Nelson v. State

Thompson, J., delivered the opinion of the Court. William Villani Nelson, together with Carson W. Sullivan, Glen A. Sullivan and William Kidwell, was indicted for the murder of Raymond Howard on July 10, 1966. Nelson was tried separately and was convicted of murder in the second degree by a jury. He was sentenced to a term of IS years.

On appeal he raises 11 contentions which will be set out and discussed hereinafter. The story of this senseless crime begins when Joseph Stanley Franklin and James Johnson, two Negro youths, went to the Fifth Avenue Cafe tp purchase some gin. Franklin went inside while Johnson waited outside talking with Clyde Wandley Toney, Nelson’s cousin. Nelson, Kidwell and one of the ¹¹³ Sullivans walked around the side of the building and someone said, “hit that nigger.” At this point Kidwell produced a knife and started towards Johnson who ran off down the road.

Franklin testified that after he had come out of the bar Johnson wasn’t there, and he was approached by Kidwell who said, “Well, if you knew what I knew, you’d run on up the road where your buddy went to.” Franklin turned around to walk aw7ay when he was grabbed by Glen Sullivan. He tried to break away, and as he did Kidwell reached out with a knife and cut him. Franklin ran off pursued by the four accused and some other “white men,” running through the Hess gasoline station’s lot out to Route 175 where he hailed a passing car and left the area. The deceased, Raymond Howard, who was accompanied by Walter Hall, Louise Hill, and Delores Woodson, all Negroes, had stopped at the Hess gasoline station.

As they were about to leave the Hess station, they observed Franklin running across the Hess station’s lawn being chased by a number of “white men.” The deceased drove out of the station on to Route 175, pulled off to the shoulder of the road, stopped and got out of his car. His three companions remained in the car. He proceeded to the front of his car and spoke to the men who had been chasing Franklin. He was thereafter stabbed and beaten, and when he attempted to escape by running toward the Hess station, he was knocked to the grass and again assaulted.

As a result of the assault, he received at least five knife wounds, the most significant being a “deep sucking chest wound” and a “deep penetrating-type wound in the right lateral abdomen, just below the edge of the liver” which caused “massive bleeding” and “internal bleeding.” The details of the fatal assault varied somewhat with each witness but the jury could have found that: when the car stopped and the deceased got out somebody told him “to get back into the car” to which he replied “nobody could make him.” Someone yelled “hit him” and one of the Sullivans stabbed him in the back. The deceased ran to a grass spot closer to the filling station and Kidwell knocked him down after which he was attacked by the four defendants and possibly others; after he was down Nelson hit him twice with his fist and kicked him once. Nelson testified, claiming ¹¹⁴ self-defense, and stated that he took a blackjack away from the deceased. Other witnesses testified that the deceased had no weapon.

I Nelson’s first contention on appeal is that the trial court committed error when the jurors, over objection, were asked the question “Have you any conscientious scruples against capital punishment?” 1 Nelson presented the testimony of Leonard H. Ainsworth, PhD, a clinical psychologist and Chief Psychologist for the Supreme Bench of Baltimore City, Dr. Ainsworth has had considerable training and experience. Relying upon his studies and his own experience but particularly a .study involving 187 college students by Dr. W. C. Wilson, “Belief in Capital Punishment and Jury Performance” and a study of 72 ex-jurors by Dr. Robert F. Crosson “An Investigation into Certain Personality Variables Among Capital Trial Jurors,” testified that jurors who answered this voir dire question negatively were more likely than those answering contrariwise to convict than to acquit. Nelson also presented Richard T. Kraus, M.D., a psychiatrist whose experience consisted of three years residency in psychiatry and two years in private practice, whose testimony agreed with that of Dr. Ainsworth. This same contention was recently presented to the Supreme Court of the United States in the case of Witherspoon v. Illinois, 390 U. S. 986 , 88 S. Ct. 1770 , 20 L. Ed. 102 .

