Summary
In Bosley v. State, 14 Md. App. 83, 91, we observed: "[W]e have heretofore held that an individual `has an opportunity to contest his determination of defective delinquency but he has no statutory right to contest an order of the judge that he undergo such an examination' See Wise v. Director, 1 Md. App. 418, 423."
Summary of this case from Smith v. DirectorOpinion
No. 145, September Term, 1971.
Decided January 21, 1972.
ARREST — Probable Cause — Report Of A Felony And Description Of Perpetrator Over Police Radio May Furnish Probable Cause For An Arrest — Not Essential Arresting Officer Himself Have Probable Cause Where Another Member Of Police Team Has Probable Cause And Arresting Officer Has Been Alerted Over Police Radio To Make Arrest — In Making An Arrest It Is Probable Cause Not Certainty Beyond A Reasonable Doubt That Determines Its Legality. pp. 86-88
EVIDENCE — In-Court Identification — Independent Source — Identification Made By Victim Of Offenses Stemmed From His Observation Of Accused At Scene Of Crime And Not From His Observance Of Accused At Illegal Lineup. p. 88
MERGER OF OFFENSES — Attempted False Pretenses — Statutory Shoplifting — Conviction Of Common Law Misdemeanor Of Attempted False Pretenses Merged With A Conviction Of Statutory Misdemeanor Of Shoplifting By Attempting To Obtain Merchandise Under Value Of $100 By Unauthorized Use Of Credit Of Another Person. pp. 88-90
EVIDENCE — Leading Questions Of Trial Judge — Harmless Error — In Attempted False Pretenses And Shoplifting Case Where Witness For State Testified To A Name Different Than One On Credit Card Offered By Accused And Corrected Himself By Identifying True Name He Saw On Card, After It Was Shown To Him At Direction Of And By Leading Questions Of Trial Judge, Evidence Brought Out Was Merely Cumulative Since Another Witness Had Testified As to Correct Name On Credit Card — Error, If Any, Was Harmless Beyond A Reasonable Doubt In Light Of All Facts In Case. p. 90
INSTRUCTIONS TO JURY — Court Properly Charged Jury On Both Shoplifting And Attempted False Pretenses In Two Count Indictment By Instruction They Could Find Accused Not Guilty Of One Count But Guilty Of Other Count — No Merit To Contention Jury Was Confused By Instruction Accused Would Not Be Guilty Of Attempted False Pretenses If They Believed His Testimony He Thought He Was Authorized To Use Credit Cards In Question, Under Circumstances Explained By Him, Even Though He Represented Himself As The Person To Whom They Were Issued. pp. 90-91
APPEAL — Legality Of Order Of Referral To Patuxent Institution For Diagnostic Evaluation As Possible Defective Delinquent Is Not Properly Before Court On Appeal From A Conviction In A Criminal Proceeding — Determination Of Defective Delinquency Can Be Contested But Not An Order Of A Judge To Undergo Such An Examination. p. 91
J.A.R.
Appeal from the Criminal Court of Baltimore (MURPHY, J.).
Joseph James Bosley was convicted by a jury of shoplifting and attempted false pretenses, and, from the judgments entered thereon, he appeals.
Judgment as to first count, affirmed. Judgment as to second count, vacated as merging into the first count.
The cause was argued before MORTON, CARTER and GILBERT, JJ.
Dennis C. McCoy for appellant.
Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State's Attorney for Baltimore City, Devy Bendit and Sandra O'Connor, Assistant State's Attorneys for Baltimore City, on the brief, for appellee.
Joseph James Bosley, the appellant, was indicted for rape, burglary, and two counts of shoplifting and attempted false pretenses. The jury found him not guilty of the rape and burglary charges and convicted him of shoplifting and attempted false pretenses from Charles Center Men's Wear, Inc., the corporate name of Hamburger's. He was sentenced to 18 months for the shoplifting conviction and three years for the attempted false pretenses conviction, the sentences to run concurrently. At the conclusion of sentencing, Judge James W. Murphy of the Criminal Court of Baltimore referred the appellant to Patuxent Institution for an evaluation. Appellant appeals from the convictions and the referral to Patuxent Institution.
The record indicates that on July 11, 1970, at 5:20 a.m. an assailant broke into the home of Lillian Trovato, raped her and took a wallet and credit cards from her pocketbook. Later the same morning a man, identified as the appellant, attempted to purchase, through the use of a credit card issued to Frank A. Trovato, $86.26 worth of men's clothing from Fosset Men's Store in Baltimore City. Mr. Lawrence Greenbaum, a partner of Fosset's, testified that he became suspicious when the appellant, a black man, presented the credit card with an Italian name. Greenbaum accompanied appellant to his place of employment in the Baltimore City Hall where he attempted to have an employee there identify him as Trovato. There was no one in City Hall to identify the appellant so they returned to Fosset's. Appellant left the clothes he had ordered to be altered. To further check appellant's possession of the credit card, Greenbaum called the telephone number of Frank A. Trovato. Mrs. Trovato answered and told him about the rape and theft. Greenbaum immediately notified the police who then went to Fosset's to arrest appellant when he returned. Appellant was arrested, however, prior to returning for the clothing.
