Baker v. State

CHASANOW, Judge. We are called upon to decide the propriety of decisions made by the judge (Whitfill, J.) during the guilto and death-penalty sentencing phases of Wesley Eugene Baker’s first degree murder trial in the Circuit Court for Harford County. The first question before this Court is whether the trial judge abused his discretion by not calling two individuals as the court’s witnesses at the sentencing hearing. The second is whether the judge abused his discretion by admitting “victim impact” testimony that included hearsay statements made by the victim’s family members.

The third issue is whether the trial judge’s jury instructions, regarding first degree murder, were adequate in light of our recent holding in Willey v. State, 328 Md. 126 , 613 A.2d 956 (1992). The fourth and final issue is whether there was sufficient evidence to permit a finding that the Defendant was a principal in the first degree in the murder of Jane Tyson. For the reasons stated below, we áffírm the jury’s verdict and the death sentence imposed by the trial judge. I. Facts On the evening of June 6, 1991, the victim, Jane Tyson, went to Westview Mall with her four-year-old granddaughter, Carly, and her six-year-old grandson, Adam.

At approximate ⁵⁴⁷ ly 9:00 p.m. that evening, the victim’s husband, John Tyson, was notified that his wife had been shot. Wesley Eugene Baker was indicted for the murder and the State filed a notice of its intent to seek the death penalty pursuant to Maryland Code (1957, 1992 Repl.Vol.), Article 27, § 412(b)(1)(i). At Baker’s trial, a stipulation of Adam’s testimony was admitted into evidence. The stipulation stated that as Carly, the victim, and Adam were getting into their automobile, a man ran up to them.

Adam heard Ms. Tyson scream “No,” the man shot her in the head, and Adam saw blood coming out of her mouth. The man then ran to a blue Chevrolet S-10 Blazer, entered it, and the truck pulled away from the scene. Chief Deputy Medical Examiner, Dr. Ann M. Dixon, testified that the gunshot wound that killed Jane Tyson was a “contact wound, meaning that the end of the gun was up against the deceased’s ear at the time it was discharged.... ” Dr. Dixon also testified that Tyson died from the single wound to the left side of her head. Carolyn Davis, another patron of the mall, testified that she was in the parking lot when she heard the gunshot and saw Adam running toward her.

Adam told Ms. Davis that his grandmother was dead. Davis then went to Tyson’s car where she saw the victim on the ground with blood coming from her head. Another witness for the State, Scott Faust, testified that he was driving by the mall when he saw the blue Blazer parked in the lot. Faust saw a man enter the driver’s side of the Blazer, followed by another man who ran from a nearby car and jumped into the passenger side of the truck before it sped out of the parking lot.

Faust followed the Blazer, wrote down the license tag number, and observed the occupants through the truck’s rolled-down windows. Faust returned to the mall parking lot and gave a description of the men to the police who had arrived at the scene. Faust positively identified the Appellant, Wesley Eugene Baker, at a police “show-up” later ⁵⁴⁸ that evening. Faust also made a positive in-court identification of Baker during trial.

Baltimore County Police Officer Frank Barile testified that he and Officer Nick McGowan were on duty in an unmarked police cruiser on Security Boulevard when the suspect vehicle drove past them. The officers activated their emergency lights and pursued the vehicle at a high rate of speed until it turned onto Old Frederick Road and pulled to the right side of the roadway, where the passenger fled from the truck. Officers Barile and McGowan stopped the vehicle and placed the driver, Gregory Lawrence, under arrest. Following his flight from the vehicle, Wesley Eugene Baker was also arrested by Officer James Conaboy.

One of the arresting officers at the scene, Officer William Harmon, noticed what appeared to be blood splattered on Baker’s sock and shoe. Officer Conaboy then lifted Baker’s pants’ leg and the officers discovered blood on his shoe, sock, and leg. Upon a visual inspection of Gregory Lawrence, no blood was observed on any of his clothing. The blood found on Baker was later identified, by a serology comparison and positive DNA test, as that of Jane Tyson.

