Marini v. State

351 A.2d 463, 30 Md. App. 19, 1976 Md. App. LEXIS 530

• Court: Court of Special Appeals of Maryland
• Decided: January 28, 1976
• Docket: 95, September Term, 1975
• Status: Published

Opinions

Morton, J.,

delivered the opinion of the Court. Davidson, J., dissents and filed a dissenting opinion at page 31 infra.

A jury sitting in the Circuit Court for Charles County found appellant guilty of receiving stolen goods. Judge James C. Mitchell, who presided, sentenced appellant to a term of five years. The issues raised in this appeal, which require only a brief statement of the facts, will be treated seriatim.

There was evidence to show that on September 29, 1974, James Renjilian, who lived in Oxon Hill, Maryland, discovered that his 1966 Ford Mustang, which he had left locked in his driveway, was missing. On November 3, 1974, at about 8 p.m., two officers associated with the Charles County Sheriffs Department, responded to a call concerning a possible breaking and entering of an abandoned store located in Indian Head, Maryland. Upon their arrival, they discovered the car previously stolen from Mr. Renjilian parked in front of the store. They apprehended the appellant inside the store. According to the police, the appellant, having been advised of his rights, originally disclaimed ownership of the car. After one of the police officers found a note in the car bearing the appellant’s name, the appellant told the officers that he had purchased the car in Virginia. No certificate of title, registration card or similar document was found when the police searched the appellant’s person and the vehicle.

At trial, the appellant, having been advised of his rights, elected to testify. On direct examination he stated that in both 1967 and 1970 he had been convicted of offenses involving stolen motor vehicles. He conceded that at the time of his arrest he was in possession of a 1966 Ford Mustang but insisted that he had purchased the automobile in Alexandria, Virginia, on October 8, 1974. He offered testimony concerning the circumstances surrounding the purchase of the car and an explanation as to why he did not have the title or registration certificate. He denied that he had stolen the car and that he had any knowledge that the car had been stolen.

On cross-examination the appellant stated that he had gotten the license plate found on the car at the time of his arrest from a friend named “Miss Carter” who lived on Duke Street in Alexandria, but he could not remember the house number. The following colloquy between the state’s attorney and the appellant then took place:

“Q. Where is Miss Carter today?

A. Who?

Q. Miss Carter.

A. (Witness shakes head.) I don’t know.

Q. Who is Miss Carter?

A. Miss Carter?

Q. Uh-huh.

A. It is a friend of mine.

Q. All right. You don’t know where she is today?

A. (Witness shakes head.)

Q. Have you made any efforts to get in touch with her?

Q. That is a ‘no,’ I take it. Why not?

A. (Witness shakes head.)

Q. Huh? You just said a few minutes ago that the tags you had on the car was hers? Wouldn’t she be capable of backing that story up? Huh?

A. (No response.)

Q. Yes or no, sir?

Q. The tags weren’t stolen from her, were they? Or were they?

THE COURT: Mr. Marini [appellant], you will have to respond to the questions. You will have to answer the questions.

THE WITNESS: No, the tags weren’t stolen.

BY MR. NALLEY:

Q. From her?

A. No.

Q. Would it surprise you to learn that they were in fact stolen from somebody else? Yes or no, sir? Would it surprise you to learn that they were in fact stolen from somebody else?

Q. Do you know a Kathleen F. McCarthy?

MR. NALLEY: Your Honor, I would ask that you instruct him again to respond either ‘yes’ or ‘no’ to that question.

THE COURT: Yes, Mr; Marini, you will have to answer the questions. Do you understand the question?

THE WITNESS: Yes, I understand it.

THE COURT: All right, you will have to answer it. Can you answer it ‘yes’ or ‘no’?

