Myers v. State

GILBERT, Chief Judge. Robert Lee Myers (Myers), the appellant, was convicted by a jury in the Circuit Court for Carroll County (Burns, J.) of murder in the first degree. Myers was sentenced to imprisonment for the balance of his natural life. Apparently believing there is a corollary between the length of the trial and the number of issues to be raised on appeal, Myers assails the judgment of the circuit court in seventeen different ways.

After setting forth the facts from which the judgment grew, we shall discuss each of Myers’s many contentions in the order raised by him. The Facts Mary Ruth Myers (Mary Ruth) was employed by Maryland Business Service, an accounting firm owned by her husband, the appellant. When Mary Ruth did not report for work on August 29, 1979, some of her co-workers became concerned and drove to her residence where they found her body in the bedroom. She had been shot nine times.

Approximately two years later the Carroll County Grand Jury indicted Myers, Daniel Chadderton, and Ernestine Marco Myers (Tina) for the murder. The State charged that Myers paid Chadderton $10,000 to kill Mary Ruth. Tina, the person who arranged the meeting between Myers and Chadderton, 1 was also charged, but the charges against her were nol prossed in exchange for her testimony inculpating Myers and Chadderton. 2 ²¹⁸ Tina testified in the instant case that Myers desired to have Mary Ruth killed because he detested her, and she was too “expensive.” Tina introduced Myers to Chadderton, and on August 23, 1979, Myers agreed to pay to Chadderton $10,000 to slay Mary Ruth. Myers opted not to testify in his own behalf.

Through his attorney, however, he argued to the jury that he was unaware of any scheme to murder Mary Ruth. Myers’s counsel urged the jury to believe that Tina, motivated by her desire to marry Myers, was the force behind the homicide. Transpicuously, the jury believed the prosecution’s version of the offense. After sentencing, this appeal followed.

I. “The trial court erred in refusing to instruct the jury with regard to the defense of voluntary intoxication.” In State v. Gover, 267 Md. 602, 607-608 , 298 A.2d 378 , (1973), aff’g 15 Md.App. 163 , 289 A.2d 601 (1972), Judge Digges, speaking for the Court of Appeals-, said: “We hold that voluntary drunkenness can be a defense to a specific intent crime, but the degree of intoxication which must be demonstrated to exonerate a defendant is great. Evidence of drunkenness which falls short of a proven incapacity in the accused to form the intent necessary to constitute the crime merely establishes that the mind was affected by drink so that he more readily gave way to some violent passion and does not rebut the presumption that a man intends the natural consequence of his act.” The State proceeded against Myers on the basis that he was an accessory before the fact to the murder of his wife in that he procured Daniel Chadderton to perform the actual killing in exchange for the payment by Myers to Chadderton of $10,000. Tina testified that the contract to kill the decedent was entered into at a meeting between Myers, Chadderton, and herself at approximately 1 a.m. on August 23, 1979. Myers points to the following direct testimony of ²¹⁹ Tina as that which generated the issue of voluntary intoxication: “[Prosecutor]: And at the time you met Chadderton at Pantry Pride and introduced Myers and Chadderton, .. . [Tina] Yes? [Prosecutor] ...

Was drinking going on then? [Tina] Yes. [Prosecutor] Were you all intoxicated? [Tina] Not falling down. I mean, we had been in much worse shape than that.” Myers contends that in light of that and additional testimony concerning his propensity to imbibe alcohol, the jury could easily have concluded that he was intoxicated at the time of the agreement with Chadderton. We reject appellant’s argument for two reasons. First, the evidence of intoxication pointed to by appellant does not satisfy the Gover test. “The degree of intoxication necessary to negate mens rea is great and is comparable to that degree of mental incapacity that will render a defendant legally insane.” Johnson v. State, 292 Md. 405 , 425 n. 10, 439 A.2d 542 (1982).

