Perry v. State

CHARLES E. MOYLAN, JR., Judge, Retired, Specially Assigned. The appellant, James Perry, stands convicted, on four separate charges, of as sordid a series of cold-blooded executions as is to be found in the annals of Maryland crime. He was a “hit man” out of Detroit, Michigan, with no prior involvement with either the State of Maryland or with the persons he was hired to come into Maryland to murder. He killed, as he had been hired to do, a severely handicapped, quadriplegic eight-year-old boy along with the boy’s mother for a combined price of $6,000.

The third murder was randomly gratuitous. An unanticipated witness to the planned murders was in the wrong place at the wrong time and had to be eliminated as an inconvenient nuisance. For his initial convictions in the Circuit Court for Montgomery County on October 12, 1995, for three counts of murder in the first degree and one count of conspiracy to commit murder, the appellant received three sentences of death for the murders and a sentence of life imprisonment for the conspiracy. On the initial appeal, the Court of Appeals in Perry v. State, 344 Md. 204 , 686 A.2d 274 (1996), affirmed both the convictions and the sentences, without prejudice, however, to the appellant’s right to raise on post conviction petition his claim that he had been denied the effective assistance of counsel. ⁴⁰⁸ Following a three-day hearing before Judge S. Michael Pincus in January, 1999, the appellant’s petition for post conviction relief was denied.

On December 10,1999, however, a 4-8 majority of the Court of Appeals reversed the denial of post conviction relief and granted the appellant a new trial. Perry v. State, 357 Md. 37 , 741 A.2d 1162 (1999). Following eight separate days of motions hearings between September, 2000, and March, 2001, a 27-day trial began on March 4, 2001, before a Montgomery County jury, meticulously presided over by Judge Martha G. Kavanaugh. Both the investigative effort and the prosecutorial effort in this case were masterful.

On April 19, the jury convicted the appellant of three counts of murder in the first degree and one count of conspiracy to commit murder. Following a three-day sentencing hearing before the same jury, the jury declined to impose the death sentence because it was not persuaded beyond a reasonable doubt that the appellant had been the principal in the first degree. The jury sentenced the appellant to three sentences of life imprisonment without the possibility of parole for the murders and a sentence of imprisonment for life for the conspiracy. On this appeal, the appellant raises four questions: 1.

Did Judge Kavanaugh err in giving a supplemental instruction to the jury on aiding and abetting in response to a jury request after earlier having rtded that the facts did not support such an instruction? 2. Did Judge Kavanaugh err in admitting into evidence the fact that the. appellant refused to sign the fingerprint card made on August 22,1994? 3. Did Judge Kavanaugh commit plain error when she permitted the prosecution in closing argument to comment impermissibly on the appellant’s failure to testify? 4. Was the appellant denied his right to allocution?

A reasonably full recital of the factual background is appropriate because it will have a bearing on the appellant’s first and third contentions. ⁴⁰⁹ The Crime Scene of March 3, 1993 On March 3, 1993, at approximately 7:15 a.m., Vivian Rice drove from her home at 13616 North Gate Drive in Silver Spring to the nearby home of her sister, Mildred Horn, at 13502 North Gate Drive. Mildred was a flight attendant for American Airlines and was scheduled that day for an early flight out of Dulles Airport. As was their custom when Mildred was on flight duty, Ms. Rice had had Mildred’s daughter, Tamielle Horn, spend the preceding night with her. Ms. Rice would on such occasions regularly go to Mildred’s house in the morning to check on Mildred’s disabled son, Trevor Horn. 1 Trevor had a number of problems arising from his premature birth.

He had required twenty-four hour nursing care as a result of a case of medical malpractice that occurred when he was approximately thirteen months old, which resulted in severe brain damage and cerebral palsy. When Ms. Rice arrived at Mildred’s residence on March 3, she immediately noticed several things out of place. She noticed that the garage door was open; normally it would not have been. She could see that the door leading from the garage into the family room was also open.

As soon as Ms. Rice got out of her car, she heard “the piercing sound of Trevor’s apnea monitor.” 2 The alarm would sound “[w]hen there was no breath sound transmitted to the machine.” Ms. Rice got back in her car, drove home, and told Tamielle to call 911. She then went to a neighboring house and asked Deborah Falls to accompany her to Mildred’s house. Ms. Falls and Ms. Rice then went back together and tried to open the front door. The door would not open all the way, because something was blocking it.

