Garbutt v. State

WENNER, Judge. Appellant, John Garbutt, was convicted by a jury in the Circuit Court for Baltimore City of first degree murder and was sentenced to life imprisonment without the possibility of parole. Upon appeal, appellant contends that: The trial court erred when it permitted a courtroom security bailiff to communicate to the jury and demonstrate a weapon in order to address a question it had sent to the Judge after it began deliberations. Since we find no merit to appellant’s contention, we shall affirm the judgment of the circuit court.

On March 10, 1991, Tambra Dove was killed by multiple gunshot wounds. A neighbor had observed appellant come out of his house with a long gun and place bullets from a white cup into the gun. While going down the stairs of his house appellant yelled “I’m going to get you Vicky, I’m going to kill you____” 1 While appellant was at the bottom of the stairs, the neighbor saw appellant fire the gun at the door to the victim’s house. Appellant then went up the stairs of the victim’s house and pushed the door with his shoulder.

The neighbor then heard several more shots. The police were summoned by a friend of the neighbor. When the police arrived, appellant came out of his house and yelled, “I did it, so what. Yeah, I did it.” After his arrest, appellant told the police that he had “killed the bitch.” At trial, a firearms expert testified that he had examined a Warlin .22 caliber semi-automatic rifle obtained from appellant and had concluded that the bullets recovered from the victim’s body had been fired from that weapon.

For the benefit of the jury, the expert demonstrated the three ways in which the rifle could be loaded. After the jury had begun its deliberations, it asked to see the rifle and be shown the three ways it could be loaded. ⁶³⁰ After conferring with counsel, the trial judge decided that the firearms expert, who had been excused, need not be recalled. Instead, the trial judge decided that the court security bailiff could demonstrate the methods of loading the weapon, as he was familiar with the testimony of the firearms expert. Although appellant’s attorney was concerned that the bailiff would be testifying, he agreed that it was not necessary to recall the firearms expert.

Thereupon, the trial judge gave the jury the following instruction: Okay, Ladies and Gentlemen, our Sheriff, Mr. Dally, is going to show you how that rifle is loaded. Now, I don’t want Mr. Dally to be a witness in this case but on the other hand I don’t want [the firearm’s expert] to have to come back to show you as he did when he was testifying and I don’t think playing a film of his demonstration will help you that much because the film’s not that good. But he’s not a witness, he’s just — he’s just showing you. The bailiff proceeded to demonstrate the three methods by which the rifle could be loaded, while explaining to the jury what he was doing.

After the bailiff’s demonstration and explanation, appellant’s attorney objected to the explanation the bailiff had given, asserting that the explanation amounted to testimony. After the jury found appellant guilty of first degree murder, appellant’s attorney moved for a new trial. Appellant’s attorney contended in his motion that the bailiff’s demonstration and explanation to the jury constituted additional testimony after the jury had