Coleman v. State

Melvin, J., delivered the opinion of the Court. The State has now twice obtained a conviction of second degree murder against the appellant, Russell Norman Coleman. The first such conviction was overturned by this Court in Coleman v. State, C.S.A. No. 1334, S.T. ’78 (unreported per curiam, filed July 5, 1979) where, having concluded that the trial court had erred in its instructions to the jury, we reversed and remanded the case for a new trial. Upon retrial by a jury in the Circuit Court for Anne Arundel County, appellant was once again convicted of second degree murder and sentenced to a term of thirty years.

From this conviction, appellant has brought the present appeal in which he raises essentially seven issues for our review. Though recast, we think the following accurately state the issues presented by appellant: 1. Was the State’s evidence sufficient to sustain the conviction? 2. Did the trial court err in failing to dismiss the indictment because of pre-trial delay? a.

Did the pre-trial delay violate Md. Rule 746? b. Did the pre-trial delay deny appellant his Sixth Amendment right to speedy trial? 3. Did the trial court err in allowing an indictment charging first degree murder to be read to the jury prior to trial and submitted to the jury for use in their deliberation? a. Under these circumstances, was appellant’s Fifth Amendment guarantee against double jeopardy abridged? b.

Under these circumstances, was Md. Rule 758a violated? ²¹³ 4. Did the trial court err in allowing the State to introduce the prior recorded testimony of Alan Lanning? 5. Did the trial court err in failing to more narrowly circumscribe the State’s cross-examination of the court’s witnesses? 6. Did the trial court err in admitting to evidence certain prior consistent statements made by Carlotta Barfield? 7.

Did the trial court err in its instructions to the jury? Having thoughtfully considered each of these issues, we find no merit in any of them and therefore shall affirm appellant’s conviction. SUFFICIENCY OF THE EVIDENCE The record reveals that shortly after 11:00 P.M., March 5, 1977, Michael Wood received what later proved to be a fatal gunshot wound while standing in the kitchen of a house that he occupied with his wife and her two children in Glen Burnie (Anne Arundel County), Maryland. The fatal bullet entered the kitchen from outside the house, passing through a screen and a glass pane in the back door.

Apparently, the shooting was in retribution for a fraudulent drug transaction perpetrated by Wood earlier that same evening. At approximately 9:00 P.M. that evening, Wood was at home with his wife when he was visited by a friend, Alan Lanning. According to Lanning’s prior recorded testimony, 1 both he and Wood were heroin users and, on this particular night, Wood had suggested a plan for getting some heroin without having to pay for it. Wood "was going to crush up some aspirin or something and make up a bag like dope.” Lanning testified that he and Wood did in fact make up a phony bag of heroin and then drove to a large apartment complex in ²¹⁴ Baltimore.

Upon their arrival, Wood got out of the car, went towards the building, and called the name "Theresa.” According to Lanning, that triggered the following events: "Somebody came to the window, looked out, and Mike [Wood] got back in the car. And this girl comes down and hands Mike a bag of dope, you know. He told her what he wanted and everything. Hands him a bag of dope and he makes out like . . . out like he’s giving it to me but he just dropped it on the floor and he gave me the one that we had made up, you know, so I opened it up and looked at it and talked back and forth with Mike a little bit.

I just tell her it’s too small and folded it back up and give it to her and we got out of there.” Having thus switched the phony bag of heroin for the real one, Wood and Lanning returned to Wood’s house and divided their plunder. Lanning left shortly thereafter, and Wood remained in the living room talking with his wife until approximately 11:00 P.M. when he went into the kitchen where he was shot. What appears to have been the other side of the Wood/Lanning drug swindle was described at trial by the appellant’s girlfriend, Carlotta Barfield. 2 3Carlotta, who lived in an apartment in Baltimore with appellant and her then fourteen year old son, Rodney Barfield, testified that she knew Wood because he "used to purchase dope” from her and the appellant. More importantly, she recounted a particular encounter that she had had with Wood in the parking lot adjacent to the apartment building in which she lived.

Carlotta testified that on that occasion, "|Wood| called up the house and asked for some powder” and that she obligingly took some heroin out to Wood who was then waiting in a car. On her way out, she passed the appellant and Frank Darby , 3 as they were just coming in. According to ²¹⁵ Carlotta, when she reached the car in which Wood was sitting, the following transpired: "I gave IWood] some dope and he showed it to this other boy and he showed it to this other boy and he gave it back to me and told me that it wasn’t enough weight.” Wood and his companion departed following this colloquy, and Carlotta returned inside where she gave to appellant what she thought was the same bag of heroin that she had taken downstairs and allowed Wood to inspect. Appellant tasted the contents of the bag, realized that it was not heroin, and "said something like Michael got over on him.” With that he left, refusing to allow either Carlotta or Darby to accompany him.

