Gaskins v. State

Murphy, C.J., delivered the opinion of the Court. A jury found appellant guilty of murder in the first degree without capital punishment; the court thereafter imposed a life sentence. He contends on appeal (1) that he was placed in double jeopardy, (2) that the court erred in admitting certain evidence and in instructing the jury, (3) that his Sixth Amendment right of confrontation was denied him, (4) that there was no corroboration of an accomplice’s testimony sufficient to justify conviction, and (5) that he was denied due process of law by reason of the procedure followed at a pretrial lineup. Appellant had been convicted of the same offense at a prior trial but the conviction was reversed on appeal for failure of the trial court to properly instruct the jury.

Gaskins v. State, 7 Md. App. 99 . Upon remand of the case for a new trial, the State adduced substantially the same evidence as it did in the original trial. It showed that on August 2, 1967, Walter Groebel, manager of the Suburban Country Club, had just returned to the Club from the bank when he was robbed of a payroll in excess of $7,000. He struggled with one of the robbers and was shot to death.

The robbers — two men — fled the scene in an automobile. The State’s principal witness at the first trial, William Gardner, refused to testify at the second trial, and his prior testimony was read into evidence over appellant’s objection. In it, Gardner testified that he was the driver of the robbers’ car and that it was appellant who had robbed and shot the victim. I The indictment against appellant contained nine counts, viz., (1) felonious homicide in the usual form of indict ⁶⁷⁰ ment which includes murder in the first degree, murder in the second degree, and manslaughter; 1 (2) assault with intent to murder; (3) robbery with a deadly weapon; (4) attempted robbery with a deadly weapon; (5) robbery; (6) assault with intent to rob; (7) assault; (8) larceny, and (9) receiving stolen goods.

At the first trial, the jury returned a verdict of guilty of murder in the first degree; it was silent as to the remaining counts. On retrial, appellant claimed that the jury’s silence was equivalent to an acquittal of all charges, except murder in the first degree; and that he would be twice placed in jeopardy if retried for these other offenses (including murder in the second degree and manslaughter). The trial judge rejected this claim, and the case was tried before the jury on all counts of the indictment. At the conclusion of the evidence, the court instructed the jury that although appellant was charged with offenses in nine separate counts, the only possible verdicts it could return were (a) guilty of murder in the first degree, (b) guilty of murder in the first degree without capital punishment, (c) guilty of murder in the second degree, (d) guilty of simple or armed robbery, or (e) not guilty.

The jury found appellant guilty of murder in the first degree without capital punishment; it rendered no verdict as to the remaining counts. Appellant reasserts the validity of his double jeopardy argument on appeal. He particularly urges that the double jeopardy violation as to the robbery charge, of which he was acquitted, prejudicially tainted his retrial for first degree murder in that it permitted the jury, under the felony murder rule, to return a verdict of first degree murder predicated on the perpetration of a killing committed in the course of a robbery. The doctrine that jury silence with respect to counts of an indictment operates as an acquittal thereof was first enunciated in Maryland in Hechter v. State, 94 Md. 429 .

The court there overruled its earlier decision in State v. ⁶⁷¹ Sutton, 4 Gill 494 , which held that a verdict of guilty upon some counts of an indictment without a finding on the other counts, was a defective verdict. 2 In Glickman v. State, 190 Md. 516, 523 , the court held that since its decision in Hechter , “there has been no question that a verdict finding the traverser guilty under one count of an indictment and being silent as to the remaining counts, is a valid verdict and is equivalent to a verdict of not guilty as to the remaining counts.” We have recognized the rule in a number of cases. See Williams v. State, 9 Md. App. 447 ; Gibson v. State, 8 Md. App. 1 ; Stewart v. State, 4 Md. App. 565 ; Jenkins v. State, 3 Md. App. 243 ; Agresti v. State, 2 Md. App. 278. None of the Maryland cases appears to have considered the rule in the context, of its applicability to the constitutional prohibition against double jeopardy. 3 But on the facts of this case, we see no need to consider the question in that light since if it was error to retry the appellant on the counts of the indictment upon which no verdict was returned by the jury at the first trial, we think it was clearly harmless beyond a reasonable doubt. See Chapman v. California, 386 U. S. 18 .

In Price v. Georgia, 398 U. S. 323 , 26 L.Ed.2d 300 , the Supreme Court held that the constitutional prohibition against double jeopardy “is not against being twice punished, but against being twice put in jeopardy”; that the “twice put in jeopardy language of the Constitution relates to a potential, i.e., the risk that an accused for a second time will be convicted of the same offense for ⁶⁷² which he was initially tried.” That an accused may have been unconstitutionally placed in jeopardy on some charges of an indictment, of which he was not convicted, would not call for reversal of a conviction of other charges in the indictment upon which he was properly tried unless the inclusion of the former charges so prejudiced the jury in its determination of the accused’s guilt of the latter charges as to deprive him of a fair trial. See Benton v. Maryland, 395 U. S. 784 . In the present case, even if it be assumed that appellant was acquitted of the robbery charge at the first trial, the State would nevertheless be entitled to adduce evidence that the killing occurred during the course of a robbery and constituted, under the felony murder rule, murder in the first degree, as charged in the indictment. In Parker v. State, 7 Md. App. 167 , we held, in considering the doctrine of merger of offenses, that robbery and murder are separate and distinct crimes; that murder and robbery do not arise from the same act; that the act of taking property from a person by means of force and fear is separate and distinct from the act of firing shots that kill him, even though each is a part of one general transaction and even though evidence as to the robbery is admissible as to the murder; and that because the status of a first degree classification may be attained by proof that the murder was committed during the perpetration of a robbery, does not make robbery an essential element of murder.

