Woodard v. State
| Decision Date | 01 October 1971 |
| Docket Number | No. 46,46 |
| Citation | 13 Md.App. 114,282 A.2d 9 |
| Parties | Richard Barton WOODARD and Charies Midford Demby v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Gary Melick, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Howard L. Cardin, State's Atty. for Baltimore City and Charles O Fisher, Jr., Asst. State's Atty. for Baltimore City respectively, also on the brief, for appellee.
Argued before ORTH, POWERS, and GILBERT, JJ.
On January 16, 1970, Ronald E. Bunting, the properietor of the Woodshed Lounge, located on Moravia Park Drive, was checking a 'trailer' type vehicle behind the Lounge at approximately 3:00 a. m. He saw that the Sergeant DiPino, in response to information he received over the radio, proceeded with Officer Malecki in an attempt to intercept the pickup. He saw the red pickup travelling at a high rate of speed. Officer Malecki, who was driving the police vehicle in which Sergeant DiPino was a passenger, 'cut in front of the truck.' As DiPino started to get out of the car 'a shot came from the truck. And I'm saying I couldn't see exactly who was firing the shot, although I saw a flash. I heard the gunshot. The left window in our vehicle shattered at approximately the same time the shot was fired with glass splattering Officer Hall informed the trial court that he, responding to a call, observed the truck. He said, He was on the left hand side of the truck at the time, 'That would be the driver's side of the truck, * * *.' The truck 'forced me into this pole and stop sign.' After that the truck collided with Sergeant DiPino's car as a result of the ramming by Officer Malecki. Officer Hall identified both appellants as the persons he saw in the truck. He said that shots were fired at him from both the middle of the cab and the driver's side.
lock that had been on the vehicle was broken into three pieces and was lying on the loading platform. Upon opening the door, Bunting observed that several cases of beer were missing and that other cases were stacked near the vehicle door. He closed the metal door leading to the rear of the Lounge and positioned himself so that he could see through a peephole in the door. A few minutes later, he saw three men taking beer from the vehicle The men were 7 to 9 feet away from Bunting, who could see what brand of beer was being removed. He yelled to the trio, 'Get the hell out of here.' He then heard a shot and he fired twice through the peephole in the door. At the time Bunting first observed the broken lock, he dispatched a friend to call the police. He was unable to identify any of the persons that were removing the beer from the vehicle. Bunting, however, was able to relate that the trio fled in a 'red or reddish' pickup truck. Officer Schaeffer said that he saw a relatively new 'red' pickup leaving the area. He was afoot at the rear of the Lounge, in response to the call to the police, and momentarily lost sight of the truck when he ran to his police vehicle in order to pursue. He never thereafter lost sight of it. He stated that the closest he was able to get to the truck while in pursuit was approximately 700 feet. He knew that one of the three persons in the truck was shooting because he heard it and saw the pointed gun and 'flash of gunfire,' although he was unable to specifically identify the person who was doing the shooting onto me * * *. Another shot was fired as it approximately passed us and I fired two shots directly into the cab * * *.' The truck sideswiped the police vehicle and continued on. A roadblock was set up at Sinclair Lane and Belair Road. The driver of the truck managed to get around the road block. The police located at the side of the barricade fired at the truck. Sergeant DiPino heard shots but was unable to distinguish whether they were from the police weapons, the people in the truck, or both. He did observe various police 'scampering for cover' and the truck was emitting smoke. After the truck evaded the road block, Officer Hall and the vehicle containing Officer Malecki and Sergeant DiPino, continued the pursuit. The Sergeant said that The appellant, [282 A.2d 11] Woodard, he said, was driving. Officer Malecki rammed the truck with the police vehicle. Sergeant DiPino said. Woodard was wounded. Demby was apprehended 'as he was crawling over Mr. Woodard.' The police found a .38 caliber snub-nosed revolver on the floor of the truck and a holster for the same on the person of Mr. Woodard. The third person in the truck was on the floor of the cab dead. Appellant Woodard was also found to have on his person four live .38 caliber cartridges. Sergeant Dipino, on cross-examination, said, '* * * shots were fired towards the vehicle' in which he was riding. The police recovered only one gun, although Sergeant DiPino said that at one time he 'saw both of them (Woodard and Demby) with guns.'