Although appellant left the apartment alone, Carlotta observed from the window that he was not alone in the car. Carlotta learned later that appellant was accompanied that night by her son, Rodney. In that connection, Rodney testified that he was playing in the hall of the apartment building when appellant came down and invited him to come along. According to Rodney, he then rode with appellant "to the county.” Precisely where they went, Rodney was not certain; however, he did recall that appellant stopped the car in the parking lot of a restaurant that had lights strung around the roofline, and, having seen a road sign, he "figured” that it was in Glen Burnie.

Rodney’s recollection of the restaurant was significant because Mrs. Wood, the victim’s wife, testified that behind their house was a patch of woods and just beyond the wooded area was a restaurant with "lights that are around the eaves of the building.” Rodney testified further that after stopping the car at the restaurant, appellant got out, took a silver gun from under the seat, and walked away. Not long thereafter, Rodney, who was still in the car, heard what he believed to he a gunshot. Having been gone a total of five to ten minutes, appellant then returned to the car, placed the gun on the seat, and drove back to Baltimore. Rodney recalled touching the gun and feeling that it was warm.

Furthermore, although appel ²¹⁶ lant did not say anything when he returned to the car, Rodney subsequently overhead appellant telling Darby that he had shot Wood. Similar admissions by appellant were revealed in Carlotta’s testimony: "Q [State’s Attorney]: Alright. Did ... from that date on, the date that it occurred and until Jimmy [appellant] was arrested, what did Jimmy tell you about what had happened between him and Michael, what he had done? MR.

GREENE [Defense Counsel]: Objection for the record. COURT: Overruled. A [Carlotta]: Like . .. like I said, I can’t remember everything, right, so he said that he wanted to scare Mike [Wood], He didn’t want to, you know, he didn’t want to shoot Mike or nothing. He said he wanted to scare Mike and he thought that Mike was accidentally shot in the leg.

Q By him? A Yes. ... Q But he [appellant] did admit that he had shot Mike, but that he didn’t mean to do it? A Yes.

Q And he also told you that he had shot him in the kitchen of his house? MR. GREENE: Objection. COURT: Overruled.

A Yes.” It was on these facts that the jury at appellant’s retrial returned the conviction of second degree murder complained of here. Considering appellant’s admissions together with ²¹⁷ the other evidence showing motive, opportunity and means of commission, we think a rational trier of fact could have found the essential elements of the crime and concluded that appellant was the criminal agent beyond a reasonable doubt. Therefore, contrary to appellant, we conclude that the evidence was legally sufficient. See generally, Jackson v. Virginia, 443 U.S. 307, 319 , 99 S. Ct. 2781 , 61 L. Ed. 2d 560 (1979); Allen v. State, 39 Md. App. 686, 690 , 389 A.2d 909 , cert. denied, 283 Md. 729 (1978).

PRE-TRIAL DELAY Appellant’s next contention in this appeal is that the trial court erred in refusing to dismiss the indictment because of pre-trial delay. It should be noted that this complaint is directed solely at the delay in appellant’s retrial following our remand for that purpose; appellant has not attempted to impugn the timeliness of his first trial in either of his two appeals. With regard to the delay in retrial, appellant asserts that it was of such a magnitude and character as to violate both Md. Rule 746 and the Sixth Amendment speedy trial provision. The factual basis for this assertion is, for the most part, set forth in the following chronology: July 5, 1979 —- Coleman v. State, C.S.A. No. 1334 (per curiam) was filed, reversing appellant’s first conviction.

July 16, 1979 — Letter by appellant, requesting a speedy trial, was received by the Clerk of the Anne Arundel County Circuit Court. August 6, 1979 — Mandate issued in Coleman v. State, reversing and remanding for a new trial. October 24, 1979 — Hearing on counsel conducted; public defender was requested. ²¹⁸ November 8, 1979 — Gill Cochran, Esq. entered appearance as counsel. (Appointed by public defender’s office).

November 15, 1979 — Motion for Speedy Trial filed. February 6, 1980 — Letter filed by defense counsel, Cochran, notifying the court of appellant’s dissatisfaction with his services and requesting a postponement to allow another public defender to take the case. February 7, 1980 — Date originally set for trial. February 8, 1980 — Continuance notice filed.

February 8, 1980 — Writ of Habeas Corpus was filed by appellant. The writ was denied by the court which treated it as a motion for speedy trial and/or motion to dismiss. March 18, 1980 Appearance entered by Clayton Greene, Esq. (public defender’s office) as counsel.

