Gray v. State

Moylan, J., delivered the opinion of the Court. In Paris at the height of the Reign of Terror, Sidney Carton visited a friend at the Bastille, where Charles Darnay awaited execution. Following a quick switch of clothing, Darnay was spirited from the Bastille, posing as the visiting Sidney Carton. In Baltimore on August 19, 1981, the appellant, Edward Gray, visited a friend at the Maryland Penitentiary, where Steven Lloyd Everett was serving a lengthy sentence.

Following a quick switch into similar clothing, Everett walked out of the Maryland Penitentiary, posing as the visiting Edward Gray. For his role in the Paris escape, Sidney Carton received immortality at the hands of Charles Dickens. For his role in the Baltimore escape, Edward Gray received a five-year sentence at the hands of Judge Paul Dorf. Heroically, Sidney Carton accepted his fate with the words, "It is a far, far better thing I do than I have ever done.” Less heroically, the appellant Gray has taken the present appeal.

Originally, there were two appellants, Edward M. Gray and Frances Robinson, who were both convicted by a Baltimore City jury, presided over by Judge Dorf, of being accessories before the fact to escape. Following the submission of this case to the Court on briefs, without oral argument, Frances Robinson withdrew her appeal. One of the contentions that had been before us, raised exclusively by her, therefore, drops from consideration. The two contentions raised by the appellant Gray remain: ⁷⁰¹ (1) That the evidence was not legally sufficient to sustain the convictions; and (2) That the trial judge erred in permitting into evidence a note found in the cell of the escapee.

The escape scheme involved at least five and possibly as many as six or seven actors, four of whom are known and one of whom is the appellant herein. The central character in the drama was the escapee himself, Steven Lloyd Everett. 1 He was serving a sentence of sixty years imprisonment received for six armed robbery convictions. He had earlier been involved in several other escape attempts that failed. The modality of the escape was that Steven Everett posed as the visiting Edward Gray and walked unmolested out the front door of the Maryland Penitentiary.

It was necessary to the success of the switching operation that there be a place somewhere in the prison where the path of the visitor and the path of the prisoner might cross. There was one such area where prisoners and visitors intermingled. That was in the common passageway, consisting of a stairway and a corridor, that connected the general visiting room, located on an upper level, with either the "Segregation Visiting Area” or the general prison population, located on a lower level. Before dealing with the connecting passageway, it will be helpful to distinguish the two different visiting areas located on the two different levels.

Though literally within the front door of the Penitentiary, the general visiting room located on the Upper Level is not within the maximum security perimeter. For the general prison population that was permitted to entertain visitors in this area, security was essentially loose. Though prisoners and visitors would sit on opposite sides of long, bench-like tables, there were no glass partitions to impede audial communication or even to prevent touching. ⁷⁰² It may assist understanding to depict the two levels and the connecting passageway schematically. OUTSIDE A visitor to a normal prisoner would sign in and give the name of the prisoner.

Word would be sent down into the prison and some ten to thirty minutes later, depending upon crowding conditions and other factors, the prisoner would arrive at the general visiting room. Prisoners with the privilege of receiving visitors in this Upper Level would approach from the Lower Level. They would be brought from the resi ⁷⁰³ dential area of the prison proper to a checkpoint, designated on the diagram as Point "D.” There, a guard would unlock the door, frisk the prisoner, and allow him into a long corridor. At the far end of that corridor, the same guard would allow the prisoner to pass through another checkpoint, designated as Point "B,” leading to an upward-bound stairway.

Although the guard at Point "B” was physically capable of observing the entire stairwell from bottom to top through a glass window, the guard would commonly not undertake such surveillance of the prisoner’s walk up the stairs, particularly if the guard was engaged in watching others who were in the corridor. At the top of the stairway, the prisoner would rap and another guard located at Point "A” would permit the prisoner to pass into the general visiting room, to move on into the enclosed portion of that room and to receive his visitor. At least one guard, ordinarily, would be proctoring the visiting room, with an eye primarily on preventing the passing of contraband. By marked contrast, the other visiting area deep within the bowels of the prison, presented a far different security picture.

That visiting area, located on the Lower Level and well within the maximum security perimeter, was exclusively for prisoners who were on segregated status. That status resulted from breaches of discipline, escape attempts, and the resultant classification of the prisoners as high security risks. Since those prisoners could not be permitted access to the general visiting room located on the Upper Level, their visitors had to be brought down and "inside” to them. Such a visitor would sign in with the guard on the Upper Level, stationed at Point "A.” The visitor, moreover, had to be one whose name had been placed on a list of designated visitors by the prisoner himself.

