James v. State

⁶⁶⁸ Moore, J., delivered the opinion of the Court. The fatal shooting of a 22 year old Baltimore City policeman on April 5, 1974 gives rise to this appeal. Appellant, who relied for his defense upon a theory of alcoholic blackout or amnesia, 1 was found guilty of first degree murder in the death of Officer Frank Whitby and of assault with intent to murder Officers William Nowakowski and Carl Grinnage. He was sentenced to life imprisonment for murder, 15 and 10 year consecutive sentences on the assault charges, to be served consecutively to the life term and two 5 year concurrent sentences for handgun convictions, to be served concurrently with the other sentences.

Appellant assails his convictions upon the grounds of alleged insufficiency of the evidence, alleged error in denying his motions for a mistrial based upon remarks by the prosecutor claimed to have been inflammatory, alleged error in the admission of evidence of a prior conviction and alleged failure of the trial court properly to consider the issue of whether his claimed amnesia precluded a fair trial. After careful consideration of the record in this case, including some 1000 pages of transcript and numerous exhibits, we conclude that the assignments of error are not supported and that the judgments of conviction must be affirmed. The senseless shooting of Officer Whitby occurred on Saturday, April 6, 1974, at approximately 1:00 p.m. Appellant, then 43 years of age, had apparently spent a substantial part of the previous day drinking.

Witnesses for ⁶⁶⁹ the defense testified that appellant and his girlfriend, Lagertha Buise, arrived at the home of her mother and stepfather on East Oliver Street at 9:30 or 10:00 p.m. The girlfriend’s uncle was also present. The group began playing pinochle, imbibing beer and liquor as they played. The quantity of drinks available to them and consumed by the appellant was variously estimated by the witnesses — the girlfriend stating with apparent exaggeration that appellant consumed as much as two gallons by the time the card game terminated at 8:30 or 9:00 the following morning.

At that juncture appellant and Lagertha Buise .left her mother’s home, destined for the home of appellant’s sister. In response to a question on direct examination as to his condition at that time, appellant testified: “I was pretty high. I was high but wasn’t what you call sure enough drunk. I wobbled a little bit.” Not finding the sister at home, they located her at the house of a friend and went with her to a local bar at the corner of Wolfe and Lanvale Streets.

There, the trio consumed beers and a pint of whiskey. At approximately 1:00 p.m., one Barnard Smith, who was having his automobile washed in the neighborhood, entered a public telephone booth on the street outside the tavern to telephone his wife. As he did so, he observed appellant walking unaccompanied down East Lanvale Street shooting a pistol at random. One of the bullets came dangerously close to the telephone booth.

Mr. Smith crouched on the floor and dialed the police. When the officers arrived on the scene, Mr. Smith informed them that appellant had entered a rowhouse, 1911 East Lanvale (later established to be the residence of his sister). Policemen were deployed to the front and rear of the house and Officers Whitby, Nowakowski and Grinnage ascended the front steps. Whitby was first in line.

In response to his knock, appellant’s sister appeared at the door. She stated that there was no one in the house with a pistol — the only other occupant being her brother and that he had no gun. As she motioned the officers inside, Officer Whitby, armed with a shotgun, entered the vestibule and ⁶⁷⁰ proceeded to the hallway of the house. As he did so, three shots rang out.

He turned to his companions and stated, “I have been shot,” and fell to the floor. He then crawled back toward the outside door. He was assisted from the house by Officer Grinnage and placed in an alley a few doors away, awaiting the momentary arrival of an ambulance. Officer Nowakowski took a position outside, to the left of the front steps, and testified that he presently found himself looking down the barrel of a revolver in appellant’s hand.

He fired three shots but appellant withdrew into the house, unscathed. Thereafter the police established a barricade in the front and rear of the premises. The supervising officer, using a “bullhorn” and having learned appellant’s name, called out to him to surrender. After some 40 minutes appellant shouted that he was coming out and giving himself up.

Heeding the instructions of the supervising officer, he emerged with his hands up, descended the front steps and spread his arms on the hood of an automobile. He was quickly handcuffed and searched and then transported from the scene. One of the police officers, Paul A. Ayres, testified that appellant stated at the time of his apprehension that he did not know that the man he shot was a police officer. 2 Officer Whitby was taken to Johns Hopkins Hospital where he underwent 7 or 8 major surgical procedures. He died there on May 5,1974, the cause of death being extensive bronchial pneumonia, complicated by multiple gunshot woulds of his leg and abdomen.