March 18, 1980 — Motion to dismiss for lack of speedy trial filed. April 1, 1980 — Trial began. Motion to dismiss for lack of speedy trial was renewed and dismissed. Given this chronological breakdown of the period between remand and retrial, we now consider whether that period was unlawfully excessive.

Rule 746 Maryland Rule 746 a in its present form provides that, "Within 30 days after the earlier of the ²¹⁹ appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723, a trial date shall be set which shall be not later than 180 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723.” Since the mandate of State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979), which issued July 25, 1979, Rule 746 has had a mandatory effect, requiring dismissal in the event of violation. Moreover, prior to November 16, 1979, the limit specified for delay between the appearance of counsel or first appearance of the defendant and the trial date was 120 rather than 180 days. Inasmuch as the appellant’s first appearance in the present case was October 24, 1979 (twenty-three days prior to the amendment extending the allowable period to 180 days), he contends that his case is governed by the 120 day version of the rule. Further, appellant asserts that Rule 746 was violated because the case was not tried until April 1, 1980, the 160th day.

Even if Rule 746 were applicable to the present case, which it is not, we would find appellant’s argument unpersuasive. The order adopting the change in the Rule that extended the allowable period from 120 to 180 days specified that the change "shall apply to all proceedings ... commenced [after November 16, 19791 and, so far as practicable, to all proceedings then pending.” (Emphasis added). Since we can see no compelling reason why it would not have been "practicable” to apply the 180 day version of the rule to the present case, trial on the 160th day would have been timely even if Rule 746 were applicable. In fact, however, we conclude that Rule 746 has no application to the present case and, for that reason alone, could not have been violated.

It is the first bringing to trial that is contemplated by Rule 746, as well as its authorizing statute, Art. 27, § 591. Neither the rule nor the statute prescribes the period within which trial shall be had in the event of remand. State v. Mines, 48 Md. App. 30, 38 , 425 A.2d 1044 (1981); Donalds v. State, 49 Md. App. 106, 109 , 430 A.2d ²²⁰ 113 (1981). Consequently, Rule 746 affords no protection against excessive delay in retrial after remand; the only protection that exists against such delay is that provided by the Sixth Amendment speedy trial guarantee.

Speedy Trial Whenever we are called upon to determine whether a pre-trial delay was such that it infringed a defendant’s constitutional right to a speedy trial, we must conduct a dual level analysis. Preliminarily, we must decide whether the length of the delay is of constitutional dimension. Then, if this threshold is crossed, we must engage in a difficult and sensitive balancing process in which we weigh the conduct of both the prosecution and the defendant. Barker v. Wingo, 407 U.S. 514 , 92 S. Ct. 2182 , 33 L. Ed. 2d 101 (1972).

Delay produced by reversals obtained by an accused’s efforts is not relevant to the analysis. See Britton v. State, 10 Md. App. 70, 73 , 267 A.2d 747 , cert. denied, 259 Md. 730 (1970). Hence, in the present case, we are only concerned with the time elapsed between the issuance of the mandate remanding the case to the trial court (August 6, 1979) and the beginning of trial (April 1,1980), a total of seven months and twenty-five days. Whether a pre-trial delay is of constitutional dimension and, therefore, sufficient to trigger the Barker balancing test is dependent upon "the peculiar circumstances of the case,” as well as the length of the delay.

Barker, supra, at 530-531 . As an example, the Court in Barker , observed that, "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Id. at 531 . Taking guidance from this observation, we concluded that a delay as short as eight months and eight days was of constitutional dimension — in the context of a "common garden variety” burglary and larceny case. Schmitt v. State, 46 Md. App. 389 , 416 A.2d 296 (1980).

The rationale implicit in Schmitt and the Barker instruction to consider the "peculiar circumstances” of the case in making ²²¹ the threshold speedy trial determination is that different cases will naturally demand of the State different amounts of trial preparation, and the amount of time reasonably necessary for trial preparation, after the speedy trial clock has begun to run in a particular case, should be considered in determining whether there has been a true "delay” worthy of constitutional scrutiny. Applying this reasoning, we firmly rejected a contention by the State that a delay of nine months and twenty-three days in bringing a defendant to trial for arson and related crimes was not of constitutional dimension. State v. Hiken, 43 Md. App. 259, 272 , 405 A.2d 284 (1979). While acknowledging that arson was undoubtedly of greater complexity than an ordinary street crime, we noted that in that particular case the police and the Office of the State’s Attorney had already conducted a nine-month investigation even before the defendant’s indictment and arrest.