Once it was ascertained that the would-be visitor’s name was on the list, the visitor would sign in, be frisked, and have his hand stamped with an invisible ink that could be read under ultraviolet light. The guard would unlock the door at Point "A” leading to the stairwell and send the visitor down. At the foot of the stairs, another ⁷⁰⁴ guard located in the corridor would unlock the door at Point "B.” Then, from inside the corridor, that visitor would be passed through another locked door, located at Point "C,” into the Segregation Visiting Area. Within that area, contact between the prisoner and the visitor was minimal.

On a one-on-one basis, a guard stood behind every prisoner in that area. The prisoner and the visitor were separated by a wall up to waist level and then by a glass partition. They could not touch; they could speak to each other only via telephones located on their respective sides of the wall. The guard on duty at Point "A” on the Upper Level thus handled two classes of persons.

He passed visitors from the outside down through Point "A” to visit prisoners on segregated status and then received those visitors back through Point "A” and sent them on to the outside world. He also received upward-bound prisoners through that checkpoint, sent them into that part of the general visiting room where prisoners were confined, and then sent the prisoners back through Point "A” to the interior of the prison. The guard on duty in the corridor handled the same two classes of persons. He received inward-bound visitors at Point "B” and sent them through Point "C” into the segregation visiting room.

He received ordinary prisoners through Point "D” and sent them up to the general visiting room through Point "B.” It will thus be observed that a prisoner who is upward-bound to the general visiting room will traverse the same connecting passageway (both the corridor and the stairway) as will traverse the visitor who is downward-bound to the Segregation Visiting Area. On August 19, 1981, it was, therefore, necessary for the escaping prisoner, Steven Everett, to be upward-bound through this passageway shortly after the visitor, Edward Gray, had moved downward through that same passageway and was still within the Segregation Visiting Area. The ploy to get Edward Gray down through the passageway was to have him visit a prisoner then "on segregation,” Charles Hatfield. Hatfield was serving life plus twelve ⁷⁰⁵ years for first-degree murder, armed robbery, escape, and kidnapping.

A number of prison infractions operated to place him on segregated status. He had known the escapee, Steven Everett, for at least three years. He did not know Edward Gray and had never seen him prior to the arranged visit of August 19. Several weeks before the escape, however, he received word via the prison "grapevine” that he should place the name of Edward Gray on his visitor’s list.

He not only did so but testified that he received payment in "reefers” for agreeing to receive this stranger as his visitor. On August 19, Gray signed in as Hatfield’s visitor at 9:45 a.m. He signed his name in a visitor’s log and had his hand stamped with the invisible ink. The code word for the day was "HALT.” Gray was wearing dark glasses, was clean-shaven, and had a short haircut.

In general size, build, race, and sex, he resembled the escapee, Steven Everett. On the day of this visit, he was wearing a very prominent tee shirt, with yellow sleeves and a large sign of the zodiac across the front of the shirt. Edward Gray was thus at 9:45 a.m. through the common passageway and down "inside” the prison. Testimony also revealed that, for purposes of the "grapevine,” certain prison cells face outward on Eager Street and that both voice and visual communication are common between those prisoners and civilians standing on Eager Street.

Within ten minutes of the time that Edward Gray was passed down into the prison through Point "A,” his ultimate codefendant, Frances Robinson, appeared in the General Visiting Area for the purpose of visiting Steven Everett. By 9:55 a.m., word had been received by Sergeant Cusick in cell block "B” that Everett was wanted in the General Visiting Area. Three significant observations were testified to by Sergeant Cusick. As a general routine, Everett and other prisoners would spend fifteen to twenty minutes in washing, primping, and generally tidying themselves up for the impending visit.

On this occasion, Everett was uncharacteristically down before Sergeant Cusick from his ⁷⁰⁶ cell on the fifth tier within two minutes. Sergeant Cusick testified, moreover, that Everett, as a regular habit, received his visitors in his best civilian attire (as was permitted by Penitentiary rule). On this occasion, uncharacteristically, he showed up before Sergeant Cusick in his blue prison shirt. During most of his life in the prison, furthermore, Everett had a beard, a mustache, and long, shoulder-length hair.

This was the Steven Everett known to most of the guards. Within a few weeks prior to the escape, however, Everett suddenly had both his beard and mustache shaved off and his hair cut short. This, to reiterate, more closely resembled the appearance of Edward Gray. Sergeant Cusick escorted Everett to Point "D,” where he was turned over to the guard at that point and allowed into the corridor.