The trial in this case commenced on February 10, 1975 and ended on February 20th. Appellant took the stand in his own behalf and testified that he had no recollection of events which transpired after drinking at the bar on Saturday morning until his apprehension by the police. He did remember walking from the home of his girl-friend’s mother on East Oliver Street to East Lanvale and also recalled going ⁶⁷¹ to and being at the local bar. He also admitted the possession of two revolvers and stated that he found them in a car at a garage where he was temporarily employed and had them in his custody at the time of his arrest because he intended to sell them.

II We address ourselves to appellant’s contentions in the order in which they have been presented: a. Sufficiency of Evidence — First Degree Murder In the instant appeal, the corpus delicti of homicide was amply demonstrated, as was the criminal agency of appellant, in the perpetration of the homicide. On his behalf it is contended, however, that in the absence of any confrontation between victim and assailant, there being no testimony of any exchange of words before the shots were fired, that the State did not prove, as it must, that the homicide was “wilful, deliberate and premeditated” so as to constitute murder in the first degree. Maryland Code (1957, 1976 Repl.

Vol.) Art. 27, § 407; Chisley v. State, 202 Md. 87 , 95 A. 2d 577 (1953); Wilson v. State, 261 Md. 551 , 276 A. 2d 214 (1971); Gladden v. State, 273 Md. 383 , 330 A. 2d 176 (1974). As Judge O’Donnell stated for the Court in Gladden, supra: “For a homicide to be ‘wilful’ there must be specific purpose and design to kill; to be ‘deliberate’ there must be a full and conscious knowledge of the purpose to kill; and to be ‘premeditated’ the design to kill must have preceded the killing by an appreciable length of time, that is, time enough to be deliberate.” Citing Chisley, supra, the Court in Gladden pointed out that to sustain a conviction of murder in the first degree, as defined in Maryland, the jury must find: “ ‘the actual intent, the fully formed purpose to kill, ⁶⁷² with so much time for deliberation and premeditation as to convince them, that this purpose is not the immediate offspring of rashness and impetuous temper and that the mind has become fully conscious of its own design.’ It is not necessary that deliberation and premeditation shall have been conceived or have existed for any particular length of time before the killing. Their existence must be judged from the facts of the case. . .. ”273 Md. at 387. And in Gladden , the Court also cited Wilson, supra, for the proposition that: “If the killing stems from a ‘choice made as a result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder.’ ” And as Judge Moylan pointed out for this Court in Evans v. State, 28 Md. App. 640 , 349 A. 2d 300 (1975), in proving wilfulness, deliberation and premeditation beyond a reasonable doubt, the State will not have relied upon a mere presumption of malice but will of necessity have proved the element of malice, meaning “an intentional killing absent the mitigating circumstances of a hot-blooded response to a legally adequate provocation.” In the present case it is significant that the shooting by the appellant of Officer Whitby was in no way provoked by any action of the decedent or of his two companions.

The autopsy indicated that the victim suffered gunshot wounds to the right lower abdomen, right thigh and right leg. (The bullet to the abdomen perforated the major vascular structure of the lower abdomen, penetrated the diaphragm and ultimately became lodged in the left lung.) Premeditation and deliberation, being subjective in nature, can be established from the circumstances surrounding the particular case. 40 Am.Jur.2d Homicide § 263; 1 Wharton, Criminal Evidence § 135 (13th ed. 1972). As ⁶⁷³ the trial court observed in this case when he denied appellant’s motion for judgment of acquittal at the close of the case: “The question of premeditation has to be determined by the facts of each case. In this case, I think the triers of the fact, the jury, may well draw the inference the Defendant was in the hallway or the area of the hallway, heard the conversation between the stout woman and the police, knew the police were going to talk to him, approach him or apprehend him, and as the police approached he stepped forward to a doorway and fired three shots fatally wounding Officer Whitby.” The circumstances above related by the trial court, as well as the appellant’s subsequent statement that he did not know the person he shot was a policeman, combined with the number of shots fired, add support to a permissible inference of premeditation and deliberation.

Chisley v. State, supra; Wilson v. State, supra; Cummings v. State, 223 Md. 606 , 165 A. 2d 886 (1960). We must reject appellant’s contention that: “In the absence of any facts which would supply a reasonable foundation for an inference of deliberation and premeditation, the jury was left to reach its determination through speculation and conjecture.” b. Sufficiency of the Evidence — Assault with Intent to Murder The appellant was convicted of assault with intent to murder Officer Grinnage and of assault with intent to murder Officer Nowakowski. It is our conclusion, contrary to the contentions of appellant, that there was legally sufficient evidence from which the jury could find Luke James guilty of these offenses beyond a reasonable doubt.

