Moore v. State

¹⁶⁸ GILBERT, Chief Judge. The joy of Christmas Day, 1988, was shattered by the burst of bullets in the residence of Joseph and Terry Nelson located in the Temple Hills area of Prince George’s County. When the sound of the gunshots faded away, Joseph lay dead on his bed. Terry was dead on the living room floor, and Martha Nelson, the decedents’ mother, lay on the floor beside her son.

Terry had been slain by a bullet shot into the back of his head, and Martha was unable to move because of a wound to her neck, which severed her spinal cord. Tito Summers and Clarence Moore Jr. were convicted by a jury in the Circuit Court for Prince George’s County, Maryland (Missouri, J.) of the two slayings of the Nelson brothers and the attempted killing of their mother. 1 Aggrieved at their convictions, Summers and Moore have together appealed. The appellants raise various issues, which we shall address in the order posed to us. Additional facts will be supplied as they relate to specific issues. ¹⁶⁹ I. Severance Prior to trial the State moved for, and the trial judge granted, a consolidation of Summers’s and Moore’s trials.

Appellants argue that consolidation was inappropriate because their defenses were incompatible (i.e., each defendant attempted to prove at trial that the other was solely responsible) and, therefore, prejudicial. Maryland Rule 4-253(c) provides that a trial judge may order separate trials for co-defendants “if it appears, that any party will be prejudiced by the joinder for trial of ... defendants.” The question put to us is simply: were the appellants prejudiced by being tried jointly. Each appellant contends that he was prejudiced by the joinder because each had defenses hostile to the other. The case law in Maryland, however, does not sweep as broadly as appellants think it does.

A defendant is deemed to have been prejudiced by a joint trial when the joining of a co-defendant or co-defendants (1) permits the State to introduce, against a particular defendant, otherwise inadmissible evidence, and (2) that otherwise inadmissible evidence tends to contradict the defendant’s theory of the case. Day v. State, 196 Md. 384 , 76 A.2d 729 (1950); Erman v. State, 49 Md.App. 605 , 434 A.2d 1030 (1981), cert. denied, 292 Md. 13 (1981). The permitted joinder in both Day and Erman allowed the State to introduce evidence against one defendant that could not have been introduced against him had he been tried separately. Moreover, the evidence which was otherwise inadmissible contradicted the defendant’s evidence, thereby prejudicing him.

The joinder in the case at bar did not produce that result. The evidence admitted at trial would have been admissible against each co-defendant, irrespective of whether they received separate trials. See Laws and Dorman v. State, 6 Md.App. 243 , 251 A.2d 237 (1963). Furthermore, both Day and Erman are readily distinguishable from the matter sub judice because neither Summers nor Moore testified, and ¹⁷⁰ their statements to the police in which each implicates the other were not used.

We perceive no error in the joinder for trial of Summers and Moore.

II

Constitutionality of Jury Panel Appellants next assert that they were prejudiced at trial because of the lack of blacks and younger jurors on the panel. Maryland Cts. & Jud. Proc. Code Ann., §§ 8-201 through 208, provides for the selection of juries from the voter registration lists.

The Court of Appeals and this Court have consistently held that the selection of potential jurors from the lists of registered voters is constitutional.. See Wilkins v. State, 270 Md. 62 , 310 A.2d 39 (1973), and Hopkins v. State, 19 Md.App. 414 , 311 A.2d 483 (1973). Judge Missouri said: “Let the record reflect that the juries in Prince George’s County are selected at random from the voter rolls of Prince George’s County, from the voter list; that these jurors were selected some time ago for this, the beginning of the October term of court; that ... the jurors who are presently in this panel may have ages that exceed that of the defendants. That’s probably an unfortunate consequence if the defendants would like to have someone their ages in judgment of them.