When Ms. Rice looked inside, she saw her sister’s body “with half of her face blown off.” When Ms. Falls looked inside, she also saw Mildred’s body. Neither woman entered the house. ⁴¹⁰ The police arrived shortly thereafter and found the bodies of Mildred; Trevor; and Trevor’s nurse, Janice Saunders. Mildred’s body was found inside the front doorway, Trevor was in his bed, and Ms. Saunders’s body was also found in Trevor’s bedroom. The medical examiner advised that both Mildred and Ms. Saunders had died of gunshot wounds to the head, while Trevor had been suffocated.

It was undisputed that the cause of death in each of the three cases was homicide. Mildred Horn had been shot three times in the head, one shot going through the eye and into the brain. Janice Saunders had been shot twice, one of those shots also going through the eye. The reliance of that modus operandi would take on significance later in the investigation.

The house had been ransacked, but in a cursory way that gave the appearance of having been staged. A subsequent inventory revealed that only a few items were missing. Among those were check cashing cards and credit cards. No items of value, such as jewelry or video and stereo equipment, were missing.

Mildred Horn’s five-carat diamond tennis bracelet, lying openly on a bathroom counter, strangely was not taken, nor was Janice Saunders’s purse or jewelry. Theft seemed to have been an unlikely motive for the crimes. Mildred’s van was also missing, although it was recovered by police on 14322 Rose Tree Court in Silver Spring a short time later. The police found two possible points of entry: 1) the basement window and 2) a set of French doors at the rear of the first floor.

Suspicion Focuses on The Father and Ex-Husband Suspicion focused almost immediately on Lawrence Horn, then living in Los Angeles, California. Horn was the ex-husband of Mildred and the father of Trevor and Tamielle. Mildred and Lawrence Horn also had an older daughter, Tiffani, who was living in a Howard University dormitory on the night of the murders. ⁴¹¹ Although it is unclear from the record when Lawrence and Mildred had been married, it was at some time in the early 1970s prior to Tiffani’s birth in 1974. The original marital residence had been Detroit.

In 1978, Mildred moved with Tiffani to Maryland, although she did not at that time seek a divorce from Lawrence. Mildred and Lawrence continued to see each other, and Mildred became pregnant in 1984 with Trevor and Tamielle. The couple’s relationship apparently broke down during that pregnancy. The twins were bom prematurely.

Trevor had the most difficulties and was not released from the hospital for approximately six months. Lawrence showed little interest in Trevor, visiting him only three times during his life. Tiffani described her father as controlling and manipulative in his relationship with Mildred. He was, as of March, 1993, $16,000 in arrears in child support.

In fact, Lawrence Horn was not allowed into his ex-wife’s house, and communication was conducted primarily through the court system. A Strong Financial Motive Lawrence Horn had a financial motive to wish his son and his ex-wife dead. Trevor had suffered severe brain damage and cerebral palsy as the result of the failed medical procedure that occurred when he was thirteen months old. Mildred Horn had sued the hospital as Trevor’s next friend, and a settlement was reached.

The attorney for Trevor’s estate testified to the terms of the settlement. The gross amount of the settlement was $2,750,000. “There was a provision for attorneys’ fees. There was a provision for $350,000.00 to pay medical bills. There was $250,000.00 awarded to [Mildred Horn and] $125,000.00 to [Lawrence] Horn.” Lawrence Horn had complained to both his daughter, Tiffani, and to his girlfriend, Shira Bogan, about what he considered to be his inappropriately small share of the settlement.

A total of $1,100,000 was held in trust for Trevor, to be paid to him when he reached the age of thirteen. Lawrence Horn’s mother, Pauline, testified to a $65,000 loan she had made to Lawrence to assist him in paying the ⁴¹² “substantial legal fees” he had incurred in “fighting the divorce and custody battle” with Mildred Horn. A further financial problem had been looming on the horizon as insurance coverage for Trevor’s substantial medical and nursing expenses ran out. There had been insurance coverage initially through Lawrence Horn’s place of employment, Motown records, 3 but he lost that job at some point.

Mildred Horn elected to pay the COBRA 4 on that insurance for the maximum period of time allowed, which was three years. After the COBRA ran out, Mildred Horn was able to keep Trevor insured through her own insurance policy with American Airlines, but at the end of January or the beginning of February 1993, she had used the lifetime maximum benefits for Trevor, which was $500,000. Although she tried to obtain further insurance for Trevor, insurance companies were not willing to provide coverage. Accordingly, by early 1993, the time had come to begin eating into the money from the settlement of the medical malpractice suit for Trevor’s continuing health care.

