Huff v. State

Moore, J., delivered the opinion of the Court. Appellant, Alfred Parker Huff, was convicted by a jury in the Criminal Court of Baltimore of robbery with a deadly weapon and sentenced to ten years imprisonment. * 1 On appeal he presents the issues: “1) Did the trial court coerce the jury into finding a verdict of guilty of armed robbery? ²¹³ 2) Did the trial court commit reversible error by questioning a defense witness so as to elicit inadmissible evidence prejudicial to the appellant? 3) Did the trial court err in denying appellant’s motion for a judgment of acquittal at the close of the State’s case?” We will consider the last issue first. I At the conclusion of the testimony the court instructed the jury inter alia on the law of principals and advised it that since no claim had been made by the State that appellant was the actual robber, he could be found guilty of armed robbery only if he was a principal in the second degree. Evidence was adduced at trial from which the jury could have found the following facts: 2 At approximately noon on December 13, 1972, Noel Corkran held up the Monument Street branch of the Provident Savings Bank in Baltimore and escaped (momentarily) with $2,568.00. 3 Corkran had known appellant during a period of about three weeks in Washington, D. C., where appellant lived; there the two men “drank together several times and also visited some girls together several times.” They were again together in Baltimore on the evening before the robbery.

On one occasion during the week prior to December 13 appellant was seen in Read’s Drugstore on Monument Street, directly across from the Provident Savings Bank. Corkran and appellant were again together in the drugstore shortly before the robbery. At about the time Corkran entered the bank appellant hailed a cab and was double parked in front ²¹⁴ of the bank when Corkran emerged and entered the back seat with appellant. As the cab moved off down the street Corkran was observed to hand “something” to appellant.

Remarkably, the two men were heard by the taxi driver to say nothing to one another during-the brief ride before the cab was stopped by police and they were arrested. An immediate search of appellant’s person recovered $1,043. At trial appellant’s defense was that his involvement in the crime did not extend beyond mere unwitting presence at the scene; that, to his surprise, he was handed a wad of bills by Corkran in the cab which he pocketed only after emphatically stating he did not want them; that he had not met Corkran until the night before the robbery at a bar, had merely accompanied him across town the following morning and was only obeying Corkran’s instruction to hail a cab and wait outside the bank while Corkran accomplished “some business.” Appellant advances the somewhat imaginative, but ultimately specious argument, that while evidence of his prior actions including his acquaintance with Corkran “might conceivably be offered as proof of an accessory before the fact (had appellant been charged as such and the jury accordingly instructed) it is difficult to see how it assists in showing what Huff did during the time of the robbery.” Even more directly he contends that his conduct after the robbery, including his acceptance of a portion of the money, was evidence of a separate offense (receiving) “and cannot properly be used to bolster the evidence of Huff’s participation in the robbery.” Tibe result, he urges, is that we are left with his bare presence at or near the scene of the crime, and such presence is by all authority insufficient to make one a principal in the second degree. It is, of course, settled that on an indictment charging one with a felony as a principal there can be no conviction on evidence showing he was merely an accessory, Agresti v. State, 2 Md. App. 278 (1967), but the principal differs from the accessory before the fact only in the requirement of presence, Perkins, Criminal Law (2d ed. 1969) p. 658, and we ²¹⁵ fail to see why evidence of appellant’s actions prior to the robbery may not properly shed light upon his intent in being present at the perpetration of the crime. “A person is constructively present, hence guilty as a principal, if he is acting with the person who actually commits the deed in pursuance of a common design, and is aiding his associate, either by keeping watch or otherwise, or is so situated as to be able to- aid him, with a view, known to the other, to insure success in the accomplishment of the common enterprise.” Clark and Marshall, Law of Crimes (7th ed. 1967) p. 509.

