Dishman v. State

THIEME, Judge. Diallo Mugabe Dishman, the appellant, was convicted by a jury in the Circuit Court for Prince George’s County, Judge Sheila Tillerson Adams presiding, of first degree murder and robbery. The appellant raises three issues for our consideration on appeal: 1. Did the trial court commit error in refusing to instruct the jury on manslaughter, accessory after the fact, assault and battery, reckless endangerment, and defense of others? 2.

Did the trial court commit error in admitting evidence of cocaine possession by the appellant the day after the offense? 3. Did the trial court commit error in allowing the testimony of the medical examiner when the chain of custody of the body had not been proven? Perceiving no error below we shall affirm the judgment of the trial court. ³⁶⁶ I BACKGROUND On March 11, 1996, the body of Peverly Hart (“the victim”) was discovered off to the side of Lottsford Vista Road. The discovery was made by Edward Pickens, who was driving to work at approximately 6:00 a.m. that morning when he noticed a small fire at the side of the road.

He stopped to investigate and, noticing the fire was that of a burning body, he contacted the police. The exact events surrounding the death of the victim are unclear due to the varying accounts of the night in question. During the afternoon or evening of March 10, 1996, 1 for some unknown reason, the victim ultimately drove to 410 Cedar Leaf Avenue, which was the appellant’s residence that he shared with his fiancée, Felicia Jackson. 2 And, some time during the course of that night, the victim was murdered. The appellant elected not to testify at trial.

Nevertheless, the following written statements were admitted by the State at trial as the appellant’s explanations (albeit inconsistent) for what occurred on the date in question. Statement No. 1. On March 12,1996, at 9:45 a.m., after his apprehension, the appellant gave his first written statement to the police. In that statement the appellant maintained that he came home on the afternoon of March 10 to find a black bag with something stuffed inside in one of the bedrooms.

On further investigation, the appellant discovered the body of a woman that was bound with tape. The appellant said he also noticed a note that read: “You snitch and your bitch is next, do what you gotta.” The appellant “freaked,” called various ³⁶⁷ friends asking for a ride so that he could “dispose of some trash,” and at approximately 2:00 a.m. on March 11 the appellant finally saw a friend drive by who offered to give him a ride. 3 At that point, the appellant and Ms. Jackson came outside of their residence carrying the body still in the garbage bag. They put the body in the trunk of the vehicle and proceeded to a gas station where the appellant filled a container with gasoline. They next approached Lottsford Vista Road where the appellant informed the driver to pull off to the side of the road.

The appellant, with the help of Ms. Jackson, removed the body from the trunk and the appellant dragged the body down a small hill next to a bridge. The appellant poured gasoline on the body and ignited it, the vehicle then fled the scene. Statement No. 2. The appellant’s second statement was also given on March 12, 1996, but this one was made at 4:15 p.m.

In this statement the appellant maintained that he and Ms. Jackson were at their residence when the victim came over. Ms. Jackson and the victim then began to quarrel, at which point the victim grabbed Ms. Jackson by the hair and they both “threw a couple of punches.” The' appellant grabbed the victim by the jacket collar in an attempt to pull the two women apart, and somehow all three of the individuals fell backwards. Then, according to the appellant, “a few moments later in the midst of the confusion [the victim] wasn’t moving. She took one more deep breath so I thought she was fine and then she laid there.” The appellant and Ms. Jackson both “panicked,” and the appellant “made some calls to get rid of [the victim’s body].” The appellant ended his statement by maintaining that “I didn’t try to choke anyone and [Ms. Jackson] wasn’t either.” When asked why the victim had been bound with duct tape, the appellant responded that he didn’t “want her to get up and go nowhere.” At that point the ³⁶⁸ appellant removed some rings from the victim’s fingers and placed her body in a garbage bag.

The appellant did not elaborate further on exactly how he disposed of the body. Monte McNair was the driver of the vehicle from which the appellant obtained assistance. At trial, Mr. McNair testified that just after midnight the appellant came by Mr. McNair’s house and asked if Mr. McNair could give him a ride. Mr. McNair agreed, and once back at the appellant’s residence Mr. McNair waited in his vehicle while the appellant entered his residence.

