Bedford v. State

COLE, Judge. A jury sitting in the Circuit Court for Baltimore County (Nickerson, J.) found Robert Bedford guilty of first degree premeditated murder, first degree felony murder, first degree rape, robbery with a deadly weapon, and theft of over $300.00. The circuit court sentenced him to death on the murder charge. This case is an automatic appeal, pursuant ⁶⁶³ to Md. Code (1957, 1976 Repl.Vol.) Art. 27, § 414(a), to this Court’s exclusive appellate jurisdiction, under Md. Code Courts and Judicial Proceedings Article § 12-307(4) (Supp. 1988), in cases where the death penalty has been imposed.

A detailed account of the gruesome facts is unnecessary for our resolution of the issues raised. Here the victim was found murdered and sexually abused in the bedroom of her home. At this time she was separated from her husband and her daughter was away at college. The house had been ransacked, personal items had been removed therefrom, and her car had been stolen.

Evidence from passengers of the stolen car led to Bedford’s arrest, and a subsequent search of his residence led to the recovery of a stereo record player and other personal items belonging to the victim. When arrested, Bedford was found wearing around his neck a gold chain belonging to the victim. Nevertheless, Bedford maintains that he is not the criminal agent. Bedford’s basic attack concerns the admission of certain evidence during the course of the guilt or innocence phase of this trial. 1 He presents three issues which he argues should be resolved in his favor and thereby entitle him to a new trial: (1) it was reversible error for the court to admit evidence of two instances of alleged attempts to escape as demonstrating a consciousness of guilt; (2) the trial court improperly conducted voir dire of the jury in that it denied him the right to communicate with his counsel and portrayed him to the jury as a dangerous man; and (3) the trial court improperly admitted nine color photographs of the victim.

For all or any of these reasons, Bedford claims he is entitled to a new trial. ⁶⁶⁴ I At trial, the State sought to introduce evidence purporting to show that Bedford had attempted to escape on two occasions since his arrest in 1987 for these offenses and that this conduct gave rise to an inference that Bedford was guilty of the charged offenses. Over Bedford’s objections, the trial judge admitted evidence that during a February strip search, prison guards discovered a four inch wire hidden on Bedford and that in May, guards found Bedford, who had been taken to court for trial, unescorted and wandering inside the courthouse. The trial court noted that while the State’s evidence was circumstantial in nature, nonetheless it was admissible as tending to demonstrate Bedford’s consciousness of guilt. This Court has previously examined the admissibility of evidence of flight after a crime has been committed.

In Sorrell v. State, 315 Md. 224 , 554 A.2d 352 (1989), we concluded that “[ejvidence of flight following a crime has generally been held admissible to show consciousness of guilt in Maryland” Id. at 227 , 554 A.2d at 353 ; see also Hunt v. State, 312 Md. 494, 508-09 , 540 A.2d 1125, 1132 (1988); Huffington v. State, 295 Md. 1, 16 , 452 A.2d 1211, 1218 (1982), cert. denied 478 U.S. 1023 , 106 S.Ct. 3315 , 92 L.Ed.2d 745 (1986); Tichnell v. State, 287 Md. 695 , 716-17 n. 11, 415 A.2d 830 , 841 n. 11 (1980). “Flight” includes an escape or attempted escape from confinement. C. McCormick, McCormick on Evidence § 271 (3d ed. 1984); see 2 J. Wigmore, Evidence § 276 (J. Chadbourn rev. 1979). Although flight is not conclusive of guilt in and of itself, it is one of the factors to be considered in establishing guilt and consciousness of that guilt. 1 Wharton’s Criminal Evidence § 214 (C. Torcia 13th ed. 1972). Any evidence contradicting the inference of guilt derived from flight “does not render the evidence of flight inadmissible, but is merely to be considered by the jury in weighing the effect of such flight.” Sorrell, 315 Md. at 228 , 554 A.2d at ⁶⁶⁵ 354 (quoting 1 Wharton’s Criminal Evidence § 214 at 450).

With this background in place, we now examine the incidents in question. On the morning of May 20, 1987, Bedford was transported by two officers from the Detention Center to the Baltimore County Circuit Courthouse where he was to attend his trial. Bedford and eleven other prisoners were handcuffed one to the other forming a human chain and led out of the police wagon. They were then led into the building, through the underground garage, and down a hallway toward the holding cells (called the bull pen area).

