Petition — Nolan v. Maryland

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FILED

IN THE 5; APR 199

SUPREME COURT OF THE UNITED scared MAAN Roux, 2e_ aul

OCTOBER TERM, 1979

NO. 79-1590

JOSEVH NOLAN, The Younger

Petitioner

vs.

STATE OF MARYLAND

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS

OF MARYLAND

Harold I. Glaser

1504 Arlington Fed. Bldg.

Baltimore, Maryland 21201

Richard M. Karceski

1504 Arlington Fed. Bldg.

Baltimore, Maryland 21201

Attorneys for the Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO.

JOSEPH NOLAN, The Younger

Petitioner

vs.

STATE OF MARYLAND

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

Harold I. Glaser

1504 Arlington Fed. Bldg.

Baltimore, Maryland 21201

Richard M. Karceski

1504 Arlington Fed. Bldg.

Baltimore, Maryland 21201

Attorneys for the Petitioner

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ANS SO app

TABLE OF CONTENTS

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Constitutional Provisions Involved ... 2

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Reason for granting the Writ ......8

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Appendix A

Opinion of the Court of Special

Appeals of Maryland Aid

Appendix B

Mandate of Court of Special

Appeals of Maryland A.9

Appendix C

Order of Court of Appeals of

Maryland denying Petition for

a Writ of Certiorari A.10

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TABLE OF CITATIONS

Cases

Page

Black v. First National Bank

96 Md. 399, 54 A.68 €1903). . . 9

Burton Builders, Inc., v. L& S&S

Construction Co.

260 Md. 66, 271 A.2d. 534 (1970) .10

DiGiorgio Importing & S.S. Co. v.

Penn. R.R. Co.

104.md. 693, 65A 425 (1906)... Ll

Dimmick v. Hendley

LAT ee 258, 84 A L7T ti8i2) . 3 9

DiPietro v. State

341 Md. App. 392, 356 A.2d. 599

EN RRS SE Roarene cit Cer ae mc am eae Ob |

Director v. Daniels

243' Md. 16, 221 A.2d. 397 :(1966).11

Heil v. Zahn

187 Md. 603, 51 A.2d. 174 (1947) .9

Kapilof v. Locke

276 MG. 466; 348 A.2da. 397 (1975) .9, 10

Parker v. State

12 Md. App. 611, 280.Ai2d. 29

e. Wh So Been Ooh ae Se eats ON ii

Parr Construction Co. v. Pomer

214. Meas 3SS9, t44 A. 24,69

CRI certs gic w el ae lg eg Umea

Singewald v. Singewald

165 Md. 136, 166 A441 (1933) .. 9

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Smith v. Rema a a 8

230° Ma. 305, 312, 2034.24. 865

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STATUTES AND RULES

Sixth Amendment to the Constitution

OF Si CO ReAeOe ek 8 oa Se a ee

Maryland Code Ann. Courts and

Judicial Proceedings Act

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO.

JOSEPH NOLAN, the Younger

Petitioner

vs.

STATE OF MARYLAND

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

Petitioner, Joseph Nolan, the Younger,

prays that a Writ of Certiorari issue to

review the opinion and judgment of the Court

of Special Appeals of Maryland filed in the

above entitled case on October 31, 1979;

the mandate of the Court of Special Appeals

of Maryland filed on November 30, 1979

and the Order of the Court of Appeals of

Maryland filed on January 4, 1980.

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OPINION BELOW

The Opinion of the Court of Special

Appeals of Maryland is an unreported opinion

which appears in Appendix A to this Petition.

JURISDICTION

The judgment of the Court of Special

Appeals of Maryland was filed on October 31,

1979. The Order of the Court of Appeals of

Maryland was filed on January 4, 1980. The

jurisdiction of this Court is invoked under

oe U.is.c.

QUESTION PRESENTED

Did the Appellate Court err in failing

to reach and decide the following issue:

"Did the trial court err in admitting

in evidence an unsigned letter as it was

either hearsay testimony or there was in-

sufficient foundation to connect the letter

with the Petitioner."