The attorney for Trevor’s estate testified that if Trevor were to die, Mildred Horn and Lawrence Horn were each to receive' one-half of the estate. If only one parent survived, that parent would receive the entire amount remaining in the estate. The gross value of the estate at the time of Trevor’s death was $1,839,920. The Timing of the Murders The time period in which the murders occurred can be narrowed down to the two-hour-and-forty-five-minute period between 2:30 a.m. and 5:15 a.m. on March 3.

At 2:00 a.m., ⁴¹³ Janice Saunders, as on-duty nurse, made a notation about Trevor’s condition. At 2:30 a.m., Tiffani Horn, from her dormitory room at Howard University, mistakenly called her mother while attempting to call her boyfriend. A neighbor of Mildred Horn testified that Mildred’s garage door was open and her van was gone by 5:15 a.m. that morning. At 6:00 a.m., George Murphy, who lived in a townhouse that was about a five-minute walking distance and a two-minute driving distance from the Horn residence on North Gate Drive, observed a van with a handicap tag parked in a reserved parking space on Rosetree Court.

The van was identified as that owned by Mildred Horn and taken from her home on the morning of the murders. Tiffani Horn also testified that at about 10:30 p.m. on March 1, the night before the murders, she had talked by phone with her father in Los Angeles. On that occasion, he persistently probed her for information about when Tiffani’s mother and sister, Mildred and Tamielle Horn, would be at home. It was subsequently established that at 2:03 a.m. on the morning of March 3, moreover, Lawrence Horn was making a videotape of his Los Angeles apartment, a tape that significantly included the picturing of the television programs then showing in Los Angeles.

If ever needed, he had proof that he was in Los Angeles at that time. The Trail Leads From Los Angeles to Detroit And On to Montgomery County The Montgomery County Police Department and the Los Angeles Police Department together obtained a warrant for the search of Horn’s apartment in Los Angeles. After the evidence seized was reviewed by the Montgomery County Police, Detective Craig Wittenberger, the primary detective on the case, requested from AT & T a list of long distance phone calls made to Horn’s Los Angeles residence. Four calls of significance were discovered. .

Two were from Detroit to Horn’s residence. The third call to Horn’s residence in Los Angeles was from a pay phone at the Days Inn in Rockville at shortly after midnight on March 3. Yet another call to Horn in ⁴¹⁴ Los Angeles was from a pay phone at a Denny’s Restaurant across the street from the Red Roof Inn in Gaithersburg at 5:12 a.m. on March 3. Both of those two calls from Montgomery County used a telephone calling card issued in the name of Camilla McKinney.

It was subsequently developed that Camilla McKinney was the false name used by Marsha Webb, Lawrence Horn’s cousin, to obtain telephone service from Pacific Bell after having had service in her own name cut off for non-payment of her bills. According to Marsha Webb, she obtained the calling card in the name of Camilla McKinney because Lawrence Horn asked her to do so because he would be traveling back and forth to Rockville and did not want the bills coming to his home address. Webb also testified that she only used the card herself on several occasions at the outset and then gave the card number only to Lawrence Horn. 5 The Appellant Enters the Picture Detective Wittenberger then requested information from the Days Inn and the Red Roof Inn. It was determined that the appellant had registered at the Days Inn at 16001 Shady Grove Road at approximately 12:23 a.m. on March 3, 1993 and checked out at 6:00 a.m. that same morning.

The appellant had also stayed at the Red Roof Inn in Gaithersburg on January 27-28,1993, and on February 7-9, 1993. When the appellant registered at the Days Inn at just after midnight, he registered in his own name. He gave as his address 13403 Glenfíeld in Detroit, which turned out to be his actual address. He gave his Michigan tag number as EGR 643, a tag number registered to a Betty Jo Riggs of Lansing, ⁴¹⁵ Michigan, who had no knowledge of who the appellant was.

Because he was paying by cash, the appellant was required to present identification. He produced a Michigan driver’s license, containing his photograph. The appellant subsequently acknowledged that the driver’s license presented was, indeed, his own. A Days Inn worker subsequently identified the appellant as also having stayed at the Days Inn on the night of August 22.

