Wilkins v. State

• Decision Date: 19 August 1968
• Docket Number: No. 114,114
• Citation: 245 A.2d 80,5 Md.App. 8
• Parties: Connie WILKINS, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 8

5 Md.App. 8

245 A.2d 80

Connie WILKINS, Jr. v. STATE of Maryland.

No. 114.

Court of Special Appeals of Maryland.

Aug. 19, 1968.

Sherman W. West, Suitland, for appellant.

Alfred J. O'Ferrell, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr. and Howard S. Chasanow, State's Atty. and Asst. State's Atty. for Prince George's County respectively on brief, for appellee.

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

ANDERSON, Judge.

Appellant, Connie Wilkins, Jr., was convicted in the Circuit Court for Prince George's County by a jury, Judge Perry G. Bowen presiding, of robbery with a deadly weapon (count one) and assault and battery (count five). Appellant was sentenced to a term of twenty years in the Maryland Penitentiary on each count, sentences to run concurrently. From these convictions, the appellant has appealed.

Appellant raises ten contentions in this appeal:

1. That the lower court lacked jurisdiction over the defendant and that the defendant was denied due process of law by the fact that he never voluntarily placed himself under the jurisdiction of the court and had never been afforded an extradition hearing.

2. That the Circuit Court for Prince George's County lacked jurisdiction over the defendant and that the defendant was denied due process of law by the fact that he was never arraigned.

3. That the lower court committed reversible error in refusing to provide appellant with a transcript of the argument of counsel.

4. That lower court erred in refusing to provide the appellant with notes made by the trial judge.

5. That the defendant was denied due process of law and his right to a fair and impartial trial by the manner in which the State conducted a lineup in court prior to the trial.

6. That the court committed reversible error and the defendant was denied due process of law, a fair and impartial trial, and his Sixth Amendment right to compulsory process for witnesses by the failure of the trial court to subpoena witnesses for the defense.

7. That the lower court committed reversible error in allowing the State to impeach a defense witness with her past criminal record solicited from that witness while all witnesses were sequestered.

8. That the verdict of the jury was contrary to and against the weight of the evidence in that the defendant was not sufficiently identified as the perpetrator of this offense.

9. That the verdicts of guilty as to counts one and five of the indictment were invalid since count five merged into count one.

10. That the sentence of twenty years imposed as to count five of the indictment (assault) was excessive and was cruel and unusual punishment.

On March 8, 1966, at approximately 6:20 p. m., Samuel Pellerito, one of the owners, his brother Hugo, a partner, and their manager, Nicholas Mancini, were held up and robbed by three armed gunmen as they prepared to close their place of business known as Sam's Car Wash. Sam Pellerito, who was checking out the time cards, testified that he saw the three robbers come around the side of the building as his brother and Mancini were at the door. Each carried a gun in one hand and held a handkerchief over his face. He testified that they began pistol-whipping his brother and Mancini, knocking them to the floor and at gunpoint, forced him to open the safe. After the safe was opened, the gunman who had knocked him to the floor reached into the open safe and began scooping out the money. He testified that at this time he was able to get a good look at the robber, who had removed his handkerchief and was only two feet away, identifying him as the appellant. He was also able to identify one of the other robbers, who had temporarily removed his handkerchief. Thirteen hundred dollars was taken from the safe. After cleaning out the safe, the robbers fled. Sam Pellerito was the only victim able to identify any of the gunmen. He testified that the day after the robbery he was shown a group of police photographs and was able to identify the appellant and another of the robbers. He further told the court and jury that immediately prior to trial he had picked out the appellant from a group of about twenty five people who had been seated in the courtroom with appellant in their midst. In his testimony, Pellerito was positive that this was the man that robbed him.

In addition to Samuel Pellerito, the State produced Nicholas Mancini, the manager of the cash wash. Mr. Mancini described the robbery and the beatings inflicted by the robbers, but was not able to identify appellant. The State also produced Thomas E. Howie, Deputy Sheriff for Prince George's County, and Glenn Moffett, a United States Marshal, who related to the jury the circumstances surrounding the pretrial identification of the appellant by the witness Pellerito.

A motion for a verdict of acquittal was made at the end of the State's case and denied by the court.

The appellant produced in his behalf his mother, Mary Wilkins, and his girl friend, Barbara Robinson, both of whom testified that he was with them in Washington, D. C. at the time the crime was committed. Appellant also called as witnesses, Jerrold V. Powers, his attorney in a prior case, who testified as to the circumstances surrounding the identification immediately prior to the trial; Samuel Pellerito; Nicholas Mancini; William H. Rutherford; and Louis Blancato. At the close of the whole case, the motion for verdict of acquittal was renewed and denied.