Q. Do you know, sir, a Kathleen F. McCarthy?

A. (No response.)

Q. Are you familiar with the address 4600 Duke Street, Alexandria?

A. Yes, I am familiar with it.

Q. With this address, what kind of place is this?

A. It is an apartment.

Q. All right, do you know a Miss McCarthy who lives in that building?

A. Yes, I know her.

Q. All right, what kind of car does she have?

A. What kind of car does she have?

A. She just bought a brand new one.

Q. Would it surprise you to learn that the tags that were on the car you were driving, on the 3rd of November, belonged to her?

A. Yes, I know they belonged to her because she let me use them.

Q. I thought you said a few minutes ago that a Miss Carter let you use them?

A. Same name. Same name because I ain’t seen her in years. Only been going around to see her once in a while.

Q. How did you get the tags from her?

A. I borrowed them. I borrowed them from her.

Q. Would it surprise you to know that she reported them as stolen to the Alexandria Policed

MR. MUDD [Defense counsel]: Objection. Unless the State can prove that.

THE COURT: I assume the question was asked on that basis.

MR. MUDD: I would like a proffer from the State. That they can prove that today.

MR. NALLEY: I don’t believe we could prove that today, Your Honor. It is a matter of record. It could be proved. I don’t have Miss McCarthy here or a representative of the Alexandria Police here today, if that is the point that is being made.

(Emphasis supplied.)

Q. This goes back to the question, Mr. Marini, I thought you said a few minutes ago that you didn’t know how to get in touch with the lady from whom you had gotten tags or you had not tried to get in touch with her during the months you had been in jail; is that correct?

A. What are you trying to do, put her in jail, too?

Q. I am asking you why you haven’t got in touch with her during the last two months, Mr. Marini. That is what I am asking. Why not? And don’t tell me you haven’t had her address. You' have had her address since the week after you got in jail.

A. Your Honor, can I be excused?

THE COURT: No. You will have to—

THE WITNESS: I ain’t going to answer no more questions if I sit here.

THE COURT: You took the witness stand.

THE WITNESS: I answered all the questions I was going to answer today. This is it. I ain’t answering no more questions.

THE COURT: Mr. Gilroy, would you take the jury out, please.

(Whereupon, at 2:03 o’clock p.m. the jury was taken to the jury room and the following proceedings were had out of the hearing of the jury:

THE COURT: Mr. Marini, as you know, you had a right to take the witness stand and testify or you had a right not to testify in this case. The Court explained that to you. When you take the stand, you cannot elect what questions you will answer and what questions you will not answer. You have taken the stand and you are subject to cross-examination on your testimony. Now you have indicated to this Court that you have reached the point where you refuse to answer any more questions. Does the Court understand that correctly?

THE WITNESS: Yes.

THE COURT: If you persist in that position it would constitute a contempt of court and subject you to punishment such as the Court deemed appropriate for that criminal contempt. Now with that information, do you wish to answer questions or do you wish to remain in contempt of the court for refusing to answer?

MR. MUDD: Your Honor, might I just have a word with him before he responds?

THE COURT: Yes.

MR. MUDD: Mr. Marini, all you have to answer is either ‘yes’ or ‘no’ to a question or T do not know.’ And I would strongly urge you to answer the questions. If you do not have an answer, just say ‘I don’t know.’ The problem is that no response is going to put you in contempt of court. Do you understand that?

(Witness nods head.)

WITNESS: Yes.

MR. MUDD: Are you willing to continue with the cross-examination now?

THE COURT: All right, Mr. Gilroy, you can bring the jury back).

(Whereupon, the jury returned to the courtroom and resumed their seats in the jury box and the following proceedings were had in the presence and hearing of the jury, the jury returning at 2:05 o’clock p.m.)

CROSS-EXAMINATION (Continued)

Q. Mr. Marini, I believe the question was whether you had made any efforts to get in touch with Kathleen McCarthy since you went to jail?

A. I don’t know.

Q. You don’t know what?

Q. You don’t know whether you have tried to get in touch with her or not? Is that what you are saying? Is that what you are saying?

A. (Witness does not respond.)

Q. Is that what you are saying?

THE COURT: All right, Mr. Nalley, he answered the question. It is up to the jury to assess his testimony.

