Ballard v. State

RODOWSKY, Judge. The issue here involves the rule requiring corroboration of the confession of an accused by some independent evidence of the corpus delicti We return to this well plowed ground ⁵⁶⁹ because of the contentions of the petitioner, Robert Leslie Ballard, Jr. (Ballard), who stands convicted, inter alia, of felony murder in an attempted robbery. Ballard contends that corroboration of the corpus delicti in this case requires independent proof of the attempted robbery. As explained below, this contention greatly overstates the corroboration requirement.

Ballard was convicted by a jury in the Circuit Court for Prince George’s County of felony murder, attempted armed robbery, and the use of a handgun in the commission of a crime of violence. He was acquitted of premeditated murder. The court imposed a life sentence and a consecutive five year term for the handgun conviction. For purposes of sentencing, the attempted armed robbery conviction was merged into the felony murder.

The Court of Special Appeals affirmed in an unreported opinion. This Court granted Ballard’s petition for certiorari, which raised the following question: “Whether the Court of Special Appeals erred in holding that the petitioner’s confessions alone were enough to establish the corpus delicti of the offense of attempted robbery with a deadly weapon, under the circumstances of the instant case.” The murder victim was Ferris Bernard Dyson (Dyson), age twenty-five. On the night of January 8, 1992, Dyson had dinner with his fiancee at her apartment at 6801 Milltown Court, District Heights, Maryland. Dyson’s fiancee was pregnant with their child, whose birth was imminent.

At about 9:30 p.m. Dyson left to take a Metro bus to visit his grandmother. Dyson walked one block to the bus stop on Walker Mill Road, at Karen Boulevard, adjacent to the Walker Mill Garden Apartments complex, in Capitol Heights. While at the bus stop Dyson was mortally wounded by a .25 caliber bullet fired from a semiautomatic handgun that was held eighteen to twenty-four inches from the left side of Dyson’s head.

The bullet entered into the left ear, crossed the left ⁵⁷⁰ side of the brain and lodged in the right side of the brain, on a trajectory that was slightly upward and slightly back to front. The first police officer on the scene was Officer Nelson William Rhone, Jr. of the Prince George’s County Police Department. Officer Rhone was working part time as a security officer for the Walker Mill Garden Apartments. At approximately 9:45 p.m. he heard a report over the police radio “saying shots had just been fired, and a man was down on the corner of Karen Boulevard and Walker Mill Road.” Officer Rhone went to that location, found Dyson, summoned an ambulance, and secured the scene.

Dyson was taken to the intensive care unit at Prince George’s Hospital. Dyson’s fiancee saw him there the next day when she was in that hospital to deliver their child. Dyson died two days after the shooting. No weapon was found at the scene of the shooting.

The police, however, did find a .25 caliber shell casing on the sidewalk of Walker Mill Road near the bus stop. Dyson had a toothbrush and $21.15 on his person. The petitioner, Ballard, was then a seventeen year old special education student at Central High School. One of the Central High teachers, Elizabeth Ann Wilson, acting on information she had heard “in the community,” asked Ballard about the shooting.

Ballard made statements, constituting admissions or confessions, to Ms. Wilson, and then to the school security officer, to the school principal, to the police, both orally and in writing, to his father, and to the court and jury at trial. The substance of these statements was that Ballard and his friend, Cory Urquahart (Urquahart), had spent the late afternoon and early evening of Wednesday, January 8, 1992, drinking vodka and grapefruit juice in Urquahart’s mother’s apartment in the Walker Mill Garden Apartments. Then they went out for a walk. Urquahart had furnished Ballard with a .25 automatic to carry, and Urquahart also was carrying a handgun.

At about 9:45 p.m. they saw a man whom they did not know at the bus stop near the entrance to the Walker Mill ⁵⁷¹ Garden Apartments. Urquahart suggested that they rob the man. Ballard “was getting ready to rob him, pulled out the gun, pointed it at the man, and the gun fired.” The youths ran from the area of the bus stop, through the garden apartment building closest to Walker Mill Road, around the swimming pool of the apartments, and back to Urquahart’s mother’s apartment. They hid the guns under a chair in Urquahart’s bedroom where the police, executing a search warrant, later recovered them.

The State established that the .25 caliber bullet taken from Dyson’s brain had been fired from the .25 caliber semiautomatic found at the place where Ballard said that the weapon had been hidden after the shooting. In oral, extrajudicial statements and in his testimony at trial, Ballard at times said that, because he had been drunk, he had no recollection of the shooting, and that his various statements identifying himself as the shooter were based upon what Urquahart had told him had happened. The only direct, as contrasted with inferential, evidence that Ballard and Urquahart were attempting to rob Dyson is found in Ballard’s statements. He contends that, in order to convict, there must be evidence, independent of his statements, to corroborate the attempted robbery which underlies his felony murder conviction.