However, if counsel is suggesting that simply because some happen to be older than the person who’s on trial that that person cannot give them a fair and impartial trial, I disagree with counsel most vehemently, and furthermore, there’s no suggestion that this jury was hand-picked. It was from a fair cross section of the voter rolls of the county. Therefore, exceptions to the jury panel is hereby denied.” Appellants ask that we overrule Wilkins . Aside from the inutility and incivility of our overruling the Court of Ap ¹⁷¹ peals, we would not, in this case, even if we were so empowered.

Wilkins clearly and succinctly states the law. 2 We are urged by the appellants to hold that the list of registered motor vehicle owners would have produced a more likely “representative cross-section of Prince George’s County adult citizens.” That conclusion by appellants is unsupported and constitutes no more than sheer speculation. Furthermore, it ignores or overlooks the fact that an infant or alien, for example, may be the registered owner of a motor vehicle but not a registered voter. The issue raised by appellants was addressed by this Court in Hopkins v. State, 19 Md.App. at 422 , 811 A.2d 488 . There we said of the alleged exclusion of young, black persons from juries: “[T]he possibility must exist that the exclusion of the group from jury service will result in bias, partiality or prejudice being practiced against members of the group by juries hearing cases in which members of the group are involved.

United States v. Guzman, [ 337 F.Supp. 140 (S.D.N.Y.1972) ] at 143-146; United States v. Green-berg, 200 F.Supp. 382, 391 (S.D.N.Y.1961). The evidence in the instant case fails to establish that the attitudes, experiences, views and objectives of persons in the eighteen to twenty-one years of age group differ to any material extent or degree from those twenty-one years of age or a few years older. Furthermore, the appellant did not demonstrate that the rights of persons eighteen to twenty-one years old were inadequately represented or safeguarded by persons who were at that time eligible to serve as jurors.” (Footnote omitted.) Hopkins and Wilkins are dispositive of the issue.

III

Live Witness in Lieu of Video Testimony Martha Nelson, one of the shooting victims, is now a quadriplegic. Her condition is the direct result of the ¹⁷² severance of her spinal cord by a bullet shot into her neck. The bullet was fired from a nine millimeter Ingram MAC-11. Because of the seriousness of her injuries, Mrs. Nelson has been confined to a gurney or wheelchair.

Appellants argue that Mrs. Nelson’s testimony should have been videotaped instead of allowing her to appear in the courtroom. They specifically argue that because of Mrs. Nelson’s physical condition she received sympathy from the jury, thereby causing substantial prejudice to the appellants. Their argument puts “English” 3 on and is the opposite of that posed in Maryland v. Craig, 1990, — U.S. —, 110 S.Ct. 3157 , 111 L.Ed.2d 666 (1990). Prior to trial, the court granted a motion allowing Mrs. Nelson to testify via video deposition.

The record is not clear why the video taping never occurred except for a statement by the prosecutor to the trial court that “[c]ounsel tell [sic] me they were not able to arrange the schedule [for the video taping].” “Evidence is never excluded merely because it is ‘prejudicial.’ If prejudice were the test, no evidence would ever be admitted. Parties ... have a right to introduce prejudicial evidence. Probative value is outweighed by the danger of ‘unfair’ prejudice when the evidence produces such an emotional response that logic cannot overcome prejudice or sympathy needlessly injected into the case.” J. Murphy, Maryland Evidence Handbook, § 509, p. 160 (1989). There can be no question Martha Nelson’s testimony was relevant.

There can be no question she was grievously injured by the assault upon her. There can be no question that sympathy abounds for her. The issue, however, does not center around the prejudicial effect of her testimony but whether her live, in-court evidence outweighed the alleged unfair prejudice that her physical condition projected. ¹⁷³ Moreover, it is highly likely that had Mrs. Nelson not appeared personally but had her evidence been received solely by video tape we would be faced with a Sixth Amendment problem of confrontation similar to that posited in Maryland v. Craig, supra. At the conclusion of Mrs. Nelson’s testimony, Judge Missouri instructed the jury: “I must caution you about one thing.