CONSTITUTIONAL PROVISIONS

INVOLVED

This case and the issue presented in-

volves the Sixth Amendment to the Constitu-

tion of the United States which provides:

"In all criminal prosecutions, the

accused shall enjoy the right to a speedy

and public trial, by an impartial jury of

the State and District wherein the crime

shall have been committed, which district

shall have been previously ascertained by

law, and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

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compulsory process for obtaining witnesses

in his favor, and to have the assistance

of counsel for his defense." (emph. added)

STATEMENT OF THE CASE

The Petitioner, Joseph Nolan, the

Younger, also known as Junie Nolan, was

charged in Indictment numbered 57813213,

57813215 and 57813217,by the Grand Jury of

the State of Maryland sitting in Baltimore

City,with homicide, kidnapping and extortion.

Following a denial of a motion for

change of venure, Petitioner was tried in

the Criminal Court of Baltimore City, the

Honorable Joseph H.H. Kaplan presiding with

a jury. n December 14, 1978, the jury re-

turned verdicts of first degree felony

murder, kidnapping and extortion.

On January 23,1979, Petitioner, Joseph

Nolan, the Younger, was sentenced for this

conviction. Petitioner was committed to the

custody of the Department of Corrections to

life imprisonment for the felony murder with

a consecutive ten year sentence for extortion

(the kidnapping charge having been merged).

It is from this conviction and sentence

that Petitioner noted his Appeal to the Court

of Special Appeals of Maryland and the

Petition for Certiorari to the Court of

Appeals of Maryland. His conviction having

been affirmed, it is from that decision that

Petitioner notes his timely request to this

Honorable Court.

STATEMENT OF FACTS

Between 6:30 and 7:00 p.m. on May l,

1978, Mrs. Betty Godfrey received a telephone

call from an individual she identified as

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Appellant, saying he had her son, Tony Howe,

and she would have to pay $300.00 to get him

back. Although she was not too upset and

did not believe that her son was harmed,

she called the police. Officer Grover Yox,

of the Northwestern District, received the

report and responded to Mrs. Godfrey's

telephone call, and directed him to Appellant's

home, 3416 Royce Avenue. Officer Yox then

went to Appellant's home, where he was met

by Officer David Gobin.

In the basement of Appellant's home,

the officers found Appellant, Michael Evans,

(who was convicted on similar charges in

a separate trial) and Calvin Washington.

After inquiring of the boys if they had seen

Tony Howe, and getting a negative response,

the officers returned to Mrs. Godfrey's house,

taking the three boys with them.

By the time they returned, a group of

people had assembled at Godfrey's, including

Tony's six year old sister, Angeline.

Angeline told the officers she had seen

Appellant and Michael Evans with Tony earlier

in the day, and based on this information,

Officer Yox took Appellant and Michael Evans

into custody.

Due to what Officer Yox perceived as

a volatile situation, he took Appellant,

Evans and Washington from Royce Avenue to

Northwestern District. At approximately

7:50 p.m. Detective Coleman of Homicide was

called into the case and reported to North-

western District. Shortly thereafter,

Detectives Donald Kincaid and George Christian

also reported to Northwestern District.

From the time Appellant was brought to

Northwestern, he was questioned about the

whereabouts of Tony Howe by both police

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officers and his parents. Appellant was at

times allowed to be alone with his parents,

and during these times, they pleaded with

him to tell them if he knew where Tony was.

Until approximately 9:15 p.m., Appel-

lant stated that he had no knowledge of

where Tony was. At this point, Detectives

‘Coleman, Christian and Kincaid were in the

room with Appellant and his parents, and

Detective Kincaid advised Appellant of his

‘rights. Kincaid then left the room.

At approximately 9:45 p.m., while Offi-

cers Coleman and Christian, Appellant and

his parents were in the room, Appellant

jumped up and said "I will show you where he

is". Thereafter, Officers Coleman and

Christian, Mrs. Nolan and Appellant left the

station and entered a police vehicle.

