Thompson v. State

• Decision Date: 22 April 1968
• Docket Number: No. 261,261
• Parties: Charles Francis THOMPSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 31

4 Md.App. 31

240 A.2d 780

Charles Francis THOMPSON v. STATE of Maryland.

No. 261.

Court of Special Appeals of Maryland.

April 22, 1968.

[240 A.2d 782] Charles L. Carter, Jr., Baltimore, for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William B. Whiteford, Jr., Asst. Atty. Gen., Charles E. Moylan, Jr. and Charles A. Herndon, Jr., State's Atty., and Asst. State's Atty., respectively, on brief, for appellee.

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

ORTH, Judge.

The appellant was found guilty by a jury in the Criminal Court of Baltimore of the following offenses and punishment was imposed as designated: larceny of $265 of the money of Joseph G. White, 6th count of indictment No. 4048-15 years; larceny of the use of an automobile of Paul V. Forrest, the younger and his agents, 3rd count of indictment No. 4045-1 year consecutive with the sentence under indictment No. 4048; glue sniffing, indictment No. 4079-a fine of $25.

SPEEDY TRIAL

The appellant contends that he was denied his constitutional right to a speedy trial. He was presented on August 18, 1966, indicted on August 30, 1966, his trial commenced on May 23, 1967 and was concluded on May 26, 1967. During the period between indictment and trial he was arraigned on 6 September and re-arraigned on 14 September. On 20 September he filed a motion to dismiss the indictments and a motion for discovery and inspection. On 26 September he filed a written plea of 'not guilty, not guilty-insane then and now.' The next day

                an order of court directed that he be transferred to the Clifton T. Perkins State Hospital for examination and evaluation.  On 29 November a medical report was filed.  1  On February 8, 1967 the State answered the motion for discovery and inspection and the motion to dismiss the indictments.  On 6 April the State filed supplemental answers to the motions.  The motion to dismiss the indictment was not on the ground that a speedy trial had been denied him.  The appellant claims that he filed a motion for dismissal on the ground of denial of a speedy trial 'sometime after April 18, 1967.'  The record does not disclose this motion, but in any event, the matter was considered by the court on 24 May at which time he alleged that the case had been set for trial on 8 February and 13 April but postponed by the court at the request of the State's Attorney.  On the first occasion, however, it appeared that one of the reasons for the postponement was [240 A.2d 783] that the appellant's counsel was 'going to the hospital on 13 February' and 'acquiesced' in the postponement.  He was in the hospital about 14 days-'I was operated on a Monday and came back to work the second Monday after that.  I wasn't in any shape of trying a case.'  On 13 April the State requested the postponement because all its witnesses were not present.  The appellant was consulted at that time and elected to have all the cases tried together rather than proceed with those cases in which the witnesses were present.  We see no capricious or purposeful delay on the part of the State.  Therefore such delay as existed was not unreasonable or unnecessary and was not a delay in the constitutional sense.  Further, the accused waived his right to a speedy trial by failing to demand it.  Assuming that he demanded it shortly after 18 April, the time between that demand and his trial was not an unreasonable delay.  In any event, he has shown no actual prejudice caused by undue delaying tactics of the State.  Fabian v. State, Md.App., 239 A.2d 100, filed February 29, 1968.  We hold that the appellant was not denied a speedy trial
                

THE CHARGE TO THE JURY

In its instruction to the jury the lower court said:

'In these cases, as in all other criminal cases, the The appellant claims that this instruction was 'tantamount to an instruction that the State only had to prove its case by the preponderance of the evidence.' We do not agree. We think that the challenged instruction correctly stated the law. We approved comparable language in Avey v. State, 1 Md.App. 178, 189, 228 A.2d 614, and the Court of Appeals approved practically identical language in Lambert v. State, 193 Md. 551, 558-561, 69 A.2d 461. We find no error in the instruction.

