Burgess v. State

ALPERT, Judge. The State of Maryland, in a 90 count indictment, charged John Lavon Burgess, appellant, with numerous violations of the criminal laws including Assault with Intent to Murder, Assault with Intent to Maim, Assault with Intent to Disable, Assault and Battery, and Malicious Destruction of Property. All of the charges stemmed from a rock throwing barrage along Interstate 95 (1-95) 1 in Prince George’s County, Maryland. The lower court severed Burgess’s trial from that of his co-defendants, Maurice Edward Ford and Donnell Petite.

Burgess elected a bench trial. After a short trial, the court reached the following verdicts. ⁵²⁸ [[Image here]] The lower court sentenced Burgess on December 17, 1990. He appeals to this court, raising the twelve assignments of error that follow. ⁵²⁹ I. Whether the identification evidence with respect to each of the separate incidents was insufficient to find defendant guilty beyond a reasonable doubt. Appellant Burgess structures his first issue around two main arguments.

One, the lower court failed to distinguish between a confession and an admission. Two, the lower court did not have sufficient identification evidence to find Burgess guilty as to each count. We address his concerns. A. On June 2, 1989, troopers White and Wooters went to Burgess’s house to interview him “about a rock throwing incident that occurred on the Beltway.” After speaking to Burgess for a short time, the troopers asked him to accompany them to the Maryland State Police Barracks in Forest-ville, Maryland, to continue the interview.

Burgess agreed, and went to tell his parents where he was going. Once inside his house, however, Burgess clung to his mother and refused to accompany the troopers. At this time, Burgess’s stepfather requested that the troopers vacate the premises and return only if they had a warrant. Troopers White and Wooters and Detective Philbin returned with a warrant around 8:00 p.m. and took Burgess to the Criminal Investigations Division (CID) Headquarters.

At the CID Headquarters in Landover, Maryland, Detective Philbin advised Burgess of his rights. Burgess waived his rights and made a written statement. The crux of that statement is as follows: Me, Donnell, and Man was [sic] drinking. We went to the movies in Rivertowne.

After the movies we start[ed] playing around and we all were saying [“]let’s go to the bridge.[”] Then we went and start[ed] throwing rocks on the bridge. Then Donnell got in the street and started throwing rocks at cars. After a little while we all were in the street. Then Man saw 2 people running so we left. ⁵³⁰ Appellant argues that his statements to the police were “admissions and not a confession” because he did not make a direct acknowledgement of guilt with respect to the harm done to any particular person or piece of property.

Although he is correct to suggest that there is a distinction between an admission and a confession, he fails to show the harm that flowed from any lack of distinction and he overlooks State v. Kidd, 281 Md. 32 , 375 A.2d 1105 , cert. denied, 434 U.S. 1002 , 98 S.Ct. 646 , 54 L.Ed.2d 498 (1977). “[I]t is firmly established that the test for the receipt in evidence against an accused is the same for a confession and an admission.” Id. 281 Md. at 34 n. 1, 375 A.2d 1105 . We now turn to his second contention. B. Burgess suggests that the lower court did not have sufficient identification evidence before it to convict him on the 38 counts. Because the test for admissibility is the same for an admission as it is for a confession, we can look to Birchead v. State, 317 Md. 691 , 566 A.2d 488 (1989), for the evidentiary guidelines that apply when a confession is involved.

In Woods v. State, supra, 315 Md. [591] at 615-16, 556 A.2d 236 [ (1989) ], we observed that evidence to support an extrajudicial confession must be independent of it and relate to and tend to establish the corpus delicti, i.e., the facts necessary to show that a crime has been committed. But the independent evidence, we said, need not be full and complete or establish the truth of the corpus delicti beyond a reasonable doubt or by a preponderance of proof. Id. at 616, 556 A.2d 236 . It “may be small in amount and is sufficient to establish the corpus delicti ‘if when considered in connection with the confession or admission, it satisfies the trier of facts beyond a reasonable doubt that the offense charged was committed and that the accused committed it.’ ” Id., quoting from Bradbury v. State, 233 Md. 421, 424-25 , 197 A.2d 126 (1964).

And we recognized that the corpus delicti may be proved ⁵³¹ by circumstantial evidence, and that the accused’s identity or criminal agency is not a necessary element of the corroboration required to make the confession admissible. Id. Id. 817 Md. at 706, 566 A.2d 488 . Furthermore, we examine the principles of aiding and abetting because Burgess participated with two of his friends in the rock throwing spree.

