James v. State

Gilbert, J., delivered the opinion of the Court. Robert Avon James, appellant, was convicted of second degree murder in the Criminal Court of Baltimore by a jury presided over by Judge Albert L. Sklar. Appellant was sentenced to a term of confinement of 30 years under the jurisdiction of the Department of Correctional Services. On appeal from the judgment of the Criminal Court, appellant asserts that the trial court erred in three respects concerning the validity of his trial.

I. Sufficiency of the evidence.

II

Improper jury instructions. ⁶⁹¹ III. Prejudice to appellant’s right to a fair and impartial trial occasioned by the substitution of a regular juror during the course of the trial. THE FACTS Officer Lloyd Swedenjelm was operating his patrol car in the 1300 block of North Fremont Avenue when he observed a woman, later identified to be Mrs. Lillian Jones, bending over the prostrate body of James Melvin Baltimore. Standing near Mrs. Jones were two of her children, Robert and Robin.

When the officer observed that the man was bleeding from the chest, he radioed for an ambulance. During this period of time, an unidentified man was applying mouth-to-mouth resuscitation, and he continued to do so until the ambulance arrived. The officer searched the scene for a weapon but found none. He examined a trail of blood leading from 1314 North Fremont Avenue, where Mr. Baltimore was lying, to 1310 North Fremont Avenue.

Mr. Baltimore expired from the chest wound shortly after his removal from in front of 1314 North Fremont Avenue. The autopsy report indicated that Mr. Baltimore’s death was caused by a single slightly downward stab wound above the right chest nipple, approximately two inches deep. Based upon information gathered by the police officer, a warrant for the arrest of the appellant was obtained on December 20, 1969, and the appellant surrendered himself three days later. At the trial, Lillian Jones testified that she had lived with the decedent for a period of time at 1320 North Fremont Avenue.

She told the jury that on the night of December 19 and continuing into the morning hours of December 20, 1969, her mother, Vivien Floyd and Luther Ford were socializing in the club basement. She said that the appellant was asleep on the first floor in a living room chair when he was awakened by the appellant’s mother who told him that she and her sister had been struck by Mr. Baltimore. This statement, however, was contradicted by the mother, Mrs. Wooden, and by the ⁶⁹² appellant. According to Mrs. Jones, an argument ensued in which a number of verbal epithets and pejoratives were exchanged among Mrs. Jones, the appellant, and the decedent.

Mrs. Jones stated that the appellant hit her in the eye, and as she fell to the floor she broke a glass on the inside of the vestibule door. The brawl spilled out onto Fremont Avenue, and there was testimony that Mr. Baltimore had a “club” in his hand and was chasing the appellant. The appellant states that he was struck with the club by the decedent a number of times, but his testimony was unsupported by others. Appellant successfully evaded the decedent.

Miss Robin Jones, the 10 year old daughter of Mrs. Jones, testified as follows: “Q Tell me what you saw. A I seen Mr. Baltimore went around the corner. Q Went around the corner? Then what happened?

Do you know why he went around the corner? A No. Q Then what happened? A Then, so he came back, he crossed the street and my uncle [appellant], he came up the street. Q He came up the street?

Was he in front of Mr. Jimmy [Mr. Baltimore] or behind him? A Behind him. Q What did you see him do? A Mr. Jimmy, he stopped, said something to my uncle.

He stopped too. Q Where was he when he stopped? Was he in front of Mr. Jimmy or behind him? A Behind him.

Q What did he do? Take your time. I know this is difficult. Just tell the ladies and gentlemen of the jury exactly what . . .

A That he jumped out and stabbed him. ⁶⁹³ Q Where did he stab Mr. Baltimore, Mr. Jimmy? A Right up here. Q When he did it, where was he standing, in front or behind him? A He just jumped out.

He was behind him at first. * * * “Q Now, at that time, did you see Mr. Jimmy have anything in his hands ? A Yes. Q What did he have? A A club.

Q How long was it, do you remember? A No. * * * “Q * * *. Did you see what was in Mr. James’ hand when he came around ? A Which one?

Q In Mr. James’, your uncle. What was in your uncle’s hand when he came from behind on Mr. Baltimore? A A knife. * * * “Q What happened after you saw your uncle stab Mr. Jimmy? What did Mr. Jimmy do?

A He staggered down the street in front of the Club.” On cross-examination, the young lady said that the fighting outside had stopped at one point. She was not asked and did not testify whether or not the decedent struck the appellant with the club. The appellant, in his own defense, testified that he was struck repeatedly prior to the time of the stabbing and that the stabbing was done in self-defense. There was some testimony from Vivien Floyd that the decedent earlier in the morning had been in possession of a butcher knife and a club, although there was testi ⁶⁹⁴ mony that the decedent stuck the butcher knife in the cellar stairs and then went upstairs, leaving the knife.

I The test to be applied in determining the legal sufficiency of the evidence in a criminal case is whether the admissible evidence adduced at trial shows directly or supports a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. King v. State, 14 Md. App. 385 , 287 A. 2d 52 ; Frankis v. State, 11 Md. App. 534 , 275 A. 2d 532 (1971) ; Williams and McClelland v. State, 5 Md. App. 450 , 247 A. 2d 731 (1968). Where there is legally sufficient evidence for the veniremen to find that the intent on the part of the defendant was to kill or inflict grievous bodily harm upon the deceased, a verdict of second degree murder is supported. King v. State, supra.

