McDowell v. State

Mokton, J., delivered the opinion of the Court. The appellant was convicted by a jury in the Criminal Court of Baltimore (Cole, J., presiding) of murder in the first degree and unlawful use of a handgun under one indictment; robbery with a deadly weapon under a second indictment; and assault and battery under a third indictment. He was sentenced to life imprisonment on the murder conviction; twenty years (concurrent) on the armed robbery conviction; five years (concurrent) on the handgun conviction; and five years (consecutive) on the assault and battery conviction. William Schmuck testified that about 3:30 p.m. on November 28, 1973, while helping his brother, LeRoy, who operated a shoe repair shop in Baltimore City, two men came into the shop.

He described one of them as short with a ladies’ silk stocking over his head and face and the other as tall. Both had drawn guns. He stated that the tall one took all the money out of the cash register and placed it in a paper bag. He then turned to Schmuck’s brother and asked: “ ‘Where’s the rest of it?’ My brother pointed to the little cabinet underneath the cash register, and said, ‘The rest of it is down there.’ As soon as he got the last words out of his mouth, they both opened up at once, and shot him down.

I was right in back of him three or four feet. The bullets missed me by six inches, and went right past me, right through the wall.” He estimated that four or five shots were fired. He stated that as the assailants were running out the door, the tall one dropped the bag containing the money. According to Schmuck, an eleven-year old boy, Philip Randolph, who lived a few doors away, witnessed the entire hold up and ran to notify a nearby police officer as the as sailants made their escape. ⁶⁵⁵ During cross-examination of Schmuck by appellant’s trial counsel, the following occurred: “Q. And a moment ago you said that the defendant sitting there looks like the tall person.

You can’t beyond a reasonable doubt say that this is the man that was in your store, can you, sir? A. Not positive, but it looks a lot like him. Of course, I was upset, you know.” A police officer testified that on December 2, 1973, he visited the home of Philip Randolph and in the presence of his mother handed the boy a group of five photographs. Randolph selected a photograph of the appellant and identified him as the tall assailant.

Philip Randolph took the stand and stated that he was in the shoe repair shop at the time of the murder and robbery which, in his words, were committed by one short individual and one tall individual. According to Randolph, he was shown a group of photographs several days after the crimes and picked out a picture of the appellant as the tall assailant. He could not make an in-court identification of the appellant and on cross-examination said he may have been mistaken in picking out the appellant’s picture as one of the assailants. Kevin Faison, an accomplice who pleaded guilty to manslaughter, testified that he and the appellant, together with a boy named Pernell Gross, went to the repair shop in the afternoon of November 28, 1973; that he stayed outside to “look for the police”; that appellant and Gross entered the shop and shortly thereafter he heard a shot.

He testified that immediately thereafter “the little boy came running out of the store” shouting “Mr. Roy just got shot.” When asked what happened to appellant and Gross, he answered: “I guess they ran.” He further testified that about two days later he encountered appellant who told him “that the police was looking for him, and he was going down Westside.” He further testified that appellant said that the police were looking for him “About a man * * * In the shoe shop.” ⁶⁵⁶ Appellant also told him that “he went to the hospital * * * For he got shot in his arm.” Alan Jackson testified that on November 30, 1973, he had a conversation with appellant, Pernell Gross and another boy during which the appellant “was telling me about the shoe shop got robbed” and how “him and Pernell had went in there * * * He told me that he was holding the money bag in his hand * * * And he dropped the money bag. * * * Because he said he got shot. * * * By Pernell.” According to Jackson, Pernell Gross told him during the same conversation and in the presence of appellant that he, Gross, had “said he had to shoot the man, and he said that he made the mistake and shot Cool [appellant] in the arm.” Appellant took the stand, denied any participation in the crime, but admitted having been previously convicted of assault with a deadly weapon. He further testified that Faison and Gross had invited him to participate in the robbery of the shoe repair shop but that he refused. Immediately subsequent to the robbery he had seen Gross and Faison. Gross, after accusing appellant of planning to “snitch” on them, shot him in the arm.