Tina’s testimony relative to Myers’s intoxication would not permit a jury reasonably to conclude that he lost control of his mental faculties to such an extent as to render him unable to appreciate the consequences of his actions. Second, even if there were evidence sufficient to show that Myers was so intoxicated at the time of the agreement with Chadderton as to lack the mental faculties necessary to comprehend what he was doing, there is no evidence that he remained similarly intoxicated from the time of the making of the agreement until the murder of Mary Ruth six days later. As we see it, the issue was not fairly generated by the evidence, and the trial judge properly refused to instruct the jury on voluntary intoxication. Tripp v. State, 36 Md.App. 459 , 374 A.2d 384 (1977); Evans v. State, 28 Md.App. 640 , 349 A.2d 300 (1976), aff’d 278 Md. 197 , 362 A.2d 629 (1976). ²²⁰ II. “The trial court erred in refusing to order that the defense be provided with the transcript of the proceedings before the Grand Jury.” Myers avers that the trial judge violated the rule established in Jones v. State, 297 Md. 7 , 464 A.2d 977 (1983), when he failed to grant Myers’s pretrial motion to inspect, for potential cross-examination purposes, the grand jury testimony of witnesses.

This Court, in Silbert v. State, 12 Md.App. 516, 523 , 280 A.2d 55 (1971), said, “While there is no absolute right to inspect grand jury testimony, ... a criminal accused may, in a proper case, be afforded access to grand jury minutes if he demonstrates a ‘particularized need’ for disclosure, . . . . ” (Citations omitted.) A “particularized need” has remained the Plimsoll line for the trial judge in determining whether a request to inspect grand jury minutes should be granted. Jones v. State, supra; Erman v. State, 49 Md.App. 605 , 434 A.2d 1030 (1981), cert. denied, 456 U.S. 908 , 102 S.Ct. 1756 , 72 L.Ed.2d 165 (1982); Green v. State, 25 Md.App. 679 , 337 A.2d 729 (1975); Sutton v. State, 25 Md.App. 309, 334 A.2d 126 (1975). Ere Jones v. State, supra, what did or did not pass the Plimsoll mark depended on the facts of each case. Jones clearly delineated when a particularized need is shown.

Judge Couch wrote for the Court in Jones , “that after a State’s witness had testified in chief, the accused was entitled to see that witness’s transcribed grand jury testimony for use in cross-examination which was a ‘particularized need,’ without any further showing of need.” (Emphasis supplied.) 297 Md. at 24 , 464 A.2d 977 . (Per Curiam opinion on motion for reconsideration). Not once “after a State’s witness had testified in chief” did Myers move to inspect the grand jury testimony of the witness. Myers’s motion to inspect the grand jury testimony was made prior to the trial and was grounded on the theory that potential impeachment of a witness always ²²¹ amounts to a showing of particularized need.

Jones does not stand for that proposition. While Jones did file a pretrial motion to inspect the grand jury testimony of the principal State witness, he did not raise the denial of that motion as an issue on appeal, and the Court did not address it. See 297 Md. at 10 , 464 A.2d at 977 . A pretrial motion to inspect the grand jury minutes of testimony of potential trial witnesses, in order to cross-examine or impeach those witnesses at trial, does not seem to show a particularized need.

In Jones the Court stated the dilemma before it thus: “The problem is what does a defendant have to offer to demonstrate a ‘particularized need,’ keeping in mind that until a witness’s grand jury testimony is disclosed, there is no way a defendant can determine whether such testimony varied from the trial testimony so as to be of any use on cross-examination.” 297 Md. at 13 , 464 A.2d 977 . The Court went on to say that: “[I]n the usual situation, without seeing the grand jury testimony first, a defendant would be incapable of showing a more detailed particularized need [other than an allegation that ‘a litigant seeks to use the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like.’ United States v. Procter & Gamble, 356 U.S. 677 , 78 S.Ct. 983 , 2 L.Ed.2d 1077 (1958) ]. Accordingly, we hold that after a State’s witness has testified on direct examination, a defendant is entitled to inspect the grand jury testimony for cross-examination purposes without any requirement that he show any other need.”[ 3 ] (Emphasis supplied.) 297 Md. at 14-15 , 464 A.2d 977 . Although the Court had the opportunity to pass upon the pretrial right vel non of a defendant to obtain a transcript ²²² of grand jury testimony for possible use at trial to impeach a witness, refresh his recollection, test his credibility “and the like,” it did not directly do so.

