Summary
In Brown v. State, 1 Md. App. 571, the defendant violated the narcotics laws on August 26 and 27, 1965, and was not arrested until November 12, 1965. It was there alleged, as it is here, that the delay violated appellant's constitutional rights.
Summary of this case from Jones v. StateOpinion
No. 193, Initial Term, 1967.
Decided August 2, 1967.
ARREST — Statute Of Limitations Establishes Period In Which Prosecution May Be Instituted — Appellant Not Prejudiced By Delay In Procuring Warrant. The statute of limitations establishes the period in which a prosecution may be instituted. p. 574
Appellant was not prejudiced by a delay in procuring a warrant, where he was arrested for the sale and for possession and control of narcotics on a warrant procured and served on November 12, 1965, and the transactions leading to his arrest had occurred on August 26 and 27, 1965. p. 574
REMOVAL OF CAUSES — Motion For Removal Held Properly Refused. Appellant's motion for removal, based on alleged prejudice of the trial judge because of a discussion at the arraignment concerning appointment of counsel, was properly refused. pp. 574-575
APPEAL — Matter Of Immediate Appeal Not Properly Before Court Of Special Appeals Where Written Order Not Filed In Compliance With Rule 1011a. Where appellant had informed the lower court that he desired an immediate appeal on several motions, but had not filed a written order as required by Rule 1011a, the matter of immediate appeal was not properly before the Court. Rule 1085. p. 575
TRIAL — Free Transcript Of Preliminary Testimony Need Not Be Furnished Defendant For Purpose Of Impeachment At Trial. There is no requirement that a free transcript of preliminary testimony be furnished a defendant for the purpose of impeachment at the trial. p. 575
APPEAL — Trial Transcript Need Not Be Furnished Appellant Without Showing Of How It Could Serve Useful Purpose. A trial transcript need not be furnished an appellant without a showing of how it could serve a useful purpose. p. 576
MOTION FOR ACQUITTAL — Motion Not Granted If There Is Credible Evidence To Support Verdict. A trial judge cannot grant a motion for acquittal if there is any credible evidence to support the verdict. p. 576
NARCOTICS — Evidence Held Sufficient To Support Conviction. There was sufficient evidence to support appellant's conviction for the sale and for possession and control of narcotics. p. 576
APPEAL — Waiver Of Matters Not Raised Below. Appellant's allegation that the trial court erred in refusing to allow him to testify as to cases in which he had assisted police was not before the Court, where there had been no proffer of the testimony to be elicited. Rule 1085. p. 576
Decided August 2, 1967.
Appeal from the Criminal Court of Baltimore (CARTER, J.).
Calvin Brown was convicted in a jury trial of the sale and of the possession and control of narcotics, and, from the judgment entered thereon, he appeals.
Note: Certiorari denied, Court of Appeals of Maryland, November 16, 1967.
The cause was argued before ANDERSON, MORTON, ORTH, and THOMPSON, JJ., and PRETTYMAN, J., Associate Judge of the First Judicial Circuit, specially assigned.
Morris Lee Kaplan, with whom was Michael Lee Kaplan on the brief, for appellant.
Frank A. DeCosta, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Bernard L. Silbert, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
Calvin Brown, the appellant, complains of a conviction for two separate sales of narcotics and two separate convictions for the possession and control of narcotics after a jury trial in the Criminal Court of Baltimore before Judge Joseph Carter. The allegations as to errors will be hereinafter set out.
Officer Walter Zimmerer, acting as an undercover agent, in cooperation with the Federal Bureau of Narcotics, was introduced to Brown on August 26, 1965, through an intermediary known only to Officer Zimmerer as "Catfish." Brown, in exchange for ten dollars, produced packages of a white powder represented to be narcotics. Laboratory tests established that the white powder was heroin hydrochloride. The following day, on August 27, 1965, Officer Zimmerer again met with Brown and gave him nine dollars to procure a second package of narcotics. Another person, not here involved, returned with a bag of white powder which he handed to Officer Zimmerer. A subsequent chemical test showed that the package contained a non narcotic. Thereafter, the same day, Officer Zimmerer found Brown and explained that the items which he had purchased turned out not to be narcotics, and requested that he procure for him the "real stuff." Brown requested that he give him all the additional money he had, fifty cents, and Officer Zimmerer complied. Within a short time, Brown returned with a small bag of white powder which he gave to the officer. A subsequent chemical analysis established that this was heroin hydrochloride. Brown was arrested pursuant to a warrant which was procured and served on November 12, 1965.