Appellant directed the officers to the city

dump on Cold Spring Lane, and, once they

were in the dump, to a quarry located on

that property. When they arrived at the

quarry, Appellant indicated that he had last

seen Tony on the rocks in the quarry.

Subsequent to Appellant's statement,

Appellant, Mrs. Nolan and several officers

went to the homicide office while Detective

Coleman remained at the quarry to search

for Tony. The search had to be suspended

until the following day, due to lack of

lighting. During the suspension in the

search of the quarry, a search warrant for

Michael Evans' home was obtained, based upon

statements taken from Evans and Calvin

Washington, which referred to items of Tony

Howe's clothing which would be found there.

At approximately 5:30 a.m. on May 2, the

warrant was served and a tennis shoe and shirt,

which were stipulated as belonging to Tony

Howe, were found.

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At approximately 5:45 a.m. on May 2,.

the search of the quarry was resumed, and

based on slide marks in the area in which

Appellant had said he last saw Tony, skin

divers were instructed to search the water

of the quarry. The divers discovered the

body of a boy who was later identified as

Tony Howe.

Sharon Hurtt, Appeilant's girlfriend

and Tony Howe's sister, testified that she

was with Appellant and Michael Evans on

April 30, 1978, although she had been for-

bidden by her step-father to see Appellant

anymore. She stated that on that day

Appellant told her they were going to kidnap

Tony. She also testified that she met

Michael Evans and Appellant on the morning

of May 1, and spent the day with them at the

quarry in the dump, returning home at ap-

proximately 2:45 p.m.

Later that afternoon at approximately

4:00 p.m., when she was at her cousin Yvette

Shorter's house, Sharon testified that she

received a telephone call from Appellant in

which he stated that we killed your brother.

Yvette and her sister Sandy, who was also

present, took turns on the telephone and

heard the same statement, although none of

the three girls believed it. Shortly there-

after, Sharon returned home. Although her

mother was upset and told her that Tony had

been kidnapped, and police officers were

present, Sharon said nothing to the police

about the telephone conversation until early

the next day. Neither Yvette nor Sandy re-

reported their conversations until much later.

Appellant testified on his own behalf

that although he was present when Tony was

pushed into the quarry and eventually drowned,

he did not ees in the act. He also

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denied making the telephone calls to Sharon’

and to Mrs. Godfrey.

During the State's cross-examination

of Appellant, he was presented with, and

questioned about a letter, received by Sharon

Hurtt in August of 1978. Over defense

objection, and following a line of questioning

which implied that Appellant had either

written the letter or caused a third person

to do so, it was read to the jury by

Appellant and admitted into evidence.

It is from this conviction and sentence

that Petitioner noted his appeal to the

Court of Special Appeals of Maryland and the

Petition for Certiorari to the Court of Appeals

of Maryland. His conviction having been

affirmed, it is from that decision that

Petitioner notes his timely request to this

Honorable Court.

ie

The letter read as follows:

Dear Sharon, how are you doing?

Fine I hope. This is a good letter. I

called your cousin's house looking for

you. Right now I am not going to put

my name but take a guess who it is. You

should know. Well, I am doing fine.

Tell your stepfather I said fuck him.

My friend Jun want you back, so write him

at this address. 401 E. Eager Street,

Baltimore, Maryland 21202. Name, sorry.

Can't give you the name but take a guess.

Section G, Bed 52. It used to be your

boyfriend's.

At the bottom of the letter was written

Sandy Shorter's telephone number.

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REASON FOR GRANTING THE WRIT .

I. The Court of Special Appeals of

Maryland erred in failing to reach and decide

the following issue:

Did the trial court err in admitting

an unsigned letter as it was either hearsay

testimony or there was insufficient founda-

tion to connect the letter with the Appellant/

Petitioner.

The issue raised in this particular

argument is one of first impression in the

State of Maryland. This issue certainly

should not be "sidestepped" by an Appellate

Court abrogating the duty the Court owes to

the administration of justice and the con-

tinued building of Marvland law through

"Stare Decises".