The indictment charging attempted false pretenses and shoplifting from Fosset's was dismissed at the conclusion of the trial because of a defect in the indictment.
Upon leaving Fosset's, appellant proceeded to Hamburger's to continue his shopping. He was waited on by Mr. Herbert Greenberg who stated that while appellant was looking at the merchandise in the store, he suddenly decided to buy two watches. "* * * [H]e was walking around and he saw some watches and he said he would take two watches which we thought was quite unusual for a gentleman to buy two watches that quickly and he said he had plenty of credit and there would be no problem." Greenberg further stated that he was also surprised when he saw that the credit card appellant offered had been issued in an Italian name.
Robert Toner, the general manager of Hamburger's, testified that he saw the sales ticket being written up and also became suspicious as the Master Charge card being used was issued in the name of Trovato. He asked a salesgirl to accompany appellant to the credit office and left the store for lunch. When he returned he found that the appellant had hurriedly left the store without taking the watches.
Officer Robert Bandel, one of the arresting officers, testified that on the basis of a radio alert he arrested the appellant at 1:45 p.m. on North Howard Street. At the time of the arrest appellant was wearing gold pants, a black shirt, brown sport coat and a brown t-shirt under his black shirt. Officer Glenn Broussard, who accompanied Officer Bandel, testified that at the time of the arrest he found a wallet in appellant's left rear pocket which contained three credit cards in the name of Trovato.
The appellant testified that his brother-in-law had a friend whom he knew as Frank A. Trovato. Appellant said that the man he knew as Trovato was a drug addict and that he, appellant, had lent him money on several occasions. He stated that he met Trovato, who was also known as "Reds", on the morning of July 11 and that Reds lent him two credit cards in return for $30. Appellant admitted going to Fosset's but claimed he told Greenbaum that his name was Bosley and that he was using the Trovato credit card with permission. Appellant also claimed that he only intended to buy one watch at Hamburger's and that he left Hamburger's while they were checking his credit because it was taking too long a time and he intended to return later.
The appellant first contends that his arrest was illegal and, accordingly, his motion to suppress evidence seized from his person at the time of his arrest should have been granted. He concedes that the police may have had reliable information that appellant had committed a misdemeanor at Hamburger's but, he argues, there is nothing in the record to show they had information that a felony had been committed and in the absence of such a showing, the police had no authority to make the warrantless arrest.
The record shows that at 5:30 a.m. on the day appellant was arrested a police officer responded to a call from the Trovato home to investigate the rape and burglary which had occurred there. The officer was given a description of the assailant by the Trovatos and, after broadcasting the description over his patrol car radio and canvassing the area in search of the assailant, he took Mrs. Trovato to be examined by a police physician. It is perfectly clear, therefore, contrary to appellant's assertion, that the police department had knowledge that the felonies of rape and burglary had been committed at the Trovato home.
The arresting officers testified that they had received over the police radio the following broadcast: "* * * wanted for investigation of rape and he may be armed, one Negro male, approximately five five to five six, thin built, wearing the trousers he was wearing, gold, black shirt and a brown sport coat." The officers had information that the suspect "had credit cards in his possession which were stolen in the name of Frank Trovato." One of the arresting officers further stated that as he approached the appellant in the course of the arrest, a "wallet was visible from my point of view and there was what appeared to be credit cards sticking from the opening of the wallet." A search of the appellant at that time revealed that there were in fact three credit cards in the wallet in the name of Frank A. Trovato.
It is, of course, well settled that a report of a felony and a description of the perpetrator over a police radio may furnish probable cause for an arrest and it is not essential that the arresting officer himself have probable cause for the arrest where another member of the police team has probable cause and the arresting officer has been alerted over the police radio to make the arrest. Hebron v. State, 13 Md. App. 134.
It is clear from the record before us that the police department had reliable information that the felonies of rape and burglary had been committed and that there was probable cause to believe that appellant was the perpetrator. That he was subsequently acquitted of these crimes is of no consequence for in making an arrest, it is probable cause, not certainty beyond a reasonable doubt, that determines its legality. Johnson v. State, 8 Md. App. 187; English v. State, 8 Md. App. 330. The trial judge, therefore, properly refused to suppress the evidence seized from appellant at the time of his arrest.
After appellant's arrest, he was placed in a line-up. At the trial below the presiding judge ruled that the line-up was improperly conducted because appellant was not advised of his right to the presence of counsel and excluded all testimony relating to identifications of appellant made at the line-up. Appellant now contends that the in-court identification of him by Greenberg was tainted by the "illegal confrontation" at the line-up. He argues that when asked by the trial judge if his identification was based on his seeing appellant at the line-up or in the store, Greenberg answered "Yes." The witness immediately cleared up his confused answer, however, when he testified that he had observed the appellant in the store from a distance of 4 or 5 feet, under good lighting conditions, for a period of approximately 20 minutes. We think the presiding judge was entirely correct in his finding that Greenberg's identification stemmed from his observation of appellant at the scene of the crime and did not result from his observance of appellant at the illegal line-up. See Austin and Williams v. State, 12 Md. App. 629.