At 88 S. Ct. 1774 the Court said: “The petitioner contends that a State cannot confer upon a jury selected in this manner the power to determine guilt. He maintains that such a jury, unlike one chosen at random from a cross-section of the com ¹¹⁵ munity, must necessarily be biased in favor of conviction, for the kind of juror who would be unperturbed by the prospect of sending a man to his death, he contends, is the kind of juror who would too readily ignore the presumption of the defendant’s innocence, accept the prosecution’s version of the facts, and return a verdict of guilt. To support this view, the petitioner refers to what he described as ‘competent scientific evidence that death-qualified jurors are partial to the prosecution on the issue of guilt or innocence.’10 “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.” “10 In his brief, the petitioner cites two surveys, one involving 187 college students, W.C. Wilson, Belief in Capital Punishment and Jury Performance (Unpublished Manuscript, University of Texas, 1964), and the other involving 200 college students, F.J. Goldberg, Attitude Toward Capital Punishment and Behavior as a Juror in Simulated Capital Cases (Unpublished Manuscript, Morehouse College, undated). In his petition for certiorari, he cited a study based upon interviews with 1,248 jurors in New York and Chicago. A preliminary, unpublished summary of the results of that study stated that ‘a jury consisting only of jurors who have no scruples against the death penalty is likely to be more prosecution prone than a jury on which objectors to the death penalty sit,’ and that ‘the defendant’s chances ¹¹⁶ of acquittal are somewhat reduced if the objectors are excluded from the jury.’ H. Zeisel, Some Insights Into the Operation of Criminal Juries 42 (Confidential First Draft, University of Chicago, November 1957).” Although Dr. Ainsworth explained the method used by Drs. Wilson and Crosson in their studies, we do not think that the record in the present case is more impressive than that considered and rejected in Witherspoon v. Illinois, supra.

We therefore reject Nelson’s first contention. 2 II Nelson contends that he was denied due process of law under the Fourteenth Amendment to the Constitution of the United States and under Article 23 of the Maryland Declaration of Rights because the trial court refused to allow interrogatories and depositions of the state’s witnesses as is permitted in civil cases. The Court of Appeals disposed of similar contentions in the case of Kardy v. Shook, 237 Md. 524 , 207 A. 2d 83 , and we need not repeat the reasons here. See Ward v. State, 2 Md. App. 687, 236 A. 2d 740 . III Nelson alleges that the state concealed a witness, one Denver Wilson.

Aside from the fact that he does not state what the testimony of Denver Wilson would have been, the issue was not presented to the trial court and therefore under Maryland Rule 1085 it is not before us for review. Even if we were inclined to waive the rule there is an insufficient record for us to make any intelligent resolution of the matter. IV Nelson next contends that the state concealed a copy of the statement of the witness, Jerry Robert Sparks. The record fails to show that Sparks gave any such statement to the police, and in any event the matter is not properly before us under Mary ¹¹⁷ land Rule 1085, since the issue was not presented to and decided by the trial court.

V Nelson requested that the trial judge instruct the jury that the State’s Attorney, in rebuttal argument, misstated the law when he said that the defendant had a right to introduce a statement of his witness, Clyde Wandley Toney. There was no objection to the argument at the time it was made, but we will consider the question since it was subsequently presented to and ruled upon by the trial court. To put the matter in proper focus we quote that portion of the argument: “And then we go through the series of statements of what the State has produced. We didn’t produce the statement of Clyde Toney.

Ladies and gentlemen, the best evidence that a man can give in Court is the evidence that he presents in Court at the time. We had a dozen different ways that we could have impeached the testimony of Clyde Toney. They are almost too numerous to count because we’ve been working on this case for so long. But simply because the State does not use one object of impeachment against Clyde Toney, we are to be accused and believed to be suppressing evidence and in some way working to hurt William Nelson, in violation of our duty as officers of the Court.

Well, again, ladies and gentlemen, I’m not going to give that the courtesy of a reply. I think Clyde Toney’s testimony spoke for itself. I think the cross-examination of Clyde Toney, without any visual aids or implements of any sort, was shattered enough just by listening to that man. We didn’t produce the statement.

The statement was available, very clearly available. If the defense wanted to introduce it in some way, they could have. This is his witness. He could have put it on if he wanted to.” Although the State’s Attorney’s argument may have been a misstatement of the law we do not see how Nelson’s rights could have been so prejudiced that there is reversible error.

The matter of prejudice resulting from a State’s Attorney’s argument is ¹¹⁸ peculiarly for the trial judge to determine because of his superior position to judge the effect of the remarks. See Bowyer v. State, 2 Md. App. 454, 461 , 235 A. 2d 317 and Avey v. State, 1 Md. App. 178 , 228 A. 2d 614 , cert. granted on other grounds by the Court of Appeals of Maryland, Avey v. State, 249 Md. 385 , 240 A. 2d 107 . On appeal Nelson objects to several other statements made by the State’s Attorney in final argument. These were not presented to the trial court and are therefore not properly before us for review, Maryland Rule 1085.

VI Nelson next presents the novel argument that the entire testimony of the witnesses, James Johnson and Joseph Edward Jackson, should have been stricken because of their failure to identify Nelson specifically as one