In Leet v. State, 203 Md. 285 , Williams v. State, 204 Md. 55 , and Ledbetter v. State, 224 Md. 271 , the Court of Appeals, in concluding that a conviction on one count may stand even in the face of an inconsistent acquittal on another count, stated that each count of an indictment is regarded as if it were a separate indictment, and the inquiry is whether the evidence is sufficient to support the conviction on that count without regard to the disposition of other counts. 4 We think, ⁶⁷³ therefore, that the evidence pertaining to the robbery was properly admissible at the trial on the murder indictment; and as it does not appear that any other evidence was adduced to prove offenses of which the appellant may have been unconstitutionally tried that was not also properly admissible In proof of the murder indictment, we find, beyond a reasonable doubt, that the constitutional error, if any, was harmless under Chapman. See Benton v. State, 8 Md. App. 388 . In so concluding, we do not mean to suggest that a finding of first degree murder under the first count of the indictment filed against appellant operated as an acquittal of the lesser included offenses of murder in the second degree and manslaughter. As to these, we think it entirely clear that, on retrial after reversal of the first degree conviction, an accused is not placed in double jeopardy when retried on these offenses.

See Rasnick v. State, 7 Md. App. 564 . Cf. State v. Barger, 242 Md. 616 , and Green v. United States, supra. II Appellant contends that the trial judge erred “in admitting the evidence obtained from two State’s witnesses (Martin Moser and Franklin Lassiter) as affirmative evidence after a claim by surprise by the State.” (A) Moser testified that he observed two men sitting in a car at the scene of the crime immediately prior to its occurrence, and that one of them (claimed by the State to be appellant) had long red hair.

He stated that he couldn’t remember whether the man with the red hair occupied the driver’s or passenger’s seat. The State claimed to be surprised by this answer and over appellant’s objection that Moser was a “hostile” witness, the prosecutor was permitted to read that part of Moser’s testimony at the first trial wherein he said that it was the red haired man who was in the passenger’s seat. After hearing his prior testimony on this point, Moser said “I’m reminded” and agreed that his prior testimony on the point was correct. Shortly thereafter, appellant called ⁶⁷⁴ Moser as his own witness; on cross-examination by the State, Moser again testified, without objection, that the man with the red hair occupied the passenger’s and not. the driver’s seat.

On these facts, we find no merit in appellant’s argument that the court erred in not instructing the jury that Moser’s testimony was not to be considered as substantive evidence. Apart from the fact that no request for such an instruction was ever made, we think the evidence was properly admitted as substantive evidence, and not merely as impeaching evidence to show the jury the reason that the witness was called. See Green v. State, 243 Md. 154 ; Hernandez v. State, 7 Md. App. 355 ; Baldwin v. State, 5 Md. App. 22 ; Plumley v. State, 4 Md. App. 671 . (B) Lassiter testified that he had a conversation with appellant about the Suburban Club several weeks prior to the crime, and conversed with him again shortly after the crime was committed.

When pressed for the substance of these conversations, Lassiter appeared evasive. The prosecutor claimed surprise, based on Lassiter’s testimony at the prior trial. The trial judge, after reviewing the prior testimony and observing the witness, concluded that Lassiter was a hostile witness; he stated that the prosecutor could interrogate him as a hostile witness with respect to the substance of his prior testimony, a position with which appellant expressly stated his concurrence before the jury. The prosecutor then read Lassiter’s prior testimony to him concerning the substance of his conversations with appellant.

Lassiter agreed in general that his prior testimony was correct. Under these circumstances, we think the testimony in question was properly admitted as substantive evidence and the trial court did not err in so admitting it. See Barger v. State, 2 Md. App. 565 . Cf.

Elmer v. State, 239 Md. 1 . Ill Appellant maintains that the court erred in its instructions to the jury because (a) it failed to give any in ⁶⁷⁵ struction pertaining to manslaughter, and (b) it failed to satisfactorily explain its instruction on second degree murder. As to the latter contention, the appellant took no exception to the sufficiency of the second degree instruction and we do not consider the question. See Canter v. State, 220 Md. 615 ; Parker v. State, 4 Md. App. 62 ; Maryland Rule 756g.

Under the circumstances of this case, we see no reversible error in the court’s refusal to instruct on manslaughter. The State’s evidence was directed toward sustaining a first degree murder charge, either under the felony murder rule, or as a wilful, deliberate and premeditated homicide. The thrust of appellant’s defense was that he was not the person involved in the crime. The only evidence in the case was that the killing was murder, and not manslaughter; consequently, the court’s refusal to instruct on manslaughter — there being no evidence to support that charge — was not error.

See Gaskins v. State, supra, and cases cited at page 105. IV Appellant contends that the lower court erred in permitting Gardner’s testimony at the prior trial to be read to the jury at the present trial. He argues that (a) the State failed to exhaust its remedies to compel Gardner to testify at the second trial (e.g., by failure to advise him what the maximum penalty for contempt would be, failure to provide him with an attorney, failure to allow him to state his reasons for refusing to testify, and failure to ask him individual questions and then obtain a ruling on each such question). He further argues that his constitutional right of confrontation was not satisfied by the cross-examination of Gardner at the prior trial (1) because of newly discovered impeaching evidence which would cast doubt on Gardner’s credibility and (2) because the jury was deprived of an opportunity to observe Gardner’s demeanor.

At appellant’s prior trial, Gardner testified, under a grant of immunity from prosecution, that he met appel ⁶⁷⁶ lant for the first time in July of 1967; that appellant told him at that time that he heard that he (Gardner) was a good driver and