The appellant Woodard was indicted for (1) storehouse breaking, (2) assault with intent to murder Sergeant DiPino, (3) assault with intent to murder Officer Marlecki, (4) assult with intent to murder Officer Hall, and (5) carrying a deadly weapon.
Demby was indicted on the same charges except for assault with intent to murder Officer Hall.
At the bench trial before Judge Grady in the Criminal Court of Baltimore, Woodard's motions to suppress evidence and to dismiss the indictments for lack of a speedy trial were overruled. Demby's motion to dismiss and grant appropriate relief was likewise denied.
At the conclusion of the State's case, the appellants moved for a judgment of acquittal which Judge Grady denied. Both appellants elected not to testify and renewed their motions which were again denied.
Appellants were found guilty and sentenced as follows:
As to Woodard: Indictment No. 968-storehouse breaking, Article 27, § Indictment No. 969-assault with intent to murder Sergeant DiPino, sentenced to 15 years dating from January 16, 1970;
32; sentenced to 10 years, concurrent with sentence in Indictment No. 969;
Indictment No. 970-assault with intent to murder Officer Malecki, sentenced to 15 years, concurrent with sentence in Indictment No. 969;
Indictment No. 971-assault with intent to murder Officer Hall, sentenced to 15 years, consecutive with sentence in Indictment No. 969; Indictment No. 972-possession of a deadly weapon, counts 1, 3, 4 and 5, sentenced to 2 years, concurrent with sentence in Indictment No. 969.
As to Demby: Indictment No. 6281-assault with intent to murder Sergeant DiPino, sentenced to 12 years dating from January 16, 1970;
Indictment No. 6282-assault with intent to murder Officer Malecki, sentenced to 12 years, concurrent with sentence in Indictment No. 6281;
Indictment No. 6283, possession of a deadly weapon, counts 3, 4 and 5, 2 years concurrent with sentence in Indictment No. 6281; Indictment No. 6285-storehouse breaking, counts 1, 2, 3, 4 and 5, sentenced as to count 1 only, 10 years concurrent with sentence in Indictment No. 6281.
On appeal, Woodard asserts that the lower court erred in (1) not dismissing the charges against him because he was denied a speedy trial, and (2) that the evidence was legally insufficient to convict.
Demby argues that the lower court erred in (1) convicting him of assault with intent to murder Officer Malecki, and (2) in convicting him of storehouse breaking, and (3) that the evidence was legally insufficient to convict him of any of the charges.
Woodard argues that Judge Grady should have dismissed all the indictments because the constitutional right to a speedy trial had been denied him. He was arrested on January 16, 1970, and confined, after his release from the hospital, to the Baltimore City Jail, until December 1, 1970, a period of time 15 days short of 11 months. The record discloses that the indictments were filed on April 1, 1970. Arraignment was had on April 21, 1970. Counsel was appointed on April 27, 1970. The appearance of counsel and a motion for discovery and inspection were filed April 28, 1970. The State's answer to the motions was filed June 1, 1970. On November 13, 1970, appellant filed a motion to suppress. The State filed supplemental answers to the motion for discovery on November 20, 1970. The motion to dismiss for lack of speedy trial was filed by Woodard on November 24, 1970. Trial was held on December 1, 1970. Counsel for Woodard contends that the case was set for trial on July 7, October 28 and November 19, 1970, and on each date was postponed by the State.
At the hearing on the motion to dismiss, Woodard offered no testimony. The transcript reveals that counsel alleged in his motion that he 'had lost control of some of our witnesses because of what had happened in the...
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