Westcoat v. State

• Decision Date: 02 May 1963
• Docket Number: No. 167,167
• Citation: 190 A.2d 544,231 Md. 364
• Parties: Robert Bruce WESTCOAT v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 364

231 Md. 364

190 A.2d 544

Robert Bruce WESTCOAT v. STATE of Maryland.

No. 167.

Court of Appeals of Maryland.

May 2, 1963.

Joseph Rosenthal and Norman N. Yankellow, Baltimore, for appellant.

Joseph S. Kaufman, Sp. Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, Leonard T. Kardy, State's Atty. for Montgomery Co., Rockville, and Cornelius F. Sybert, Jr., State's Atty., for Howard County, Ellicott City, on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ.

MARBURY, Judge.

From a conviction of murder in the first degree and a sentence of life imprisonment imposed in the Circuit Court for Montgomery County, appellant prosecutes this appeal and presents two questions for our consideration: (1) did the trial court err in permitting the introduction of evidence of another crime, and (2) did the trial court err in permitting the State's Attorney to argue improperly.

Early in the morning of May 29, 1961, Howard County, Maryland, was the scene of two homicides. Officer Parlette of the Howard County Police Department, acting on the report of a suspicious motorist, discovered the body of 'Buddy' Gallion in the office of a service station near the intersection of Routes 29 and 40. Mr. Gallion had been shot and the condition of the office indicated a robbery had taken place. The body was found by Parlette at 1:19 A.M.

After picking up and delivering his superior officer, Lieutenant Harrison, to the service station, Officer Parlette proceeded toward Ellicott City to get a fingerprint kit. Near Ellicott City, on Fells Lane, he came upon a K-9 patrol cruiser, with its beacon light flashing, parked on the roadside. He found the body of Officer Brightwell, a Howard County policeman, lying in the road. He also had been shot. Officer Brightwell's service revolver, summons book, blackjack, and flashlight were all missing. This discovery took place at approximately 1:30 A.M. This location was approximately one mile from the service station where Mr. Gallion was found shot.

At approximately 1:25 A.M. Sergeant Davis of the Baltimore County Police received a radio call about a homicide in Howard County. Observing a yellow and white Metropolitan automobile proceeding easterly on Route 40, he gave chase and brought the automobile to a halt on Rolling Road. The occupants of the small automobile were appellant, who was a passenger, and Clarence Brindle, who was driving. A search of the two men and the automobile disclosed $204 on the appellant, plus a thirty-eight caliber service revolver similar to one carried by Howard County police. There was also found in the automobile a thirty-two caliber automatic pistol, a blackjack similar to the one carried by Officer Brightwell, a flashlight similar to the one carried by the deceased policeman, and his summons book. Later, evidence indicated that there was approximately $200 missing from the service station. The summons book indicated that Officer Brightwell had written a summons charging Brindle with a defective muffler at 1:15 A.M. The thirty-two caliber automatic was determined to belong to Brindle.

Appellant was indicted for murder of Gallion and robbery of the service station in Howard County, and the case was later removed to Montgomery County for trial.

Testimony of several witnesses placed appellant and Brindle at the service station just prior to 1:00 A.M. in the above mentioned automobile. Another witness testified that between 12:50 A.M. and 1:00 A.M., on Route 40, he had been fired at by someone in a similar car, both as to type and color. Brindle, who had been tried and convicted in Howard County for the murder of Officer Brightwell, testified that appellant had shot Gallion and robbed the service station. The appellant, testifying in his own behalf, denied any participation in the crimes and stated that he had been drinking so much, he had no recollection of anything which occurred after he and Brindle had left a bar earlier in the previous evening. He was found guilty by the jury of murder in the first degree, without capital punishment, and was sentenced by Judge Pugh to life imprisonment.

Throughout the trial appellant's trial counsel objected to the admission of any evidence concerning the slaying of Officer Brightwell, but on each occasion was overruled. On this appeal appellant's present counsel argues that such evidence was not only unnecessary and improper, but that its use was calculated solely to inflame the jury.

The real test of admissibility of evidence in a criminal case is the connection of the fact proved with the offense charged. Such evidence which has a natural tendency to establish the fact at issue should be admitted. Mazer v. State, 231 Md. 40, 47, 188 A.2d 552; Pearson v. State, 182 Md. 1, 13, 31 A.2d 624, and cases cited therein. The shooting of Officer Brightwell took place shortly after the shooting of Gallion. The second homicide was evidence tending to show the flight of appellant and his cohort in order to escape apprehension. In many cases, we have upheld the admission of evidence of flight and actions involved in such flight, which tend to show on intent, or consciousness of guilt. MacEwen v. State, 194 Md. 492, 502, 71 A.2d 464; Cothron v. State, 138 Md. 101, 113 A. 620. Cf. Price v. State, 227 Md. 28, 33,...