A short time later, the appellant and Ms. Jackson appeared. They were both wearing surgical gloves and carrying something wrapped in a blanket. The two then put the object in the trunk of Mr. McNair’s vehicle and the appellant also placed a gasoline can in the trunk. Mr. McNair drove to Lottsford Vista Road at the request of the appellant.

Once at the scene where the victim’s body was dumped, Mr. McNair watched from his vehicle while the appellant and Ms. Jackson removed the item from the trunk of the vehicle, the appellant carried the gasoline can over to the wooded area, and the appellant returned to the vehicle and told Mr. McNair not to say anything about what had just occurred. Mr. McNair further explained that after hearing the next day that a burned body had been found in the same area he contacted the police. The appellant was apprehended by police on March 12, 1996, at his home. He was arrested on unrelated bench warrants and taken to the police station.

Later that same evening, the appellant took the officers to a pawn shop where the victim’s jewelry was located, and he also took them to the place where he had disposed of her vehicle. During a subsequent search of the appellant’s residence, duct tape was recovered. The appellant was charged with murder, robbery with a deadly weapon, robbery, and car jacking. On March 8, 1997, ³⁶⁹ the appellant’s trial began. 4 At the conclusion of the five-day trial, the State elected to nol pros the charges of armed robbery and carjacking, and the jury convicted the appellant of first-degree murder and robbery.

The appellant was subsequently sentenced to life imprisonment plus ten years consecutive. This timely appeal was noted.

II

DISCUSSION A. Failure to Give Requested Jury Instructions Maryland Rule 4-325(c), entitled “Instructions to the Jury,” provides in pertinent part, The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. Quoting Bruce v. State, 218 Md. 87, 97 , 145 A.2d 428 (1958), the Court of Appeals reiterated in Smith v. State, 302 Md. 175, 179 , 486 A.2d 196 (1985), “ ‘it is incumbent upon the court, ... when requested in a criminal case, to give an ... instruction on every essential question or point of law supported by the evidence.’ ” That requirement to instruct the jury is mandatory. Ellison v. State, 104 Md.App. 655, 660 , 657 A.2d 402 , cert. denied, 340 Md. 216 , 665 A.2d 1058 (1995). Furthermore, when reviewing whether a trial court was required to give a requested instruction, an appellate court must determine whether the requested instruction constitutes a correct statement of the law; whether it is applicable under the facts and circumstances of this case; and whether it has been fairly covered in the instructions actually given. ³⁷⁰ Mack v. State, 300 Md. 583, 592 , 479 A.2d 1344 (1984).

We therefore reverse for a refusal to give a jury instruction only on a showing of an abuse of discretion. Dean v. State, 325 Md. 230, 240 , 600 A.2d 409 (1992). The appellant first complains that the trial court erred in refusing to give various jury instructions he requested. The requested instructions were for (1) manslaughter, (2) defense of others, (3) accessory after the fact, (4) reckless endangerment, and (5) assault and battery.

We shall discuss the manslaughter and defense of others instructions together and then dispose of the remaining three. 1. Manslaughter and Defense of Others The appellant requested that the trial court instruct the jury as to manslaughter as well as defense of others. In support of the instructions, defense counsel maintained that the appellant’s second statement to the police, introduced by the State at trial, evidenced that he had no intent to kill the victim but rather that her death resulted accidentally when the appellant intervened in a fight between the two women. Thus, the appellant argues that that statement equated to prima facie proof of defense of others, adequate for either (1) reducing murder to not guilty in the case of a perfect defense of others, or (2) reducing murder to manslaughter in the case of an imperfect defense of others.

The appellant further relies on the fact that because his indictment “tracked the language of Maryland Code, Article 27, Section 616” he was “charged with manslaughter.” Accordingly, the appellant would have us reverse the decision of the lower court. The issue the appellant brings before us, though penned in ordinary terms of the trial court’s failure to give requested jury instructions, is not quite as simple as either of the parties has contemplated. In fact, the ultimate answer to the question “Did the trial court err in refusing to give the requested manslaughter instruction?” requires us to ask a series of preliminary questions that will necessarily enable us to reach ³⁷¹ the appropriate decision given the unique facts in the case at bar. a. Was the appellant charged with manslaughter in accordance with Md.Ann.Code, art. 27 § 616?