Officer Barile and a fellow officer searched the area where Baker exited the Blazer and found a white purse and an empty plastic card holder on the ground. Tyson’s wallet was also found in the area by another officer. Both the purse and the wallet were identified at trial as belonging to Jane Tyson. Incident to the arrest, Officer Barile searched the Blazer and found Tyson’s “MOST” bank card on the passenger-side floorboard.

Finally, there was testimony at trial that Baker’s fingerprints were found on the driver’s side door and window of Jane Tyson’s car. On October 26, 1992, in the Circuit Court for Harford County, a jury found Baker guilty of first degree premeditated murder, felony murder, robbery with a deadly weapon, and the use of a handgun during the commission of a felony. By a special verdict, the jury also found Baker was a principal in the first degree. Baker then elected to be sentenced by ⁵⁴⁹ Judge Cypert O. Whitfill. 1 At the subsequent sentencing hearing, the State incorporated all of the evidence from the trial and also introduced Baker’s prior criminal record.

The record revealed prior criminal convictions for unauthorized use in 1975 and 1978, two 1979 convictions for robbery with a deadly weapon, and a 1989 conviction for unlawful possession of a pistol and a controlled dangerous substance. At the time of the murder, Baker had been on parole for less than nine months. The State also presented testimony from John Tyson as to the impact the victim’s death had on him and on other members of their family. Appellant presented testimony from Paul Davis, Chairman of the Maryland Parole Commission, and Dr. Robert Johnson, an expert in criminal justice and prison adjustment.

Defense counsel then informed the court that, pursuant to their client’s instructions, they did not intend to call Baker’s mother or Lori James, a social worker who prepared a history of Baker’s family, to testify on Baker’s behalf. Defense counsel offered the following reason for this decision: “Mr. Baker has, as I have said, directed us to not call either of those two witnesses, and I think it’s fair to say that I understand, in a sense, why, because there were going to be very painful kinds of things testified about. But we have to respect ... Mr. Baker’s very clear, unequivocal and express directions to us, and therefore, we will not be calling those two witnesses.... ” The judge responded, “I certainly have a concern, from my standpoint, of not hearing anything about Mr. Baker’s social background.” At which point, the judge stated his inclination to call the individuals as court’s witnesses and he invited both State and defense counsels’ comments.

Defense counsel offered the following response: ⁵⁵⁰ “Your Honor, two comments. One, in our judgment, as an officer of the Court, we have to recognize that the Court has the common law power to call any witness the Court desires on making a determination on anything. The second comment is, if asked, Mr. Baker will indicate in person, before Your Honor, now that he does not wish you to call those two individuals as Court’s witnesses.” The record also indicates the judge was initially informed that Baker refused to offer the testimony because it would prove embarrassing to his family. The judge recognized, however, that “[i]f it’s a tactical decision ...

I think that decision should and must rest with the Defendant. As I understand it, that’s not what’s coming forward.” After further discussion, the following colloquy took place between the judge and Mr. Baker: “THE COURT: Mr. Baker, my inclination, at this moment, is to ask those witnesses to testify, recognizing that information may come out which could be painful to you or painful to other members of your family, but also looking at the reality of the decision that I have to make, literally, whether or not you live or die, and that whatever pain that your family is suffering from the information coming out, in my judgment, is not apt to be more painful than it would be if I imposed a sentence of death and did not have the information, and the feeling that had they overridden your choices, that at least that would have been considered. So, I am at a loss as to believe that any more pain can be inflicted on your family than a sentence of death without their having had the opportunity to speak. Do you wish to comment?

THE DEFENDANT: Yes. I feel like the information will be more damaging than helpful to me. •THE COURT: Say that again. THE DEFENDANT: I feel as though the information would be more damaging than helpful towards me and my case. ⁵⁵¹ THE COURT: Is that your reason for asking [that] I not do this? Because you believe it is more damaging?