In its “per curiam" opinion, Nolan vs.

State (No. 171)the Court of Special Appeals

held in the last sentence on this issue at

page 6: "In our view, even if the admission

of the letter was error - a point we do not

decide - it was harmless."

The Attorney General in its brief below

attempted to intimate such point was harmless

error (appellee's brief p. 8). However, at

the time of the argument before the Court of

Special Appeals, October 19, 1979, Stephen

B. Caplis, Assistant Attorney General, readily

stated the State was withdrawing the allega-

tion of harmless error and admitted such, if

error, waS indeed harmful. (emp. added)

In fact, in answer to Judge Mason's

questioning, Mr. Caplis further stated in

withdrawing the question of harmless error,

that the importance of the letter as evidence

was strongly argued in ‘closing’ by the

ina.

——

Prosecutor to the jury in requesting the

finding of a guilty verdict. (emp. added)

Counsel for the Petitioner had re-

quested prior to the filing of this Petition

to have a complete transcript prepared of

the argument including the Court's comments

and questioning in order to append it as an

exhibit to this Petition. However, counsel

was informed no record was made of those

proceedings.

The letter was unsigned and contained

little to indicate who had written it. The

State made no attempt to establish a connect-

ion between Appellant and the letter by

testimony of hand-writing experts or even by

merely comparing it w th other samples of

Appellant's handwriting. Nor did the State

attempt to establish who had written it if

Appellant had not. In this instance, evidence

was admitted with not only an inadequate

foundation, but with no foundation whatsoever.

Although it is impossible to determine

with certainty who wrote this unsigned letter,

either alternative presents evidentiary

problems. An obvious reference from the

repeated references to Appellant in the third

person would be that someone other than

Appellant wrote it. In this case, the

letter would be hearsay testimony. Black v.

First National Bank, 96 Md. 399, 54-A. 88

(1903); Dimmick v. Hendley, 117 Md. 458, 84

A. 171 (1912); Singewald vs. Singewald, 165

Md. 136, 166 A. 441 (1933); Parr Construction

Co. VW. Pomer, 217 Md@.' 3539, 133 A. 2a 69

(1958) ; see also Kapilof v. Locke, 276 Md.

466, 348 A. 2d. 397 (1975). The mere fact

that it is a writing does not change its

character as hearsay, or cause it to fall

within an exception to the hearsay rule.

Kapiloff v. Locke, sSupra.; Heil v. Zahn, 187

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Md. 603, 51 A 24 174 (1947). Indeed, the form

of this testimony demonstrates clearly the

hazards of hearsay testimony. The declarent

was obviously unavailable for cross-examina-

tion, as no one knew who it was. Similarly,

Appellant was deprived of the basic right

to confront an adverse witness. The Court

of Appeais had held that in the absence of

a person who has allegedly produced a letter,

for purposes of cross-examination, the proper

foundation has not been laid, and the letter

is inadmissable. Burton Builders Inc. v.

L. & S. Construction, Co., 260 Md. 66, 271

A. 2d 534 (1970). This is clearly the

Situation if the letter is yiewed as the

writing of a third person.

The fact that this hearsay testimony

was in writing creates an additional problem.

This may have imbued it with additional

emphasis in the minds of the jury, and im-

parted an aura of credibility which was

entirely unwarranted.

Assuming, arguendo, that the letter

was written by Appellant, which was certainly

one inference which the State would have the

jury draw, the impropriety of its admission

is equally as clear. No foundation was laid

connecting Appellant with the letter. Both

2. Maryland courts have held that third party

letters wirh far more persuasive identifi-

cation than the letter in issue are "...un-

authorized, unsworn hearsay testimony ...",

Smith v. Jones, 236 Md. 305, 312, 203 A. 2d

865 (1963), see also Kapilof v. Locke, supra.