Implicit in the Jones holding, however, is that the particularized need to examine the grand jury testimony of a State’s witness is not triggered until the witness has testified on direct examination in the trial. Inasmuch as Myers failed to renew his motion at the proper time, that is, after the State’s witness testified in chief, he has waived his right to complain. Jones v. State, 297 Md. at 14-15 , 464 A.2d 799 . III. “The trial court erred in striking prospective juror Hall-man for cause.” Myers contends that Judge Burns violated the rule established in Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), when he excused Thomas Hall-man from the jury for cause, and that the remedy for that error is reversal of the conviction.

Witherspoon held that the death penalty cannot constitutionally be imposed if the jury that recommended it was chosen in a manner that excluded veniremen for cause simply because they expressed general objections to capital punishment or voiced religious or conscientious scruples against it. 4 Nearly one-half of the Witherspoon veniremen were stricken because they expressed qualms about the death penalty. The jury that was ultimately selected convicted Witherspoon and recommended he be executed. The United States Supreme Court reversed the sentence, but upheld the conviction. The Court held that the State produced a jury that was uncommonly willing to condemn a man to death.

Thus, the State violated the accused’s consti ²²³ tutionally guaranteed right to a jury randomly selected from a representative cross-section of the community. The Court, however, opined that it could not conclude either on the basis of the record before it, or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment resulted in an unrepresentative jury on the issue of guilt or substantially increased the chance of conviction. The Court said that it was not prepared to announce a per se constitutional ruling requiring the reversal of every conviction returned by a jury selected in a manner similar to that in Witherspoon . There appears to be a uniformity in holding by the courts that an erroneous exclusion of a juror in violation of the test announced in Witherspoon does not militate against the validity of the finding of guilt.

See e.g. Bumper v. North Carolina, 391 U.S. 543 , 88 S.Ct. 1788 , 20 L.Ed.2d 797 (1968); Lewis v. Oklahoma, 304 F.Supp. 116 (W.D.Okla.1969); Brinks v. State, 44 Ala.App. 601 , 217 So.2d 813 (1968), cert. denied, 283 Ala. 712 , 217 So.2d 820 (1968); Clark v. Smith, 224 Ga. 766 , 164 S.E.2d 790 (1968), rev’d on other grounds, 403 U.S. 946 , 91 S.Ct. 2279 , 29 L.Ed.2d 859 (1971). Because the sentence imposed on Myers was life imprisonment, his Witherspoon issue fails even if the exclusion of the juror were deemed to be error. IV. “The trial court erred in striking prospective juror Quinn for cause.” Myers asseverates that a prospective juror, Eileen A. Quinn, was erroneously stricken for cause.

Ms. Quinn said that while she felt “very strongly about” the death penalty and had earlier been philosophically opposed to it, she nevertheless thought she could vote to impose it. Even if we assume that the trial court erred in striking the juror, that error will not mandate reversal. Our discussion in part III above is dispositive of the matter. ²²⁴ V. “The trial court erred in admitting evidence of other crimes and bad acts.” The Court of Appeals in Ross v. State, 276 Md. 664, 669-70 , 350 A.2d 680 (1976), said: “The frequently enunciated general rule in this state, followed uniformly elsewhere, is that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible .... This principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character.

Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is ‘substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.’ C. McCormick, Evidence § 190 (2nd ed. 1972). There are exceptions to this general exclusionary rule which, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial.” Myers points to four rulings relative to “other crimes.” Those rulings, he says, constitute reversible error. We shall discuss each of them in the same order that Myers has presented them to us. “Assault upon Dana Abbott” Melvin Ray Keith, Jr., who dated Myers’s stepdaughter, Dana Abbott, from 1976 through 1979 testified that ²²⁵ sometime before the murder of Mary Ruth, Myers had an argument with Dana during which Myers placed his hands around Miss Abbott’s neck.

The act produced a red mark on her neck. Myers objected to that testimony on the basis of its lack of relevance. The state’s attorney proferred that the evidence was relevant to confirm that Myers did not want Mary Ruth’s children in the house and that he had “to put up with them as long as Mary Ruth Myers was alive.” We think the testimony was tenuous and irrelevant, and should not have been admitted. The testimony is in direct violation of Ross , since it did not fall into any of the five recognized exceptions.

