to the public. The robbers herder McClung, the operating supervisor of the store, and several other employees into the safe area at gun point and when the timer on the safe released the locking mechanism, the safe was opened, and, according to McClung, approximately $53,000 was taken. The loot was placed in two suitcases and the operating supervisor was forced to carry one of them out of the store, one of the robbers carrying the other. The appellants left the scene in the McClung automobile with Mrs. McClung and the children. MacDonald got out of the car a few blocks from the store and Williams drove the car with the remaining occupants about three miles, at which point Tender told Mrs. McClung to take the two children, walk directly to York Road, not to try to telephone, hail a taxicab, go directly to the store and not to do anything to get herself hurt. She obeyed the instructions. The appellants were arrested the afternoon of the day of the robbery. As there was credible evidence showing directly the facts to be proved from which the trial court could be fairly convinced, beyond a reasonable doubt, of the appellant's guilt of the offenses charged, its judgments on the evidence were not clearly erroneous and we may not set them aside for the reason that the evidence was not sufficient. McFadden v. State, 1 Md.App. 511, 231 A.2d 910; Md.Rule 1086.

III

At each trial the court had before it all five counts of the indictment and rendered a general verdict of guilty which convicted the appellants on each count. Manning v. State, 2 Md.App. 177, 233 A.2d 821. It appears that the court, as to each appellant, passed judgment on the first count charging the more serious offense, as is the common practice in this State. See Berger v. State, 179 Md. 410 at page 415, 20 A.2d 146.

The convictions on both the offense charged in the first count (robbery with a deadly weapon) and the offense charged in the third count (attempted robbery with a deadly weapon) were not consistent. This Court follows the rule that the failure to consummate the commission of an offense is a necessary ingredient in an attempt to commit that offense. Boone v. State, 2 Md.App. 80 at 114-115, 233 A.2d 476; Wiley v. State, 237 Md. 560, 207 A.2d 478; Franczkowski v. State, 239 Md. 126, 210 A.2d 504, 6 A.L.R.3d 238; cf. Perkins on Criminal Law (1957) Ch. 6, pp. 480-481. Having been convicted of committing robbery with a deadly weapon, the appellants cannot be found to have failed to commit it, which is a necessary ingredient in the proof of the attempt. Therefore the convictions on the third count were improper and must be reversed.

An offense which is inconsistent with another offense is to be distinguished from an offense which merges into another offense. Although the common law doctrine of merger no longer exists in Maryland, a more modern concept of merger of offenses does exist. Bennett v. State, 229 Md. 208, 182 A.2d 815, 4 A.L.R.3d 862; Chittum v State, 1 Md.App. 205, 228 A.2d 628. The true test under the modern concept of merger of offenses, is whether one crime necessarily involves the other. Green v. State, 243 Md. 75, 220 A.2d 131. ³ When the crimes charged in an indictment are not separate and distinct, this Court has considered each case on its facts and applied the rule with relation to them. ⁴ Thus, in the instant case, the offense of assault charged in the fifth count of the indictment did not merge into the greater offenses charged as there was evidence sufficient for the trial court to find that there was an assault separate and distinct from the greater offenses. An...