Mason v. State

Gilbert, J., delivered the opinion of the Court. The apparent murder of Jerome Pinkney, and the murder of his brother, Adrian Pinkney, on July 22, 1971, led to the indictment of David Lee Taylor (David), William Cornell Taylor (William), William Cutler Mason (Mason), Robert Donnell Taylor, also known as Robert ¹³³ Darnell Taylor (Robert), and William Donald Hamilton (Hamilton), 1 by the Grand Jury of Prince George’s County. Each was charged, insofar as Jerome Pinkney (Jerome) is concerned, with murder, conspiring to murder, kidnapping, false imprisonment, assault, assault with intent to murder, and felonious assault with intent to maim. They were further charged with the murder, conspiring to murder, kidnapping, and false imprisonment of Adrian Pinkney (Adrian).

At the conclusion of the State’s case, the Assistant State’s Attorney entered a nolle prosequi on the counts charging the murder and false imprisonment of both Jerome and Adrian. The trial judges then granted a judgment of acquittal as to William on each and every remaining count. Judgments of acquittal were also entered in favor of Robert and Mason as to all charges except conspiring to murder and kidnap Adrian. David’s case was submitted to the jury with three counts still unresolved, i.e., conspiring to murder Jerome, conspiring to murder Adrian, and kidnapping Adrian.

The jury returned a verdict of guilty as to David, Robert, and Mason for conspiring to murder Jerome and Adrian. Each of the appellants was sentenced to concurrent 25 year terms of imprisonment. On appeal to this Court the appellants mount a multifaceted attack upon the judgments of conviction. They contend the trial court erred when it: 1. admitted into evidence “the hearsay declarations of the alleged co-conspirators when the existence of a conspiracy had not been established by independent prima facie evidence,” 2. failed to grant a motion for judgment of acquittal because of the insufficiency of the evidence, 3. denied them due process of law by forcing them to be tried “on numerous counts for which the State knew it had po adequate evidentiary support,” 4. excluded persons from the jury who were opposed to capital punishment, and ¹³⁴ 5. denied “the Appellants’ motion to dismiss for misjoinder or for severance.” Additionally, the appellants Mason and Robert maintain that the trial court further erred when it allowed the jury to consider the charge of conspiring to murder Jerome after a judgment of acquittal had been granted on that particular charge as to both of them.

THE FACTS At the trial, the State called Levi William Wedge, who, over objection on the ground that the testimony of the co-conspirator could not be admitted absent a prima fade showing by independent evidence of the conspiracy, testified that on the night of July 22, 1971, he, in the company of William, Robert, David, Mason, and Hamilton, met at the Crestview Towers located on Marlboro Pike in Prince George’s County, Maryland. According to Wedge, the purpose of the meeting was to plan “to kill Adrian Pinkney.” In furtherance of the plot, Wedge, together with Mason, went to the “Guys & Dolls Pool Hall” where they expected Adrian to be. Not finding Adrian there, the two began to leave, but at that moment Adrian and Jerome arrived. Wedge and Mason returned to Crestview Towers and, together with William, Robert, David, and Hamilton, a scheme “to get” Jerome was formulated.

Wedge and Robert then enticed Jerome to leave the pool hall for the express purpose of “going to pick up some girls.” Jerome was then taken to a wooded area where, after being bound and having his mouth taped, he was presumably strangled to death. The record does not disclose what method was employed to induce Adrian to leave the pool hall, but, in any event, Adrian was fatally shot and then transported to Virginia where his body was placed in the trunk of the car used by Jerome. The car was then driven to a parking lot at the National Airport where it was abandoned. Adrian’s body was discovered, but the record is silent as to the recovery of that of Jerome. 2 The reason that Wedge gave for the ¹³⁵ intention to kill both Adrian and Jerome was that Jerome and Adrian apparently stole from the appellants the proceeds of a bank robbery which occurred in Germantown, Maryland.

Wedge acknowledged that he faced no charges because he was promised immunity in exchange for his testimony. 3 Wedge also testified that he observed that Mason was armed with a .45 caliber pistol and Hamilton had a .38 caliber revolver. One of the two bullets recovered from Adrian’s body was a .45 caliber and the other was a .38 caliber. The State’s second witness was Sylvester Lawrence Henson who stated that on July 22, he met Hamilton and Robert. Hamilton told him he wanted to get rid of his black Cadillac 4 and later on the same evening Hamilton stated that “he had to git (sic) rid of Adrian.” The same assertion was repeated the next day.

Subsequently, Hamilton admitted to Henson that he, Hamilton, “had gotten rid of Adrian.” ADMISSIBILITY OF CO-CONSPIRATOR’S TESTIMONY Appellants vigorously argue that because the State failed first to show, by independent evidence, that a conspiracy did exist, it was estopped from introducing the testimony of the co-conspirator, Levi William Wedge. Appellants rely on Greenwald v. State, 221 Md. 245 , 157 A. 2d 119 (1960) and Johnson v. State, 9 Md. App. 327 , 264 A. 2d 280 (1970), which cites Lawrence v. State, 103 Md. 17 , 63 A. 96 (1906). These cases are, however, factually inapposite. In 3 Underhill’s Criminal Evidence (5th ed.) § 861, it says; at 1929-1931: “In the trial of a substantive crime, the acts and declarations of one defendant are inadmissible against a codefendant, absent expressed or implied participation therein or adoption or ratification thereof by the codefendant.