A minor assault on his stepdaughter, Dana Abbott, eighteen months prior to the murder of Mary Ruth Myers, Miss Abbott’s mother, does not translate into a motive to kill the mother, nor does it constitute a “common plan.” The connection between the two events is so unrelated that it is almost inconceivable that the prosecution would jeopardize its case by presenting such irrelevant testimony. We hold that the admission of that testimony was clear error. Our holding, however, provides Myers with little or no solace, because we deem the error was harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976).

We think the jury was not misled by the dubious connection between the aged minor assault on the stepdaughter and the murder of the mother. In light of the other evidence adduced at the trial, the revelation of the “assault upon Dana Abbott” pales into insignificance. Dorsey v. State, supra. “Plans to Commit Future Murders” The State’s principal witness, Tina Myers, was asked on redirect examination to explain her earlier remark that Myers “was not the goody-two-shoes that everyone thinks he is.” The transcript reveals: “Q. What did you mean by that? A. It wasn’t just Mary Ruth that he wanted killed. ²²⁶ Q. Why do you say that?

A. Because I overheard Dan [Chadderton] and Bob [Myers] discussing to kill Corporal Leete and yourself, and two others.” At that point appellant’s counsel objected and moved for a mistrial. The judge instructed the jury to disregard Tina’s testimony concerning Myers’s plans to commit future murders. The curative instruction was adequate, and we have been shown nothing to cause us to believe the jury failed to heed the court’s instructions. Consequently, we perceive no abuse of discretion by Judge Burns in refusing to grant a mistrial.

James v. State, 14 Md.App. 689 , 288 A.2d 644 (1972); Gerstein v. State, 10 Md.App. 322 , 270 A.2d 331 (1970), cert. denied, 402 U.S. 1009 , 91 S.Ct. 2191 , 29 L.Ed.2d 431 (1971); Parker v. State, 7 Md.App. 167 , 254 A.2d 381 (1969), cert. denied, 402 U.S. 984 , 91 S.Ct. 1670 , 29 L.Ed.2d 150 (1971); Matthews v. State, 3 Md.App. 555 , 240 A.2d 325 (1968). “Insurance Fraud” Over the objection and denial of a motion for a mistrial, the State introduced evidence that in September, 1979, Myers reported to an insurance carrier that certain items of jewelry belonging to Mary Ruth had been stolen, when in fact they had not. The prosecution’s theory of the admissibility of that evidence was that Myers planned the murder of Mary Ruth to be carried out so that it appeared as if there had been a robbery, and reporting of the items as stolen was in furtherance of the murder plan. The evidence, in our view, was relevant to show an attempt by Myers to cover up the crime. We perceive no error. “Sexual Misconduct on ‘The Block’ ” Ronald Frampton testified, over objection, concern- - ing Myers’s “sexual activity with women on The Block.” 5 ²²⁷ Frampton’s testimony was a repetition of similar evidence that had been admitted without objection.

In Forrester v. State, 224 Md. 337, 343-344 , 167 A.2d 878 (1961), the Court said: “[I]t is not reversible error to overrule an objection to inadmissible testimony if the witness had previously testified to the same effect without objection . . . . ” Although Forrester dealt with testimony by the same witness, we think its rationale applicable when prior witnesses have testified without objection to the same thing substantially to which the objection is interposed. In any event, the admission of what was cumulative testimony, even if error, was harmless beyond a reasonable doubt, Dorsey v. State, supra. Myers, without discussion, points us to two other instances in which he alleges that the rule of Ross v. State, supra, was violated. In one, he objected on a ground different from that posed to us, hence it is not before us.

Md.Rules 522 and 761. The other involved an Internal Revenue Service audit. Judge Burns properly sustained an objection and instructed the jury “to completely disregard ... it, strike it out, block it out of your head . . . . ” That ruling and instruction cured any error. VI. “The trial court erred in refusing to grant a mistrial as a result of the improper closing argument of the state’s attorney.” Judge Burns, Myers claims, abused his discretion when he refused to grant a motion for mistrial bottomed on the alleged improper closing argument by the prosecutor.

