Arca v. State

WILNER, Judge. We have tried on occasion to caution prosecutors against overkill, against pounding so many nails into the defend ¹⁰³ ant’s coffin that they split the wood and have to start again. We recognize, of course, that, as an appellate court, we get to view the case from the enviable position of hindsight, and that what may seem to us to be unnecessary overkill may not seem so to the participants in a hotly contested trial. That is why, especially on matters relating to the conduct of the trial and the allowance or disallowance of evidence, we accord considerable deference to discretionary rulings of the trial judge and do not reverse unless there is manifest error.

Here, we think, the court allowed the State to go too far, and so we shall reverse. Appellant was charged with the first degree murder of George Henderson. A jury in the Circuit Court for Baltimore City acquitted him of that but convicted him of manslaughter. There was no question but that he did, in fact, kill Mr. Henderson; through counsel, he conceded that in opening statement.

He admitted that, on the evening of September 21, 1985, he was in the 1600 block of Gorsuch Avenue in Baltimore City talking to one or two young ladies when Henderson approached and made some remark to the girls. An argument of sorts followed, whereupon appellant delivered a karate-type kick to Henderson’s head, causing Henderson to fall backward and strike his head on the pavement. Either the kick or the fall caused Henderson to fracture his skull and fatally injure his brain. That appellant was the actor — the cause of Henderson’s death — was never an issue at trial.

He conceded it in a statement given to the police; counsel conceded it to the jury; an eyewitness to the event positively identified him in court without challenge. Appellant’s sole defense was that he had acted in self-defense — that Henderson was the aggressor. The story he gave the police, which came into evidence as part of the State’s case, was that Henderson had thrown a bottle at him and had then acted in such manner as to lead appellant to think Henderson was reaching for a weapon. That, said appellant, is when he kicked Henderson “once up around his face” in order “to get him ¹⁰⁴ to back up off of me.” Counsel told the jury in his opening statement that the evidence would show only “that during a mutual affray, during a fight, my client kicked this man.” The issue, then, was whether appellant’s attack on Mr. Henderson was aggressive, premeditated, malicious, and unjustified, as urged by the State, or defensive, as claimed by appellant.

Although appellant elected not to testify, there was evidence to support both views. The State’s first witness was Patricia Morgan, who had witnessed the episode. She described what had occurred and identified appellant in court as the person who kicked and ultimately killed Mr. Henderson. According to her, the kick was deliberate and unprovoked.

No objection was made to her identification of appellant and she was not cross-examined about the accuracy of it. The next witness, Detective Garvey, related the statement appellant had given upon his arrest and also testified that Ms. Morgan had selected appellant’s photograph from an array he had shown her several days after the event. The State then moved into evidence the photographic array, including what is obviously a police “mug shot” of appellant. Despite appellant’s objection based on relevance — that identification was not an issue — the court admitted the photographs.

Those photographs were not actually shown to the jury, however. At the court’s direction, Xerox copies of the photographs, with the chestplate containing identification numbers covered over, were made and were given to the jury in substitution for the actual photographs. The display of even those somewhat sanitized photographs constitutes appellant’s first claim of error, one which we find to be valid. 1 The Court of Appeals addressed the problems raised by the introduction of police “mug shots” in Straughn v. State, 297 Md. 329 , 465 A.2d 1166 (1983). Police photo ¹⁰⁵ graphs, on the one hand, are “independently relevant substantive evidence which may be introduced under certain