-li-

the courts and the legislature have recog-

nized that a disputed writing should be

authenticated, and that the testimony of

qualified hand-writing experts, testimony

of a person familiar with the challenged

handwriting, or a comparison of handwriting

samples by the trier of fact are appropriate

means of authentication. Parker v. State,

12 Ma. App. 611, 280 A 2d. 29 (19/1);

DiPietro v. State, 31 Md. App. 392, 396 A

2d. 599 (1976); Md. Code Ann. Cts. & Jud.

Proc. Act, §10-906 (1974). The letter in

this case was not accompanied by any compe-

tent proof by which the jury could infer

that it was authentic and written by

Appellant, and should not have been admitted.

See Di-Giorgio Importing & S.S. Co. vs.

Penn R. R. Co., 104 Md. 693, 65A 425 (1906).

The contents of the letter reflected

animosity toward Sharon Hurtt's stepfather.

They also revealed a continuing interest in a

relationship with Sharon Hurtt. As the

State had been putting forth both these

facts as a motive for Appellant's alleged

role in the death of Tony Howe, Appellant

was prejudiced by the jury's consideration

of the letter, and its improper admission

was reversible error.

oe The trial court evidently admitted the

letter for its weight.

Q. You claim you didn't write that

letter?

A. I didn't write it.

Q. Would you read that letter please?

Mr. Kaplan: Objection, Your Honor.

Mr. Sachs: For its weight, Your Honor.

The Court: The objection is over-

ruled. The weight of this type of evidence

is for the trier of fact only if properly

admitted. Director v. Daniels, (continued)

3

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The Fourth Amendment of the Constitu-

tion of the United States specifically pro-

vides that an accused has an absolute

right of confrontation with the witnesses

used against him. In this instance, the

admission of the letter(without proper

foundation) seriously impinged on that right.

3+ (COREG) 2eag5 Was 2ee Ohl A. 24. 397

(1966). The letter was not properly admitted

and Should not have been considered by the

jury.

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CONCLUSION

In concluding, Petitioner herein

respectfully requests that this Honorable

Court grant his requested Writ of Certiorari

for the reasons contained herein.

Respectfully submitted,

Harold I. Glaser

Richard M. Karceski

CERTIFICATE OF MAILING

I Hereby certify that on this

day of ; , 1980 3 copies of the

aforegoing Petition for Writ of Certiorari

was mailed to the Office of the Solicitor

General of the United States, Room 5614,

6 0 aaa of Justice, Washington, D.C.

HAROLD I. GLASER

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UNREPORTED

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IN THE COURT CF_ SPECIAL APPEALS . |

OF MARYLAND

September Term, $79

No. 172

JOSEPH NOLAN, the younger

STATE OFsMARYLAND

Mascon

Couch

MacDaniel,

PER CURIAM

Filed: Cetober 31, 19793

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Following his conviction and sentencing for felony murder,

kidnapping, and extortion, in a jury trial in the Criminal Court of

Baltimore, Joseph Nolan, Jr. appeals, raising these questions:

"1. Did the trial court err in admitting

the hearsay testimony of Calvin Washington con-

cerning statements made oy Michael Evans in the

absence of surricient indecendent evidence to

establish a conspiracy between Evans and Appellant?

2. Did the trial court err in admitting an

unsigned letter which was either hearsay testimony

or unsupported by a sufficient fcundation ccnnecting

it to Appellant?

3. Did the trial court abuse its discretion

in qualifying a six year old witness who had no cen-

ception that it is necessary to tell the ‘truth in

court and did not believe it is wrong to tell a lia? R

4, Did the trial ccurt err in denying the

motion to withdraw brought oy Michael Xaolan at the

request of his client, Helen Nolan?"

Finding no error, we shall affirn.

The factual background leading to appellant's convictions will be

stated triefly, with further facts supplied as necessary ‘to discuss

the various issues. On May 1, 1978, Mrs. Gedfrey received a teleonone

call from an individual, whom she identified as appellant, in which

she was advised that she caller had her son, Tony Howe, and that she

would have to pay 3300.00 to get him back. This call srompted Mrs.