That is not the Maryland law. 1 Woods v. State, 315 Md. 591 , 556 A.2d 236 (1989), defeats Ballard’s contention. That was a contract murder case in ⁵⁷² which the killer confessed to having shot the victim three or four times at point blank range. We said: “ ‘In a homicide case the proof of the corpus delicti is sufficient if it establishes the fact that the person for whose death the prosecution was instituted is dead, and that the death occurred under circumstances which indicate that it was caused criminally by someone.’ ” Id. at 617 , 556 A.2d at 249 (quoting Jones v. State, 188 Md. 263, 272 , 52 A.2d 484, 488 (1947)). In Woods , the evidence apart from the confession established that the victim died of gunshot wounds.

We said that “[t]he gunshot wounds were enough to show that the manner of death was homicide — that [the victim’s] death was not by accident or suicide but was caused criminally by someone.” Id. at 617 , 556 A.2d at 249 . That was sufficient corroboration to consider the confession, and the State’s proof was sufficient to sustain the conviction of murder in the first degree. The rule as stated in Jones has also been stated in Thanos v. State, 330 Md. 77, 97 , 622 A.2d 727, 736 (1993), Whittlesey v. State, 326 Md. 502 , 560 n. 11, 606 A.2d 225 , 254 n. 11 (1992) (Bell, J., dissenting), Bagley v. State, 232 Md. 86, 96 , 192 A.2d 53, 58 (1963), Pierce v. State, 227 Md. 221, 226 , 175 A.2d 743, 744 (1961), Crouch v. State, 77 Md.App. 767, 770 , 551 A.2d 943, 944 , cert. denied, 315 Md. 307 , 554 A.2d 393 (1989), Hurley v. State, 60 Md.App. 539, 549 , 483 A.2d 1298, 1303 (1984), and Lemons v. State, 49 Md.App. 467, 473 , 433 A.2d 1179, 1183 , cert. denied, 292 Md. 13 (1981). Here, the fatal weapon was not by the victim’s body.

Suicide can therefore be excluded. Further, the independent evidence indicates that Dyson’s death was not an excused, accidental homicide. Officer Rhone’s hearsay statement, that multiple shots were fired, came into evidence without objection. An F.B.I. firearms identification expert testified that the .25 caliber semiautomatic murder weapon required a distinct five and one-half pound pull on the trigger in order to fire each round, and that that pull was standard for the weapon. ⁵⁷³ Viewing the facts from the foregoing perspective, the instant matter is indistinguishable from Woods .

If one infers from the fact that the police found only one shell casing at the crime scene the further fact that only one shot was fired, the corpus delicti was nevertheless established. Based on the gunpowder stippling around the entrance wound at Dyson’s left ear, the opinion of the medical examiner was that someone pointed a loaded firearm at Dyson’s head from eighteen to twenty-four inches away. Thus, the independent evidence demonstrates, at a minimum, such recklessness in the handling of the weapon by someone as to constitute involuntary manslaughter and, thereby, a criminal homicide that satisfies the corroboration requirement. See Duckworth v. State, 323 Md. 532, 542-44 , 594 A.2d 109, 113 (1991) (pointing a firearm at a nearby human being, without justification and without being certain that it is unloaded, is generally sufficient to support a manslaughter conviction where an unintended discharge of the weapon results in death).

Ballard principally relies on Hadder v. State, 238 Md. 341 , 209 A.2d 70 (1965), which he reads as impliedly recognizing that independent proof of the underlying felony is required. Hadder was convicted of the first degree murder of a police officer. The jury had not been asked to specify whether it found premeditated murder or murder in the course of an attempted robbery or both. The facts were these.

At about 1:15 a.m. the dead body of a uniformed Prince George’s County police officer was found over an embankment off of a highway. Id. at 345 , 209 A.2d at 72 . On the road, thirty to forty feet away, was the officer’s police cruiser with its motor running, its headlights on, and its red light flashing. The officer had been killed by a .45 caliber bullet, fired from no more than twelve inches away, which entered the chest, emerged from the left side of the victim’s back near the belt line, and remained in his clothing.

Another .45 caliber bullet had been fired into the dashboard of the cruiser. At various places in or near the crime scene the investigators found the dead officer’s .38 service revolver, six empty .38 cartridge ⁵⁷⁴ casings, a .45 automatic pistol, an automobile registration, a wallet, and a shoe. Later that day Hadder surrendered himself and gave several statements. In one statement Hadder said that, after having been stopped by the officer and while seated in the patrol car, he intended to take the officer’s gun and car keys in order to escape.

Id. at 346 , 209 A.2d at 72-73 . On appeal, Hadder contended that independent corroboration of that portion of his statement, expressing intent, was required. Id. at 352 , 209 A.2d at 76 . The physical facts in Hadder demonstrated that the officer was dead as the result of a criminal act by someone.

That is all that is required to corroborate the corpus delicti, as explained above. The opinion in Hadder , however, does not cite Jones v. State, 188 Md. 263 , 52 A.2d 484 , and the opinion reviews all of the evidence. In his brief in this case, Ballard argues that Hadder is consistent with requiring independent proof of the underlying attempted robbery where that crime is the basis for felony murder. Although Hadder’s discussion went beyond corroboration of the corpus delicti, as Jones and its progeny defined it, and considered corroboration of Hadder’s criminal agency, there was no mention of any independent evidence directly