Veney v. State

• Decision Date: 15 October 1968
• Docket Number: No. 565,565
• Citation: 246 A.2d 608,251 Md. 159
• Parties: Earl VENEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 159

251 Md. 159

246 A.2d 608

Earl VENEY v. STATE of Maryland.

No. 565.

Court of Appeals of Maryland.

Oct. 15, 1968.

Daniel E. Klein, Jr., Baltimore, and Wallace E. Hutton, Frederick, for appellant.

David T. Mason, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, Baltimore, and Robert S. Rothenhoefer, State's Atty. for Frederick County, Frederick, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

SMITH, Judge.

The appellant was tried by a jury in Frederick County under four indictments returned by the Grand Jury of Baltimore City. He was convicted of assault with intent to murder Lt. Joseph P. Maskell of the Baltimore City Police Department, robbery of Leo Lewis and Clarence Robert Friday with a dangerous and deadly weapon, and assault and battery upon John Drake.

The charges in these indictments grew out of an incident which took place at Luxie's Liquor Store at 2002 Greenmount Avenue, Baltimore City, at approximately 9:40 P.M. on December 24, 1964.

There was evidence before the jury of entry into the liquor store of a man with a gun who announced a holdup. He cleaned out two cash registers. Leo Lewis was the manager on that evening. A second man entered the store and at the direction of the man with the gun pulled a burglary camera from the wall. Customers in the store, including Drake, were directed to a certain part of the store. Drake and a fellow customer were directed at gun point to place their hands on the counter.

Friday, a customer, had a $10.00 bill in his hand with which he was bargaining for a transistor radio. The person holding the gun directed Friday to come to him, waving the pistol at him. Friday was then relieved of the $10.00 by the man holding the pistol. Friday identified appellant as the person who held the pistol.

The robbers left the store upon being advised that the police were coming. Lt. Joseph P. Maskell testified he arrived at the scene, saw two men standing in the doorway of the liquor store and intercepted one of the men. He was in the process of frisking the intercepted man when three other men appeared in the doorway of the liquor store, one of whom fired a shot which struck Lt. Maskell in the right chest. Lt. Maskell then dove through the air, landing on his face. While attempting to get his revolver from his service holster, he was shot in the back. Lewis, the store manager, also testified as to the shooting of the police officer.

Willis E. Taylor testified as to the planning of the robbery that afternoon by Timothy Brown, Samuel Veney, Taylor and appellant. He further testified as to the entry in the store for the robbery of Samuel Veney and Taylor, later followed by Timothy Brown and appellant. He identified appellant as the one who pulled the camera down. He identified Samuel Veney as the one whom Lt. Maskell had apprehended. Taylor said he saw appellant shoot Lt. Maskell.

Walter Ferguson stated that he knew appellant, Samuel Veney, Timothy Brown and Willis Taylor. He saw them on the night in question on a street corner near Luxie's Liquor Store. They told him they were going to rob the store. He left to get his suit from the tailor's shop. When he returned they were in the process of going in and robbing the store. He testified Taylor and Samuel Veney were the first two who went in. He saw the arrival of Lt. Maskell and the ensuing scuffle. In response to the question, 'What happened after something hit the ground?', Ferguson replied, 'That is when I seen Earl Veney-he shot the police officer.'

Frances Mitchell testified that on Christmas Eve of 1964 she was at the home of Thelma Langley. She had known appellant and his entire family for a number of years. Appellant came to the Langley home at approximately 10:00 P.M. on that evening. She overheard appellant and the other two individuals who came in about the same time (Samuel Veney and Taylor) talking among themselves about a policeman who had been shot. She heard appellant say he thought he had shot the policeman.

I.

Appellant claims error by the lower court in overruling his exceptions to the State's answers to demands for particulars.

Demands for particulars were filed in all four cases. One demand requested the name and address of each and every person who was present at the scene at the time of the alleged crime, including the alleged victim. The State excepted to the request for names and addresses of those present at the scene of the alleged crime as not being a request properly obtainable on demand for particulars.

Appellant demanded the nature of the weapon alleged to have been used including description of the size; manufacturer, if any; serial number, if any; and the color of such weapon. The State excepted to the request for description of size, manufacturer, serial number and color as being a matter of proof at the trial and not properly available on demand for particulars.

