Turner v. State

• Decision Date: 23 May 1969
• Docket Number: No. 210,210
• Citation: 253 A.2d 777,7 Md.App. 74
• Parties: Gerald Edward TURNER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 74

7 Md.App. 74

253 A.2d 777

Gerald Edward TURNER v. STATE of Maryland.

No. 210.

Court of Special Appeals of Maryland.

May 23, 1969.

James C. Cawood, Jr., Washington, D. C., for appellant.

Henry J. Frankel, Asst. Atty. Gen., Baltimore, Francis B. Burch, Atty. Gen., Baltimore, Richard J. Kinlein, State's Atty. for Howard County, Ronald M. Naditch, Asst. State's Atty. for Anne Arundel County, on the brief, for appellee.

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

MORTON, Judge.

The appellant, Gerald Edward Turner, and Stephen A Johnson were convicted, in separate trials, of first degree murder. Johnson's trial was held in the Circuit Court for Anne Arundel County. Turner's case was removed to the Circuit Court for Howard County, where he was subsequently tried and convicted by a jury. Judge James Macgill sentenced him to life imprisonment.

The record indicates that Milton Finkelstein was murdered during the course of being robbed early in the evening of December 22, 1966, just outside his grocery store in Anne Arundel County. At Turner's trial, John Wesley Pindell, a friend of Turner's was called by the State and, over objection, was permitted to testify that early one morning in the latter part of November, 1966, while waiting for a ride to work, he was joined by Turner and Johnson. He stated Turner told him that Mr. Finkelstein drew money from the bank in order to cash customers' welfare checks on the sixth of every month; that Turner said 'he needed money and everything'; and proposed to 'rob Finkelstein.' He further testified that about three weeks later he again saw Turner and Johnson at the Dixie Hotel in Annapolis and 'the same conversation came up about Finkelstein and these checks he cashed.'

In this appeal it is first contended that such testimony 'was too remote in time, and did not identify which Finkelstein was referred to, there being two who operated stores in the immediate vicinity.' It is argued that under the holding of this Court in Gilchrist v. State, 2 Md.App. 635, 236 A.2d 299, the admission of such testimony constituted reversible error. We disagree.

In Gilchrist, the accused was charged with robbing a Seven-Eleven store. We held that the admission of a statement by him some seven months previously that he could solve his financial problems 'by robbing a McDonald's or the Hot Shoppes' constituted 'evidence which simply indicates a disposition on the part of the accused to commit a crime' and such evidence 'is ordinarily excluded as irrelevant and untrustworthy since it tends to deflect mind of the trier of facts from the single issue of guilt or innocence of the particular crime under consideration.' On the other hand, we recognized, at p. 637, 236 A.2d at p. 300, that 'evidence of a plain, design or scheme which has been put into execution is relevant to the issue of guilt or innocence and, therefore, is admissible if it tends, by reasonable inference, to establish the commission of the crime charged. Wharton, Criminal Evidence, Vol. 1, § 179, p. 354; Underhill, Criminal Evidence, Vol. 1, § 212, p. 502.' In the case at bar, Turner's statements were made within a few weeks of the execution of the crime and constituted evidence of a plan, design or scheme to commit the very crime with which he was charged. The fact that the crime was committed on the twenty-second of the month rather than the sixth of the month and that there were two store owners named Finkelstein would go to the weight of the evidence but not, in this instance, to its admissibility. We find no error in its admission.

In the course of Turner's trial, Johnson was called as a State's witness on the first day of trial. After being advised by the court, out of the presence of the jury, of his right to refuse to answer questions that would incriminate him, and after being permitted to confer with his own attorney, he declined to testify and was excused. On the second day of the trial, he was again called as a State's witness and, after again being advised of his right to decline to answer questions that would incriminate him, he agreed to testify. Johnson thereupon stated that about...