The legal definition of the word ‘aider’ is not different from its meaning in common parlance. It means one who assists, supports or supplements the efforts of another. The word ‘abettor’ means in law one who instigates, advises or encourages the commission of a crime. Thus the word ‘abet’ may import that one is present at the commission of a crime without giving active assistance.

To be an aider or abettor it is not essential that there be a prearranged concert of action, although, in the absence of such action, it is essential that one should in some way advocate or encourage the commission of the crime. Coleman v. State, 209 Md. 379, 384-85 , 121 A.2d 254 (1955), aff'd, 221 Md. 30 , 155 A.2d 649 (1959) (citations omitted). In Wilson v. State, 319 Md. 530 , 573 A.2d 831 (1990), the Court of Appeals delineated the test for sufficiency of the evidence at the trial court level. The test used in determining the sufficiency of the evidence for either court or jury trial is whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.

Id. at 535-36 , 573 A.2d 831 . Our standard of review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979), quoted in State v. Rusk, 289 Md. 230, 240 , 424 A.2d 720 (1981). ⁵³² With the Jackson test in mind, we now determine whether there was sufficient identification evidence before the lower court on the 88 counts on which it found Burgess guilty. 1. Burgess’s admission/confession On June 2, 1990, Burgess gave the police a signed statement regarding the rock throwing incident. That admission/confession establishes the following facts.

Burgess and his two friends, Petite and Ford (Man), were “hanging out” on Saturday night, May 26, 1989. The appellant wore blue shorts, a white tee-shirt, and a gray Reebok jacket; Petite wore blue jeans, a white tee-shirt, and a waist length, red wool coat; Ford wore dark blue shorts and a white long-sleeve shirt. The youths drank some Cisco 4 and watched a movie at Rivertowne. After the movie, the trio went to Livingston Road where it passes under 1-95.

The three young men picked up rocks from under the bridge and hurled those rocks at passing motorists. Some of the rocks hit windshields, some hit doors and other parts of the cars, and others presumably missed their intended targets. The youths eventually entered the roadway to launch their projectiles with greater accuracy. For an unspecified time, the trio continued throwing rocks at the unsuspecting motorists who passed by.

The gang only abandoned their pursuits when Petite saw two people chasing them. Burgess says he arrived home between 1:30 and 2:00 a.m. 2. Morrison’s (Mad Ball’s) Testimony To corroborate Burgess’s statements and to provide additional information, the State called Calvin Morrison (Mad Ball) to the witness stand. Much of what Mad Ball told the court substantiated Burgess’s statements.

Morrison stated that he saw Burgess and Man around 10:00 to 11:00 p.m. on Saturday. Burgess wore a gray Reebok jacket and some light colored blue jean shorts. Man wore blue, baggy ⁵³³ shorts and a red jacket. Mad Ball testified that when he saw them that evening, Burgess and Petite were not drunk. 5 Additionally, Morrison told the court that while walking by Livingston Road where it passes underneath the Beltway, on Friday night/Saturday morning, Ford “had picked up a rock and was tossing it in his hand and said, [‘]let’s introduce my Man Mad Ball to the bridge.[’]” In response, everyone giggled — including Burgess. 6 3.

Witness identification 7 In addition to Burgess’s admission/confession and Morrison's testimony, the State produced numerous witnesses who provided the court with sufficient identification of Burgess and his colleagues. The witnesses testified that they saw three black males 8 standing on the side of the road or on the roadway. Many witnesses saw one rock thrower wearing a gray jacket or sweatshirt and another wearing a red jacket. The youths wore blue jeans or dark trousers.

Two of the rock throwers were about the same height; the other remaining one was slightly taller. The trio’s modus operandi varied. Sometimes they would launch rocks from the side of the road. At other times, they would walk shoulder to shoulder and then suddenly turn about and deliver their destructive loads.

The youths, seemingly emboldened with their success, would flag cars to slow down and then bombard them. In fact, the gang even entered the roadway to hurl rocks at the unwitting ⁵³⁴ motorists. In direct support of Burgess’s statement that “Man saw 2 people running so we left,” witnesses Jeffrey and Garner stated that they chased the young men up to the edge of a wooded area. To further support those comments, witness Palmer testified that he saw a couple of people chase the youths.

Viewing all of the evidence under the Jackson standard, we hold that there was sufficient identification evidence before the lower court to find Burgess guilty on the 38 counts.