Normally, at this point, prisoners are uncuffed and placed into the cells. One of the transporting officers testified that for reasons he just did not know, Bedford never made it into his assigned lockup cell. In an agreed statement of facts, however, both parties conceded that the prisoners’ cuffs had been unlocked by the officer and each prisoner directed into a cell. Bedford had stepped behind the officer as did other prisoners preparing to enter the cell.

Bedford, however, did not enter as presumed but instead walked away from the cellblock. Not long thereafter, Bedford was spotted by an officer who was transporting prisoners down one of the ground floor hallways. That officer testified that he saw someone duck into an open cell in a twenty to thirty foot long dead-end hallway, which at that time was “completely dark except for the light from the hallway going in.” The officer approached Bedford and asked him to identify himself and state his purpose for being in the hallway. Bed-ford did not identify himself, but stated that he had come in through the exit at the end of the hallway.

The officer discounted this reply as false since the exit remained locked, and there was only one way into and out of the area. There was no access to any area open to the public. The officer asked Bedford to accompany him to the main desk where other officers recognized and immediately handcuffed Bed-ford. ⁶⁶⁶ 2 Bedford argues that he did not “escape” because he never left the courthouse. Any departure “from the bounds where [the defendant] has been assigned,” however, is sufficient to constitute escape under Md. Code (1957, 1976 Repl.Vol.) Art. 27, § 139(a)(1).

Stewart v. State, 275 Md. 258, 271 , 340 A.2d 290, 297 (1975). Bedford may attempt to convince the jury that his “failure” to leave the courthouse is inconsistent with flight giving rise to an inference of guilt. As stated in Sorrell , such testimony would go to counteract the weight given the effect of such flight, but would not prevent its admission. We therefore hold that evidence regarding the May 20th incident was admissible.

We turn now to the February incident. On February 25, 1987, following arrest and incarceration on charges of first degree murder, robbery, and rape, Bedford was scheduled to be transported from his cell in the Baltimore County Detention Center to the office of a psychiatrist outside of the prison complex. Consistent with normal procedure for all inmates leaving the Center, deputies requested Bedford to remove his clothing in preparation for a “strip-search” to detect the presence or absence of contraband or any tools which might aid his escape. Bedford verbally resisted, asking to see his lawyer or a police captain.

This request was denied and Bedford was searched. Inside his “long-johns” the officers discovered a four-inch piece of metal wire sharpened to a point and wrapped in toilet paper. The officer who conducted the search testified at trial that he personally had seen such instruments used to open handcuff locks. When asked to unlock handcuffs by using the four inch wire, however, he was unable to do so.

Nevertheless, the State maintained ⁶⁶⁷ that the wire was properly admitted into evidence as supporting the inference that Bedford planned to escape once enroute to his destination. We note that the crime of criminal attempt in Maryland is governed by a “substantial step” test, whereby a defendant will be found guilty of attempt only where the evidence demonstrates that he took “substantial step[s] toward the commission of [a] crime whether or not his intention [to commit that crime] be accomplished.” Young v. State, 303 Md. 298, 311 , 493 A.2d 352, 359 (1985). In Young , we also pointed out that no “substantial step” will be found unless the conduct is “strongly corroborative” of a criminal intention. Id.

Here, the State argues that Bedford is guilty of attempted escape since he was caught with a sharpened four-inch piece of wire useful to pick handcuff locks. Bedford retorts that this evidence only shows mere possession of a wire. Standing alone, this evidence is not enough to be regarded as a “substantial step” toward escape and is certainly not corroborative of an intent to flee. First of all, he argues, there is no indication of what he planned to do with the wire.

It could have been used for other purposes which do not support the consciousness of guilt theory, i.e., a defensive or offensive weapon, a tool for intra-prison work activity, or any other purpose unrelated to the charges against him. But in any event, Bedford maintains that the prejudice generated by the evidence that he was in possession of a wire outweighed any probative value that that evidence might have had. It did not imply that he knew that he was guilty of the crimes charged; rather, Bedford contends that the evidence suggested to the jury that he was violent, ignored prison rules, or was otherwise a “bad man.” Thus, Bedford concludes the evidence was inadmissible. The authorities are uniform that evidence of a consciousness of guilt is generally circumstantial and should be more probative on the issue of ultimate guilt than prejudicial to ⁶⁶⁸ the defendant.