Godfrey to call the soolice, who responded SO ner meme where she told

them where appellant lived. At appellant's nome the oolice found

acopeliant, Michael Evans, and Calvin washington. They were asked if

they had seen Tony Howe, to which there was a negative resoonse.

Thereafter, the police, she appellant, and nis two comranicns returned

to Mrs. Godfrey's nome where Tony's young sister, Anzilene, told she

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the day. Based on this information, appellant and Evans were taken sue solely to appellant's feeling that Mr. Xaplan did not appear at

into custody and transported to Northwestern District where appellant the jail to see appellant at a time when the attorney said he would

was questioned, with his parents in attendance at all cimes. Durin | be there. Appellant advised the court that he had no other oroblems

this questioning appellant ultimately stated, “I will show you where with the attorney. The State did not oppose the motion but made is

he is." Apoellant then directed the police to the city dump on | clear that it wanted the trial to go forward on the assigned date.

Mr. Kaplan advised the court he had no diffi ulties wi

Cold Spring Lane and to a quarry located in the dump. Appellant th contiauing

fu

vo represent appellant. The trial court denied the motion

quarry. Appellant was then taken to the Homicide Office, while other in Wright v. State, 32 Md. App. 60, 359 A.2¢ 1 (1976), we stated:

"It is fundamental that in the absence af a

specific and substantial reascn for substi-

tution of counsel, the question of whether

to permit a change of counsel is a matter

committed to the sound ciscretion of the trial

court. [Citations omitted. } :

showed the police where he had last seen Tony on the rocks in the

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officers began a search of the wearer? for Tony; this search was

subsequently suspended due to darkness. Meanwhile a search, upon a

warrant, was made of the Evans home and 2 tennis shoe and shirt,

te

the search of the quarry was resumed, which ultimately resulted in deni the t re y

; l ial of the motion by the trial cour Th

) ©. There was no complaint »

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own dehal? at trial, stated that although he was present when Tony mor could not represent him, adequately. Appellant's only complaint

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was pushed into the quarry, he did not participate in the act. de

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; that Mr. Kaplan did not <eep some aopointments or arrived late

also denied making she phone call to Mrs. Godfre; ; ; ‘

We believe the proper administration of justice should not be impaired

for frivelous reasons. while it aooears che tr

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motion al of the case may

: not have been delayed for an undue length of +

Appellant's attorney, Michael Kaplan, was retained to reoresen

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-S conjecture. Under the circumstances, we do not believe the

i : . Pr si ao lant. was cnly fourteen years old. ; ,

him by Nolan's mothe nee apoell only to years oL | judge abused his discretion.

About six weeks before trial the attorney tiled a motion so withdraw ; -

3. Did tne Srial court err in adr teins Aearsay

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as appellant's counsel, at the request of aopellant's mother. A 7 vestimony oi 2 ss-conssiratcr in ansence Of Sano at ant

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learing was neld during which it was deveicoed shat the reason for the :

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mother's request was that she felt there had been 2 breakdown in P Ouring its case-in-chief, the State called Caivin Washington as

; ‘ = a witness <h , ; ;

communications between ner son and Mr. Kaplan. It became apoarent, itness chrough whom it was shown shat he visited Michael Evans on

; *

May l, 1978 and, over apoellant's obfecti

however, that this oreaxdown, if there was such in existence, was on, ne related a conversation

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ne had with Evans in which he said Evans told him, "Me and Junie

Killed Sharon's little brother." (Junie was appellant's nickname. )

Washington was also shown a tennis shoe and shirt in Evans' backyard

and was told they belonged to she little boy and chat they were

going to give shem to the bey's mother for money. Appellant argues,

and the State concurs, that this constituted hearsay; “hey sarc

company at this point, nowever. The State argues that since ‘+ nad

established the existence of a conspiracy by independent evidence,

these statements fell within the co-conspirator exception to the

In Mason, Taylor, and Taylor v. State, 13 Md. App. 120,

nearsay rule.