I

Appellant first contends that the lower court lacked jurisdiction to try him because he was not extradited from the District of Columbia Correctional Institute in Lorton, Virginia, to Maryland, in accordance with the Uniform Criminal Extradition Act, Article 41, §§ 16-43, Maryland Code (1957), and that he was thereby denied due process of law.

The appellant, a Federal prisoner serving a 5 to 15 year sentence for a conviction in the United States District Court for the District of Columbia in the D. C. Correctional Institute in Lorton, Virginia, was brought into Maryland for trial under a writ of habeas corpus ad prosequendum. He contends in argument that the mode of bringing him before the Maryland courts was improper and in violation of his rights of due process of law, in that he should have been formally extradited to Maryland in compliance with the Uniform Criminal Extradition Act, Article 41, §§ 16-43, Maryland Code (1957), and that the court lacked jurisdiction to try him.

This contention is devoid of merit. A Federal prisoner, under § 4085 of Title 18, U.S.C.A., may be taken into a State court for trial with the consent of the Attorney General of the United States, and his production is wholly a matter for the Attorney General to determine; Marsino v. Higgins, D.C., 10 F.2d 534, affirmed Marsino v. United States, 270 U.S. 627, 46 S.Ct. 206, 70 L.Ed. 768 and the prisoner may not complain, Chapman v. Scott, D.C., 10 F.2d 156, affirmed, 2 Cir., 10 F.2d 690, cert. denied, 270 U.S. 657, 46 S.Ct. 354, 70 L.Ed. 784; Troyan v. United States Government, D.C., 240 F.Supp. 383. Even in the absence of statute, the Attorney general has the authority to transfer a Federal prisoner to a State court for trial as a matter of comity between sovereigns. Ponzi v. Fessenden, 258 U.S. 254, 261, 42 S.Ct. 309, 66 L.Ed. 607; State v. White, 39 Okl.Cr. 242, 264 P. 647.

Moreover, this Court decided this contention adversely to the appellant in Wilkins v. State, 4 Md.App. 334, 338-339, 242 A.2d 808.

II

Appellant next contends that Maryland Rule 719 was violated, in that he was not arraigned pursuant to the terms of the rule, and, therefore, this lack of arraignment deprived the Circuit Court for Prince George's County of jurisdiction to try the case, and that he was thereby deprived of due process of law. He admits that the docket entries reveal that he was served with a copy of the indictment and that an attorney was appointed for him, but avers that he was never formally arraigned, never heard a reading of the indictment, and never entered a formal plea, as required by sections a. and d. of the rule. ¹

We are unable to agree with appellant's contention that his conviction must be reversed for non-compliance with the rule. Substantial compliance with Rule 719 has been held sufficient. Gouker v. State, 224 Md. 524, 168 A.2d 521; Ayala v. State, 226 Md. 488, 174 A.2d 160. In Ayala v. State, supra, at p. 491, 174 A.2d at p. 162, the Court said: 'While Rule 723 c. (now Rule 719 d.) requires that the record shall affirmatively show compliance with the requirement for an arraignment, it has been established that this Court will not resort to fine technicalities and reverse a conviction 'simply because the record does not show positively that the appellant actually had been formally arraigned or informed of the substance of the charge. Gouker v. State, supra, 224 Md. at p. 527, 168 A.2d (521) at page 523. The authorities are in general agreement that the formalities once observed upon arraignment are no longer required. It is sufficient if it appears that what has been done amounts in substance to an arraignment. 4 Wharton, Criminal Law and Procedure, § 1805; 14 Am.Jur., Criminal Law, § 252; 22 C.J.S. Criminal Law § 411(1)'.'

The essential inquiry therefore narrows itself down to whether or not there has been substantial compliance with Rule 719 a. The docket entries reveal that the indictment was filed on April 1, 1966. Counsel was assigned to him on November 2, 1966 (at which time he was a Federal prisoner); a petition and order for a writ of habeas corpus ad prosequendum was filed November 30, 1966; appellant filed a motion for a continuance on December 1, 1966, which was granted; on January 9, 1967, the bench warrant was returned 'cepi', and a copy of the indictment was given to appellant; a motion for discovery was filed by appellant on February 28, 1967, and trial began on March 9, 1967.

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