Thomas Turner As the Broker The plethora of telephone records that linked the appellant and Lawrence Horn inextricably together also ensnared in its web Thomas Turner, also of Detroit. He turned out to be the middleman who brought the appellant and Horn together. Turner testified at the trial under a grant of immunity from the State. Turner and the appellant had met while serving terms in prison together.

They remained good friends. Turner and Lawrence Horn were first cousins, although they had not seen each other for twenty years before a reunion at the home of a mutual cousin in the spring of 1992. Horn subsequently visited Turner at his Detroit home on several occasions. On one such visit, Turner talked to Horn about the appellant, describing him as someone who might be able to help Horn with his domestic problem.

Turner gave Horn the appellant’s card, which read “spiritual adviser, cold reader, case buster.” Turner further facilitated Horn and the appellant in making contact with each other. The appellant later indicated to Turner that he had been in contact with Horn. After the murders had taken place Horn contacted Turner and indicated that he had to get in touch with the appellant. Turner gave Horn various telephone numbers at which the appellant could be reached.

When brought in for questioning in January 1994, Turner called Horn from the Detroit FBI Office. Horn gave him the name of an attorney and further told him that he did not have to say anything. ⁴¹⁶ Turner also testified that he had rented cars for the appellant, who had no credit card of his own, on frequent occasions during the month of December 1992 and the months of January, February, and March of 1993. Specifically, he rented a car for the appellant for the period of March 1 through March 8,1993. A Transcontinental Web Spun With Telephone Wire The State’s case established so tightly interwoven a web of transcontinental communication between the appellant and Lawrence Horn that neither could hope to extricate himself from it.

The common denominator of 261 long distance telephone calls was the use of the calling card in the name of Camilla McKinney, the card taken out for the use of Lawrence Horn by his cousin Marsha Webb. With each one using the same tell-tale calling card, 66 calls were made, during the months preceding and immediately following the murders, from various pay phones in Los Angeles to the residence of the appellant in Detroit. Six other calls were made from pay phones in Los Angeles to Francel’s Bar in Detroit, an establishment regularly frequented by the appellant. In the westbound direction, using the same calling card during the same period of time, 70 calls were placed from various pay phones in Detroit to Lawrence Horn’s residence in Los Angeles.

The telephonic web also reached out to Montgomery County. Thirteen calls were made from pay phones in Los Angeles to several different motels in the Rockville-Gaithersburg area. Other evidence established that on each occasion, the appellant happened to be registered at the particular motel to which the call had been placed. In the other direction, one call was placed from a Rockville-area motel, at which the appellant was registered, to the residence of Lawrence Horn in Los Angeles.

Yet another call was made on another occasion from a Rockville-area motel, at which Lawrence Horn was registered, to the appellant’s residence in Detroit. ⁴¹⁷ At 8:57 p.m. on July 20, 1993, a call was made from a pay phone in the Calverton Shopping Center in Beltsville, Maryland, to Francel’s Bar in Detroit. On that occasion, Lawrence Horn was observed using the pay phone in question. The Center of the Web on March 3 As discussed, the murders occurred at some time between 2:30 a.m. and 5:15 a.m. on March 3, 1993. As discussed, the appellant registered at the Days Inn in Rockville at 12:23 a.m. on March 3 and checked out at 6:00 a.m. that same morning.

At 12:11 a.m. on March 3 a call was placed from a pay phone in Rockville to Lawrence Horn’s residence in Los Angeles. At 5:12 a.m. that morning, another call was placed from a pay phone in Gaithersburg to Lawrence Horn’s residence in Los Angeles. At 11:50 a.m. on March 3, a call was placed from the United States Post Office on Wilcox Avenue in Los Angeles to the Days Inn in Rockville, whence the appellant had checked out six hours earlier. All three of those calls used the calling card of Camilla McKinney.

Two days after the murders, at 3:18 a.m. on March 5, a call was made from a pay phone in Beverly Hills, California, to the appellant’s residence in Detroit. In the days that immediately followed, various other calls were made from pay phones in Los Angeles, to either the appellant’s home in Detroit or to Francel’s Bar. When the appellant was arrested in Detroit, he asked whether anyone else had been arrested. Informed that Lawrence Horn of Los Angeles had been arrested, the appellant responded that he had never heard of Horn. $6,000 From a Dead Man As will be discussed, the “Hit Man” manual apparently favored by the appellant recommended that a hit-man require the up-front payment of expense money of between $500 and $5,000.