II

Whether .the court below committed constitutional error by denying a continuance of the trial date where defense counsel clearly indicated his lack of preparation to render defendant effective assistance of counsel. Appellant states that his trial counsel was “woefully inadequately prepared on several critical issues.” He complains that his counsel was unprepared to cross-examine the medical experts regarding Ms. Morris’s injuries, he did not properly check into a “missing witness,” Ms. Miller, concerning the bombardment of Palmer’s truck, and that he was not prepared on matters dealing with Cisco [Sisco]. 9 Burgess did not present those arguments before the trial court. Moreover, as the State points out, his contentions relate more toward ineffective assistance of counsel than to lack of trial preparation. Three days after Burgess filed his Motion for Continuance, the court asked if there were any preliminary matters before the trial.

Burgess did not raise any issues. In addition, at the beginning of the trial, the court asked both parties if they were prepared — Burgess made no objection. “Rulings on requests for continuances are within the sound discretion of the judge and will not be disturbed on appeal absent an abuse of that discretion.” Beachem v. ⁵³⁵ State, 71 Md.App. 39, 55 , 523 A.2d 1033 (1987). We hold that the trial court did not abuse its discretion by denying Burgess’s Motion for Continuance, especially where Burgess, on two separate occasions, made no objection when the court wanted to proceed to trial. Whether the court below committed reversible error in admitting state of mind evidence regarding a severed co-defendant who was unavailable for cross-examination where such evidence did not constitute adoptive admission.

Late Friday night, Mad Ball, Burgess, Man, and Petite went to a party in Clinton, Maryland. Due to neighbors’ complaints about the excessive noise generated by the party, the party was winding down as the youths arrived. Returning to Rivertowne, where the gang met hours earlier, they regrouped and started for their respective homes. Heading towards Livingston Road, on their way home, the youths had to pass under the Beltway.

By now it was early Saturday morning, May 26. Morrison, at trial, recounted what happened next. Q. And when you [Morrison, Petite, Ford, and Burgess] were walking underneath the Beltway overpass what happened? A. We was [sic] walking up by the bridge.

Maurice had picked up a rock and was tossing it in his hand and said, [“]let’s introduce my Man Mad Ball to the bridge.[”] Q. What happened then? A. Then everybody started giggling and then we just kept walking home. Q. Was John Burgess giggling? A. Yes.

Burgess argues that Mad Ball’s statements (relating what Ford said) were immaterial and prejudicial. Furthermore, he asserts they do not constitute adoptive admissions and are therefore subject to the confrontation clause of the U.S. Constitution. The State, on the other hand, alleges ⁵³⁶ that it offered the statements to show their effect on Burgess — he giggled. Both parties are making those arguments for the first time: Burgess did not object when the State offered those statements. 10 Thus, other than the parties’ assertions, we have no way of determining why the State presented the evidence.

If appellant had objected, the State would have had to produce arguments to support the admission of the evidence. The issue is not preserved. Even if the appellant had objected at trial, the court properly could have overruled the objection. To avoid further litigation we note three evidentiary doctrines that would support the admission of the statements of which Burgess now complains.

First, in Henry v. State, 324 Md. 204 , 596 A.2d 1024 (1991), the Court of Appeals discussed the issue of adoptive admissions (in the hearsay context). The witness, Ms. Sellers, testified that she was at a motel with the defendant and three of his cohorts. 11 As the group watched television, a story came on about the Landover murders. The men began to jump and dance about the room. Bruce and Dunstrom recounted the group's beastly feats — Henry “was laughing along with them, cheering them on.” Id. at 241 , 596 A.2d 1024 .

Favorably citing Professor McLain, the Court reasoned that Henry tacitly adopted Bruce’s and Dunstrom’s statements. A party ... may make a “tacit admission,” adopting, by his or her silence, another person’s statement. In order for the other’s statement to be considered the party’s tacit admission, the following prerequisites must be satis ⁵³⁷ fied: (1) the party heard and understood the other person’s statement; (2) at the time, the party had an opportunity to respond; (3) under the circumstances, a reasonable person in the party’s position, who disagreed with the statement, would have voiced that disagreement. The party must have had first-hand knowledge of the matter addressed in the statement. 6 L. McLain, Maryland Evidence § 801(4).3 at 312-13 (1987) (footnotes omitted).