burden of proof is upon the State to prove every element of a crime charged against the defendant. Therefore I say to you that the accused is presumed innocent until proven guilty beyond a reasonable doubt. This presumption of innocence attends him throughout the trial until overcome by proof establishing his guilt beyond a reasonable doubt and to a moral certainty. The defendant is entitled to every inference in his favor which can reasonably be drawn from the evidence. Now while the burden is upon the State of establishing proof of every fact material to the guilt of the defendant, including every circumstance that enters into the crimes charged beyond a reasonable doubt and to a moral certainty, that does not mean, however, that the State must prove the defendant guilty to an absolute or mathematical certainty. It means such evidence as you would act upon in a matter involving important affairs in your own life or in your own business or with regard to your own property. Now if the evidence is such that you would act upon it in very important matters in your own life then it is sufficient to convict in a criminal case. Evidence is sufficient to remove a reasonable doubt when it convinces the judgment of an ordinarily purdent man or woman of the truth of a proposition with such force that he or she would act upon that conviction without hesitation in his or her own important affairs. To prove guilt beyond a reasonable doubt it is not necessary that every conceivable coincidence consistent with innocence be negatived.'

THE LINEUP

The appellant contends that because he did not consent to appear in a lineup, he was denied his constitutional right against self-incrimination. The testimony with respect to the identification of the appellant in a lineup to which the appellant refers in his brief was admitted in evidence without objection by him. The point is, therefore, not properly before us. Md. Rules, 1085. In any event, we think it clear that the placing of an accused in a lineup without his consent is not constitutionally proscribed. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. The requirements as to the presence of counsel at a lineup announced in Wade and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 do not apply to the appellant as the lineup in which he appeared was held prior to the decisions in those cases and they are not retroactively applied. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Tender v. State, 2 Md.App. 692, 695-696, 237 A.2d 65.

THE ARREST

The appellant contends that the evidence produced against him should have been suppressed and the indictments against him should have been dismissed because his arrest was illegal. Evidence adduced by the State on the issue of the arrest showed that a police officer saw an automobile containing three male persons parked beside a tavern. Two were in the front seat (the appellant was on the right side of the front seat) and one in the back. 'All three of them had paper bags up to their faces.' When they saw the officer 'they all three dropped the paper bags and jumped out of the automobile and started running.' The officer chased the appellant on foot and then in a cruising patrol car. The car caught up to the appellant and he stopped on order of the officer. When the officer got out of the car the appellant again ran. 'By that time he was pretty well tired. He cut up an alley. There were kids playing in the alley. I reached out and grabbed him by the shoulder * * * He seemed to be in an intoxicated condition.' He 'had a strong odor of what appeared to be glue on his person. There were traces of white residue which appeared to be glue on his fingers and on his shirt * * * His face was flushed and the pupils in his eyes were "Presence' is a word of art, denoting that the commission of a misdemeanor is perceptible to the officer's senses, whether they be visual, auditory, or olfactory. * * * (A) crime is committed in the presence of an officer where his senses afford him knowledge that such is the fact; and that where some evidence of a commission of a misdemeanor reaches an officer through his senses, and it is augmented by other strongly persuasive facts in his possession, all of which is sufficient to convey virtual knowledge to any normal mind that the misdemeanor is then being committed, the officer may act upon such information as being tantamount to actual knowledge that the misdemeanor is being committed in his presence.'

real big * * * extra large * * * that indicates he was under some kind of a form of drug or narcotic or intoxicated * * * While I was chasing him, as he was running, it wasn't the way a normal person would run. This was more of a lope, of a long stride of one foot coming down and a hop in the air. He would go like a gazelle or a gnu.' The officer placed the appellant under arrest. The officer had made other arrests involving the crime of glue sniffing and was familiar with the methods of sniffing glue and its effect on the person inhaling it. We think it clear that the officer observed the appellant committing a misdemeanor in his presence. Md.Code (1967 Repl.Vol.), Art. 27, § 313A. We said in Salmon v. State, 2 Md.App. 513, 522, 235 A.2d 758, 763:

Flight, under the circumstances here, could reasonably be viewed as evidence of guilt of a particular crime, namely glue sniffing proscribed by Md.Code, (1967 Repl.Vol.), Art. 27, § 313A. See Salmon v. State, supra. Accordingly the appellant's arrest was grounded upon the reasonable belief that he was committing a misdemeanor in the presence of the officer. Therefore the arrest was...