Before proceeding to the appellant’s argument that an imperfect defense of others permitted a jury to return a verdict of manslaughter as opposed to murder, as a threshold issue we must resolve whether the appellant was charged with manslaughter in accordance with the language in his indictment. Although the appellant is correct in his assertion that his indictment was, in fact, in the form prescribed by Md.Ann. Code, art. 27 § 616 (1996 Repl.Vol.), his analysis is flawed when he necessarily assumes that he was charged with manslaughter. We elaborate. Section 616, entitled “Indictment for murder or manslaughter,” provides: In any indictment for murder or manslaughter, or for being an accessory thereto, it shall not be necessary to set forth the manner or means of death.

It shall be sufficient to use a formula substantially to the following effect: “That A.B., on the----day of.... nineteen hundred and____, at the county aforesaid, feloniously (wilfully and of deliberately premeditated malice aforethought) did kill (and murder) C.D. against the peace, government and dignity of the State.” That section was originally enacted in 1906, and for over ninety years it has remained in the same form with only a few minor alterations. In 1968 the last clause of the statute, providing that the killing was done “against the peace, government and dignity of the State,” was added. See 1963 Md. Laws ch. 558 § 7; Ross v. State, 308 Md. 337, 343 , 519 A.2d 735 (1987). Additionally, there were also amendments to its form due to controversies regarding the death penalty.

State v. Ward, 284 Md. 189, 200 , 396 A.2d 1041 (1978). Those amendments, however, had no effect on the substance of the section now before us. ³⁷² The enactment of section 616 was not intended to create a new offense, but rather it “‘merely furnishes a shortened statutory form which may, but need not, be used in lieu of the common law forms.’ ” Wooten-Bey v. State, 308 Md. 534, 538 , 520 A.2d 1090 , cert. denied, 481 U.S. 1057 , 107 S.Ct. 2199 , 95 L.Ed.2d 853 (1987) (quoting Wood v. State, 191 Md. 658, 667 , 62 A.2d 576 (1948)). In Neusbaum v. State, 156 Md. 149 , 143 A. 872 (1928), the Court of Appeals had occasion to pass upon the constitutionality of section 616. In holding that the section did pass constitutional muster, the Court further illuminated the purpose of the shortened statutory form of the indictment: Statutes similar in character to that now under consideration have been enacted in many of the American states as well as in England, in an effort to escape the excessive formalism of the common law, which formerly made the' conviction or acquittal of one charged with crime so often turn upon some technical quibble rather than upon the guilt or innocence of the accused, and the uniform tendency of the courts has been to uphold them wherever that could be done without infringing the right of the accused to the protection of such constitutional guarantees, as the right to be informed of the charge against him.

Id. at 157-58 , 143 A. 872 ; see also State v. Ward, 284 Md. at 200 , 396 A.2d 1041 ; State v. Williamson, 282 Md. 100, 109-110 , 382 A.2d 588 (1978). Turning to the precise wording of the statute, both this Court and the Court of Appeals have held that, generally speaking, under the statutory short form of the indictment, an accused may be found guilty of first degree murder, second degree murder, or manslaughter. State v. Ward, 284 Md. at 200 , 396 A.2d 1041 ; Gray v. State, 6 Md.App. 677, 684 , 253 A.2d 395 (1969); McFadden v. State, 1 Md.App. 511, 516 , 231 A.2d 910 (1967). Nevertheless, in Brown v. State, 44 Md.App. 71 , 410 A.2d 17 (1979), former Chief Judge Gilbert, writing for this Court, recognized an exception to that general rule.

