Burroughs v. State

MOYLAN, Judge. This appeal basically involves the handling of a defense claim that a key State’s witness was a criminal accomplice and that his testimony should, therefore, have been subjected to the special strictures imposed upon that category of inherently suspect evidence. The appellants, Chris Lamont Burroughs and Rodney Hampton, were convicted by a Prince George’s County jury, presided over by Judge Audrey E. Melbourne, of murder aggravated to the first degree by virtue of a premeditated intent to kill, of the ²³³ same murder alternatively aggravated to the first degree by virtue of its having been committed during the attempted perpetration of an enumerated felony, of two counts of attempted armed robbery, and of the use of a handgun in the perpetration of a crime of violence. Upon this appeal, both appellants raise the following contention: 1.

That Judge Melbourne erroneously refused to instruct the jury on the law with respect to the necessary corroboration of the testimony of an accomplice and erroneously failed to submit to the jury the issue of whether the witness John Marshall was an accomplice. The appellant Burroughs alone raises four additional contentions: 2. That the evidence was not legally sufficient to support his convictions; 3. That Judge Melbourne improperly responded to a question from the jury; 4.

That Judge Melbourne erroneously restricted the cross-examination of attorney Gary Neal; and 5. That Judge Melbourne erroneously sentenced Burroughs for both felony-murder and premeditated first-degree murder with respect to the death of a single victim. The key issue is the joint contention raised by both appellants. Its resolution hinges upon the answer to the question of whether, on the evidence produced before the jury in this case, the witness John Marshall was either 1) a possible accomplice, as a matter of fact, or 2) a non-accomplice, as a matter of law.

The appellants timely requested “an instruction on accomplice testimony.” Presumably, they were asking for the boilerplate admonition that the testimony of an accomplice should be viewed with caution and that if the jury found John Marshall to be an accomplice, they should not return a verdict of guilty unless they found adequate independent corroboration of his testimony. Judge Melbourne declined to give the instruction, ruling, as a matter of law, that the ²³⁴ appellants had not met their burden of production and had not, therefore, generated a genuine jury issue. By way of brief factual background, the murder victim and the second attempted robbery victim, James “Boo” Carter and Clarence Sykes, went to the vicinity of the Penn Southern apartment complex in Prince George’s County at approximately 5 A.M. on Saturday morning, September 2, 1989, to purchase cocaine. After making the purchase, they were approached by two men brandishing black handguns and were ordered to lie down on the ground.

Sykes complied but, “Boo kept going, he kept going and he said ‘You all ain’t getting nothing from me.’ ” While the two gunmen argued with Carter, Sykes “saw his chance” and ran. He heard a number of shots and learned the next day that Carter had been killed. Sykes was unable to make an in-court identification of either assailant. He effectively repudiated, moreover, an arguable photographic identification of the appellant Hampton attributed to him by the police.

The only witness to identify the appellants as the gunmen was John Marshall. He testified that at shortly before 4 A.M. on that morning, he and two other individuals had gone to a carry-out restaurant near the apartment complex. After getting their carry-out fare, they sat on a wall talking to the two appellants. Marshall saw Carter and Sykes approach the appellants and ask where cocaine could be purchased.

He observed the appellant Hampton lead the would-be purchasers toward the apartment complex and saw the appellant Burroughs follow closely. When they all moved back up the hill a short time thereafter, Marshall heard Carter say, “Hell, no, I’m not giving you shit.” He heard Hampton reply, “Oh, you’re not. You’re not going to give me shit,” and then saw Hampton “fire two shots at the man.” As he himself hid behind a railing, Marshall saw the appellant Burroughs and “a guy named Tony” in the vicinity of Sykes. When Sykes ran, Marshall saw the appellant Burroughs fire at him.

Marshall observed the two appellants drive away and the individual named “Tony” run toward the apartment com ²³⁵ plex with a gun in his hand. Marshall picked out both appellants from a photographic array and, moreover, identified both at trial. Although the testimony of Clarence Sykes established the corpora delicti, John Marshall was essentially the State’s entire case as to criminal agency. Accomplice Status: The Allocation of the Burden The burden of proving that John Marshall was an accomplice was indisputably upon the appellants.