During that argument, the prosecutor twice made statements which could be viewed as an attempt to bolster the ²²⁸ credibility of Tina by placing his own credibility in issue. Moreover, he implied that Judge Burns’s ruling with respect to a particular evidentiary point was erroneous. The prosecutor overstepped his bounds, and Judge Burns properly and promptly admonished him in the presence of the jury. Additionally, the judge immediately instructed the jury to disregard the state’s attorney’s improper comments. 6 The law is well settled that the decision of whether to grant a mistrial is vested in the sound discretion of the trial judge and will only be disturbed on appeal where there has been an abuse of that discretion.

Collins v. State, 14 Md.App. 674 , 288 A.2d 221 (1972), cert. denied, 409 U.S. 882 , 93 S.Ct. 169 , 34 L.Ed.2d 137 (1972); Gerstein v. State, supra; Parker v. State, supra. “The conduct of the trial must of necessity rest largely in the control and discretion of the presiding judge and an appellate court should in no case interfere with that judgment unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party.” (Emphasis in original) Wilhelm v. State, 272 Md. 404, 413 , 326 A.2d 707 (1974). We are convinced the trial judge’s prompt and forceful interdiction against the ill-considered remarks of the prosecutor was sufficient to remove the possibility of injury to Myers. Particularly apposite is the Wilhelm statement that: “When in the first instance the remarks of the State’s Attorney do appear to have been prejudicial, a significant factor in determining whether the jury were actually misled or were likely to have been misled or influenced to the prejudice of the accused is whether . . . the trial court took any appropriate action, as the exigencies of the situation may have appeared to require, to overcome the likelihood of prejudice, such as informing the jury that the ²²⁹ remark was improper, striking the remark and admonishing the jury to disregard it. When such action has been taken by the trial court and found to have been sufficient by the reviewing court, the judgments have not been reversed.” 272 Md. at 423-424 , 326 A.2d 707 .

Judge Burns, the person in the best position to adjudge whether to grant a mistrial, obviously believed that his curative instruction erased the deleterious effect of the prosecutor’s unwise remarks. We think the judge’s instruction overcame the likelihood of prejudice to Myers, and, thus, no error was committed in denying the motion for a mistrial. VII. “The trial court erred in failing to strike prospective juror Curran for cause.” During jury selection proceedings, Judge Burns denied Myers’s request that prospective juror Curran be excluded for cause. Subsequently, before Myers was called upon to exercise peremptory challenges, the State and Myers jointly moved to excuse Curran, and the judge granted the motion.

Inasmuch as Curran was excused from the panel, the question of whether he should have so been removed when the matter was first raised is mooted. This issue is patently frivolous, and why it has been raised on appeal eludes us, unless it is to demonstrate that Don Quixote is not the only one to tilt at windmills. VIII. “The jury that tried appellant was improperly selected.” The State, as we have previously observed, sought the imposition of the death penalty in the event Myers was convicted of murder in the first degree. Judge Burns, following the holding in Witherspoon v. Illinois, supra, excluded from participation on the jury all persons who expressed the view that they could never vote to impose capital punishment.

Myers asserts that “the exclusion of all ²³⁰ persons who could never impose the death penalty resulted in a jury at the guilt-innocence phase which was ‘prosecution prone’ and not drawn from a fair cross-section of the community.” That argument was rejected by this Court in Chadderton v. State, 54 Md.App. 86 , 456 A.2d 1313 , cert. granted, 296 Md. 172 (1983), and then denied as improvidently granted. In Chadderton we said: “In Witherspoon , the petitioner had argued that there is ‘ “competent scientific evidence that death-qualified jurors are partial to the prosecution on the issue of guilt or innocence.’” 391 U.S. at 517, 88 S.Ct. at 1774. The Supreme Court disposed of this assertion by stating that ‘The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.

In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.’ 391 U.S. at 517-518, 88 S.Ct. at 1774-1775. Counsel for appellant sets out in his brief various studies which he contends have updated the data which the Supreme Court found to be ‘too tentative and fragmentary’; and on the basis of these studies and findings contends that data to support his proposition regarding jury selection are no longer tentative or fragmentary as found by the Supreme Court in Wither-spoon. We have reviewed the data submitted by appellant and considered his discussions and arguments in support of his thesis. It is our opinion, however, that they do ²³¹ not invalidate or undermine the findings of the Supreme Court in its Witherspoon holding.”