In the absence of evidence to the contrary, a person is presumed to intend the natural and probable consequences of his acts. Lindsay v. State, 8 Md. App. 100 , 258 A. 2d 760 (1969). The use of a deadly weapon directed at the vital parts of another’s body is sufficient to infer malice. Woodard and Demby v. State, 13 Md. App. 114 , 282 A. 2d 9 (1971) ; Mahoney v. State, 13 Md. App. 105 , 281 A. 2d 421 (1971) ; Carroll v. State, 11 Md. App. 412 , 274 A. 2d 677 (1971) ; Cook v. State, 9 Md. App. 214 , 263 A. 2d 33 (1970); Lindsay v. State, supra.

The Annotated Code of Maryland (1971 Replacement Volume), Article 27, § 407, provides: “All murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree.” Article 27, § 408, concerns itself with murder committed in the perpetration of arson; § 409 with murder committed in the burning of specifically designated struc ⁶⁹⁵ tures; § 410 sets forth what is generally termed the “felony murder” rule. All other kinds of murder are deemed to be second degree murder, § 411. Significantly, Article 27, § 412, provides: “And the jury before whom any person indicted for murder shall be tried shall if they find such person guilty thereof ascertain in their verdict whether it be murder in the first or second degree; * * *.” The only other known eyewitness to the slaying, besides the appellant, told the jury, as we have indicated herein, that she saw her uncle, the appellant, plunge the knife into Mr. Baltimore’s chest. This testimony, standing alone, if believed by the jury, was sufficient to sustain the conviction of second degree murder.

The verdict of the jury in this case is indicative of the jury’s belief of the testimony presented by the State, and not that of the appellant and his witnesses. The jury was not required to believe the appellant’s exculpatory statement of self-defense. Derricks and Hilgeman v. State, 9 Md. App. 261 , 263 A. 2d 597 (1970) ; Cleveland v. State, 8 Md. App. 204 , 259 A. 2d 73 (1969) ; Rasnick v. State, 7 Md. App. 564 , 256 A. 2d 543 (1969). The weight of the evidence and the credibility of the witnesses are matters within the province of the jury.

Collins v. State, 14 Md. App, 674, 288 A. 2d 221 (1972) ; Williams v. State, 11 Md. App. 350 , 274 A. 2d 403 (1971) ; Reid v. State, 10 Md. App. 6 , 267 A. 2d 332 (1970) ; David v. State, 1 Md. App. 666 , 232 A. 2d 553 (1967) ; Williams and McClelland v. State, supra; Rule 1086. II Appellant argues that the trial judge’s advisory instructions to the jury included a definition of first degree murder, and a distinction between that offense and second degree murder. This, appellant says, was error in view of the trial judge’s having granted a motion for judgment of acquittal as to first degree murder. Appellant avers that he objected to the instructions. ⁶⁹⁶ Our perusal of the record fails to reveal any such objection being made known to Judge Sklar until the hearing on the motion for a new trial.

Rule 756 f provides: “If a party has an objection to any portion of any instruction given, or to any omission therefrom, or to the failure to give any instruction, he shall before the jury retires to consider its verdict make such objection stating distinctly the portion, or omission, or failure to instruct to which he objects and the ground of his objection. Opportunity shall be given to make the objection in open court out of the hearing of the jury upon application either orally or in writing, made before or after the conclusion of the charge.” Paragraph g of the same Rule states: “Upon appeal a party assigning error in the instructions may not assign as of right an error unless (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of objection were stated at that time. Ordinarily no other error will be considered by the Court of Appeals or the Court of Special Appeals, but the appellate court, either of its own motion or upon the suggestions of a party may take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to as provided by section f of this Rule.” The appellant’s contention concerning Judge Sklar’s charge is not properly before us in view of his failure to comply with Rule 756. No remonstration was made by appellant, in compliance with the Rule, to Judge Sklar’s ⁶⁹⁷ instructions, and, as we have stated, no objection was made in any event until the hearing on the motion for a new trial.

Anderson v. State, 12 Md. App. 186 , 278 A. 2d 439 (1971) ; Vernon v. State, 12 Md. App. 157 , 277 A. 2d 635 (1971); Jones v. State, 9 Md. App. 455 , 265 A. 2d 271 (1970) ; White v. State, 8 Md. App. 51 , 258 A. 2d 50 (1969). However, we have carefully examined Judge Sklar’s advisory instructions and they, when read as a whole, clearly and concisely set forth the applicable law regarding the “three possible verdicts: (one) guilty of murder in the second degree; * * * (two) guilty of manslaughter ; and (three) not guilty.” The jury was specifically told that they were not to consider first degree murder. There is no “plain error in the instructions, material to the rights of the accused. * * *” Brown v. State, 14 Md. App. 415 , 287 A. 2d 62 (1972) ; Epperson v. State, 7 Md.