In view of that peculiar circumstance, Judge Moore observed for the Court, "the State was, or certainly should have been, ready for trial within a very short time after the indictments. . . .” Id. at 272 . The present case, involving a drug-related murder, would probably appear on the spectrum of complexity somewhere between Schmitt and Hiken . Nevertheless, we think that, under the "peculiar circumstances” of this case, the State here should have been prepared for trial in less time than that which would have been reasonable in either of those cases. The trial delayed in this case was not the initial trial of a defendant on an unfamiliar charge, rather it was a retrial of the same defendant on the same charge following our reversal of his first conviction.

Having already completely tried the case once, the State should have been ready for trial virtually from the start of the speedy trial clock. Consequently, we conclude that a pre-trial delay of just under eight months, in a remand situation such as this, is plainly of constitutional dimension, requiring analysis under the Barker balancing test. The balancing test established in Barker requires con ²²² sideration of at least four factors: 1) length of delay, 2) reasons for the delay, 3) the defendant’s assertion of his right, and 4) prejudice to the defendant. In evaluating the length of delay as a factor in the balance, we again think it significant that this delay comes in the context of a retrial.

Given the State’s familiarity with the case, having completely tried it once, we think that something less than the ordinary six-month allowance for orderly processing of the case is appropriate. Cf. Wise v. State, 47 Md. App. 656, 675 , 425 A.2d 652 (1981); Darby v. State, 45 Md. App. 585, 589 , 414 A.2d 248 (1979). Nevertheless, recognizing that a certain amount of delay is inherent for ordinary scheduling purposes even in the case of a remand, a delay of less than eight months, though clearly sufficient to cross the constitutional threshold, is not grossly inordinate.

Moreover, the significance to be attached to this delay is attenuated when we consider that the reason for the delay apparently did not involve any willfulness on the part of the State and that nearly two months of the delay (February 7, 1980 to April 1, 1980) was attributable to appellant’s dismissal of appointed counsel. This is not to belittle appellant’s early and repeated assertion of his speedy trial right or the fact that he was incarcerated from the time of the mandate to the time of retrial and was prejudiced to some extent thereby. However, on balance, having carefully considered each of these factors, under all of the circumstances, we have concluded and now hold that appellant’s constitutional right to a speedy trial was not infringed. INDICTMENT Two indictments were returned by the grand jury in this case.

The first indictment — No. 21,065 — was the one pursuant to which appellant was originally charged and tried for first degree murder. Under that indictment, the jury acquitted appellant of first degree murder but found him guilty of the lesser included offense of murder in the second degree. It was from that conviction that appellant took his first appeal. After our reversal of his conviction, appellant ²²³ was scheduled for retrial under the original indictment.

Then, on March 31, 1980, one day before the retrial from which the current appeal was brought, a second indictment — No. 23,546 — was handed down by the grand jury. This indictment, framed in a single count substantially the same as that suggested by Md. Code Art. 27, § 616, reads in pertinent part as follows: "THE GRAND JURY charges that the aforesaid defendant, on or about the aforesaid date, feloniously, wilfully, and of deliberately premeditated malice aforethought did kill and murder Michael Lynn Wood. (Article 27, Section 407-410).” On April 1, 1980, just prior to the jury selection for appellant’s retrial, the State nolle prossed the original indictment in its entirety and nolle prossed Indictment No. 23,546 to the extent that it charged first degree murder. Over timely objections, the latter indictment, as quoted above, was read to the jury before voir dire and was submitted to the jury at the end of trial for their use in deliberation.

Under these circumstances, appellant contends 1) that he has been subjected to double jeopardy in violation of the federal constitution, and 2) that Md. Rule 758a has been violated. For the reasons to be set forth, we disagree with both contentions. Double Jeopardy Where a criminal defendant’s conviction is set aside because of an error in the jury instructions, the Fifth Amendment guarantee against double jeopardy does not bar the State from retrying the defendant for the same offense for which he was originally convicted. Price v. Georgia, 398 U.S. 323 , 90 S. Ct. 1757 , 26 L. Ed. 2d 300 (1970); see Sweetwine v. State, 288 Md. 199, 204 , 421 A.2d 60 (1980).

However, if the defendant was originally tried for a greater offense and a lesser included offense based upon the same act but was only convicted of the lesser offense, he cannot be retried for the greater. Price, supra; Green v. United States, ²²⁴ 355 U.S. 184 , 78 S. Ct. 221 , 2 L. Ed. 2d 199 (1957). Hence, in the present case, although appellant Coleman was properly subject to retrial for second degree murder, it is clear that he could not be retried for the greater offense of murder in the first degree. The question then is whether appellant was so retried.