305 A.2d 492 (1973), cert. denied, 269 Md. 763, 767, cert. denied,

416 U.S. 907, we said:

" ... the rule is that when the State seeks to

use statements against a co-consoirator mace

by another co-conspirator to a third oarty, it

must first demonstrate, through evidence aliunde,

the existence of a conspiracy, sees

4s that the State

T4. at 136-27. Our independent review persuades

had met its burden of establishing the existence or a consolracy.

There was testimony earlier in the trial shat on the day before the

incident appellant and Evans told Tony's sister they were going ‘o

xidnao a member of her family and that on May 1 appellant and Evans

asked the sister for the whereabouts of Tony. The sister also

that near dinnertime on May 1 aopellant called her

and admitted he and Evans nad killed Tony. Furthermore,

Mrs. Godfrey nad testified that asccellant called on May L and demanded

$300.00 for Tony's return. Finally, Tony's clothes were discovered

at =vans' ncme. We believe this evidence surficient so tndeoendencl;

establish a comsoiracy to murder, Kidmeao, ane extort on she part cf

Bre Maesinictihicn mc

XXEK A. 6

appellant and Evans.

Appellant argues alternatively that the consoiracy nad

terminated (assuming it existed) since Evans made the statement to

Washington after Tony was xidnaoped and xilled and thus the state-

ment was inadmissible.

We disagree with aopellant since the extortion

was ongoing; therefore, it is clear the entire consoiracy nad not

terminated when the statement

Md. 245, 157 A.2d 119 (1960),

was made. In Greenwald v. State, 221

arpeal dismissed, 2363 J.S. 721, the

—

Court of Appeals stated:

"

--- if the conspiracy contemplated she continucus

cooperation of she conspirators in the persvetration

of a series of cffenses ... 1t was in effect!a vart-

nership in criminal ourposes,' and continued until

the time or its abandonment or the final accomplish-

ment of its purposes."

Id. at 250-51. We find no error here.

C. Did the tri

al into

evicence

court err in admittins

an unsizonea z

In the course of the cross examination of aopellant ne was

1

shown an unsigned letter, which was addressed so Sharon, she victim's

sister. The State's Attorney attemoted to demonstrate ‘shat aopellant

Rad authored the letter, out he denied it. Although timely objecticn

was made, the witness was allowed to read the letter to che dury and

it was subsequently offered and admitted into evidence. Appellant

1. “Dear Sharon, how are you doing? Fine I noce. This ts a

good letter. 2 called your cousin's nouse looking for jou. Right

new Il am not going tc sut my aame Sut taxe a guess who it is. You

should know. well, I am doing fine. Tell your steofather I said

ruck him. Uy friend Jun want you tack, so write him at shis address.

401 E. saltcmore, Maryland, 21202. Mame, sorry. Can't

give you the name Sus take a guess. Section G, 3ed 52. It used to

be your dseyfriend's.”

MX A.7 | XXXXX A.3

argues that since the letter was unauthenticated and unsigned, it children to testify 1s within the sound discretion of the trial cours.

was inadmissible since it amounted to unsworn hearsey testimony, See Reckard v. State, 2 id. App. 312, 234 A.2d $30 (1967), cert.

citing Parker v. State, 12 Md. App. 611, 280 A.2d 29 (1971) and ' denied, 248 Md. 734 (1968). Nevertheless, appellant contends this

DiPietro v. State, 31 Md. App. 392, 356 A.2d 599 (1976). ‘The State . discretion was abused because there was no showing the witness

contends ‘the letter was authenticated by its contents, i.2., that demonstrated that she appreciated the obligation of an cath; indeed,

the letter must have veen written dy appellant Since 1 contained she was not even asked. We have reviewed the record and while ch

information that only appeilant would know, citing McCormick on witness did not know what would happen if she told a lie tn court,

Evidence, 2nd Ed., Sec. 225, 9. 552:(1972). We need not address the she clearly exhibited an understanding o? she difference between 2

question of whether an unsigned writing may se authenticated sy “he lie and the truth, anc the consequences of telling a lie, Le., she

alternate route of authentication of contents because we believe she would be punished. Furthermore, she promised to tell the truth in

admission of the letter to be merely cumulative in any event. C2. ner testimony. It is evident that the trial judge Zound, and we

