Couplin v. State

⁵⁶⁹ Wilner, J., delivered the opinion of the Court. After a two-day jury trial, the appellant was convicted in the Criminal Court of Baltimore of robbery with a deadly weapon and use of a handgun in the commission of a crime of violence. He received a fifteen-year sentence for the first of these offenses, and a five-year concurrent sentence for the second. In this appeal, the appellant argues that five errors were committed by the trial court, namely: (1) The court erred in denying his motion to strike three prospective jurors from the panel; (2) The court erred in denying his motion for acquittal or, in the alternative, for a new trial, on the grounds of legally insufficient evidence of identity; (3) The court erred in allowing the jury to hear evidence of his conviction for assault at age 16; (4) The court erred in denying his motion for new trial on the grounds that the evidence was legally insufficient to sustain his conviction of use of a handgun in the commission of a crime of violence; and (5) The court erred in instructing the jury with an “Allen-type” charge upon denying the jury’s second request for a reading from the transcript.

At oral argument, a sixth ground for reversal was added: that under the doctrine of “merger” announced by the Court of Appeals in Newton v. State, 280 Md. 260 (1977), the offenses of robbery with a deadly weapon and use of a handgun in the commission of a crime of violence “merged” in such way that his conviction of the robbery offense cannot stand. The claims are without merit, and we therefore affirm the convictions. I. Denial of Motion to Strike Jurors The essence of appellant’s complaint here is that the jury that convicted him was “police oriented”, and therefore not ⁵⁷⁰ impartial, in contravention of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Articles 21 and 23 of the Maryland Declaration of Rights. His complaint related to three of the prospective jurors: Juror No. 10 (Panel III) and Jurors Nos. 4 and 19 (Panel IV).

We first note that none of these three jurors actually sat on the jury, each having been stricken by appellant. The alleged error is that they should have been stricken from the panel by the court for cause, rather than requiring appellant to utilize his peremptory challenges to remove them. Each of the three panel members responded in the affirmative to the question on voir dire as to whether any member of the panel was “friendly or associated with or related to anyone in the Baltimore City Police Department, the State’s Attorney’s Office or any other law enforcement ágency.” Upon further questioning, it appeared that Juror No. 4 had a daughter who worked for the Central Records Division of the Baltimore City Police Department; Juror No. 10 had worked as a librarian at the Maryland House of Correction for eleven years, but had retired from that job in 1965, eleven years earlier; and Juror No. 19 had a nephew serving on the City police force. Each of these persons stated, without equivocation, that these respective circumstances would not affect his or her ability to render a fair and impartial verdict based upon the evidence in the case; 1 and, presumably for that reason, the court declined to strike them for cause.

Neither Juror No. 4’s daughter nor Juror No. 19’s nephew was a witness in the case. The appellant’s claim here is fully answered by this Court’s holding in Borman v. State, 1 Md. App. 276 (1967), ⁵⁷¹ and Rodgers v. State, 4 Md. App. 407 (1968), cert. den. 252 Md. 732 (1969). At issue in Borman was the refusal of the trial court to strike for cause three prospective jurors who were married to members of the police department and one prospective juror who was friendly with several police officers; and there, as here, the record was devoid of any facts, other than that relationship, from which bias could be inferred. The Court found no error, stating at 1 Md. App. 279 : “Neither mere acquaintance with an individual or group, nor mere relationship to witnesses, other than parties, is sufficient basis for challenging a prospective juror for cause.

Goldstein v. State, 220 Md. 39 (1959). Bias on the part of prospective jurors will never be presumed, and the challenging party bears the burden of presenting facts, in addition to mere relationship or association, which would give rise to a showing of actual prejudice.” This was reaffirmed in Rodgers, where the Court, citing Borman , stated simply that it found no error in the refusal of the trial court to disqualify a jury member because he was related to a police officer having no connection with the case. In light of the remoteness of the challenged relationships on the part of the three jurors and their clear statements that those relationships would not affect their ability to render a fair and impartial verdict, we find no error in the trial court’s refusal to strike them for cause, II. Sufficiency of the Evidence as to Identity Appellant’s second claim is that the evidence with respect to his identity ii.e., that he was the assailant) was legally insufficient to sustain his conviction.

Velda Day, the victim, was a student at Morgan State ⁵⁷² University. She also held a part-time job at an Arundel’s Ice Cream Parlor on Gay Street in Baltimore City. Ms. Day testifed that on September 9, 1976, she had finished her last class at about 2:50 p.m. She went to the college library to get some books, and, about 3:10 p.m. was waiting for a friend to drive her home.

Her friend was to meet her at 3:15 p.m. At about 3:10 p.m., a man whom she knew as “Alfalfa” walked past, then came back and engaged Ms. Day in conversation. She told him that she was waiting for a ride home and then intended to go to work. Alfalfa offered her a ride, and, as she was “running late”, she accepted.

The two of them walked to the parking lot where they waited for a friend of Alfalfa’s to bring the keys to the car. Two other men soon appeared with the keys, and all four got into a car, identified by Ms. Day as a beige 1967 or 1968 Volkswagen. She and Alfalfa were seated in the front, with Alfalfa driving, and the other two men were in the rear. One of these men, whom she identified in court as appellant, sat behind Alfalfa.

Ms. Day stated that she had seen both of these men two or three times before in front of “Lee’s Cut Rate”, apparently a liquor store, located near where she worked. When they reached Ms- Day’s home, appellant stuck a gun in her neck and said to her, “Give it up.” With that, he grabbed her pocketbook and began going through it, removing $58. He then took her sunglasses and removed two rings from her fingers — one a high school ring, the other a silver band with two pearls and two diamonds. She was then ordered out of the car.