That burden of proof in its larger sense comprehends the initial and lesser burden of going forward (of producing a prima facie case), lest the trial judge, as here, rule as a matter of law that no genuine issue of fact had been generated. “We believe it to be fundamental that a party who seeks to attack the credibility of a witness has the burden of going forward.” Bennett v. State, 283 Md. 619, 627 , 392 A.2d 76 (1978). Even when a defendant successfully meets this initial burden of production, however, he then, albeit entitled to have a jury consider the matter, assumes the further burden of persuading that jury by the preponderance of the evidence standard that the witness is, indeed, an accomplice. “The trial courts and the Court of Special Appeals have consistently recognized as the rule that the burden of proving by a preponderance of the evidence that a witness is an accomplice is on the defendant asserting it. They have applied it, and we have not repudiated it ... We deem it to be the rule in this State.” Bennett v. State, 283 Md. at 623 , 392 A.2d 76 .

That secondary burden of persuasion, of course, is not before us in this case because the appellants did not meet their threshold burden of production. The first Maryland case to consider the allocation of the burden of proof was Lusby v. State, 217 Md. 191 , 141 A.2d 893 (1958). Adopting the position espoused by 7 Wigmore, Evidence (3d ed. 1940), § 2060(e), Lusby held, at 217 Md. 201 , 141 A.2d 893 , “And, of course, ‘the burden of proving the witness to be an accomplice is ... upon the party alleging it [the defendant] for the purpose of invoking the ²³⁶ rule.’ ” (brackets in original). Maryland has adhered undeviatingly to that position.

Campbell v. State, 221 Md. 80, 84-85 , 156 A.2d 217 (1959) (“It is clear that the burden of proving a witness is an accomplice is on the defendant who asserts it.”); Strong v. State, 261 Md. 371, 376 , 275 A.2d 491 (1971) (“The burden of showing that a witness is an accomplice is on the accused.”); Bennett v. State, 283 Md. 619, 622-623 , 392 A.2d 76 (1978). This Court has consistently adhered to the position that the burden is on the defendant to prove the fact of accompliceship by competent evidence just as any other fact would have to be proved. As Judge Orth pointed out for us in Burley v. State, 5 Md.App. 469, 473 , 248 A.2d 404 (1968): “The fact that a witness is an accomplice must be shown by proof, like any other fact, but the burden of proving that a witness is an accomplice is on the defendant who asserts it.” (emphasis supplied). In Sutton v. State, 10 Md.App. 353, 357 , 270 A.2d 497 (1970), Chief Judge Murphy not only reconfirmed that allocation of the burden to the defendant but pointed out that our job of determining, on appellate review, the establishment vel non of a prima facie case is that of analyzing the legal sufficiency of the evidence: “With respect to the procedure to determine complicity, we recited that the burden of proving a witness was an accomplice rested upon the accused asserting it, although the proof need only be by the preponderance of the evidence to the satisfaction of the trier of the facts.

The function of the Court of Special Appeals on appeal is a matter of the sufficiency of the evidence.” (emphasis supplied). See also Gardner and Maple v. State, 6 Md.App. 483, 494-495 , 251 A.2d 901 (1969); Gaskins v. State, 7 Md.App. 99, 103 , 253 A.2d 759 (1969); Early v. State, 13 Md.App. 182, 187 , 282 A.2d 154 (1971); Rivenbark v. State, 58 Md.App. 626, 634 , 473 A.2d 1329 (1984) (“The burden of showing that a witness is an accomplice is on the accused.”). ²³⁷ In Bennett v. State, 283 Md. 619, 624-627 , 392 A.2d 76 (1978), the Court of Appeals went further and held that the Maryland practice of placing both the initial burden of production and the ultimate burden of persuasion on the defendant as to this issue in no way offends the due process clause of the Fourteenth Amendment as interpreted by In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975) and Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977). Judge Orth observed, at 283 Md. 626 -627, 392 A.2d 76 : “Proof by a defendant that a State’s witness is an accomplice involves no shifting of the burden to him to disprove any fact essential to the offenses charged since whether or not the witness was an accomplice bears no direct relationship to any element of robbery with a deadly weapon or the use of a handgun in the commission of a felony. That is, the fact that Fritz was an accomplice vel non was not a fact necessary to constitute the crimes with which Bennett was charged.