On five separate occasions between August 18, 1992, and January 28, 1993, either the appellant directly, or his girl friend, Pauline McGhee, on his behalf, received Western Union money transfers in amounts totaling $6,000. The Decern ⁴¹⁸ ber 4, 1992, payment was received by the appellant directly at the All American '76 Truck Plaza in Breezewood, Pennsylvania, an exit on the Pennsylvania Turnpike whence traffic proceeds south into Maryland. The January 28, 1993, payment was received by the appellant directly at Mailboxes, Etc. in Gaithersburg. The payer listed on all of the Western Union money transfers was a person named as “George Shaw.” The telephone number given by “George Shaw” turned out to be listed to a law firm at 10 Universal City Plaza in Universal City, California.

No one named George Shaw had ever worked for that firm. On different occasions, “George Shaw” had given as his address either 6222 or 6255 Sunset Boulevard in Los Angeles. There was no such address as 6222 Sunset Boulevard; 6255 Sunset Boulevard had once been the address of Motown, but no one named George Shaw had ever worked there. Lawrence Horn, however, had once worked for Motown in Los Angeles.

Where did the name “George Shaw” come from? In late July of 1992, Lawrence Horn was aware of the death of Motown star Mary Wells, for Horn and his girlfriend had discussed her death. The obituary for Mary Wells appeared in the July 27, 1992, edition of the Los Angeles Times. Immediately beside it was the obituary of George Shaw.

The first Western Union money transfer using the name “George Shaw” appeared on August 18, three weeks after the obituary. The Hit Man Manual During the search of the Detroit residence shared by the appellant and Pauline McGhee, the police recovered a catalog from Palladin Press. That catalog advertised a book entitled Hit Man, A Technical Manual for Independent Contractors. An employee of the Palladin Press testified that on January 24, 1992, an order was received from the appellant, requesting two books: 1) Hit Man and 2) How to Make Disposable Silencers.

She further testified that the order was processed and that it was Palladin Press’s regular practice to fill all orders within 48 hours. ⁴¹⁹ The Modus Operandi Recommended And the Modus Operandi Used The correspondence between the modus operandi recommended by the Hit Man Manual and the modus operandi actually used on the early morning of March 3, 1993, is striking. The manual recommended the up-front payments of expense money. The appellant received $6,000 up front. The manual recommended that, if the “hit” is to appear like a burglary, the hit man should “mess up the scene” and take concealable items of value and then dispose of them along with the weapon.

Mildred Horn’s home was ransacked but in what the police described as a very cursory fashion. Only random items were missing and they were discovered where they had been abandoned. The manual recommended aiming for the head, preferably the eye sockets. Mildred Horn was shot through the eye.

Janice Saunders was shot through the eye. The manual was very specific with respect to the choice and use of weapon. It recommended an AR7 rifle because it is lightweight and easy to conceal when disassembled. Bullet fragments removed from the victims were determined to be consistent with .22 caliber long rifle ammunition.

An AR7 rifle “is manufactured to accept and function properly with ... .22 long rifle caliber ammunition.” The manual recommended drilling out the AR7’s serial number and disposing of different weapon parts at various locations. On March 26, three weeks after the murders, four separate pieces of what were determined to be die cast aluminum components of an AR7 rifle were found at different spots along the right hand side of Route 28 in Montgomery County. Pieces of the rifle were found in general proximity to where Mildred Horn’s Macy’s, Hecht’s, and Magruder cards were found. An F.B.I. forensic metallurgist was of the opinion that the weapon had been exposed to the surrounding environment for a matter of weeks and that it had been intentionally cut into pieces and disassembled.

Holes had been drilled, moreover, in one of the pieces in a manner consistent with the obliteration of the weapon’s serial number. ⁴²⁰ The manual recommended that the hit man, while still at the crime scene, run a rat tail file down the weapon’s barrel in order to erase its ballistic signature. On March 3, the police found a metal file on the ground near the wheel chair ramp leading to the deck of Mildred Horn’s home. One of its tips had been wrapped with duct tape. The file, moreover, was one that could fit into the barrel of an AR7 .22 caliber rifle.

An Alcohol, Tobacco and Firearms forensic chemist testified that the file had been in contact with smokeless powder, a rifle propellant. The Defense The appellant chose not to testify in his own defense. That would seem to have been a wise tactical decision. Appellate Contentions In Realistic Perspective This extensive evidentiary background is important to keep in mind as we take up the appellant’s particularized contentions.

