Booth v. State

BISHOP, Judge. A Baltimore City Circuit Court jury convicted appellant, John Edward Booth, of first degree murder 1 and robbery with a dangerous and deadly weapon. 2 The court (Greenfield, J.) sentenced appellant to life imprisonment for the murder conviction and twenty years for the conviction of robbery. The sentences were directed to run consecutively. ²⁹ FACTS On Monday, April 5, 1983, the day after Easter, Officer Wilson of the Baltimore City Police Department discovered the dead body of James Edward [“Pie”] Ross in the dining room of Ross’ home. Ross’ shirt was stained with blood and his pants pockets were turned inside out.

The victim’s wallet was found under the dining room table. There were no signs of forced entry and the room was neat except for an overturned chair and a sideboard which had been moved away from the wall. Ross, who had been stabbed twenty-two times, had been dead approximately twenty-four hours. An extensive investigation ensued, which lead to the arrest of appellant.

At trial, the State adduced evidence showing that on Easter Sunday, April 4, 1983, Regina Harrison telephoned the victim between 5:30 and 6:00 p.m. He told her he had company, a young girl named Brenda, whom he intended to ask to leave, because he was getting ready to prepare dinner for some other guests he was expecting later that evening. Harrison testified that during the telephone conversation she heard a door open and then a man and a woman talking. Being familiar with the apartment, she surmised that the voices were coming from the front steps outside the vestibule door.

According to Harrison, the victim did not seem anxious or nervous during the telephone conversation. This same information had been related to the police during the investigation. Veronda Mazyck testified that in late March or early April, 1983, appellant and a woman named Brenda came to live with her and her boyfriend. The four spent the Saturday evening before Easter getting high on heroin and discussing their need for money.

Mazyck testified that the next morning, appellant was constantly saying that he wished he could get some money so they could obtain more drugs. Brenda stated that she knew a place they could go. As it was getting dark, appellant and Brenda left the apartment. ³⁰ Mazyck testified that when appellant and Brenda returned at about 9:00 p.m., the front of appellant’s jacket was bloody. From his sleeve he pulled a yellow shopping bag which contained an eight inch long butcher knife.

Mazyck identified the knife as one of her own. According to the witness, appellant was anxious and asked Mazyck’s boyfriend to help him get out of the bloody jacket. The two men went into the bathroom. Mazyck heard water running in the tub.

Mazyck further testified that during this time Brenda was seated in a chair in the bedroom and was in an hysterical condition. When appellant and Mazyck’s boyfriend entered the bedroom, appellant was no longer wearing his jacket. He showed the others a roll of cash which he was peeling and counting. Mazyck estimated that there were more than fifty dollars.

Appellant said that he and Brenda had gone to the house of someone Brenda knew, that Brenda had knocked and was let in while appellant stood on the side. A little later Brenda let appellant into the house. According to appellant, Brenda was supposed to get money from the man so they could get high, but it did not turn out as it was supposed to and he had to “put the mash to the man.” As he said this, appellant had his right hand raised and was moving it back and forth which indicated to Mazyck that appellant had stabbed the man. Later that evening, when Brenda said she wanted to watch the news to determine if the man was all right appellant told her, “you know what dead is.” Charles Westry, who lived with appellant’s sister, testified that one night, while he was alone with appellant, appellant told him that Brenda had gotten panicky in a situation involving a murder.

According to Westry’s narration of appellant’s statement, Brenda had “set up her uncle or something to take him off” for some dope and that when Brenda panicked, appellant had to kill him. Appellant stated that he stabbed the man and showed Westry how, by moving his hand up and down. When appellant said that he wanted to kill Brenda because he was afraid she would go ³¹ to the police, Westry told him he wanted nothing to do with it. In his defense, appellant called several members of his family, each of whom testified that appellant was home with them all of Easter weekend.

After being instructed on the elements of premeditated murder, felony murder 3 and robbery, the jury convicted appellant of armed robbery and premeditated murder. Appellant raises two issues: I. The trial court erred in permitting into evidence the hearsay statement of the victim.

II

The trial court committed plain error by failing to instruct the jury on second degree murder and by giving the jury a verdict sheet which did not contain second degree murder as one of the possible verdicts. I. Hearsay Evidence Appellant objected to the testimony of Regina Harrison in which she related her telephone conversation with the victim during which the victim had stated that a young girl named Brenda was at his apartment. Appellant also objected to the content of Harrison’s conversation with the victim coming in through a police witness who questioned her during the homicide investigation. The ground of each objection was that the victim’s statement to Harrison about Brenda was inadmissible hearsay which did not fall into any recognized exception.