Maryland Rule 715 a provides in pertinent part:

'On motion of the defendant, the court may order the filing of a bill of particulars within such time as the court may fix. * * *.' (emphasis supplied)

The grant or refusal of particulars is within the sound discretion of the trial court. It is not a matter of right. Hadder v. State, 238 Md. 341, 350, 209 A.2d 70 (1965). Pearlman v. State, 232 Md. 251, 261, 192 A.2d 767 (1963), cert. denied, 376 U.S. 943, 84 S.Ct. 797, 11 L.Ed.2d 767 (1964), Seidman v. State, 230 Md. 305, 313, 187 A.2d 109 (1962), cert. denied, 374 U.S. 807, 83 S.Ct. 1696, 10 L.Ed.2d 1031 (1963). The purpose of a bill of particulars is to guard against the taking of an accused by surprise by limiting the scope of the proof, Hadder v. State, supra. This Court will not reverse a denial of particulars unless there has been a gross abuse of discretion resulting in injury to the accused. Pearlman v. State, supra. It would appear, as we said in Williams v. State, 226 Md. 614, 619, 174 A.2d 719 (1961), cert. denied, 369 U.S. 855, 82 S.Ct. 943, 8 L.Ed.2d 13 (1962), that the demand was calculated not so much to amplify the allegations of the indictment as to require complete disclosure by the State of the evidence it relied upon. There is no abuse of discretion in sustaining the State's exception to a demand under such circumstances. Williams v. State, supra.

In general, the rule in other jurisdictions is in accord with that of Maryland. See annotation in 5 A.L.R.2d 444, 447 (1949).

We believe the appellant was fairly apprised of the scope and nature of the charges against him. On the basis of the indictment the appellant was clearly able to prepare his defense. The language of the indictment was such as to protect him against a subsequent prosecution for the same offense. Seidman v. State, supra.

II.

The motion for discovery and inspection filed by the appellant asked for copies of all written statements of three co-defendants who were charged with the same crimes with which appellant was charged. Appellant contends he is prejudiced by refusal of the lower court to require the State to submit this information.

Under Maryland Rule 728 a the State may be required to supply a copy of any written statement made by the appellant, the substance of any oral statement made by the appellant which the State proposes to produce as evidence to prove its case in chief and the substance of any oral confession made by him. No Maryland rule provides for disclosure of written statements of a codefendant. Rule 16 of the Federal Rules of Criminal Procedure requires no such disclosure. Maryland Rule 728 was modeled on Rule 16, Kardy v. Shook, 237 Md. 524, 539, 207 A.2d 83 (1965). In some respects the Maryland rule is broader than the Federal rule in that it does permit discovery as to witnesses the State proposes to call. It is to be noted that in prosecutions in the United States Courts the statement sought by appellants would be obtainable under 18 U.S.C. § 3500, but not until after the witness had testified on direct examination. There is no similar statute in Maryland.

23 Am.Jur.2d, Depositions and Discovery, § 316 states:

'* * *. It has been held that statements obtained from codefendants or co-conspirators, even if they were given pursuant to a subpoena, are not discoverable under Federal Criminal Rule 16.'

See also annotation on the subject in 7 A.L.R.3d 8 (1966).

A somewhat similar question was before this Court in McKenzie v. State, 236 Md. 597, 204 A.2d 678 (1964). Appellant there maintained the trial court denied him equal protection and due process when it refused to order the State to produce written statements of the two complaining witnesses. This was a case involving unnatural and perverted sexual practice. There was a contention by the defense that these witnesses were accomplices and in one aspect of the opinion they were so treated for the purposes of argument, although not on the discovery issue. Judge Sybert for this Court said:

'To support his request for the statements the appellant relies on Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), but the Supreme Court has stated that that decision was applicable only to federal criminal prosecutions, Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The appellant admits in his brief that his request was beyond the scope of Maryland Rule 728 dealing with discovery in criminal cases. We have stated consistently that a request for the production of documents or statements in the possession or control of the State is within the sound discretion of the trial court. Williams v. State, 226 Md. 614, 174 A.2d 719, cert. den. 369 U.S. 855, 82 S.Ct. 943, 8 L.Ed.2d 13 (1961); Glaros v. State, 223 Md. 272, 164 A.2d 461 (1960); Whittle v. Munshower, 221 Md. 258, 155 A.2d 670, cert. den. 362 U.S. 981, 80 S.Ct. 1069, 4 L.Ed.2d 1016 (1959), and see case note, 20 Md.L.Rev. 292; State v....