Dorsey v, State, 276 Md. 538, 652-53, 350 A.2d 565 (1976). A reading cannot say he was wrong, that the witness understood she difference

of the letter demonstrates that the author was expressing animosity Be between telling the truth and telling a lie. We find no abuse of

to Sharon's stepfather, a fact which easily could have been gleaned discretion in the judge's finding that she was competent to testify.

rem previous testimony that the stepfather had forbidden Sharon See Williams v. State, 11 Md. App. 350, 274 A.2da 402 (1972) .

Peewee

from seeing aoosellant anymore. Further, the letter indicated that

"Jun" war.ted her back, certainly not evidence indicating complicity

JUDGMENTS AFFIRMED.

in the pending charges. In our view, even if the admission of the F B

4 SE PAD 3Y

letter was error - a ocint we do not decide - if was narmless. ee “ieee PALD 3Y

D. Did the trial court err ins

year old witness’

Angelina Howe, six years old and a sister of the victim, was ‘

offered as a witness oy “She State. Prior to seing sworn, “She State F

asked her a series of cuestions, cbviously designed “o determin x

whether the witness xnew She difference tetween Selling a lie an 7.

telling the truth, as well as xnowing she consequences ¢f telling a a

lie. Aopellant contends that because of certain resnonses made ay

the witness she axhidited 2 gquesticnadbie comorehension of the need

for testifying truthfully. aAppellant comcedes that She cacecity of

os Rens a

,

is we ut &

Court oi Sas

No. 171

JOSEPH NOLAN, THE YOUNGER

STATEMENT OF COSTS:

Ja CREAN CLERE Crininal Cours 9

Kecord 30.0

**.

Seenographer’s Costs 1,37%.0

ia Court of Specia! Appeals:

Filing Reeced on Appeal

Printine Brief for Appeliant

Reply Beiet bid contro aie ahs nts

Portion of Record Extract — Agpetlant

Printing Beiet for Cross-Appellee

Printing Brief for \ppelice es

Portion of Record Excract — Appellee

Printing Beicf foe Cross-.Anpellance

SYTHE OF MLARYLAND, Set:

lds hereby certify that the foregoing ts

Const cf Speeral dppeals.

A.93

ce e~Y SN I=

ries 2 ey Ey id tee Pe

A ba ia ee ors te, cad

. g « 2 , . .

A ae ae | ee ae

fa! Anseais af Maryicad

» September Term, 19 79

October 31, 1979 - Per Curiam filec.

Judgments affirmed. costs to de

paid oy sppellaat.

November 30, 197¢S - ‘andste issued.

f Baltisore

0

0

30.00

NOT SUPPLIED

40.90

truly taken from the records end proceedivias of the 5:

In testimony whereof, I hove hereunta set mv hand as Clerk ond fis

the seal af the

of

Court of Special Appeals, tits taiztiech g

November, Yt i Zap DR |

i) 4 #

Pde . e Fd

eS AR AON, aD Missed Lule ee

Bi tat — er ¢

Clerk of the Court of Special aippeais of Morylar:

is chawa us this Mandate are to be settled Detween counsel and NOL TP EtKUUtetE I riimcorace

oP 6 Le eetngantie sO! ~

SAIGON

2 ai sia,

a

A.10

: In the

JOSEPH NOLAN, the Younger

Court of Appeals

of Maryland

Vv. y

Petition Docket No. 374

September Term, 1979

STATE OF MARYLAND

‘i (No. 171, September Term, 1979

L Court of Special Appeais)

ORDER

Upon consideration of the petition for a writ of certiorari to the Court of

Special Appeals in the above entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that the petition be, and

it is hereby, denied as there has been no showing that review by certiorari is desirable

and in the pubiic interest.

/3/ Marvin #. Smith

SeniLor@iiex Judge

Dates January 4 , 1980.