The trial court effectively summarized the evidence when he ⁶⁷⁴ stated, in ruling against appellant’s motion for judgment of acquittal: “With respect to the two indictments, assault with intent to murder, I think there is sufficient evidence to go to the jury on these. Shots were fired in the direction of all three officers. One was in back of the other, plus the testimony of Officer Nowakowski, which would be a separate situation entirely. The motion will be denied.” Assault with intent to murder is a statutory offense.

Md. Code (1957, 1976 Repl. Yol.) Art. 27, § 12. The essential element of the crime is an assault made with intent to murder, that is, if death had ensued, the killing would have constituted murder. A specific intent to murder is not necessary to sustain a conviction, it being sufficient if there was an intention to commit grievous bodily harm.

Webb v. State, 201 Md. 158 , 93 A. 2d 80 (1952); Bird v. State, 231 Md. 432 , 190 A. 2d 804 (1963). The intent to kill is inferable from the use of a deadly weapon directed toward a vital part of the body. Bird v. State, supra. The testimony of Officer Nowakowski, to which the trial court referred above, related to the developments which rapidly occurred after the initial gunfire inside the house when Officer Whitby was fatally wounded.

Officers Nowakowski and Grinnage exited the building and Nowakowski, as previously stated, took up a position near the doorway. Looking up, he saw the appellant: “A. I then looked, like, just laid my body up against the wall on the pavement at that time and I was looking at the house and Mr. Luke James, he was standing there in the same doorway where I first seen him and he was holding the gun. Q. Who was? A. That man, holding a gun.

Q. Were you able to see the gun? A. I was looking right down the barrel. Q. What did you do then? ⁶⁷⁵ A. I just leaned on — I was leaning over the steps at that time and I had my service revolver at that time and extended my arm out and laid it against the legs of that fat lady, the heavy-set woman. She was still standing in the vestibule.

I laid my arm against her legs and fired three shots. “A. I came over here and I wanted to peek in, see what was happening and I didn’t have any idea when I pulled my gun. Sometime I did pull my hammer after I went down the steps. I looked around and Officer Whitby was in the vestibule. Guess it must have been about this time.

The heavy-set woman was standing right here, almost to the frame of this, in this door. And, I looked and I seen that man over there and his gun was pointing at me at that time, I fired three shots.” From this testimony the trier of fact could have found that appellant pointed a deadly weapon at a vital part of Officer Nowakowski’s body and would have shot Officer Nowakowski had the policemen not fired first at the appellant, forcing him to retreat into the house. With respect to the assault upon Officer Grinnage, the evidence is also sufficient to sustain appellant’s conviction. Officer Grinnage was directly behind Officer Whitby as the trio entered the vestibule and proceeded into the hallway.

Officer Grinnage testified that, “We were fired upon from the right side of the house.” (Emphasis added.) Because of the close proximity between Whitby and Grinnage when appellant fired the shots, there was a permissible inference that appellant was pointing a gun at all three of the officers and attempting to shoot Officer Grinnage as well as the other two; and that appellant’s failure to do so was attributable to the instinctive reaction of Grinnage in taking flight to avoid being killed or wounded. Appellant has failed to show that there was no legally sufficient evidence or inferences therefrom from which the ⁶⁷⁶ jury could find him guilty of both charges of assault with intent to murder beyond a reasonable doubt. Without such a showing a judgment entered on the verdict of the jury may not be overturned on grounds of insufficiency. Culver v. State, 1 Md. App. 406 , 230 A. 2d 361 (1967); Johnson v. State, 9 Md. App. 166 , 263 A. 2d 232 (1970). c.

Alleged Inflammatory Comments of Prosecutor At the outset of this somewhat protracted trial, the court delivered a carefully phrased instruction to the jury. This took place prior to opening statements and before any testimony was received. The court enunciated the proposition, inter alia, that the statements of counsel during opening and closing arguments are not evidence and that the jury was to decide the ultimate issues based upon the testimony and exhibits, the court’s instructions themselves being advisory. Twice during the course of the opening statement, once during his closing argument and once in his rebuttal, the prosecutor made statements which appellant claims were inflammatory and he contends that a mistrial should have been granted.

In his opening statement, after relating what the facts would show with respect to the shooting of Officer Whitby, the prosecutor declared: “The saga doesn’t end here. It goes on because an ambulance responded and quickly left and Officer Whitby was transported to Johns Hopkins Hospital. He was taken in the greatest haste possible to the operating room where he was placed directly on the operating table. Certain tests were conducted and it was the conclusion of the medical people there that he was losing gross amounts of blood, so an incision was made in his upper left chest right over here and an incision was made in his belly right over here.