That corridor, with its three entrances into (1) the prison generally ("D”), into (2) the Segregation Visiting Area ("C”) and into (3) the stairwell ("B”) leading to the Upper Level, was generally known among the prison population as "The Level.” The guard in charge of "The Level” that morning was known as "J.J.” "J.J.” remembered receiving Steven Everett through Point "D” shortly after he had received the visitor, Edward Gray, and moved him off through Point "C” into the Segregation Visiting Area. Following routine procedure, "J.J.” passed Everett through Point "B” to the upward-bound stairway. Because he had four or five other persons to supervise in the corridor, "J.J.” did not maintain a visual surveillance of Everett as he moved up the stairs. Everett had vanished into thin air.

When the prison was searched following the discovery of the escape shortly thereafter, a blue prison shirt was found on the stairway that leads from "B” up to "A.” The guard at "A” remembered a man resembling the visitor, Edward Gray, receiving permission to leave. The man was wearing a tee shirt resembling the one that Gray had worn when he entered. The man was wearing dark glasses just as Gray had been wearing. When the ostensible visitor passed his hand under the ultraviolet light, the code word "HALT” was clearly discernible.

He signed out as Edward Gray in the visitor’s log and walked out of the Maryland Penitentiary. ⁷⁰⁷ Minutes thereafter, Frances Robinson came up to that same guard and, without explanation, cancelled her requested visit with Steven Everett. She abruptly left the prison. A few minutes later, the real Edward Gray attempted to terminate his visit to the Penitentiary. When the guard noticed that he was moving the pen above the name "Edward Gray” but that the pen was not touching the paper, he discovered that two persons were attempting to pass through checkpoint "A” and into the outside world under the same name.

The entire prison went on immediate alert and it was shortly thereafter discovered that Steven Everett was the escaped prisoner. Within thirty minutes, Sergeant Cusick searched Everett’s cell, to which no one else had had access. A bottle of "makeup” was found in the cell. On the same tier of the same wing, a rubber stamp was discovered, which bore the code word "HALT.” It was also revealed that the prisoners could easily have gotten access to the invisible ink, which was stored in one of the prison offices.

Of greater significance, Sergeant Cusick also found eight small scraps of torn paper floating in the toilet bowl of Everett’s cell. When he pieced them together, the following message was revealed: Man, Ed went, Ed went in to Hat two minutes ago. All is cool with him. Then Fran came back to the window and I had to tell her, hurry, go and hurry up so, you got to hurry when they call you.

J.J. on level, maybe one more. Legal Sufficiency of the Evidence The first contention raised by the appellant is that the evidence against him was not legally sufficient to sustain the conviction. A contention as to legal sufficiency is a broad enough "catch-all” to embrace any number of subtle issues. We will scrupulously confine our response to the argument with respect to, and theory of, evidentiary insufficiency advanced by the appellant at the trial below and in brief before us.

We will not reach out to deal with other questions ⁷⁰⁸ that might have been raised but were not. Maryland Rule 1031 c; von Lusch v. State, 31 Md.App. 271, 281-282 , 356 A.2d 277 (1976), rev’d on other grounds, 279 Md. 255 , 368 A.2d 468 (1977); Van Meter v. State, 30 Md.App. 406, 407-408 , 352 A.2d 850 (1976). What, then, was the appellant’s argument with respect to evidentiary insufficiency? At the end of the entire case, the very raising of the issue as to a directed verdict was pro forma in the extreme.

The defense rested its case and the State indicated that it had nothing to offer by way of rebuttal. The entire exchange on the question of motions for acquittal consisted of the following: "THE COURT: All right, for the record, you all renew your motions? MR. NEWBURGER: Yes.

MR. GLASS: Yes. THE COURT: Same motion, same arguments at this time. I would, based on the law and based on the discussion we had before, I deny the motions at this time.” Referring back to the earlier motion made and argued at the end of the State’s case, which was simply renewed at the end of the entire case, we note that the argument made by defense counsel consumed ten pages of trial transcript.

At the beginning of that argument, defense counsel sounded the theme that "the only fact that has been proven by the State is that Mr. Gray signed in as a visitor to see Hatfield, who was in segregation.” The theme was iterated and reiterated that the prison authorities had been derelict in allowing Everett to sign out using Gray’s name and that the conduct of the appellant Gray himself was totally innocent and innocuous. He stressed the fact that there was no contact between the escapee Everett and the appellant Gray. Every shred of argument dealt with the fact that the very existence of the conspiracy was speculative and there was "nothing linking Gray specifically to the man.” The theme that was constantly resounded was that the prison authorities were ⁷⁰⁹ embarrassed by the escape, were looking for a scapegoat, and simply fell upon the appellant Gray, who was, in fact, innocent of any misconduct of any variety: "It would seem to me that the whole specific impetus of this case