THE DEFENDANT: That reason and personal reasons.” (Emphasis added). The judge thereafter decided he would not call either individual to testify. Baker also knowingly and intelligently waived his right of allocution. Following closing arguments, and after weighing all the factors and giving the case careful consideration, the judge imposed a sentence of death.

II

Court’s Witnesses Appellant contends that the trial court abused its discretion by refusing to call, as court’s witnesses, Baker’s mother, Ms. Williams, and Lori James, a social worker who prepared an extensive background of Baker’s family. Preliminarily, we note that “it lies within the sound discretion of the trial judge whether to call a person to testify as a court witness and that decision will not be reversed absent a clear abuse of discretion.” Thomas v. State, 301 Md. 294, 312 , 483 A.2d 6, 15 (1984) (citing Patterson v. State, 275 Md. 563, 581 , 342 A.2d 660, 670-71 (1975) and Scarborough v. State, 50 Md.App. 276, 282 , 437 A.2d 672, 676 (1981), cert. denied, 292 Md. 639 (1982)), cert. denied, 470 U.S. 1088 , 105 S.Ct. 1856 , 85 L.Ed.2d 153 (1985). This Court has stated that questions relating to a trial court’s discretion “are much better decided by the trial judges than by appellate courts, and the decisions of such judges should only be disturbed where it is apparent that some serious error or abuse of discretion or autocratic action has occurred.” Northwest’n Nat. Ins.

Co. v. Rosoff, 195 Md. 421, 436 , 73 A.2d 461, 467 (1950). Analyzing appellate review of discretionary decisions for the Court of Special Appeals in Thodos v. Bland, 75 Md.App. 700 , 542 A.2d 1307 , cert. denied, 313 Md. 689 , 548 A.2d 128 (1988), Judge Robert M. Bell succinctly stated the following principle: “[W]hen the consequences of a particular exercise of discretion are clear, i.e., one result is clearly unjust and the other, clearly not, the limits of the exercise of discretion are ⁵⁵² narrow. On the other hand, when the consequences are not so clear, ie., no result is clearly just or unjust, the limits of the exercise of discretion are considerably broader.” 75 Md.App. at 712 , 542 A.2d at 1313 (citation omitted). In the instant case, Baker made the decision not to call two witnesses, Lori James and his mother, but claims that the trial judge abused his discretion by not calling these two individuals as court witnesses and thereby accepting Baker’s assertion that the witnesses’ testimony might prove damaging.

We reject this contention for a number of reasons. First, prior to the 1988 enactment of Maryland Rule 1-501 (effective January 1, 1989), a principal reason a trial court called a witness itself was when neither of the parties could “vouch” for the witness’s veracity and the witness possessed information material to the cause of action. Because of this so-called “voucher rule,” a party might request that the judge call an individual as a court witness and conduct the direct examination since a party could not call and then impeach its own witness. See Patterson, 275 Md. at 568-69 , 342 A.2d at 664 (explaining that, “[i]n those cases where neither the prosecution nor the defense is willing to vouch for the veracity of the witness and the witness appears to possess material evidence^] the invocation of the procedure is generally held to be within the sound discretion of the trial court; some courts limit the procedure to those cases where material injustice would otherwise result”).

In such situations, both the State and defense were then afforded opportunities to cross-examine and impeach the court’s witness. Rule 1-501 abrogated the common-law voucher rule and permitted “[t]he credibility of a witness [to] be attacked by any party, including the party calling the witness,” thus eliminating the need for the court to call witnesses under these circumstances. 2 - In Spence v. State, 321 Md. 526 , 583 ⁵⁵³ A.2d 715 (1991), this Court reiterated the fact that the voucher rule was abolished in 1989 by Rule 1-501. The Spence Court also asserted that “the need for calling one as a court’s witness has been greatly reduced, if not eliminated.” 321 Md. at 528 n. 1, 583 A.2d at 716 n. 1. See also Brown v. State, 80 Md.App. 187 , 191 n. 1, 560 A.2d 605 , 607 n. 1 (1989) (stating that Rule 1-501 “eliminates the common law ‘voucher’ rule and obviates the need for court’s witnesses”).