Q. What did you say to Miss McCarthy, Mr. Marini, when you asked for the tags?

Q. You don’t know what you said to her? What did she say to you when you asked her for the tags?

A. I don’t know.

MR. MUDD: Your Honor, I will object. I think we are getting beyond the scope of direct examination. We really didn’t get into the question of how the automobile was tagged at the present time when he was arrested, and I really don’t see what relevance that has to the proceeding. I think we are just prolonging something that really has little significance.

MR. NALLEY: If the Court please, I think it has every bit of significance, going into this Defendant’s credibility when he said he is, implying in his testimony that he had no reason to believe or suspect this car might be stolen.

THE COURT: Mr. Nalley, seems to me you have gotten the answers.

MR. NALLEY: I am getting T don’t know,’ Your Honor. I just want to get as many as I can.

THE COURT: There is a limit as to how many you need.” (Emphasis added.)

In this factual posture it is contended that “the failure of the State’s Attorney either to offer evidence establishing the commission of such offense or to disclaim any intimation that the Appellant had committed such offense was prejudicial error, which was not cured by an instruction from the trial judge.” Otherwise expressed, it is contended that the failure of the state’s attorney to offer proof in support of his question to the appellant that the tags had been reported stolen and to disclaim any intention that appellant had stolen them constituted error which was compounded by the failure of the trial judge to give a “curative instruction.”

In support of this contention we are referred to the decision of the Court of Appeals in Cook v. State, 225 Md. 603, and the decision of this Court in Woodell and Mercer v. State, 2 Md. App. 433. In Cook the state’s attorney asked Cook, during the course of cross-examination, if he had ever been convicted of a crime. When Cook answered that he was “pretty sure” he had not been, the state’s attorney asked: “* * * you were charged with breaking and entering * * * you received a generally suspended sentence * * *. Do you remember that?” Cook replied that he did not remember. Judge Prescott (later Chief Judge) pointed out for the Court, at 609: “The State’s Attorney did not then, nor at any subsequent time, proffer to show that the appellant had been convicted of a crime, as was so strongly intimated in his questions, nor did he ask leave of the court to explain to the jury that he desired to disclaim any intimation from his question that the defendant has previously been convicted of a crime.” Judge Prescott then announced, at 609: “The questions were, we think, highly improper in the absence of the State being able to establish that the defendant had been convicted in accordance with the statement of the State’s Attorney; and, were it not for the care with which the trial court explained the matter to the jury, would require a reversal of the judgment and a new trial.”

In Woodell and Mercer v. State, supra, the state’s attorney during cross-examination questioned Mercer about his convictions of assault by threat, public drunkenness, worthless check and exceeding the speed limit, all of which allegedly occurred in Raleigh, North Carolina. Mercer could not remember the first two convictions, denied the last two convictions and asserted that he had never been in Raleigh, North Carolina. The state’s attorney then alluded to Mercer’s F.B.I. record and “asked Mercer whether he thought anyone else had his fingerprints, the clear implication intended to be conveyed to the jury being that the State’s Attorney had access to Mercer’s F.B.I. record which indicated that he had indeed been convicted of these offenses. The State’s Attorney did not otherwise proffer to show that the appellant had been convicted of these crimes.” Judge Murphy (then Chief Judge of this Court) announced for the Court, at 438: “The present case presents a more extreme example than that contained in Cook, since here the State’s Attorney sought to buttress his intimation that Mercer was lying in denying the convictions by referring to his criminal record on file with the F.B.I. (an organization held in high public esteem).” He then went on to say, at 439:

“If the State’s Attorney chooses not to offer appropriate evidence of the prior conviction, he should, under the dictates of Cook, seek leave of court to explain to the jury that he disclaims any intimation from his question that the defendant had previously been convicted of such crime. Failure to do so may result in an appellate reversal of the conviction where the error cannot be deemed harmless, and the point is properly preserved for review on appeal.

