Howard v. State

ROBERT M. BELL, Judge. Robert Preston Howard, appellant, was convicted by a jury in the Circuit Court for Baltimore City of conspiracy to violate the robbery with a deadly weapon laws, for which he received a sentence of five years to the Division of Correction. In this appeal from the judgment thus rendered, appellant presents for our resolution six issues: 1. Was the evidence insufficient to sustain appellant’s convictions [sic] of conspiracy to violate the robbery with deadly weapon law? 2.

Did the court err in refusing to inform the jury of and include in the verdict sheet a possible verdict on the lesser included offense? 3. Did the court’s re-instructions to the jury constitute reversible error? 4. Did the court err in denying appellant’s request for an order to compel disclosure of an informant? 5. Did the court err in precluding appellant from disclosing his prior convictions on direct examination? 6.

Was appellant denied his constitutional right to a speedy trial? We will affirm. Factual Context Early on the morning of December 21, 1983, Detective Grady received information from two other detectives that an informer had alerted them that a robbery was to take place later that morning. Detective Grady met with the informer and, without having paid for or promised anything in exchange, received, first hand, the following information: a former employee of the Loyola Federal Savings and Loan Association named Jimmy, and several other persons, whose identities were not known to the informer, had arranged to ²⁸⁰ rob a bank courier in the vicinity of Preston and Charles Streets; the conspirators would be riding in a green automobile, handicap license tag number 124-M; and a handgun would be carried inside a “canvas type” bag.

Because Detective Grady did not inquire into the source of the information, that issue remained a mystery both at the pretrial hearing and at trial. Detective Grady and two other detectives, staked out the area of Charles and Preston Streets, during which the vehicle described, its driver (later determined to be James Smith), appellant, and two other suspects were observed. For approximately forty-five minutes, the driver was observed to remain in the vehicle while the others made several trips to and from it. One of the suspects was carrying a “canvas type” bag, which was passed between appellant and the other two suspects at various times.

When it became apparent that no robbery would take place and as the suspects were leaving the area, the four suspects, including appellant, were arrested. A bag containing a loaded handgun was recovered from Kenneth Smith and Theodore Shaw when they were arrested about four blocks from the. target area. Appellant moved prior to trial to require disclosure of the informant. Following a hearing, the court denied the motion, reasoning that the informant appeared to be no more than a conduit and, apparently, that the State intended to prove its case without reference to the informant.

At trial, one of the co-conspirators, James Smith, a former security guard at Loyola Federal Savings and Loan testified that he, appellant, Theodore Shaw, and Kenneth Smith conspired to “snatch” the money bag from the courier for Loyola Federal. According to James Smith, the plan was to push the unarmed guard and grab the bag; no weapon was to be used because none was perceived to be needed. He testified that he did not know that Kenneth Smith’s bag contained a handgun. In fact, he testified that the use of a weapon was discussed and rejected.

Finally, ²⁸¹ James Smith stated that, after appellant’s arrest, appellant asked him to tell the police that he had taken appellant to visit appellant’s parole officer. 1. Sufficiency of the Evidence Appellant’s argument that the evidence is insufficient to support his conviction for conspiracy to violate the robbery with a deadly weapon law rests upon his belief that the evidence did not show an express agreement or understanding that a weapon was to be used and that there were not “sufficiently significant circumstances” to support an inference of such an agreement beyond a reasonable doubt. He points out that the co-conspirator, the only witness purporting to know the nature and details of the object of the conspiracy testified that a gun was not to be used. In light of that testimony, appellant says that the total circumstances do not support an inference beyond a reasonable doubt that a weapon was intended to be used.

A criminal conspiracy is ... the combination of two or more persons, who by some concerted action seek to accomplish some unlawful purpose, or some lawful purpose by unlawful means. The essence or gist of criminal conspiracy is an unlawful agreement. The agreement is the crime, and the crime is complete without any overt act. Although the agreement need not be a formal transaction involving meetings and communications, there must nonetheless be a meeting of the minds reflecting a unity of purpose and design, (citations omitted) Mason v. State, 302 Md. 434, 444 , 488 A.2d 955 (1985).