Finally, relying on the holding in Spence, the Court of Special Appeals later stated that “the need to call a court’s witness, at least insofar as fact witnesses are concerned, simply ‘no longer exists’ for most purposes.” Nance v. State, 93 Md.App. 475, 485 , 613 A.2d 428, 433 (1992) (quoting Wright v. State, 89 Md.App. 604 , 610 n. 3, 598 A.2d 1214 , 1217 n. 3 (1991), cert. denied, 325 Md. 620 , 602 A.2d 711 (1992)). Although other reasons for calling a court’s witness may exist, a principal reason the court would do so has been eliminated by Rule 1-501. In addition, to say that a trial court has discretion to call its own witness is not the same as imposing upon that court a duty to call such a witness. 3 See Carter v. State, 66 Md.App. 567, 577-80 , 505 A.2d 545, 551-52 (1986) (concluding that court’s failure to call a witness in murder trial clearly was not an abuse of discretion). Furthermore, if Judge Whitfill violated Baker’s clearly expressed desire not to call these two witnesses, and their testimony did prove damaging, there might be substantial grounds for reversal. ⁵⁵⁴ In addition, although they freely discussed the matter, neither the State nor the defense specifically requested that the court call Ms. Williams or Ms. James as court’s witnesses.

In fact, Judge Whitfill originally raised the possibility of calling these two witnesses himself, recognizing the difficulties this issue presented: “Let me tell you what I was toying with, or the thought [that] had crossed my mind, was to call in the two witnesses as the Court’s witnesses. I think the Court’s entitled to have information, and I am not sure to what extent the Defendant has the right to say I will deny the Court that information. I invite counsel’s comments on such a thought. It’s not a ruling.

It’s a thought. ****** I certainly have, in less serious cases, without asking a Defendant what do you think, called on the Defendant’s parents and said I want to hear from you. I never had anybody object to it, and say you can’t do this. I am in control. So, it’s a new situation that I face.

And yet, my natural instincts are to say that I want to hear from these two people, and that I think I have a right to hear, and that Mr. Baker might as well convince me that I should not do that even after I express that as my natural inclination.” Appellant’s brief raises the argument that “the court improperly left to [Baker himself] the decision of whether or not the testimony of Lori James and [Baker’s] mother was mitigating or damaging. Such a decision is one that must be left to counsel’s determination.” Instead of calling the witnesses, however, defense counsel acquiesced in Baker’s desire not to call either individual to testify. If Baker’s attorneys believed it was within their purview to decide whether the witnesses should or should not be called, as a tactical or strategic matter, then they could have called the witnesses. 4 ⁵⁵⁵ Upon reflection, the sentencing judge recognized his discretion to call the witnesses and decided not to do so. The judge stated his decision as follows: “It would appear to me, then, in view of Mr. Baker’s having stated that, in his opinion, this evidence could be damaging, it takes it out of the area where ...

I should exercise discretion and call those witnesses as Court’s witnesses.” The judge exercised his discretion properly, respecting the Defendant’s clearly stated belief that the testimony would not only be embarrassing to him and his family but also potentially damaging to his case. It is also important to note that the defense raised no objection to Judge Whitfill’s decision not to call the witnesses, nor did the Defendant’s attorneys indicate any disagreement with the Defendant’s statement that the testimony might be damaging. To adopt Baker’s argument would place future sentencing judges in an untenable dilemma. Either risk reversal by not calling witnesses where there is a suggestion that the testimony might prove damaging or, alternatively, risk reversal by calling such witnesses if the testimony does, in fact, prove damaging.

