Marshall v. State

Thompson, J., delivered the opinion of the Court. ⁶⁹⁶ The appellant, Larry Rudolph Marshall, was tried before a jury in the Circuit Court for Worcester County, Chief Judge Daniel T. Prettyman presiding. Charged with the robbery and murder of one Harry Waters, the jury, applying the felony murder rule, found the appellant guilty of first degree murder. The appellant’s contentions will be set out separately. I Facts Early on the morning of February 10, 1979, with the temperature at approximately 8 degrees F. the victim, Harry Waters, was found lying across the seat of his pickup truck which was parked on Willow Street in Pocomoke City, Maryland.

When found, Mr. Waters, who was 72 years old, was unconscious. There was frost on his hair and clothing and his body temperature was abnormally low. He was transported by helicopter to Peninsula General Hospital Medical Center where he died some time later. The cause of death was determined to have been a large subdural hematoma, i.e., a blood clot on the brain, with hypothermia, caused by exposure, a contributing factor.

It was testified that the hematoma was the result of the victim’s striking his head on a stationary object. Briefly stated, the evidence showed that, at approximately 10 p.m. on February 9, 1979, the victim left a bar, where he had been drinking that evening, accompanied by the appellant and the appellant’s sisters, Barbara and Delores Marshall. A short distance from the bar, the appellant seized the victim and held him while Barbara Marshall removed the victim’s wallet from his pocket. At the same time, Delores Marshall removed some money from another pocket.

After the money was removed from the wallet, the wallet was returned to the victim. At some point, the appellant struck the victim in the face, causing the victim to fall on the sidewalk, striking his head and rendering him unconscious. After making an attempt to revive the victim, the appellant and his sisters carried the victim to his truck, which was parked a short distance from the bar, and placed him inside the cab. The appellant and his sisters then returned to the bar. ⁶⁹⁷ II Preliminary Hearing The appellant’s first contention is that the Circuit Court "erred in failing to use its discretion in determining the question of appellant’s request for preliminary hearing.” The appellant was arrested on February 12, 1979.

He made a timely request for a preliminary hearing, pursuant to Art. 27, § 592 (b) (1), Annot. Code of Md. (1976 Repl. Vol.). On February 26, 1979, before the requested preliminary hearing had been held, the appellant was indicted by the Grand Jury.

Thereafter, the appellant filed a motion for a preliminary hearing in the Circuit Court. The court below granted appellant’s motion; however, upon the State’s motion for reconsideration, the court reversed its ruling and denied the requested hearing. It is the appellant’s contention that, under Art. 27, § 592 (b) (3), the court may, in its discretion, afford a preliminary hearing to a defendant who has been indicted by the Grand Jury. He argues that the court below failed to exercise its discretion in refusing to grant the requested hearing.

Article 27, § 592 (b) (3), states in part: "If the state’s attorney elects to charge the accused by grand jury indictment, the preliminary hearing is not a matter of right to the defendant but may be afforded in the court’s discretion.” Former Maryland District Rule 741, which covered preliminary hearings, duplicated in general the language of Section 592 and in particular the language of Section 592 (b) (3) quoted above. Effective July 1, 1977, the rules contained in Chapter 700 were revised. In the revision, M.D.R. 741 was replaced by M.D.R. 727. It is M.D.R. 727 which was in effect at all times relevant to the instant case.

M.D.R. 727 f 1 contains the following: "A preliminary hearing may not be held if before it is held: 1. An indictment is filed in the Circuit Court; ...” ⁶⁹⁸ Thus, there now exists a conflict between the statute, Art. 27, § 592 (b) (3) and the rule, M.D.R. 727 f 1. As the rule was adopted subsequent to the enactment of the statutory provision, the rule prevails. County Federal Savings and Loan v. Equitable Savings and Loan Association, Inc., 261 Md. 246 , 274 A.2d 363 (1971); Scott and Wimbrow, Inc. v. Wisterco Investments, Inc., 36 Md. App. 274 , 373 A.2d 965 , cert. denied, 281 Md. 743 (1977).