Its existence may be shown by circumstantial evidence which permits an inference that there exists a common design. Johnson v. State, 10 Md.App. 652, 662 , 272 A.2d 422 (1971). That an understanding exists may be inferred from “sufficiently significant circumstances”. Jones v. State, 8 Md.App. 370, 377 , 259 A.2d 807 (1969).

Whether there exists sufficient evidence to sustain appellant’s conviction for criminal conspiracy must be determined by review ²⁸² ing the evidence in the light most favorable to the State and determining whether any rational trier of fact could have been convinced beyond a reasonable doubt of appellant’s guilt. Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979), Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980). Appellant does not question the sufficiency of the evidence to prove the existence of an agreement; he merely questions the substance of the agreement proved. We therefore will confine our inquiry to whether the trier of fact could find that the agreement proved involved the use of a deadly weapon.

The State produced testimony from Detective Grady that one of the co-conspirators carried a blue canvas tote bag which was later found to contain a handgun, and which was, from time to time, passed among three of the four men, including appellant. The jury could have inferred from the fact that the canvas bag was possessed by appellant and two of the other co-conspirators at various times throughout the morning while in the vicinity of the bank whose courier was to be robbed, that each of the co-conspirators was aware of the gun and intended its use, if necessary. The jury was not required to believe the co-conspirators’ testimony that the gun was not to be used. 2. Lesser Included Offense Appellant did not except to the court’s instructions concerning the possible verdicts returnable by the jury nor to those which described and defined the crimes charged.

After deliberations had begun, the jury submitted a question to the court: “If a person in the commission of a crime has on his person a weapon, without his cohorts’ knowledge, does the law consider his cohorts as if they themselves carried the weapon even if the cohorts had no knowledge of the weapon?” Thus cued by the jury’s question, appellant, for the first time suggested that conspiracy to violate the robbery law is a lesser included offense of conspiracy to violate the robbery with a deadly weapon law and, thereupon, appellant requested the court to amend the verdict sheet ²⁸³ to include this “lesser included offense”. The request was denied and the jury was re-instructed on the issue of participant liability and directed to determine if there had been committed a conspiracy to violate the robbery with a deadly weapon laws. Appellant now complains that it is reversible error the court’s failure to amend the verdict sheet to include conspiracy to commit robbery as a possible verdict and to inform the jury that it was an option. He relies primarily on his perception that conspiracy to rob is a lesser included offense of conspiracy to commit robbery with a deadly weapon.

We find no error. In Insley v. State, 32 Md.App. 46 , 358 A.2d 246 (1976), the defendant, who was charged with intoxicated driving, complained that he was prejudiced by the court’s refusal to submit, in addition to the charged offense, the charge of driving while ability was impaired to the jury. We said: We hold that such a choice was not available to Insley. The State charged him with one offense, and only one offense.

He was charged with driving a vehicle while he was in an intoxicated condition, specified as being the conduct proscribed by Art. 66V2 § ll-902(a). The State’s choice to proceed on an “all or nothing” basis meant that the State forewent the right to drop down to a lesser charge, should its proof fail to result in a conviction of the greater charge. If this choice involved risk, the risk was on the State, not on the accused. Id. at 48, 358 A.2d 246 .

But see Battle v. State, 65 Md.App. 38 , 44 n. 1, 499 A.2d 200 (1985). This is dispositive of appellant’s contention. 3. Reinstruction Following receipt of the jury’s question and after conferring with counsel, the court reinstructed the jury as follows: If a person participates with others in the commission of a crime of robbery with a dangerous and deadly weapon ²⁸⁴ he is just as guilty as the other person even though his role may not have been as big and even though he may personally not have personally possessed the weapon. The defendant in these proceedings is charged with conspiracy to commit a crime of robbery with a dangerous and deadly weapon.