Ms. Day promptly reported the incident to the police. The next evening, while Ms. Day was at work, a girl came into the store wearing Ms. Day’s sunglasses and pearl ring. She was with five or six men, all of whom, upon leaving, walked across the street. Ms. Day then noticed appellant across the street with them.

She walked across the street to make certain that it was appellant, and stated that, “He saw me coming and ran in Lee’s and ran out the door.” Ms. Day pointed appellant out to her girlfriend, Sharon Adams. ⁵⁷³ Soon thereafter, Ms. Adams, who had walked up to a nearby pool room to look for her father, told Ms. Day that she had seen appellant in the pool room. At this point, the police were called, in response to which Officer Dunnigan soon appeared. He took Ms. Day and Ms. Adams to the pool hall where both of them identified appellant, who was then arrested. Ms. Day stated that she saw appellant several times after his arrest — once at his preliminary hearing and a few times when he walked past the store where she worked.

She made a positive identification of him in court, and even referred to him by name. Appellant bases his second claim upon a series of alleged inconsistencies or contradictions in Ms. Day’s testimony which, he argues, makes her testimony unworthy of belief and inadequate to sustain his conviction. A careful review of the record, however, reveals that Ms. Day’s testimony was neither inconsistent nor contradictory, and was clearly sufficient, as to the identification of appellant, to justify the denial of his motion for acquittal. McIntyre v. State, 17 Md. App. 526, 535 (1973).

The alleged inconsistencies and contradictions are mostly the product of appellant’s (or his counsel’s) failure to read the transcript fairly and accurately, rather than from any confusion on Ms. Day’s part. Accordingly, any reliance on the doctrine of Kucharczyk v. State, 235 Md. 334 (1964), would be misplaced. Bailey v. State, 16 Md. App. 83 (1972). For these reasons, we find also that the court did not abuse its discretion in denying appellant’s motion for a new trial.

III

Conviction for Assault at Age 16 Appellant claims that the trial court erred in “allowing the Jury to hear alleged impeachment evidence of the appellant’s prior conviction as an adult in Baltimore City at age 16,” prior to the decision in Long v. Robinson, 436 F. 2d 1116 (1971). The context in which this evidence was presented was as ⁵⁷⁴ follows. The appellant testifed in his own defense. On cross examination, the following colloquy occurred: “Q Mr. Couplin, have you ever been convicted before in the adult Criminal Court of a criminal offense when you had a lawyer with you or when you told the judge you didn’t need a lawyer?

A Not actually convicted. I pleaded guilty to a charge. Q How many times did that take place? A How many times?

Q Yes, sir. A Once or twice. Twice. Q What were the charges?

A One was manslaughter. Q What was the other one? A Other one was assault. Q And when were they?

Do you recall? A The assault was when I was sixteen and the manslaughter was in ’71. MR. SHAPIRO: Your Honor, I would object and ask to approach the bench.

THE COURT: All right.” At the bench conference, defense counsel stated: “We do have a problem here because if he was convicted of an assault when he was sixteen, of course he was not an adult and although the prosecutor asked the question properly, he got the wrong answer. I would ask at the appropriate time ■ for some sort of curative instruction to the jury. ” (emphasis supplied). No motion to strike the appellant’s answer was made — only a request for a “curative instruction” at the appropriate ⁵⁷⁵ time. The record shows that the court granted that request, for, in instructing the jury, the court stated: “In this case the Defendant admitted previous convictions, one for manslaughter and one for assault when he was sixteen years of age.

For the purposes of this case you are to disregard the assault conviction which occurred when he was sixteen years of age. You may only consider for purposes of this case his manslaughter conviction in determining, if you choose to do so, his credibility as a witness.” There was no error here. The question asked was perfectly proper; there was no motion made to strike the arguably inappropriate answer; and the court adequately gave the cautionary instruction requested by appellant. It is presumed that the jury followed that instruction and disregarded the appellant’s allegedly erroneous and prejudicial statement.

Wilson v. State, 261 Md. 551, 570 (1971). Even if it, in fact, did not, in light of all of the other evidence properly before the jury, including appellant’s prior conviction for manslaughter, the error, on the part of the jury, would have been harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638 (1976).

IV

Sufficiency of the Evidence to Sustain Conviction of Handgun Offense Appellant’s claim here is a “double-barrelled” one. Initially, he argued only that Ms. Day’s description of the gun used as having two barrels was sufficient to require an acquittal on the handgun charge, upon the assumption that a handgun cannot have two barrels. The context of her testimony concerning the gun was as follows: “Q When he snatched it from you, what, if anything, did he have in his hand? ⁵⁷⁶ A A gun. Q When you say gun, can you describe what the gun looked like?

Size, color, anything like that? A It had two barrels. It was a handgun and that’s about it.” Ms. Day was not examined, or cross-examined, further with respect to the gun. Additional evidence on this point was received from Officer Simmons, who responded to Ms. Day’s initial call to the police, and who stated that Ms. Day told him that her assailant was “armed with a small pistol.” The fact of the matter is that handguns containing, or appearing to contain, two barrels do exist and, unfortunately, are sometimes wrongfully used; 2 and thus, Ms. Day’s description of the gun used as being of that type may well have been accurate.

That aside, however, she clearly stated that appellant had a gun in his hand, which she testified was a “handgun”, and which she described to Officer Simmons as being a “small pistol”. To the