I
At a hearing on motions to suppress the evidence and to dismiss the indictment, and at the trial the appellant stated that on November 12 he could not remember what he had done on August 26 and August 27, and that he was therefore prejudiced by the delay in procuring the warrant. Officer Zimmerer testified that he had delayed in procuring the warrant because he was engaged in other undercover work and the warrant would jeopardize his usefulness in other cases. Brown further testified that although he did not know what he had done on August 26 and August 27, he had not sold narcotics to anyone on those dates.
Brown relies on a case in the United States Court of Appeals for the District of Columbia Circuit, Ross v. United States, 349 F.2d 210, wherein the court found that the delay in procuring the warrant had prejudiced the defendant. While that case could be distinguished on its facts, it does not represent the law of this state. We find that there were ample reasons for the officer to delay making the arrest, and the Court of Appeals of Maryland approved similar conduct in Lane v. State, 226 Md. 81, 172 A.2d 400. With the exceptions, not pertinent herein, the rule established in Maryland is that the statute of limitations establishes the period in which a prosecution may be instituted, Price v. State, 235 Md. 295, 201 A.2d 505, Miller v. State, 239 Md. 136, 210 A.2d 394.
II
Brown alleges error because the trial judge refused his motion for removal based on alleged prejudice of the trial judge because of a discussion at the arraignment concerning the appointment of counsel. The record discloses that when Brown objected to counsel appointed by the court, the court offered to appoint additional counsel until one was finally selected who met with Brown's stated approval. A review of the record, instead of showing prejudice, shows a patient trial judge carefully doing more than his duty. There was no merit in the motion to remove.
III
During the course of the trial, Brown informed the court that he desired an immediate appeal on his motion to remove, his motion for suppression of evidence and his motion to dismiss the indictment, but he had not filed a written order as required by Rule 811a (now Rule 1011a). Under Maryland Rule 1085 the matter of immediate appeal is not properly before this court.
IV
Relying on Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, Brown alleges that the action of the trial court in refusing him, an indigent, a copy of the transcript of the testimony on the motion to suppress the evidence, was a denial of due process of law. The transcript was desired for use at the trial. In Gideon, the Court held that it was a denial of due process of law for a state to refuse an indigent counsel at the trial of a serious criminal case. Brown cites no authority, and we know of none, which requires that a free transcript of preliminary testimony be furnished for the purpose of impeachment at the trial. A transcript of the testimony was furnished for the purpose of this appeal. Brown made the same complaint when the trial judge refused a copy of the transcript for the purpose of arguing the motion for a new trial. He might more properly have relied on Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 wherein it was held that a free transcript must be furnished an indigent where it is a necessary requisite for appeal. In Johnson v. State, 219 Md. 481, 150 A.2d 446, applying the Griffin doctrine, the Court of Appeals of Maryland held that a transcript must be furnished for the purpose of arguing a motion for a new trial, where, under rule of court the Supreme Bench of Baltimore refused to hear motions for a new trial without a transcript. However, new rules of the Supreme Bench, No. 747 and 748, effective July 1, 1965, no longer require transcripts for the purpose of arguing a motion for a new trial. In Stewart v. Warden, 243 Md. 697, 221 A.2d 709, the Court of Appeals of Maryland and this court, in Ross v. Warden, 1 Md. App. 46, 227 A.2d 42 held that a transcript need not be furnished without a showing of how it could serve a useful purpose. Brown makes no showing as to the need for the transcript to argue his motion for a new trial. The request for transcript of the testimony on the preliminary motion was based upon a desire to use it for impeachment. We deem this an inadequate reason.
V
Brown alleges that the evidence was insufficient to support his conviction and that his motion for acquittal should have been granted. A trial judge cannot grant a motion for acquittal if there is any credible evidence to support the verdict. Avey v. State, 1 Md. App. 178, 228 A.2d 614, Ramsey v. State, 239 Md. 561, 212 A.2d 319. The testimony of Officer Zimmerer and the chemist was sufficient to support the conviction here.
VI
Finally, Brown alleges that the trial court was in error in refusing to permit the defendant to testify as to cases in which he had assisted the police after he had been cross examined concerning his prior criminal record. Since there was no proffer of the testimony to be elicited, there is nothing before us to review, Maryland Rule 1085, Connor v. State, 225 Md. 543, 171 A.2d 699.
Judgment affirmed.