It follows the appellant was not entitled to a preliminary hearing. 1 Ill Witness Sequestration The appellant’s second contention is that the court below erred in refusing to permit a defense witness to testify after the witness had violated the witness sequestration order imposed at the start of the trial. On the evening of the second day of trial and again at the start of the third and final day of trial, defense counsel sought to place on the witness stand one Rosie Jones. The State objected based on violation of the sequestration order. Ms. Jones had been present in the courtroom during the second day of trial and had heard the testimony given.

Defense counsel indicated that the witness entered the courtroom as a spectator unaware that she had any knowledge which was relevant to the case. When she became aware that she did possess some relevant information, Ms. Jones so informed an attorney present in the courtroom. The attorney in turn informed defense counsel of her presence. The record is unclear as to exactly when defense counsel became aware that Ms. Jones was a potential witness; it is clear that he did not inform the court that she was present until he attempted to put her on the stand. 2 ⁶⁹⁹ A decision concerning the admission or exclusion of the testimony of a witness who has violated a sequestration order is within the sound discretion of the trial court.

Md. Rule 755 d; Brown v. State, 272 Md. 450 , 325 A.2d 557 (1974); Pierce v. State, 34 Md. App. 654 , 369 A.2d 140 , cert. denied, 280 Md. 734 , cert. denied, 434 U.S. 907 (1977). In Hurley v. State, 6 Md. App. 348, 351-52 , 251 A.2d 241 , cert. denied, 255 Md. 742 (1969), referring to former Md. Rule 753 (now Rule 755), we stated the "essential purpose” of the sequestration rule: "[T]o prevent one prospective witness from being taught by hearing another’s testimony; its application avoids an artificial harmony of testimony that prevents the trier of fact from truly weighing all the testimony; it may also avoid the outright manufacture of testimony.” Here, defense counsel stated that the testimony of Ms. Jones would tend to corroborate that of the appellant. As noted above, Ms. Jones had been present in the courtroom while the appellant gave the testimony which Ms. Jones offered to corroborate. Under these circumstances, the potential for the witness having been "taught” by hearing the appellant’s testimony, with a resulting "artificial harmony of testimony,” is obvious.

Such an occurrence is precisely what sequestration is intended to prevent. Pierce v. State, supra at 664. Although the appellant claimed that the witness entered the courtroom unaware that she was a potential witness and unaware that witnesses were required to be sequestered, the trial court did not abuse its discretion in refusing to permit Ms. Jones to testify. Cf., Pierce v. State, supra; McKnight v. State, 33 Md. App. 280 , 364 A.2d 116 (1976) , reversed on other grounds, 280 Md. 604 , 375 A.2d 551 (1977) . ⁷⁰⁰ IV Perjury Warning by Trial Judge At trial, Trooper D. Bruce Hornung of the Maryland State Police testified concerning an oral statement made by the appellant while he was being questioned by the police on February 12.

Trooper Hornung testified to the appellant’s detailed account of the robbery and murder of Harry Waters, including the facts surrounding his participation therein. At trial the appellant testified at length. On direct examination, he gave testimony which duplicated in every pertinent detail the earlier statement which he had given, as recalled by Trooper Hornung; yet, when he was questioned on cross-examination concerning the oral statement, he denied having made certain statements attributed to him by the trooper and accused Trooper Hornung of testifying falsely. The court below then excused the jury and cautioned the appellant that he was under oath and that he could be charged with perjury if he failed to tell the truth.

The court reminded the appellant that he had testified before the court at a suppression hearing held one week prior to trial and had indicated at that time that the trooper’s recollection of the oral statement was accurate. The court informed the appellant that he was attempting to contradict his earlier testimony and that he would be charged with perjury if he persisted in the attempt. Thereafter, following consultation with defense counsel and the return of the jury, the appellant admitted that Trooper Hornung’s account of the oral statement had been accurate. The appellant contends that the trial court, by warning the appellant he would be charged with perjury if he testified falsely, denied him "the right to present his defense and thus violated due process of law.” He asserts that the actions of the court below make the instant case analogous to that of Webb v. Texas, 409 U.S.