Trovato v. State, 1054

• Decision Date: 17 May 1977
• Docket Number: No. 1054,1054
• Citation: 36 Md.App. 183,373 A.2d 78
• Parties: Glenn Joseph TROVATO v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 183

36 Md.App. 183

373 A.2d 78

Glenn Joseph TROVATO v. STATE of Maryland.

No. 1054.

Court of Special Appeals of Maryland.

May 17, 1977.

Paul F. Harris, Jr., Glen Burnie, for appellant.

Francis B. Burch, Atty. Gen., Gilbert Rosenthal, Asst. Atty. Gen., Warren B. Duckett, Jr., State's Atty. for Anne Arundel County and James W. Dryden, Asst. State's Atty. for Anne Arundel County, for appellee.

Submitted to MOYLAN, POWERS and MOORE, JJ.

MOYLAN, Judge.

This case involves the distinction between two measures of proof-1) that which is legally sufficient to permit a result and 2) that which is so conclusive and decisive as to require a result.

The appellant, Glenn Joseph Trovato, was convicted in the Circuit Court for Anne Arundel County by Judge Matthew S. Evans, sitting without a jury, of burglary and larceny. His appellate arguments boil down to the single contention that a State's witness, Paul B. Johnson, Jr., was an accomplice, as a matter of law, so as to have compelled a judgment of acquittal because of the lack of corroboration of his testimony.

On March 17, 1975, the office of Chris Coile and Associates, Inc., was burglarized and looted. Two calculators and a typewriter were stolen. The key testimony implicating the appellant was that of Roy Junior Hines, and admitted and undisputed accomplice. Hines described how he, the appellant and one Bruce Dotson broke the window of the burglarized premises and stole the office machinery. He described having hidden the stolen goods in his own car trunk, how the appellant later received $100 for selling the stolen typewriter and how the appellant turned over $25 of those proceeds to Hines. Since Hines was unquestionably an accomplice, the evidence against the appellant would not have been legally sufficient to sustain a conviction unless the testimony of Hines was corroborated by non-accomplice evidence.

The key witness in that regard was Paul B. Johnson, Jr. Nothing linked Johnson to the burglary itself. Johnson's own testimony, however, revealed that he had inquired of the appellant about obtaining a typewriter for Johnson's employer. The appellant indicated that he 'would work on it.' Johnson testified that a few days later, a typewriter was placed in his car and he subsequently paid the appellant $100 for it. Johnson's testimony was sufficiently damning to himself to indicate that he was quite possibly a knowing receiver of stolen goods. He was employed by the Future Carpet Company as a laborer. His employer told him that he wanted to purchase a typewriter. Johnson asked the appellant if he knew where he could get a typewriter. The appellant replied that he did not but 'would check around and see.' Several days later, the appellant advised Johnson that he had located a typewriter. Johnson told the appellant to 'leave it in the car, in my car.' Johnson there found the IBM typewriter and took it to him employer who paid him $100. The next evening Johnson turned over the $100 to the appellant. Johnson admitted that he knew that the appellant was a mechanic with no access to business equipment. He admitted that he knew that the appellant had a criminal record. He admitted that when he bought the typewriter, he suspected that it was stolen. His possible, or even probable, guilt as a receiver of stolen goods is not the issue for present purposes, however.

The law is clear that a receiver of stolen goods is not, ipso facto, an accomplice of the thief. The person who is the receiver may be an accomplice, but not by virtue of his act of receiving. If the man who is the eventual receiver also happens to be the one who instigated and procured the theft, then he is an accomplice. This is so not because he is coincidentally the receiver but, more significantly, because he is independently an accessory before the fact. ¹ That is the critical act of participation that makes him an accomplice. The law in this regard is clear-cut. In Gardner and Maple v. State, 6 Md.App. 483, 495, 251 A.2d 901, 909, we said:

'Nor is a receiver of stolen goods an accomplice of a thief unless they conspire together in a prearranged plan for one to steal and deliver to the other and pursuant to such plan one does steal and deliver to the other . . . No such plan was here shown. We hold that (the witness) was not an accomplice.'

In Osborne v. State, 4 Md.App. 57, 61-62, 241 A.2d 171, 174, we stated both the general rule and its exception:

'While the rule is that a thief and a receiver are not accomplices . . ., an exception to that rule is recognized when the thief and the receiver of stolen property conspire together, or enter into a pre-arranged plan, for one to steal and deliver the property to the other; and pursuant to such plan, one does steal and deliver to the other.'

At issue is not Johnson's possible status as a receiver of stolen goods but his possible status as an accessory before the fact to the theft. His own testimony is all we have in that regard. Focusing in upon his actions before the fact of the larceny, the testimony is equivocal. There may have been possible 'larceny in his heart,' but he and the appellant had not, according to the testimony, agreed upon a clear and direct course of action. Johnson asked the appellant if he knew where he could get a typewriter. The appellant replied that he did not but 'would check around and see.'

An accomplice is one who knowingly, voluntarily, and with common criminal intent with the principal offender unites with him in the commission of the crime, either as a principal or as an accessory before the fact.' Foster v. State, 11 Md.App. 40, 46, 272 A.2d 810, 813; Watson v. State, 208 Md. 210, 117 A.2d 549. In the present case, we conclude that there was genuine factual question in this regard and that the issue was, therefore, properly referred to the fact finder in his fact-finding capacity. We are in that zone whereof former Chief Judge Murphy spoke in Foster v. State, supra, at 11 Md.App. 46, at 272 A.2d 813:

'We have held repeatedly that when evidence relating to whether a witness is an accomplice is capable of being determined either way and justifies different inferences in respect thereto, the question is for the determination of the trier of fact and in a jury case should be submitted to the jury with proper instructions. Christopher v. State, 9 Md.App. 277, 263 A.2d 605; Gaskins v. State, 7 Md.App. 99, 253 A.2d 759; Burley v. State, (5 Md.App. 469, 248 A.2d 404).'

We agree with the appellant that the evidence was legally sufficient to have permitted a finding that Johnson was an accomplice. The test for legal sufficiency in this regard is precisely what it would be if Johnson himself were on trial and we were measuring the legal sufficiency of the evidence to sustain his conviction. '(T)he generally accepted test as to whether a witness is an accomplice is whether he himself could be convicted for the offense, either as a principal or accessory before the fact.' Foster v. State, supra, 11 Md.App. at 46, 272 A.2d at 813; Sutton v. State, 10 Md.App. 353, 270 A.2d 497. ²

To say that Johnson might be an accomplice on these facts is not, however, to say that he must be an accomplice on these facts. The permissibility of such a finding would simply entitle the appellant in a jury trial to an instruction, upon proper request, to the effect that if the jury found the witness to be an accomplice, they must then find independent corroborative evidence linking the appellant to the crime. The fact that the evidence was legally sufficient to permit the finding that the witness was an accomplice...