Appellant next urges that his conviction of attempted false pretenses merges with his conviction of shoplifting (Md. Code, Art. 27, § 551A(a)(2)).
In Polisher v. State, 11 Md. App. 555, the elements of the crime of false pretenses were specifically set out. Thus, a false pretense is committed when a chattel, money or valuable security is obtained from another by making a false representation of a past or existing fact with intent to defraud and with knowledge of its falsity. Md. Code, Art. 27, § 140. Since an attempt to commit an offense constitutes a common law misdemeanor, Fisher v. State, 1 Md. App. 505, there is, of course, no requirement that the goods or chattels actually be obtained to sustain a conviction for attempted false pretenses. The gravamen of this offense is the intent to cheat or defraud, Waye v. State, 231 Md. 510, or, as otherwise stated, the false pretense is the crux of the crime. Polisher, supra.
Shoplifting under the value of $100 is a misdemeanor under Md. Code, Art. 27, § 551A and § 27, § 551A (a)(2) makes it unlawful for any person "to attempt to obtain possession of any goods, wares or merchandise, by charging the same to a real person without the authority of such person." Thus, the essence of the crime is unauthorized use of the credit of another person.
The test of whether one conviction merges into another is whether one crime necessarily involves the other. Parker v. State, 7 Md. App. 167, 195, cited in Price v. State, 261 Md. 573. If it is necessary to prove common elements to sustain convictions under both charges, then the defendant should not be "twice punished for the same acts whether the offenses charged by reason of such acts be deemed to be inconsistent, duplicitous or to have merged." Tender v. State, 2 Md. App. 692, 700. To determine if two offenses merge, the "thrust" of the offenses must be determined. Price v. State, supra.
Although it is established that two separate criminal charges will not necessarily merge if they are successive steps of the same transaction, Chittum v. State, 1 Md. App. 205, citing Veney v. State, 227 Md. 608, it must also be recognized that if the two offenses charged are so close in scope, intent and thrust, as here, then they must be considered merged.
In the instant case, appellant's statement to the personnel at Hamburger's that he had "plenty of credit" and his implicit representation that he was Trovato were merely steps preparatory to his presenting the Trovato credit card. He intended ultimately to obtain the two watches. Since his claim that he had enough credit and that he was Trovato would not have been enough to purchase the watches, we find that the conviction of attempted false pretenses merged with the conviction under § 551A (a)(2).
We find no merit in appellant's next contention that he was prejudiced by leading questions, propounded by the trial judge, to one of the State's witnesses. Specifically, the witness Greenberg had testified that the Italian name on the credit offered by appellant was "Danittio." The court then had the credit cards shown to the victim who corrected himself and identified Trovato as the name he saw. Assuming, arguendo, that the questions and procedure were improper, the evidence brought out was merely cumulative since another employee of the store testified as to appellant's use of the Trovato credit card in Hamburger's. Thus, if it were error it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18.
Contrary to appellant's contention, it is apparent from the factual recitals heretofore that there was legally sufficient evidence to sustain the conviction.
Appellant next contends that the court's instructions were confusing and misleading in that the court instructed the jurors that they could find him guilty of both shoplifting and attempted false pretenses and did not instruct them "that they could find him not guilty of one but guilty of the other * * *." There is no factual basis for the contention since the court instructed the jury in the following manner: "Under Indictment 4130 of 1970 you may find the defendant not guilty of Counts 1 and 2 or you may find the defendant guilty of either the two counts or you may find the defendant guilty generally of that indictment that is of both counts." Thus, it is clear that the court did instruct the jury as appellant now contends that he should have. Appellant assigns additional error in the court's instruction that the jury "must find the appellant guilty if they did not believe that he believed himself to have authority to use the credit cards * * *." There is no factual basis for this contention either. What the judge actually said follows: "If you believe that the defendant thought that he was authorized to use the credit cards and presented these cards, believing that he was so authorized and that the bills would be paid, then the defendant would not be guilty of attempted false pretenses even though he represented himself to be the person to whom the credit cards were issued." We find the contention that the instructions were so confusing as to require a new trial to be without merit.
Appellant's final contention that the order referring him to Patuxent Institution for a diagnostic evaluation was illegal is not properly before this Court. The appeal here is from the judgment of conviction and the referral order was an action or proceeding in the lower court separate and distinct from the criminal proceeding leading to appellant's conviction. In any event, we have heretofore held that an individual "has an opportunity to contest his determination of defective delinquency but he has no statutory right to contest the order of the judge that he undergo such an examination." See Wise v. Director, 1 Md. App. 418, 423.
Judgment as to first count, affirmed.
Judgment as to second count, vacated as merging into the first count.