In addition, criminal defendants facing the death penalty would be able to partially shift the burden to the court to call potentially mitigating witnesses. Baker also claims that the sentencing judge’s failure to call these witnesses constituted cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution and Articles 16 and 25 of the Maryland Declaration of Rights, because he failed to make an individualized ⁵⁵⁶ determination that death was the appropriate penalty. Baker ignores the fact that Judge Whitfill did make an individualized determination regarding Baker’s sentence, considering testimony offered on Baker’s behalf by the Chairman of the Maryland Parole Commission and an expert in criminal justice and prison adjustment. Therefore, we find Baker’s constitutional argument without merit.

The State also suggested that because Judge Whitfill heard the testimony of Lori James at a subsequent hearing on a motion for modification of the sentence, held on May 10, 1993, this rendered his original decision “harmless error.” 5 Because we find no error in Judge Whitfill’s original decision not to call Ms. James and Ms. Williams, we need not reach the harmless error issue.

III

Victim Impact Testimony Containing Hearsay Appellant next contends that the trial judge abused his discretion by admitting “victim impact” testimony from the murder victim’s husband, John Tyson, which included hearsay statements made by other family members. 6 We reject this contention on two independent bases: (i) many of the witness’s statements fall within the firmly rooted hearsay exception for relevant statements regarding a declarant’s state of mind; and (ii) if any error exists at all, it is harmless beyond a reasonable doubt because the sentencing judge explicitly stated he was not relying upon any of the victim impact testimony. ⁵⁵⁷ Notwithstanding the fact that any possible error was harmless, most of the hearsay statements testified to by John Tyson were properly admitted under the hearsay exception for statements of a declarant’s state of mind. Without unnecessarily reciting the entire sum of John Tyson’s testimony, Baker primarily objects to the following specific hearsay statements: “The girls talked about their grandmother and [she] visited them and had a nice relationship with them. In trying to tell the impact it had on [Jane Tyson’s daughters], I will talk about them as daughters and as a mother of their own children. Each of the girls has shared with me, personally, and also through observations, their pain. ij: sjt sj? í¡s sjc We all talk about our fears of going shopping, what would be safe, could it happen again, will the children be safe. [Tyson’s daughters] talk about their part of childhood that was so important for them and so rich in their relationship with their grandmother, and they feel the injustice of not having the grandchildren’s grandmother for them.

Karen [one of Tyson’s daughters] related to me one day when she was shopping with Carly and Adam for shoes, they said, ‘This is Gammy’s job. Gammy should be doing it.’ Brent told Tammy he couldn’t remember what Gammy sounded like. Susan [one of Tyson’s daughters] tells me that Mallory starts to talk about her Gammy a little bit now, and always remembers her in her prayers.” Baker specifically contends that Md.Code (1957, 1992 Repl. ⁵⁵⁸ Vol., 1993 Cum.Supp.), Art. 27, § 413(c), 7 as interpreted by the Court of Appeals in Tichnell v. State, 290 Md. 43 , 427 A.2d 991 (1981), prohibits the admission of this hearsay because it bears “insufficient indicia of reliability to be admissible in a sentencing proceeding,” especially if the hearsay declarants are available to testify. Maryland law, says the Appellant, is clear that, “while the strict rules of evidence do not apply at a sentencing proceeding, unreliable hearsay is inadmissible.” The latter principle is sound but what Appellant fails to acknowledge is the firmly rooted hearsay exception for a declarant’s state of mind.