It was not even an affirmative defense or an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of punishment. Nothing was presumed or implied against Bennett. Whether Fritz was an accomplice went only to Fritz’s credibility.” The Court of Appeals concluded, at 283 Md. 627 , 392 A.2d 76 , “[Placing the burden on a defendant to prove that a witness against him is an accomplice has no constitutional proscriptions and is pursuant to the existing rule of this State.” Accomplice Status: The Subject Matter of the Burden Having considered “Who must prove?,” we turn attention to the related issue “What must be proved?” When the Court of Appeals first considered the question in Watson v. State, 208 Md. 210 , 117 A.2d 549 (1955), Judge Delaplaine explained, at 208 Md. 217 , 117 A.2d 549 : ²³⁸ “The test for determining whether a person is an accomplice of a defendant charged with a felony is whether he could be indicted and punished for the crime charged against the defendant.” (emphasis supplied). See also Strong v. State, 261 Md. 371, 377 , 275 A.2d 491 (1971).

In Foster v. State, 11 Md.App. 40, 46 , 272 A.2d 810 (1971), rev’d on other grounds, 263 Md. 388 , 283 A.2d 411 (1971). Chief Judge Murphy stated for this Court: “[T]he generally accepted test as to whether a witness is an accomplice is whether he himself could be convicted for the offense, either as a principal or accessory before the fact.” See also Grimes v. State, 4 Md.App. 607, 609 , 244 A.2d 456 (1968); Burley v. State, 5 Md.App. 469, 472 , 248 A.2d 404 (1968); Gardner and. Maple v. State, 6 Md.App. 483, 495 , 251 A.2d 901 (1969) (“The evidence was not sufficient to show that [the alleged accomplice] was a principal in the crime or an accessory before the fact.”); Gaskins v. State, 7 Md.App. 99, 104 , 253 A.2d 759 (1969) (“We think it too clear to require discussion that there was evidence before the jury from which it could properly conclude that Gardiner was a principal, either in the first or second degree and, as such, was an accomplice.”); Sutton v. State, 10 Md.App. 353, 357 , 270 A.2d 497 (1970); Early v. State, 13 Md.App. 182, 187 , 282 A.2d 154 (1971); Rivenbark v. State, 58 Md.App. 626, 634 , 473 A.2d 1329 (1984). Accomplice Status: Levels of Proof Having now considered “Who must prove?” and “What must be proved?,” we turn attention finally to “How strongly or weakly may it be proved?” A defendant’s attempted proof of a witness’s criminal complicity may come to rest at any of three levels, with varying degrees of advantage to his case.

It was of these three progressively higher plateaus of proof and their escalating consequences that we ²³⁹ spoke in Trovato v. State, 36 Md.App. 183, 188 , 373 A.2d 78 (1977): “Upon the spectrum of proof, three distinct bands are discernible. The two at either extreme of the spectrum are the domain of the judge in his capacity to make rulings of law. Within this domain, the judge does not weigh the evidence or apply any burden of [persuasion]. He rather takes that version of the facts most favorable to the party against whom the adverse ruling is contemplated and decides whether those facts 1) do not establish the necessary elements of the thing needing to be proved by that party [the defendant] or 2) are so clear and decisive that reasonable minds could not differ in resolving the question against that party [the State]. 1 There is a broad intermediate zone, however, wherein reasonable minds might differ as to the facts and wherein different readings of those facts would dictate very different legal results.

This band in the middle is the unfettered domain of the fact finder with the prerogative to resolve genuine factual disputes in either direction. Each band has its own set of legal consequences.” What then are the three sets of consequences that attend the respective situations where the proof is 1) legally compelling, 2) genuinely disputed and 3) legally insubstantial? A. Legally Compelling: The best of all worlds for a defendant, of course, is that wherein the judge has ruled, as a matter of law, that the ²⁴⁰ witness is indeed an accomplice. The legal consequences of such a ruling were described in Trovato , at 36 Md.App. 188 -189, 373 A.2d 78 : “At one end of the spectrum, in that band least favorable to the State and most favorable to the accused, the proof would be so clear and decisive that reasonable minds could not differ in finding that the witness was an accomplice.

In such a situation, the State would be vulnerable to a motion for a judgment of acquittal at the end of the State’s case and, in a jury trial, at the end of the entire case, if the witness’s testimony had not been adequately corroborated. In a court trial, the accused would be entitled to an acquittal. In a jury trial, even if the accomplice testimony were prima facie corroborated so that the motion did not go against the State, the defendant would still be entitled to an instruction, upon proper request, to the effect that the witness was an accomplice, as a matter of law, so as to require the jury to find for themselves independent corroboration.” Analogizing the degree of proof that would be required to justify ruling, as a matter of law, that a witness was an accomplice to proof of guilt in a criminal trial, Judge Lowe observed in Bishop v. State, 39 Md.App. 384, 390 , 385 A.2d 1206 (1978): “[T]he court must find, in