In Brown , the defendant was charged by way of indictment which read, in relevant part: “that Michael Allen Brown, Defendant, ³⁷³ did unlawfully, willfully, deliberately and with premeditation kill and slay George Wesley Jones____” (Emphasis supplied.) We explained that “the inclusion in the indictment of the words ‘with premeditation’ and ‘deliberately’ precludes a construction that the indictment charges manslaughter.” Id. at 74 , 410 A.2d 17 . Accordingly, the defendant in Brown was indicted by way of the statutory short form, since the statutory form includes the terms “deliberately” and “premeditated” in parentheses and the legislature, by providing for the possibility of such wording, obviously intended for the inclusion of those terms to be encompassed within the statutory short form. Nevertheless, the form under which Brown was charged, because of the inclusion of the terms “premeditated” and “deliberately,” no longer automatically included a manslaughter charge in the indictment. Maryland law has long supported the proposition emphasized by this Court in Brown .

Some one hundred years ago it was recognized that statutory short form indictments could appropriately be used to charge various degrees of homicide. In 1897 Lewis Hochheimer wrote: By 24 & 25 Viet., ch. 100, § 6 and similar statutes in various states, it is made unnecessary, in indictments for homicide, to set forth the manner or means of death. Such legislation has been sustained against objections on constitutional grounds. Indictments thereunder may be worded as follows: 1.

Murder. The Jurors etc. present, that A.B., on etc., at etc., feloniously and of his [deliberately premeditated] malice aforethought did kill and murder C.D., against the peace etc. 2. Manslaughter The Jurors etc. present, that A.B., on etc., at etc., feloniously did kill and slay C.D., against the peace etc. Hochheimer’s Criminal Law, 1st ed. 1897 at 680-81 (emphasis supplied). Thus, before Maryland had even enacted its 1906 ³⁷⁴ version of what is now section 616, it was recognized that the addition of the terms “deliberately” and “premeditated” specified a charge of murder rather than manslaughter.

We are faced with the identical situation here as was before this Court some twenty years ago in Brown . The appellant in the case at bar was charged by way of indictment which read: The Grand Jurors of the State of Maryland, for the body of Prince George’s County, on their oath do present that DIALLO MUGABE DISHMAN late of Prince George’s County, aforesaid, on or about the 10th day of March, nineteen hundred and ninety-six, at Prince George’s County aforesaid, feloniously, wilfully and of his deliberately premeditated malice aforethought, did kill and murder Peverly Anrise Hart, in violation of the Common Law of Maryland, and against the peace, government and dignity of the State. (Murder). (Emphasis supplied.) As in Brown , the appellant’s indictment substantially tracks the language of section 616, thereby charging the appellant by way of the statutory short form indictment.

As in Brown , the terms “deliberately” and “premeditated” were specifically added to the appellant’s short form indictment. It follows then that, as in Brown , the wording of the indictment against the appellant precluded an interpretation that the indictment charged manslaughter. b. Does a finding that manslaughter was not charged in the indictment prevent that offense from reaching the jury for consideration? In light of the fact that contrary to the appellant’s assertions he was not specifically charged with manslaughter, we next must consider whether the failure of the indictment to charge manslaughter precluded that offense from coming before a jury for consideration.

We hold that it does not. It is well settled that voluntary manslaughter is a lesser included offense of murder. Beckwith v. State, 78 Md.App. 358, 366 , 553 A.2d 259 (1989), aff'd in part, rev’d in part, 320 Md. 410 , 578 A.2d 220 (1990) (“[Mjurder in the ³⁷⁵ second degree and manslaughter are lesser included offenses in first degree murder[.]”). Nevertheless, when a lesser included offense is an uncharged lesser included offense, a jury-instruction with regard to that lesser offense need only be given when the evidence generates the giving of the instruction.

Blackwell v. State, 278 Md. 466, 477 , 365 A.2d 545 (1976), cert. denied, 431 U.S. 918 , 97 S.Ct. 2183 , 53 L.Ed.2d 229 (1977) (“The general rule is that where there is no evidence supporting conviction of a lesser degree of homicide, no instructions on lesser offenses should be given.”); Beckwith v. State, 78 Md.App. at 366 , 553 A.2d 259 ; see also Hof v. State, 337 Md. 581, 612 , 655 A.2d 370 (1995)