In fact, “Henry even went beyond a tacit admission and by his obvious approval, adopted the statements as his own.” Henry, 324 Md. at 242 , 596 A.2d 1024 . Burgess’s behavior, in response to Man’s comment, is analogous to Henry’s behavior. By giggling, Burgess indicated, to all around, that he understood what Man meant when he said, [“]let’s introduce my Man Mad Ball to the bridge[”] — all the while, tossing a rock in his hand. Consequently, we do not agree with Burgess when he claims that his reaction was not an adoptive admission.

Second, the trial court could have found the statements admissible as non-hearsay. 12 Many out-of-court utterances fall within such categories as greetings, pleasantries, expressions of gratitude, courtesies, questions, offers, instructions, warnings, exclamations, expressions of joy, annoyance, or other emotion, etc. Such utterances are not intended expressions of fact or opinion. They are not assertions, at least for purposes of the hearsay rule. Thus they are not hearsay. “Hello.” “How are you?” “Have a nice day.” “Would you like to have lunch?” “I hope it doesn’t rain tomorrow.” ⁵³⁸ “I wonder what he paid for that car.” “Thank you.” “Can you join me for a drink?” “Don’t do that, or else.” “Watch your step.” None of the above utterances is an intended expressions [sic] of fact or opinion. None is hearsay.

D. Binder, Hearsay Handbook 18 (3rd ed. 1991). Lastly, the trial court could have overruled any possible hearsay objection on the ground that the statement was not offered for the truth of the matter, but for its effect on the listener. In Brown v. State, 80 Md.App. 187, 194 , 560 A.2d 605 (1989), this court held that evidence offered to show its effect on the hearer’s mind, rather than the truth of the matter asserted, was not hearsay. See L. McLain, supra, § 801.9 at 280-82.

Thus, had the issue been preserved, we would hold that the lower court did not err by admitting the statements into evidence.

IV

Whether the court below improperly limited the defense cross examination of Calvin Morrison. At some point, Mad Ball and Burgess were friends. Nevertheless, during the trial, Mad Ball took the witness stand for the prosecution. Because Mad Ball testified against him, Burgess appears to maintain that Mad Ball was trying to “curry favor” with the prosecution.

Burgess asks us to hold that the lower court improperly limited his cross examination of Morrison. See Deinhardt v. State, 29 Md.App. 391, 398 , 348 A.2d 286 (1975), cert. denied, 277 Md. 736 (1976). 13 Unfortunately, Burgess ⁵³⁹ does not specify the particular areas to which he was restricted. Our review of the record reveals that the lower court allowed Burgess to inquire about Morrison’s relationship with the police. The court did, however, limit Burgess when he tried to impeach Morrison by prior convictions.

Smathers, Assistant State’s Attorney for Prince George’s County, Maryland, represented to the court that the District of Columbia nol prossed a felony narcotics charge it had filed against Mad Ball. Maryland has a rule addressing proof of interest or conviction of an infamous crime. Evidence is admissible to prove the interest of a witness in any proceeding, or the fact of his conviction of an infamous crime. Evidence of conviction is not admissible if an appeal is pending, or the time for an appeal has not expired, or the conviction has been reversed, and there has been no retrial or reconviction.

Md.Cts. & Jud.Proc.Code Ann. § 10-905(a) (1989). For purposes of this appeal, section 10-905(a) requires a conviction. A nolle prosequi is not a conviction. See Curley v. State, 299 Md. 449 , 474 A.2d 502 (1984).

Consequently, because a nol prossed charge is not a conviction, Burgess could not properly impeach Morrison on the District of Columbia felony charge. Therefore, the lower court did not improperly limit appellant’s crossexamination of Morrison. V. Whether in the absence of a factual finding on the value of the property, defendant was improperly convicted in Count 62 of destruction of property of a value of greater than $300. Mrs. Bryant, who was driving her car in the early morning hours of Sunday, May 27, 1989, testified that a dark-skinned “guy” wearing blue jeans and a red jacket (and apparently taller than his cohorts) “ran out in front of my car, and he put his hand back and threw tnis big ⁵⁴⁰ boulder.” The “big boulder” caused about $1000 damage to her car.

Appellant argues that the trial court did not determine whether Bryant’s car was worth more than $300. Looking at the verdict sheet, we see that the lower court wrote beside count 62 14 — “more than $300.” “The District Court or a circuit court sitting without a jury shall render a verdict upon the facts and the law. Although not required, the court may state the grounds for its decision either in open court or by written memorandum." I Md. Rule 4-328 (emphasis added). See West v. State, 312 Md. 197, 213 , 539 A.2d 231 (1988).