It is therefore your responsibility to determine whether he and the others so conspired, particularly this defendant because he is on trial. Appellant complains that [t]he reinstruction neither defined possession nor answered the jury’s question regarding the significance of the lack of knowledge by co-conspirators. Clearly it did not address the central issue of whether the evidence in light of all relevant circumstances, including possession as defined by law ... showed that the “agreement” included the use of a deadly weapon. He concludes that the reinstruction was misleading, confusing, and prejudicial because of “[t]he court’s projection of an accomplished robbery with a deadly weapon by joint perpetrators as the basis for determining whether the agreement included the use of a weapon.” Md. Rule 4-325 provides, in pertinent part: (a) When Given — The court shall give instructions to the jury at the conclusion of all the evidence and before closing arguments and may supplement them at a later time when appropriate ...

(emphasis added) The decision to supplement its instructions and the extent of supplementation are matters left to the sound discretion of the trial judge, Funkhouser v. State, 51 Md.App. 16, 31 , 440 A.2d 1114 (1982), whose decision will not be disturbed on appeal in the absence of a clear abuse of discretion. See Battle v. State, 287 Md. 675, 685 , 414 A.2d 1266 (1980). We discern no abuse of discretion. Although from an academic perspective and in a vacuum, appellant’s argument may possess some surface appeal, we point out that the trial judge is in the best position to determine whether, and which, additional instructions should be given and, ²⁸⁵ therefore, that his judgment is entitled to great weight.

See Kelly v. State, 270 Md. 139, 143 , 310 A.2d 538 (1973). (“From his vantage point [the trial judge] has the opportunity to surmise which of the phrases in his instructions have been absorbed and which should be embellished or repeated.”) We are unable to say that the jury was misled or confused by the reinstruction or that appellant was prejudiced. Certainly nothing in the record suggests it. 4. Disclosure of Informant “The State is privileged to withhold disclosure of an informant’s identity to further and protect the public’s interest in effective law enforcement.” Jones v. State, 56 Md.App. 101, 109 , 466 A.2d 895 (1983).

The privilege is not absolute however and its exercise is a matter which is largely left to the sound discretion of the trial court, Gulick v. State, 252 Md. 348, 354 , 249 A.2d 702 (1969), Hardiman v. State, 50 Md.App. 98, 99 , 436 A.2d 923 (1981), which judicial discretion does not have to be exercised until and unless the defense properly demands that an informant’s identity be disclosed, Nutter v. State, 8 Md.App. 635, 643 , 262 A.2d 80 (1970), and shows by a preponderance of the evidence that information concerning the informant is necessary and relevant to a fair defense. Id.; Jones v. State, 56 Md.App. at 109 , 466 A.2d 895 ; Whittington v. State, 8 Md.App. 676, 678-79 , 262 A.2d 75 (1970). The burden then shifts to the State to rebut by clear and convincing evidence the showing made by the defense. Jones, 56 Md.App. at 109 , 466 A.2d 895 , Whittington v. State, 8 Md.App. at 679, 262 A.2d 75 .

It is when the case is in this posture that the trial court must ... balanc[e] the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. ²⁸⁶ Roviaro v. United States, 353 U.S. 53, 62 [ 77 S.Ct. 623, 629 , 1 L.Ed.2d 639 ] (1957) Where the informant is a “tipster”, and not a participant, accessory, or witness to the crime, disclosure of his identity is not required. Gulick v. State, 252 Md. at 356, 249 A.2d 702 . On the other hand, where the informant participates in the crime or other activities associated with the crime, evidence of which is introduced into evidence or utilized by the trier of fact in deciding the case, it is reversible error to fail to disclose the informant’s identity.

Roviaro v. U.S., supra, Nutter v. State, 8 Md.App. at 651, 262 A. 2d 80 . Furthermore, where the defense makes the required showing as to the necessity and relevance of the informant’s testimony to a fair defense, the trial court’s denial of the