Appellant’s prior association with Corkran, the fact that he was with him on the eve of the robbery and his presence in the immediate vicinity of the crime during the preceding week were evidence of his presence at the crime “in pursuance of a common design” or to aid his associate by keeping watch or otherwise. His behavior subsequent to the crime — his silent acceptance of the money in the taxi — was evidence of the same fact notwithstanding its relevance as well to the lesser offense of receiving. In Foster v. State, 11 Md. App. 40 (1971), reversed on other grounds, State v. Foster, 263 Md. 388 (1971), Chief Judge Murphy, in discussing the meaning of accomplice participation, said: “. . . we think the trier of fact is entitled to take into consideration all the attendant circumstances surrounding the presence of a witness at the crime scene in determining whether the witness is an accomplice, [citations omitted] That a witness, alleged to be an accomplice, testifies to facts exculpating himself from any connection with or involvement in the crime does not mean that the jury is obliged to believe him. His relation to the crime is a question for determination by the jury where there is evidence, or rational inferences from evidence, from which the jury could properly ²¹⁶ conclude that the witness was an accomplice, [citations omitted.] [Emphasis added.] In Foster the “attendant circumstances” included the conduct of the alleged accomplice before and after the crime.

We conclude that the evidence showed directly or supported a rational inference of facts from which the jury could find beyond a reasonable doubt that appellant participated, as a principal in the second degree, in the bank robbery. Williams and McClelland v. State, 5 Md. App. 450 (1968). II The counts charging appellant with armed robbery, conspiracy to commit armed robbery, receiving stolen goods and use of a handgun in the commission of a felony were submitted to the jury in the form of a sheet listing “possible verdicts” which indicated the order in which the charges were to be considered. Specifically the jury was instructed to consider conspiracy first, then armed robbery.

Whether it found appellant guilty or not guilty on the latter count, it was to consider use of a handgun. On the other hand only upon a verdict of not guilty as to armed robbery was it to consider, lastly, the count of receiving stolen goods. After deliberating some three hours the jury returned to announce that it had agreed on a verdict of guilty of receiving but was divided on the other counts. In a bench conference the court determined to inquire whether the jury felt it could still reach a verdict “at least as to conspiracy” or whether it was hopelessly divided.

Questioning to this effect led the court to conclude, and both counsel concurred, that the conspiracy and armed robbery counts were intertwined in the jury’s thinking and this confusion was the primary impediment to a final verdict on the two counts. The court thereupon instructed the jury, over defense objection, on the separate and distinct nature of the offenses, following this with a version of the Allen charge. Appellant contends that by omitting to instruct the jury at this time that a finding of guilty of receiving precluded a ²¹⁷ finding of guilty of robbery the court coerced the jury “to either return an improper, inconsistent verdict of guilty to both armed robbery and receiving stolen goods or to reverse itself and find the defendant guilty of armed robbery and not guilty of receiving stolen goods.” In other words the jury was not advised “that a decision on the conspiracy charge, together with what had already been decided, would terminate the case.” We disagree with appellant’s analysis. First, there can be no question of the propriety of the court’s initial inquiry whether the jury’s division on conspiracy was insurmountable.

When it then became apparent that the indecision on both the conspiracy and robbery counts reflected the jury’s confusion as to the law separating the offenses, the court was clearly within its right in returning the jury to deliberation with the instruction to consider these offenses separately. The question is, then, whether it should have simultaneously reminded the jury what “had already been decided” and that a verdict of guilty as to receiving precluded a like verdict as to robbery. We think clearly not. The verdict on the receiving count was not, to begin with, a perfected verdict since the procedure of harkening had not yet taken place. 4 In Givens v. State, 76 Md. 485 (1893) the Court of Appeals referred with approval to Commonwealth v. Gibson, 2 Va.

Cas. 70 , where “it was held, that after the verdict is rendered by the jury and read in open court, it is the duty of the clerk to direct the jury to ‘hearken to their verdict as the court hath recorded it, and if none of the jury express their dissent the verdict stands as recorded’; that until the assent of the jury is expressed in this way, or by a poll, the jury has a right to retract; and that the verdict is not ²¹⁸ perfected until after the jury has expressed their assent in one of these ways.” [Emphasis added.] See also Heinze v. State, 184 Md. 613 (1945). Moreover it is apparent, we think, that the combination of the jury’s stated failure to reach a verdict on robbery 5 combined with a guilty verdict on receiving, left unremedied, would have meant an inconsistent verdict since, as the jury had been correctly instructed, it could find appellant guilty of receiving only if it found him not guilty of robbery. See Heinze v. State, supra at 617. On the other hand to send the jury back with the instruction, in effect, that reconsideration of its verdict on the receiving count was foreclosed would, for the same reason, tend to compel a finding of not guilty as to armed robbery.

We think the