Brown v. State

GETTY, Judge. This appeal is the direct consequence of what began as a stipulation between the State and counsel for each of two ¹³⁰ defendants and ended up several light years away from the original format. We shall return to a discussion of the stipulation in due course. Michael Anthony Whitehead and Donald Anthony Brown 1 were charged with three counts of armed robbery, one count of assault with intent to murder and related offenses.

Appellant Whitehead was convicted by a jury in the Circuit Court of Anne Arundel County of three counts of armed robbery, one count of assault with intent to rob and one count of use of a handgun in the commission of a felony. On December 6,1982, the court imposed sentences of twenty years to run concurrently with a sentence of life imprisonment plus fifteen years imposed in an unrelated case upon a conviction of felony murder. Appellant’s principal allegation of error herein relates to a motion for mistrial, denied by the court, based upon the State’s introduction of evidence establishing appellant’s involvement in an unrelated case. The remaining issue alleges an abuse of discretion by the trial judge in permitting a defense witness to be impeached by the introduction of a prior conviction for possession of a firearm.

THE FACTS On October 3, 1981, at 8:30 P.M., two armed men entered the Severna Park Liquor Mart, accosted two store employees and obtained $600.00 from a cash register. During the holdup a customer, Patricia Ashe, entered the store and one of the robbers seized her pocketbook. Mrs. Ashe pursued her assailant outside the store at which time a shot was fired in her direction. At trial, Mrs. Ashe and one of the store employees, Charles Orr, identified Whitehead as one of the robbers. ¹³¹ Subsequent to the robbery of the Liquor Mart, but prior to trial therefor, Whitehead and Brown were convicted of an unrelated robbery and felony murder that occurred in Prince George’s County on November 20, 1981, seven weeks after the Liquor Mart holdup. 2 Both Whitehead and Brown were apprehended as a result of the crime in Prince George’s County and Brown had in his possession a handgun that was stolen during the Liquor Mart robbery.

Prior to trial, all counsel conferred with the court concerning the State’s intention to establish that the gun confiscated from Brown was stolen during the Liquor Mart robbery and that Whitehead was with Brown at the time the gun was recovered. The State’s concern was in avoiding a Bruton 3 problem by disclosing an unrelated crime. After discussing the matter, all counsel agreed to the following stipulation: “It is stipulated between the State and between the defendants, through their counsel in this case, that if called to testify, Cpl. F.M. McQuillen of the Prince George’s County Police Department would testify that he took a statement from Donald Anthony Brown, the defendant in this case ... or one of the defendants in this case .. . and in that statement Mr. Brown admitted to being in possession of Exhibit 1 [the gun] on November the 20th, 1981.

That at the time he was in possession of this gun, Mr. Whitehead was with him. It would be further stipulated, Your Honor, that this gun was found within close proximity of an automobile, which automobile which (sic) was abandoned in Prince George’s County in ¹³² which the defendants were observed to have occupied on November the 20th, 1981.” The stipulation was offered during the State’s case in chief. In opening statement, Brown’s counsel made a tactical decision to inform the jury of Brown’s prior record in an effort to bolster his credibility in the present case. The jury was then told that Brown would testify “that he’s been convicted of murder.” No objection was made by appellant to counsel’s opening statement.

We note, however, that the tacit admission of a prior murder conviction carefully avoided any reference to the November 20th felony murder. Brown testified that he had been convicted of first degree murder and armed robbery. He did not, however, state when or where the offenses occurred. He denied being a participant in the Liquor Mart robbery and stated that he purchased the gun from an unknown person on Fourteenth Street in Washington early in November, 1981.

On cross-examination the following colloquy occurred: “Q. What were you going to do with the gun on that date, Mr. Brown? COURT: You’re talking about November 20th? STATE: That’s correct. A. Going to commit a robbery.

Q. In Prince George’s County, is that correct? A. Yes