But the acts and ¹³⁶ declarations of one conspirator are admissible against a coconspirator when done or made during the course of the conspiracy, or, under certain circumstances, when done or made before the formation of the conspiracy or after its termination. It is sometimes said that before the declarations of one conspirator are admissible against a coconspirator the existence of the conspiracy and the connection of the coconspirator therewith must be established. This is true where the declarations of the conspirator are sought to be introduced through a third person; such third person cannot testify against the coconspirator until the latter’s connection with the conspiracy is proved by evidence aliunde. But the proposition is not true when the witness is a conspirator who seeks to testify about declarations made to him by his coconspirator.

In such case the witness may testify and the testimony will be received against the coconspirator. The analogy here is to the law of agency: the testimony of a third person as to what an alleged agent told him will not be received against the principal unless the agency is first established, but the agent himself may always testify to relevant statements made to him by the principal. Further, the declarations of one conspirator are admissible against a coconspirator when forming part of a conversation between them, and the acts of one are admissible against the other when done in the latter’s presence and on the occasion of the alleged offense.” (Footnotes omitted) (Emphasis supplied). In sum, the rule is that when the State seeks to use statements against a co-conspirator made by another co-conspirator to a third party, it must first demonstrate, ¹³⁷ through evidence aliunde, the existence of a conspiracy, but the testimony of one conspirator is admissible against a co-conspirator without the necessity of establishing through an independent source the existence of the conspiracy.

The trial court correctly ruled that the testimony of Wedge, one of the conspirators, was admissible into evidence as against his co-conspirators, subject only to the general rule that the testimony of an accomplice must be corroborated. SUFFICIENCY OF THE EVIDENCE It is, of course, axiomatic under Maryland law that an accomplice’s testimony must be corroborated albeit the corroboration need be but slight. Montgomery v. State, 17 Md. App. 119 , 300 A. 2d 218 (1973); Early v. State, 13 Md. App. 182 , 282 A. 2d 154 (1971); Foxwell v. State, 13 Md. App. 37 , 281 A. 2d 123 (1971); Spies v. State, 8 Md. App. 160 , 258 A. 2d 758 (1969); Boone v. State, 3 Md. App. 11 , 237 A. 2d 787 (1968), cert. denied 393 U. S. 872 (1968); Bright v. State, 1 Md. App. 657 , 232 A. 2d 544 (1967). To buttress the testimony of co-conspirator Wedge, the State, as we have previously noted, produced the witness Henson.

Henson placed the appellant, Robert, and Hamilton together on July 22, 1971, when statements were made relative to “getting rid of the car” and “getting rid of Adrian.” Henson further placed David and Robert in a gold Cadillac. The gold Cadillac and the black Cadillac were used in the perpetration of the crimes hereinbefore described. An agent of the Federal Bureau of Investigation testified that .45 caliber and .38 caliber bullets were recovered from the body of Adrian. Wedge had placed the .45 caliber weapon in Mason’s possession and, according to Wedge, Mason had stated that he, Mason, “had shot Adrian in the head.” We perceive in this record no adequate corroboration of Wedge’s testimony as to the conspiracy to slay Jerome.

We think the trial court, in addition to the judgments of acquittal that it granted on motion, should have also granted the motion as to David because of total absence of corroboration of the co-conspirator’s testimony. We, ¹³⁸ therefore, reverse the judgment of conviction of David as to the second count — conspiring to murder Jerome. ALLEGED OVER-INDICTMENT The appellants’ third contention is that the State deliberately over-indicted to obtain at least a “compromise” verdict. Appellants argue that the purpose of “overcharging” was to prejudice the appellants in the eyes of the jury.

Appellants rely solely upon Price v. Georgia, 398 U. S. 323 , 90 S. Ct. 1757 , 26 L.Ed.2d 300 (1970). In Price , the Supreme Court, after denial of relief in the State courts, reversed because of a double jeopardy issue and not because of a multiplicity of charges. In the case at bar, the indictment was in usual form. It included the main offenses and the lesser included ones.

The appellants’ allegation of “over-indictment” is but a bald assertion. There is not a scintilla of proof of bad faith or improper motive on the part of the State’s Attorney. EXCLUSION OF PROSPECTIVE JURORS BECAUSE OF THEIR BELIEF AGAINST CAPITAL PUNISHMENT Appellants next assert that they were denied their right to a fair and impartial jury trial because the trial court excluded from the jury those persons who professed conscientious scruples against capital punishment. During the course of the voir dire, the court asked, “Is there any prospective juror who has a belief against capital punishment? . .'., [A]re the beliefs such . . . that you could not render a fair and impartial verdict according to the law as to guilt or innocence? ” Four of the jurors responded in the affirmative.

Two said that while they did not believe in capital punishment, that fact would not preclude their rendering a fair and