To characterize the State’s case against the appellant as one based on circumstantial evidence would be misleading, for the phrase “circumstantial evidence” might seem to depreciate the strength of the State’s case. The State’s case was, to be sure, based on circumstantial evidence, but on a tidal wave of circumstantial evidence so overwhelming as to sweep before it any splinter or sprig of doubt that might have presumed to block its path. Realistically, the verdicts of guilty in this case were never in doubt. Realistically, the only issue that hung in the balance was whether the appellant would, as he had on an earlier occasion, be sentenced to death.

That larger perspective cannot be ignored as we now take up the particularized contentions. The Supplemental Jury Instruction On Aiding and Abetting When the jurors were initially instructed, nothing was told them on the subject of aiding and abetting or on the general law of being a principal in the second degree, notwithstanding the appellant’s express request that such instructions be giv ⁴²¹ en. Though chagrined by the absence of an aiding and abetting instruction, appellant’s counsel, in closing argument, nonetheless pushed forward with such a theory of the case. Repeatedly, he stressed the fact that no evidence had actually placed the appellant at the scene of the crimes.

He expressly argued, moreover, that the available evidence “tells us that there were two people” involved. It is important to understand why this distinction between types or levels of criminal participation was, at that stage of the trial, of such vital concern to all parties, including the jurors. With respect to the appellant’s guilt of murder in the first degree, it made no difference whether the appellant had been a principal in the first degree or a principal in the second degree. What was really at stake was not the appellant’s guilt, but the appellant’s life.

If found to have been a principal in the first degree, the appellant was still eligible for a sentence of death. If found, on the other hand, to have been merely a principal in the second degree — whether such a finding were based on logic or lenity, on fact or on compassion — the threat of death would have been taken off the sentencing table. Affected by the defense argument on that issue, the jury obviously considered the distinction and, on its fourth day of deliberation, sent the following note to Judge Kavanaugh: We would like more explanation of homicide first degree, premeditated murder. In particular, the definition states that, “the conduct of the defendant caused the death of Mildred Horn, Trevor Horn, and Janice Saunders.” Does this mean that to be guilty, a person had to have been present at the murders and committed a physical act leading to the deaths?

Please answer separately for, “present” and for committing a “physical act” that is, pull the trigger and suffocate with pillow. Judge Kavanaugh discussed the situation with counsel. The appellant, ill-advisedly in our judgment, decided to take a “double or nothing” gamble and objected to the giving of any supplemental instruction, notwithstanding his earlier desire ⁴²² for such an instruction. The appellant’s apparent glimmer of hope was that the jury, if falsely permitted to believe that its only available choice was between principalship in the first degree and a verdict of not guilty, might opt for the not guilty verdict.

To us, that would seem to have been a hope born out of desperation and not out of any realistic expectation as to what the jury would likely do. Both the appellant’s hope and our skepticism, however, are beside the point. After an overnight adjournment, with an opportunity for counsel to consider and to argue the significance of United States v. Horton, 921 F.2d 540 (4th Cir.1990), Judge Kavanaugh decided in favor of giving a supplemental instruction. THE COURT: Well, for the record, I am giving this aiding and abetting instruction in response to the note from the jury asking for clarification about whether or not they have to find two elements: Whether or not Mr. Perry was present at the scene, and whether or not they have to find that he was the shooter or the person who suffocated Trevor.

Aiding and abetting is a correct interpretation of Maryland law — a person can be guilty as principal in the first degree and principal in the second degree and still be guilty of first-degree premeditated murder. At this stage we are in the guilt/innocence part. We are not in the sentencing phase of it, and I agree with Mr. Brennan, death penalty cases are different, and it is very important for the jury to be unanimous that Mr. Perry was a principal in the first degree before they can even consider whether or not the death penalty is appropriate; but I think the defense is jumping the gun somewhat to ask for a special verdict sheet at this time. I think that is for a penalty phase, and definitely we will explore it at that time.

As far as whether or not it is appropriate, I think this is the common law of Maryland, principal in the' first degree, principal in the second degree, and even the Federal system has a statute charging the accessory. ⁴²³ Every time someone is charged with first-degree premeditated murder, the charge is principal in the first and second degree — different theories, but it is no different legally. So with that caveat, I am going to bring the jurors in and give them this instruction and allow argument. Judge Kavanaugh then gave the following instruction on the subject of aiding and abetting: The defendant is charged with a crime of first degree murder. A person who aids and abets in a commission of a crime is as guilty as the actual perpetrator even though he did not personally commit each of the acts that constitutes the crime.