He was later treated at University Hospital. John Wilson, a defense witness, testified that between 3:30 p.m. and 4 p.m. on November 28, 1973, he and the appellant were playing basketball in Lyndhurst Park when Pernell Gross approached appellant, shot him and then chased him from the park. It is in this factual posture that appellant contends that there was a failure of proof to sustain the indictment for first degree murder with malice, premeditation and deliberation. The appellant argues that the indictment charges that he “feloniously, wilfully and of deliberately premeditated malice aforethought did kill and murder one Roy Schmuck, contrary to the form of the Act of Assembly, in such case made and provided, and against the peace, government and dignity of the State.” Appellant asserts that “The statute to which the indictment refers appears to be Article 27, § 407,” whereas, he was convicted of a violation of Maryland Code, Art. 27, § 410. ⁶⁵⁷ Maryland Code, Art. 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.” Maryland Code, Art. 27, § 410 provides: “All murder which shall be committed in the perpetration of, or attempt to perpetrate, any rape, sodomy, mayhem, robbery, burglary, kidnapping * * * shall be murder in the first degree.” There are two short answers to appellant’s rather novel but completely unsubstantiated contention.

First, nowhere in the indictment is either statute mentioned. Thus, it is pure speculation to say that the statute referred to in the indictment is § 407. Secondly, and more importantly, murder is a common law crime not a statutory crime. Sections 407 and 410 “do not create any new crime, but merely classify murder, as it was known at common law, into degrees. [Citations omitted.] At common law, a killing in the perpetration of a robbery was murder, regardless of intent.

See Clark and Marshall, Crimes (4th ed.), sec. 245. As used in the statute, the ‘common law sense is left unimpaired; the measure of punishment only is sought to be graduated according to the circumstances under which it was committed.’ Davis v. State, supra [ 39 Md. 355 ], It is perfectly clear that a finding either that the killing was wilful, deliberate and premeditated, or that it was in perpetration of a robbery, would support a verdict of first degree murder.” Stansbury v. State, 218 Md. 255, 260 (1958). Here, the evidence adduced would permit either finding. Certainly, the murder was committed in the perpetration of a robbery.

In Mumford v. State, 19 Md. App. 640, 643 (1974), this Court stated: “ * * * the fact that the accused was committing a felony creates proof of malice and premeditation sufficient to sustain conviction for first degree murder for any killing consequent to the felony.” See White v. State, 23 Md. App. 151 (1974). ⁶⁵⁸ On the other hand, the senseless shooting of the victim four or five times after he had told his assailants where the rest of the money could be found creates a rational inference that the killing was wilful, deliberate and premeditated. In any event, the evidence conformed with the charge set forth in the indictment. We think that the contention is wholly without merit. It is next contended that the trial judge committed reversible error in permitting the state to elicit from the witness, Alan Jackson, that during his conversation with the appellant and Pernell Gross shortly after the murder and robbery, Gross had said he was trying to shoot the victim and mistakenly shot the appellant in the arm.

The trial court, in apparent reliance on the holding in Ewell v. State, 228 Md. 615 (1962), admitted the testimony over appellant’s objection. In Ewell , the Court of Appeals stated, at 618: “It is generally held that if a statement is made by another person in the presence of a party to the action, be it civil or criminal, containing assertions of facts which if untrue the party would under all the circumstances naturally be expected to deny, his failure to speak is circumstantial evidence that he believes the statements to be true, and his conduct is thus receivable against him as an admission of such belief.” Former Chief Judge Hall Hammond, who wrote for the Court in Ewell , went on to say, at 619: “Because of the hearsay rule, failure to deny an incriminating statement is not admissible as direct evidence of the fact asserted, but it may be received as showing the reaction of the accused to the statement and from his reaction an inference of guilt may be drawn. The trial judge must determine, as a preliminary matter, whether the statement and the failure to rebut it occurred in an environment and in the presence of actors such that a reply might naturally have been expected. If he ⁶⁵⁹ decides the testimony is admissible, then it is for the- jury, under proper instructions from the court (that such evidence is to be received with caution, that it is not substantive evidence of the fact asserted and does not of itself show guilt and that it is but a circumstance which permits the drawing of an inference of guilt) to determine: (a) whether the accused was aware of the making of the statements; (b) whether under the circumstances a reply was to be naturally expected; and (c) whether the failure of the accused to reply showed an awareness, a consciousness of guilt.” Here, it was established that appellant was present when Gross made the statement to the witness, Jackson, and there was no denial interposed by appellant.

While it is clear that the trial judge made his preliminary determination to admit the challenged testimony out of the presence of the jury, he did not comply with the admonitions laid down in Ewell that cautionary instructions be given to the jury concerning the nature of such testimony and the treatment it should be accorded. No exception to the omission was taken by appellant. In Ewell , where likewise no exception had been taken to the omitted instructions, the Court of Appeals refused to consider the omission. See Ewell, supra, at 621 .

We follow that same policy in this appeal. Maryland Rule 756 g. In contesting the admission of Jackson’s testimony, the appellant advances the further argument that its admission constituted a denial of his right under the sixth amendment to the United States Constitution and his right under