Obviously, we all saw Ms. Nelson, and human nature is that our sympathies go out to her. I must just remind you, however, that your decision must be based upon the evidence in this case and not upon the sympathies that you may have.” Any sympathies the jury may have directed toward Mrs. Nelson were allayed as a result of that instruction because jurors are presumed to have obeyed their oath by following the judge’s instructions. Bruton v. United States, 391 U.S. 123, 135 , 88 S.Ct. 1620, 1627 , 20 L.Ed.2d 476 (1968); Wilson v. State, 261 Md. 551, 570 , 276 A.2d 214 (1971); Brooks v. State, 68 Md.App. 604, 613 , 515 A.2d 225 (1986). It is well established that the conduct of criminal trials falls within the sound discretion of the trial judge, which will not be disturbed absent a clear abuse of discretion.

Smith v. State, 299 Md. 158 , 472 A.2d 988 (1984); Poole v. State, 295 Md. 167 , 453 A.2d 1218 (1983). The burden is upon the defendants to demonstrate abuse, which they have failed to do in the case before us.

IV

The MAC-11 As A Handgun Both Summers and Moore, as we have previously observed, were convicted of three counts of use of a handgun in the commission of a crime of violence. They challenge those convictions by raising two issues concerning the “handgun”: (1) The evidence was insufficient to support the conviction for the use of a handgun in the commission of a crime of violence. ¹⁷⁴ (2) The lower court abused its discretion by allowing a State’s witness to testify despite a violation of the rules of discovery. A. Robert Murphy, a Federal Bureau of Investigation firearms identification expert, was allowed to testify, over objection, that the cartridge casings found at the homicide scene came from an Ingram MAC-11, the alleged murder weapon. Murphy described the MAC-11 as a “pistol.” Because of that “definition” and the novel question presented as to whether the MAC-11 is, under Maryland law, a handgun, we directed the State to produce the weapon for our viewing.

Examination of the MAC-11 reveals that the weapon appears to be well manufactured with a flat black metallic finish. The weapon is cocked by pulling back the receiver through the use of a bolt mechanism located on top of the pistol. The weapon has an overall length of 8.75 inches and weighs 3.5 pounds when empty. The barrel is 5.06 inches.

When the magazine is fully loaded, it weighs 1.37 pounds. Thus, the total weight of the weapon, fully loaded, is 4.87 pounds; it fires 1200 rounds per minute. The MAC-11 may be carried on the person. See attached Appendix “A,” an edited page from a Military Armaments Corporation brochure, depicting how the MAC-11 may be holster-carried.

Patently, the weapon could even be concealed under a loose fitting coat. The Maryland Handgun Roster Board was created to test, examine, and either approve or disapprove all handguns proposed for sale in this State. 1988 Md. Laws, Ch. 533, codified as Md. Ann. Code art. 27, § 36F, 36-I, and 36J. The Board, in approving the Ingram/Cobray Model MAC 10/11 on June 29, 1990, 4 stated: ¹⁷⁵ “The Board examined samples and approved the following handguns for inclusion on the Roster by majority vote. ... Ingram/Cobray Model # MAC 10/11.” 5 (Emphasis supplied.) Based on our physical examination of the weapon and on our research, we conclude that the Ingram MAC-11 is a “handgun” within the meaning of Md. Ann. Code art. 27, § 36B.

B. Ere trial, appellants requested discovery from the State. Mr. Murphy’s name was not supplied as a prospective expert witness until a few days prior to trial. The result, appellants contend, is that the State violated Md. Rule 4-263(h). That rule provides: “A party who has responded to a request or order for discovery and who obtains further material information shall supplement the response promptly.” The record shows that the State forwarded information to the appellants four days before trial of the State’s intention to call Mr. Murphy as a witness.

Appellants had at least four days in which to assess the impact of Mr. Murphy’s appearance and to prepare