A person aids and abets the commission of a crime by knowingly associating with the criminal venture with the intent to help commit the crime, being present when the crime is committed and seeking by some act to make the crime succeed. In order to prove that the defendant aided and abetted the commission of a crime, the State has the burden of proof of two elements: One, that the defendant was present when the crime was committed; and two, that the defendant willfully participated with the intent to make the crime succeed. Presence means being at the scene or close enough to render assistance to the other perpetrators. Willful participation means voluntary and intentional participation in the criminal act.

Some conduct by the defendant in the furtherance of the crime is necessary. The mere presence of the defendant at the time and place of the commission of the crime is not enough to prove that the defendant aided and abetted, but if presence is proven, it is a fact that may be considered along with all of the surrounding circumstances. (Emphasis supplied). Following the reinstruction, counsel were permitted and, indeed, made supplemental arguments to the jury.

The jury subsequently returned verdicts of guilty on all charges. At the sentencing hearing before the same jury the following month, the jury was asked whether it was “proven or not ⁴²⁴ proven” that the appellant was a principal in the first degree to the murders. The jury responded, “Not proven,” and the sentence of death was thereby precluded. The appellant does not now object to the fact that the instruction in issue was supplementary rather than original.

The discretionary authority of a judge to give a supplementary instruction, if otherwise proper, is not in issue. The appellant does not challenge the substantive content of the instruction. The exclusive objection is that the legal issue dealt with by the instruction was not one generated by the evidence in the case. We hold that the appellant’s contention in that regard is flawed.

It is, indeed, twice flawed, once with respect to the controlling law and yet again with respect to its factual predicate. A. Creating a New and Converse Rule The appellant relies on Maryland Rule 4-325(c), which provides: The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to. which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.

(Emphasis supplied). Even if we were to assume, arguendo, that there was no evidence to support the possibility that the appellant had been a second-degree principal merely aiding and abetting someone else who was the principal in the first degree, even a totally unnecessary and gratuitous instruction on aiding and abetting would still not offend Rule 4-325(c). Rule 4-325(c) does not even deal with unnecessary, gratuitous, or irrelevant instructions. The rule states clearly that if a party timely requests an instruction, it is error not to give the instruction (or its equivalent) if it is generated by the evidence.

It is error to do ⁴²⁵ too little, but the rule does not make it error to do too much. It does not even address the subject of doing too much. With respect to the supplementary instruction now in issue, the dispositive answer is that the appellant did not request it. There was, therefore, no possible way that the appellant could be denied an instruction to which he was entitled.

Rule 4-325(c) addresses no other problem. None of the cases cited by the appellant, Binnie v. State, 321 Md. 572 , 583 A.2d 1037 (1991); Sims v. State, 319 Md. 540, 547-55 , 573 A.2d 1317 (1990); Dykes v. State, 319 Md. 206, 220 , 571 A.2d 1251 (1990), is even applicable. Those cases all deal with the situation in which 1) the defendant requested an instruction; 2) the trial judge declined to give the instruction; and 3) the appellate issue became that of whether the judge’s declination to instruct was justified because an issue had not been generated, or was erroneous because an issue had been generated. The only issue in each case was whether the defendant had been denied an instruction to which he was entitled.

What the appellant is attempting to do, perhaps subconsciously, is not to invoke Rule 4-325(c) as written but to create a new rule which would be a converse to Rule 4-325(c). If, all other conditions being satisfied, the present rule makes it error NOT TO INSTRUCT WHEN THE ISSUE IS GENERATED, the converse rule would make it error TO INSTRUCT WHEN THE ISSUE IS NOT GENERATED. 6 Whatever the virtues of such a hypothetical new rule might be, it is not a rule that the Rules Committee or the Court of Appeals has ever promulgated. When it comes to jury instructions, under-inclusion may be reversible error but over-inclusion, lamentably perhaps, has become an ingrained habit. Using the many aspects of homicide law as an example of excess, this Court in Evans v. State, ⁴²⁶ 28 Md.App. 640, 665 , 349 A.2d 300 (1975), commented on the all-too-true reality that boiler-plate instructions have been handed down from judicial generation to judicial generation and solemnly intoned whether they have any bearing on the case then at bar or not.

