Chandler v. State

Anderson, J., delivered the opinion of the Court. The appellant, James Edward Chandler, was convicted of first degree murder by a jury in the Criminal Court of Baltimore, Judge Thomas J. Kenney presiding. He was sentenced to life imprisonment. Upon this appeal the appellant presents the following issues: 1) Whether the court erred in denying a motion for judgment of acquittal made at the end of the State’s case; and whether there was sufficient evidence to sustain the conviction in light of the testimony as to self defense ? 2) Whether the court erred in admitting into evidence a certain statement of the victim ? 3) Whether the court erred in admitting into evidence a shotgun and shotgun shells seized by police ? 4) Whether the court erred in denying a mistrial after certain statements were made to the jury by the State’s attorney ? ⁶⁴⁹ I EVIDENCE OF GUILT On Sunday, October 1, 1967, at about 8:30 p.m., the appellant and the victim, George Graves, were in Jones’ Tavern in Baltimore.

Some unpleasantness developed between them and the appellant left the Tavern and returned to his home, approximately 1blocks away. A moment or two after the appellant left the Tavern, the deceased left. Shortly thereafter the deceased approached the appellant’s house and was killed by a blast from a shotgun fired by appellant from an upstairs bedroom window. At trial varied stories of what occurred immediately prior to the shooting were offered.

Martha Day, who claimed to be an eyewitness to the shooting, testified that Graves chased the appellant into his house, then began pounding on appellant’s outside doorway. The appellant appeared in an upstairs window and Graves, who had left the door and was standing with one foot on the sidewalk and the other foot in the street, shouted that he was going to whip the appellant on Monday and that he was going to whip the appellant every time he saw him. The appellant said to Graves, “Don’t try to come in my house, Sol.” and then shot him. Graves turned, walked about fifty feet, and fell to the sidewalk.

Christina Virginia Chandler, the appellant’s wife, testified that Graves pounded on their door, that he later stopped pounding, and that she heard nothing further until the shot was fired. The appellant testified that Graves pounded on the door for a time and then left. All was quiet for several minutes. The appellant, who at this time was sitting on a bed in the upstairs front bedroom, saw Graves walk along the other side of the street and then return across the street to appellant’s house.

Graves said, “I am going to kill you tonight. I changed my mind. I was going to whoop . . . [you], but I changed my mind. I am going to kill you tonight.” The appellant replied, “Don’t you come up here.

If you come up here you leave me no al ⁶⁵⁰ ternative but to shoot you.” Graves started up the front steps of the house and had one foot on the sidewalk and the other foot on one of the steps when the appellant shot him. Graves then turned and ran up the middle of the street, then he “slooped and fell down.” The appellant testified that he was frightened of Graves because Graves “had broke in a man’s house and killed him in a recent year.” He stated that when Graves began to come up the stairs to the front door of the house he did not know whether Graves was coming in or was bluffing but that because of his fright he did not wait to find out. The appellant also testified that the shotgun always stood by the bedroom window and that he did not load the shotgun until Graves crossed the street. Police officers testified that the distance from the upstairs bedroom window to the sidewalk in front of the house was eighteen feet seven inches; that the distance from the window to the chest of a man standing on the sidewalk was sixteen feet two inches; and that the distance from the sidewalk in front of the house to the spot where Graves fell was sixty feet.

The only blood observed by police was at the spot where Graves was lying. The police officers also testified that the spread of the shot pattern in Graves’ body was about thirty-three inches, which, on the basis of a test firing of the appellant’s shotgun, would indicate that t’he appellant was approximately sixty feet from the victim at the time of the shooting. Test firing at a distance of sixteen feet produced a pattern spread of approximately eight inches. In addition, the autopsy report indicated that the pellets entered the victim’s body at a thirty degree downward angle.

At the conclusion of the State’s case, a motion for judgment of acquittal was made by the appellant, but denied by the trial court. Subsequent thereto the appellant offered evidence in his own behalf. He thus withdrew his motion. Md. Rule 755 (b); Brooks v. State, 3 Md.App. 485, 511 (1968).

The appellant contends that the evidence showed that ⁶⁵¹ he acted in self-defense and that the evidence was not sufficient to prove murder in the first degree. The elements of the defense of self-defense are listed in Tipton v. State, 1 Md. App. 556, 560 (1967). “In order to justify an assault on the basis of self-defense, the accused must have had reasonable grounds to believe, and have in fact believed, himself to be in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant. The trier of facts must determine whether the accused was justified in meeting force with force. If justification is found to have existed, the force used against the assailant must not have been unreasonable or excessive; i.e., the defender must not have used more force than the exigency reasonably demanded.

Guerriero v. State, 213 Md. 545 at 549 (1957) The burden is on the defendant to prove by a preponderance of the evidence that he acted in self-defense. Long v. State, 3 Md. App. 638, 642 (1968) ; Morris v. State, 4 Md. App. 328, 331 (1968). The credibility of the witnesses, including the defendant, is a matter to be determined by the jury, as is the weight of the evidence. Williams v. State, 5 Md. App. 450, 458 (1968).

From the evidence presented at trial the jury could reasonably find that one or more of the elements of the defense of self-defense had not been proven by the appellant. There was also sufficient evidence from which the jury could have concluded that the killing was “wilful, deliberate, and premeditated.” See Md. Code, Art. 27, § 407; Brooks v. State, supra at 511-12 (expanded definition of “wilful, deliberate, and premeditated”). According to the appellant’s own testimony, he was holding a loaded shotgun when the victim was on the sidewalk in front of the house. Graves was unarmed and at his closest advance toward the appellant, assuming the testimony most favorable to appellant to be true, had one ⁶⁵² foot on the bottom step of the seven steps leading up to the front door.

Neither the appellant’s wife nor the eyewitness Mrs. Day heard the murder threats which the appellant claims Graves made to him. In addition, if the testimony of the police is accepted, the shooting occurred at a distance of about sixty feet, a distance compatible with premeditation. In short, there was evidence from which the jury could find beyond a reasonable doubt that the design to kill preceded the killing by enough time for the appellant to deliberate and to form the purpose to kill Graves. See Brooks v. State, supra.

II DYING DECLARATION Officer Ronald Brown arrived at the scene within ten minutes of the shooting. He found Graves lying in blood soaked clothing in a pool of blood on the sidewalk with pellet holes from his chest to his knees. (The autopsy report, admitted in evidence, showed that pellets had penetrated both lungs, heart, liver, spleen, stomach, small intestine, left kidney, genitals, and arms and legs.) Graves was moaning faintly and appeared to be in severe pain. Officer Brown testified that he bent over close to Graves’ face, on his hands and knees, and said, “Sol, you are shot in the belly with a shotgun.

You are not going to make it. Tell me who shot you.” Graves replied, “Jimmy shot me.” Officer Brown said, “Jimmy who?”, and Graves responded, “Jimmy Chandler.” The victim died about seven hours later. At trial the statements made by Graves were testified to by Officer Brown, over the appellant’s objection. The statements were properly admitted, since they constituted