The first incision was for the purpose of tying off the aorta, one of the major blood vessels. They clamped that off, the reason being he was bleeding ⁶⁷⁷ from the wounds he sustained, that being in the abdominal area. They then did an exploratory laparotomy. They cut him open to find out what was wrong and they found out what was wrong, that a bullet pierced him and in doing so, pierced what is known as iliac, the major blood vessel that goes to the leg, and he was losing tremendous amounts of blood.

It also pierced his bowels so that his own fecal matter was spilling into his abdomen. “MR. HARRIS [Defense Counsel]: Objection. May we approach the bench?” An unrecorded conference was held at the bench out of the hearing of the jury. (The following day at a conference in chambers, counsel for appellant stated — and the court concurred — that the record should show that a mistrial was requested during the unrecorded bench conference and that the court denied the motion.) The prosecutor thereupon resumed his statement and continued in similar vein: “MR.

IAMELE [for the State]: Ladies and gentlemen, this was on April 6th that Officer Whitby was admitted. These operations were performed on April 6th. After that there were approximately four or five more operations that were performed on him because the hospital, the doctors, could not control the bleeding in his abdomen. In fact, one hundred and fifty units of blood, fifteen times the amount of blood each of us has, was given to him during the course of his treatment.

Officer Whitby when he went on that operating table April 6th 1974, did not have a pulse, he was not breathing. His life was sustained through the miracle of medicine. His condition, as bad as it was, grew progressively worse during the next month. As I said, he had about five more operations after that, all to his abdomen.

His kidneys shut down and he was put on a kidney dialysis machine.” ⁶⁷⁸ At that point defense counsel again objected and the following took place at the bench out of the hearing of the-jury: “MR. HARRIS: I make the same objection I made a moment ago. I believe the State’s Attorney is overdramatizing in his opening statement and the only purpose is to inflame the jury and raise prejudice to the Defendant. “THE COURT: I would just caution Mr. lámele not to overdramatize the situation and proceed with what you expect to prove without going into details of the officer’s suffering. “MR. IAMELE: Very well.” In his closing argument, ten days later, the Assistant State’s Attorney made reference to the surgical procedures to which Officer Whitby had been subjected in the month following the shooting.

The prosecutor again referred to Officer Whitby’s suffering: “After this, ladies and gentlemen, you heard the testimony of Dr. Whitaker. He testified, he told you what horrible suffering that must have gone on for the month after that. He told you that Officer Whitby was admitted to the hospital, that he had approximately seven operations in that month. He told you his blood was replaced between fourteen times over or seventeen times over.

He told you of his agony for a month.” The defense interposed an objection and the following colloquy took place at the bench: “MR. HARRIS: I don’t believe the doctor testified to the agony. Again, this man is not on trial for what happened in the twenty-nine days. He is charged with homicide of Officer Whitby.

I believe I made this objection in opening statement and at the time the hospital records were tried to be gotten into evidence. What happened in the hospital ⁶⁷⁹ has nothing to do with the case, and I move for a mistrial. “THE COURT: The motion for mistrial is denied. Up to this point, I don’t think it has been so dramatized that it would require granting the motion. Further, I think it may fall within the general pattern of argument.

However, having said that, I would caution the State not to pursue this further. “MR. HARRIS: Thank you.” Finally, in his rebuttal argument, the prosecutor remarked: “Mr. Harris talks about the fact the .25 caliber is puny, is a slingshot. Matter of fact, a .25 caliber at close range is more devastating than a .38. A .38 highpower goes through a person.

But a .25 goes helter skelter through the body itself, the kind of agonizing death Officer Whitby suffered.” Defense counsel made an objection and the court responded: “I think it’s argument.” 3 First, we observe that the prosecutor’s language in opening statement wherein he indulged in a vivid and irrelevant description of the unfortunate victim’s wounds, was improper. Also objectionable were the prosecutor’s references to the “horrible suffering” and “agony for a month” in his closing statement but we are inclined to agree with the trial court’s ruling, above quoted, that the subject had not been so “dramatized that it would require granting the [mistrial] motion.” With respect to the statements of the prosecutor made in rebuttal, we think the trial court was correct in characterizing his remarks as “argument” ⁶⁸⁰ inasmuch as defense counsel had himself attempted to minimize the effect of a .25 caliber weapon, having called it “puny” and a “slingshot.” In this factual context it is our conclusion that the trial court should have issued a cautionary instruction to the jury after the first of the prosecution’s statements — even though it had not been requested