We went on, moreover, 28 Md.App. at 665 n. 9, 349 A.2d 300 , to describe the cause: Whenever a “canned” set of jury instructions is resorted to, the man behind the can has an all-too-frequent way of going intellectually onto “automatic pilot.” Once the liturgy begins, it will drone on to its bitter end, running the full gamut of homicidal mental states, the immaterial as well as the material. For his proffered new proposition that it is error to instruct the jury on defenses or aspects of law not generated by the evidence presented, the appellant can cite only a dictum from the opinion of this Court in Tripp v. State, 36 Md.App. 459, 463 , 374 A.2d 384 (1977), that it is “inappropriate to instruct upon a principle of law not suggested by the evidence in the case.” We are poignantly familiar with Tripp , and we know that we did not remotely propound the principle for which the appellant cites it as authority. There is a world of difference between what may be “inappropriate” and what is “reversible.” In Tripp we were not pronouncing error but only breathing a sigh of regret, as we noted, 36 Md.App. at 462 , 374 A.2d 384 : The appellant observes that it has been the ingrained habit of many members of the judiciary, when instructing a jury on the subject of homicide, to catalog all the varieties thereof, defining each and setting out the penalty for each. The observed phenomenon, sadly to relate, is true; it is also unfortunate.

(Emphasis supplied). Our conclusion as to excessive and frequently unnecessary jury instruction was 1) that the phenomenon is sad, 2) that it is unfortunate, and 3) that it nonetheless happens all the time. ⁴²⁷ It has never been suggested that it is reversible error. A rale requiring a necessary instruction does not forbid an unnecessary instruction. It is under-inclusion that runs the risk of error.

Over-inclusion only runs the risk of boredom. Actually there is some justification for some of the overly inclusive instructions that are frequently given. In doubtful or ambiguous situations, the discreet thing to do is to tell the jury more than it needs to know rather than run the risk of denying the jury necessary knowledge. When in doubt, it is better to era on the side of over-inclusion rather than under-inclusion.

That is why over-inclusion has never been made the occasion for reversible error. We are not about to alter course today. B. Generating An Issue Downward as to Lesser Guilt or Lesser Involvement Even assuming, purely arguendo, that it would be error to instruct on a principle of law not generated by the evidence, the appellant is still advancing a curious proposition. He acknowledges a genuinely generated and, indeed, legally sufficient case of involvement at the greater (and potentially lethal) level of being a principal in the first degree.

Both greater guilt and greater involvement subsume within them, however, a lesser guilt and lesser involvement. With respect to levels of guilt or levels of involvement, proof moves upward, not downward. Once the higher plateau has been reached, for a verdict then to be returned of guilt or of participation at a lower level, it is only necessary for there to be a reasonable doubt as to guilt or participation at the higher level, and not affirmative disproof of the greater guilt or participation. To generate an issue upward may require additional evidence; to generate an issue downward does not.

A compassionate jury on the death penalty issue, for example, is not required to find, beyond a reasonable doubt, that a defendant is NOT the triggerman in order to give him the benefit of the doubt as a mere principal in the second degree. Proof of guilt as a second-degree principal may ⁴²⁸ represent nothing more than proof of guilt as a first-degree principal by a bare preponderance of the evidence. 7 A finding that the appellant in this case was a principal in the second degree may have entailed nothing more than a reasonable doubt as to whether he was a principal in the first degree. It did not require an affirmative finding, beyond a reasonable doubt, that someone else was the principal in the first degree. All that may have been involved was a failure of persuasion (or overt leniency) as to an element of what would have constituted greater guilt or more immediate involvement.

It need not have involved alternative evidence. It may only have involved, for a variety of' reasons, lesser persuasion. It is never an escape from a lesser guilt or lesser' involvement to prove or to. argue a greater guilt or involvement. It is not a valid defense to be more guilty than charged or more guilty than proved.

The appellant in this case may not now prevail on the theory that he could not have been a principal in the second degree for the reason that he was actually the principal in the first degree. A genuine jury issue as to guilt or involvement at a higher level ipso facto generates the possibility of a verdict of guilt or involvement at a lower level, and thereby makes that possibility a genuine issue in the case. The generation of this issue at the lower level does not necessárily require affirmative disproof of guilt or involvement at a higher level. There is a vast difference between 1) generating the issue that the appellant was at least a principal in the second degree and 2) generating the very different issue that the appellant was nothing more than a principal in the second degree.

The former issue requires generation; the latter does not. The appellant’s contention that the instruction was not supported by the