As one author has observed: “Maryland recognizes ... the common law hearsay exception for statements of the declarant’s ‘state of mind,’ regardless whether the declarant is available to testify. Under this exception, a statement of the declarant’s then existing state of mind is admissible to prove the truth of the matter asserted, except that it is generally inadmissible (except in will and probate cases) to prove a fact which purportedly happened before the statement was made.” 6 Lynn McLain, Maryland Evidence § 803(3).1,-at 356-57 (1987) (footnotes omitted). Appellant’s reliance upon Tichnell v. State, 290 Md. 43 , 427 A.2d 991 (1981), is misplaced. The issue in Tichnell centered around the constitutionality of permitting the State to read portions of the Defendant’s trial transcript to a new sentencing jury charged with the duty of deciding whether to impose a death sentence. 8 See Tichnell, 290 Md. at 48 , 427 A.2d at 993 .

Baker correctly asserts the Tichnell case’s conclusion that “§ 413(c) does not permit, over timely objection, the admission in evidence before a new sentencing jury of the ⁵⁵⁹ prior recorded trial testimony” where the unavailability of the witness is not shown. 290 Md. at 63 , 427 A.2d at 1001 . On the other hand, Maryland law is replete with cases upholding the hearsay exception for statements regarding the declarant’s state of mind. See Maryland Paper Prods. Co. v. Judson, 215 Md. 577, 590-91 , 139 A.2d 219, 226 (1958) (holding it reversible error not to permit deceased’s hearsay statement that, on the morning of fatal accident, he intended to stop on the way to work and pick up a gear wheel for appellant-employer’s machine; evidence was admissible to show deceased’s intentions); Tittlebaum v. Pennsylvania R.R., 167 Md. 397, 402 , 174 A. 89, 91 (1934) (holding one boy’s testimony admissible regarding statement of a companion that he intended to throw a brick at a train and “ ‘bust a window' ”).

Most of the relevant hearsay statements, testified to by John Tyson at the sentencing hearing, fall within this well-established exception. Tyson testified that particular family members shared with him their fears, pain, and concerns. In one instance, Mr. Tyson did testify to hearsay within hearsay when he discussed what Jane Tyson’s daughters shared with him concerning Ms. Tyson’s grandchildren: “Karen [one of Tyson’s daughters] related to me one day when she was shopping with Carly and Adam for shoes, they said, ‘This is Gammy’s job. Gammy should be doing it.’ Brent told Tammy he couldn’t remember what Gammy sounded like. % sfc sfc sjs sh Susan [one of Tyson’s daughters] tells me that Mallory starts to talk about her Gammy a little bit now, and always remembers her in her prayers.” Although most material portions of Mr. Tyson’s overall testimony were admissible, these hearsay-within-hearsay statements may have been objectionable.

This in no way provides a remotely sufficient basis for reversal of the sentence imposed because any possible error was harmless beyond a reasonable doubt. ⁵⁶⁰ When Judge Whitfill imposed sentence upon Baker, he stated the following regarding the victim impact testimony provided by Mr. Tyson: “In doing this, let me say that I do not rely upon the victim impact statements. I don’t care whether the grandmother was a wonderful grandmother and a wonderful mother, whether she was an average mother, or average grandmother, or even if she was mediocre. When we cannot take our grandchildren shopping without the risk that someone will blow our brains away for the sake of our wallet or our purse, we have a problem. So, I cannot believe that under any circumstances that the mitigation, even if [it] were found to exist, that the aggravating factor does not outweigh that.” (Emphasis added).

It is categorically clear that Judge Whitfill did not rely upon the victim impact testimony offered by John Tyson, and the sentence was based upon independent grounds without regard to the hearsay objected to by Baker on appeal. Even if the admission of some portions of this hearsay was erroneous, because the statements did not otherwise fall within an accepted hearsay exception, it is harmless beyond a reasonable doubt and does not warrant reversal under these circumstances. See United States v. Jones, 542 F.2d 186, 204 (4th Cir.), cert. denied, 426 U.S. 922 , 96 S.Ct. 2629 , 49 L.Ed.2d 376 (1976) and Ramsey v. State, 239 Md. 561, 565 , 212 A.2d 319, 321 (1965) (both applying