In the instant case, the trial court had evidence before it to support the verdict. Bryant testified that a rock smashed her window and that the total damage to her vehicle was about $1000. Hence, we hold that the trial court did not err when it convicted Burgess on count 62.

VI

Whether the court below committed constitutional error in permitting a variance in the proof at trial with respect to Count 90. Count 90 15 alleged that Burgess destroyed (partially) Ms. Scott’s car. At trial, Ms. Moody, a passenger in the vehicle, indicated that the automobile belonged to her father, Mr. Moody. Recognizing a potential defect, the State moved to amend the count to reflect Mr. Moody as the vehicle’s owner, but the court denied the motion and sustained Burgess’s objection.

Later, the State argued that the change in the owner’s name did not change the character of the offense. Subsequently, the court convicted Burgess on count 90. He contends that was an error. ⁵⁴¹ In the instant case, the name of the original property owner was incorrect: “being the property of Gloria Scott____” But as the trial judge noted, proof of ownership is not a material element of the crime of “Malicious Destruction of Property.” Md.Ann.Code art. 27, § 111 (1987 repl. vol.). Proof that the subject property is that of “another” is all that is required.

See McLaughlin v. State, 3 Md.App. 515 , 240 A.2d 298 (1967). The charging document alleged that the vehicle was the property of “another” and the evidence was sufficient to establish that the property was that of “another.” There was no material variance.

VII

Whether the court below committed reversible error when it considered facts outside of the record in these proceedings in finding appellant’s statement to be voluntary. At trial, Detective Philbin testified that he advised Burgess of his constitutional rights before Detective Philbin questioned him about the rock hurling incident. See supra text at 529. 16 Burgess waived his rights and gave a statement. The record does not reflect that Burgess’s admission/confession was involuntary.

Trooper Michael White testified that neither he nor his partner, Trooper John Wooters, made any threats, promises, or inducements to Burgess when they first went to his house and later when they arrested him. Q. During the time that you [Trooper White] saw John Burgess either in the morning or after you got an arrest warrant for him, did you make any threats, promises, or inducements to Mr. Burgess designed to get him to make a statements [sic] to you? A. No, sir. ⁵⁴² In his admission/confession, Burgess indicated that no one induced him or promised him anything to make his statement; no one threatened, intimidated, or forced him to make the statement; and that he made his statement freely and voluntarily. In addition, his counsel admitted that Burgess made the admission: (1) “Now he did make a statement as Mr. Smathers pointed out____”; and (2) “Now, he admits to throwing some rocks but that admission must be corroborated as to each count for which he might be found guilty for each count.” When delivering its verdict, the trial court discussed Burgess’s admission/confession.

Having said that, let’s start firstly with the defendant’s statement in this case. The defense has wanted the court to feel that the defendant firstly would not have given a statement to the police officers in this case because the stepfather had told him not to. 17 The detective who took this statement is one that the Court has known for a long time, Detective Lynn Philbin. He has appeared before the Court numerous times and I have never found him to be a person who would stretch the truth to help or aid his cause and he takes no personal interest in cases. So, therefore, I find what Detective Philbin said that the defendant had knowingly, intelligently, voluntarily waived his right to have an attorney present and that he had indeed agreed to talk to him freely and voluntarily.

The Court find[s] this statement was freely and voluntarily made. The court made those remarks after closing arguments. Burgess did not object to the comments. Therefore, any issue springing from those comments is not preserved.

Dresbach v. State, 228 Md. 451, 452-53 , 180 A.2d 299 (1962). Had the issue been preserved, appellant’s present arguments would still be unavailing for the reasons that follow. ⁵⁴³ Burgess argues that the lower court considered facts outside of the record when it determined that he voluntarily made his admission/confession. This argument breaks down into two parts and one sub-part: (A) the court’s consideration of facts not before it; (1) whether Burgess voluntarily made his admission/confession; and (B) the impartiality of the trial court. A. In Turman v. United States, 555 A.2d 1037 (D.C.Cir.1989), the Court of Appeals for the District of Columbia faced an issue almost identical to the one before us.

In that case, Officer Jones, a member of the Morals Division of the Metropolitan Police Department, was working undercover as a prostitute. She arrested the appellants because one of them requested her to engage in sexual acts for money. During the trial, in response to the appellants’ Motion for Judgment of Acquittal, the lower court stated: [Counsel] ... Officer ...

Jones has testified before me in this type of case several times just as