McCormick, Evidence § 271; see Fed.R. Evid. 403. If the judge finds that the proposed material is likely to lead a reasonable jury to infer the defendant’s guilt without causing him substantial prejudice, then the judge may allow the jury to consider the evidence in reaching a verdict as to the charged offense. If, however, the inference as to ultimate guilt is weak and the circumstantial evidence merely tends to create in the minds of jurors the impression that the defendant is of questionable character and has a propensity for bad acts and probably acted accordingly on the charged occasion, then the evidence should be excluded. We are not convinced that possession of a wire under the circumstances in this case is a “substantial step” toward making an escape.

There are too many other possible reasons why Bedford could have been in possession of that wire. While we doubt that the wire would be a tool for intra-prison work activity, we do accept that its presence could lead the jury to other inferences about Bedford. The jury could consider it as a weapon and view Bedford as being violent, or could see defendant’s possession of the wire as a breaking of rules. Consequently, it could view Bedford as a “bad man” for breaking such a rule.

Because the possession of the wire is so equivocal, we hold that its admission into evidence was more prejudicial to Bedford than probative of an intent to escape and should have been excluded. It was reversible error to admit this evidence. Since the judgment of the circuit court must be reversed, “we deem it to be necessary and desirable for the guidance of the lower court and to avoid the expense and delay of another appeal to this Court” to state our views on the remaining issues. Midgett v. State, 216 Md. 26, 38 , 139 A.2d 209, 215 (1957); Maryland Rule 8-131(a).

II Bedford complained to the trial judge that he was not allowed to sit next to his counsel but was forced to sit ⁶⁶⁹ some ten feet away flanked by two deputy sheriffs. Defense counsel attempted to preserve for the record the description of the seating arrangement at the time of trial and noted his objection thereto: DEFENSE COUNSEL: Just to make the record clear, we have in this room a table which is capable of seating three to four people on each side, and at least one person at either end; and what I am proposing is that, in lieu of the Court’s instruction, to place the prospective juror at one end of the table, and that I would like to place my client next to, me at the other end of the table, which is approximately eight to ten feet away from the prospective juror. My reason is that, number one, I feel that my client has a right to participate in any proceedings involving jury selection. This is a critical stage of the proceeding.

Additionally, my client is clear across the room and seated between two deputies. It gives a prejudicial appearance of custody. It denies my client effective assistance of counsel by placing him out of the confidential communication range with me; and what this means is that either while we have every juror coming individually, I am going to have to get up, cross the room, go between two deputies, whisper in his ear if there is anything he wants me to do with regard to his own defense; I would take exception to any ruling that denies me access in a confidential manner to my client during any of these proceedings. The trial judge then attempted to clarify the record and rectify the situation: THE COURT: Perhaps the record should show, clear across the room is maybe ten or twelve feet, at the moment.

Let me ask the deputy sheriff—-there is a chair here next to this pillar, which would bring Mr. Bedford within perhaps six feet or so of Mr. McCampbell. Is there any problem, gentlemen, if Mr. Bedford sits there? Record at Vol. II, pp. 2-3.

There being no objection from the sheriff, Bedford was allowed to move. ⁶⁷⁰ Bedford argued that even this new arrangement was prejudicial since the distance placed between him and his counsel implied that Bedford potentially was dangerous even to his own attorney. The court responded to counsel’s objection: THE COURT: Your exception is noted. Your motion is denied. We will place Mr. Bedford closer to you, and afford you, of course, the opportunity at any stage to simply move a few feet over and speak to Mr. Bedford.

Id. at 4. Before analyzing the propriety of this jury selection procedure, we pause to review the nature of the voir dire examination itself. Voir dire, literally translated means “to say the truth.” Webster’s Third New International Dictionary, 2562 (1st ed. 1981). Maryland Declaration of Rights Article XXI guarantees a defendant the right to examine prospective jurors to determine whether any cause exists for a juror’s disqualification.

Grogg v. State, 231 Md. 530, 532 , 191 A.2d 435, 436 (1962). Pursuant to Maryland Rule 4-231 and the common law, the defendant has the right to be present during voir dire. Noble v. State, 293 Md. 549 , 446 A.2d 844