After a hearing in limine on the admissibility of Harrison’s testimony, the court, in a well reasoned oral opinion, ruled that the victim’s statement was admissible through Harrison under the “present sense impression” exception to the hearsay rule. The trial judge noted, and we agree, that no Maryland case has expressly ³² adopted this hearsay exception. Appellant urges that we decline to do so now, at least on the facts here presented. Federal Rule of Evidence 803(1) defines present sense impression as A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.

Thus, the declaration must be contemporaneous with the event. The now much discredited term “res gestae”, Gray v. State, 53 Md.App. 699, 710-716 , 456 A.2d 1290 (1983) was typically used to justify the admissibility of statements which today come within the four [hearsay] exceptions [encompassed by the category ‘spontaneous statements.’]: (1) statements of present bodily condition, (2) statements of present mental states and emotions, (3) excited utterances, and (4) statements of present sense impressions. Despite the increased sophistication of the hearsay rule and its exceptions today, however, courts still occasionally speak in terms of res gestae rather than in terms of more precise hearsay doctrine. McCormick, Evidence, § 288 (3d. ed. 1984) (footnote omitted); Wabisky v. D.C. Transit System, Inc., 309 F.2d 317, 318 (D.C.Cir.1962).

See also, Moore v. State, 26 Md.App. 556, 560, n. 1 , 338 A.2d 344 , cert. denied, 276 Md. 747 (1975) where we stated that res gestae was an umbrella term [which] covers a wide variety of analytically distinct rationales, including excited utterances; declarations of both present bodily condition and present mental condition ...; declarations of present sense' impression ...; admissions by a party or declarations against interest....” We agree with McCormick, supra, at § 298, that the present sense impression compares favorably with the excited utterance exception to the hearsay rule. McCormick wrote: ³³ Given the danger of unreliability caused by the very emotional excitement required for excited utterances, it makes little sense to admit them while excluding other out-of-court statements which may have equal assurances of reliability and lack of inherent defects of excited utterances. Id. p. 860 (footnote omitted). Also, in the past, our Courts have upheld, under the “res gestae” or excited utterance exceptions to the hearsay rule, statements which more closely resembled declarations of present sense impression.

See, e.g., Grier v. Rosenberg, 213 Md. 248, 256 , 131 A.2d 737 (1957) (statement to person injured in auto accident “I have the car number” held admissible as part of res gestae); Hall v. State, 5 Md.App. 599 , 249 A.2d 217 (1969) (testimony that, during sexual attack, an unidentified person inquired “who’s on him now?” and that another unidentified person replied that “Billy Hall” was on the victim, held admissible as part of res gestae). In Gray v. State, 53 Md.App. 699, 710-711 , 456 A.2d 1290 (1983), Judge Moylan for this Court observed that [o]ne almost longs nostalgically for the discredited label of ‘res gestae’, notwithstanding its utter repudiation in polite academic circles. Its sin was its elusive ambiguity. We avoid the shotgun approach of res gestae and instead we attempt to focus our approach in this case.

As we noted in Moore , “Maryland has firmly endorsed the principle of the ‘excited utterance’ exception to the hearsay rule.” Id., at 566 (citations omitted). In Moore, supra, Judge Moylan in an excellent discussion of “Excited Utterances as an Exception to the Hearsay Rule” quoted from Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229 , 238 (1922). In that article Professor Morgan pointed out: In this country but few cases prior to 1880 gave weight directly to the element of spontaneity, and fewer still to the fact that spontaneity was insured by the startling ³⁴ nature of the event. Indeed contemporaneousness rather than spontaneity was emphasized, although the latter was clearly recognized as highly important.

Id. p. 563, 338 A.2d 344 . In Moore , we also pointed out that McCormick in his first edition, 1954 at § 272 “Excited Utterances (Spontaneous Exclamations)” pp. 578-579, 338 A.2d 344 stated: Psychologists would probably concede that excitement stills the voice of reflective self-interest but they might question whether this factor of reliability is not overborne by the distorting effect which shock and excitement have upon observation and judgment. But they might well conclude that contemporaneous statements