Appellants here entered no objection to the questions propounded by the State’s Attorney, and neither moved for a mistrial nor sought an advisory instruction from the court as they might have done under Cook. Under these circumstances, the matter was not before the trial judge for a ruling and consequently is not properly before us for review.”

From the record before us, it is apparent the procedural pattern here is not entirely unlike that which confronted the Court in Woodell and Mercer and we must conclude here, as there, that the issue is not properly before us. In the first place, the question posed by the state’s attorney at the trial below: “Would it surprise you to know that she reported them [the license tags] as stolen to the Alexandria Police?”, did not directly accuse Marini of having stolen the tags and, in the second place, the question was never answered by Marini. The appellant seems to concede this but argues that the jury could draw an inference that appellant stole the tags when the state’s attorney announced: “I don’t believe we could prove that today, Your Honor. It is a matter of record. It could be proved.”

We think any inference that the appellant himself stole the tags is, at best, tenuous and, in any event, was attenuated by the prior question put to him by the state’s attorney: “Would it surprise you to learn that they were in fact stolen from somebody else?” This question was not objected to and not answered. But whether or not an inference could be drawn that the appellant stole the tags, it is apparent that the court did not require the appellant to answer the question propounded to him; there was no request for a mistrial when the state’s attorney announced he could not “prove today” that the tags were stolen; and no advisory instruction was sought from the court. We cannot agree that the court had an obligation “to give a sua sponte instruction to cure an error.” Thus, as in Woodell and Mercer, we must find that the issue is not properly, before us. Maryland Rule 1085. .

It is next contended that the judgment of conviction should be reversed because “the State did not sustain its burden of proving that the fair market value of the property in question was $100 or more.” The owner of the stolen automobile, a Mustang, testified that he had. paid “about $2,800” for it in 1966 and “to me it had a value of $2,000. I am talking about replacement.” He further stated that four months prior to its being stolen he had purchased tires for it, costing a total of $120. The police officer who received the car testified it was in average condition. While it is true that fair market value, rather than replacement value, is the required measure of value, Barber v. State, 23 Md. App. 655, we think the jury could draw a fair inference from the evidence of the original purchase price, the replacement value to the owner and the cost of the tires recently placed on the vehicle that the car had a fair market value in excess of $100. See Vucci v. State, 13 Md. App. 694. Even the appellant, whose defense was that he had purchased the car, asserted that the purchase price was $400. We find no merit in the contention.

Finally, it is contended that “The Court erred in refusing to instruct the jury * * * that they could not find that the Appellant had knowledge that the property in question was stolen only because they disbelieved his testimony denying such knowledge * * *,” citing Carter v. State, 10 Md. App. 50. In Carter we said, at 53: “Generally, disbelieving evidence provides no basis for finding evidence to the contrary; however, there is an exception involving scienter or guilty knowledge, i.e., reasons for disbelieving a denial of scienter may provide a basis for finding scienter.” We also said in Carter, at 55: “ * * * changes in defendant’s explanation or conflicting admissions may support a finding of scienter, since while either of defendant’s stories may be true, both cannot be and the changes indicate an attempt to hide the guilty knowledge.”

Here, the appellant, when first apprehended by the police, completely denied ownership of the vehicle. Later he changed his story by asserting that he had innocently purchased the car without knowledge that it had been stolen. Since these conflicting statements could support a finding of scienter, the instruction requested by the appellant was not required under the evidence. We agreed with the observation of the trial judge that the giving of such an unrequired instruction would have served only to confuse the jury.

We find no merit ifi the contentions, advanced pro se by the appellant, that the evidence was insufficient to sustain his conviction and that his trial counsel was incompetent. There was ample evidence from which the jury could find the appellant guilty of receiving stolen goods, Williams and McClelland v. State, 5 Md. App. 450, and the incompetency of counsel charge, not having been raised below, is not a proper issue in this appeal. White v. State, 17 Md. App. 58; Maryland Rule 1085.

Judgment affirmed.