Pulley v. State

Moore, J., delivered the opinion of the Court. Appellant, Rodney King Pulley, was convicted in a jury trial in the Criminal Court of Baltimore (Grady, J., presiding) of first degree murder, attempted robbery with a dangerous and deadly weapon, and use of a handgun in the commission of a crime of violence. A motion for a new trial was denied, and the court imposed sentences of life imprisonment for first degree murder, 20 years for attempted robbery (to run consecutively), and 15 years for the handgun offense (to run concurrently). The issues on this appeal are succinctly stated in appellant’s brief: I. “Did the trial court err in refusing defense request for an alibi instruction?” II. “Did appellant’s separate convictions and sentences for felony murder and the underlying ⁶⁸⁴ felony violate the Fifth Amendment’s double jeopardy clause?” III. “Did the trial court err in overruling defense objection to testimony concerning other uncharged crimes committed by appellant?” We find reversible error under I and II, above, and are obliged to remand the case for a new trial, albeit the fourth trial for these offenses. 1 FACTS Appellant’s arrest and subsequent indictment stemmed from a police investigation of the circumstances surrounding the death, on October 16,1974, of one Edsell Phillips, an Ohio resident, whose body was found in an automobile owned by him and parked near the Derby Bar on Park Heights Avenue in Baltimore City.

An autopsy report prepared by the Medical Examiner’s office established the cause of death as a gunshot wound. Officer David Sweet of the Baltimore City Police Department provided the initial leads for the investigation. On October 29, 1974, Sweet was approached by Samuel Brown, Jr., a distant cousin of the police officer, who volunteered information concerning a shooting in front of the Derby Bar. Brown’s information implicated himself and appellant in the events culminating in Phillips’ death.

Sweet contacted the Homicide Division, and Brown was arrested. The State’s Attorney’s office thereafter agreed to enter a nolle prosequi as to homicide and to permit a guilty plea to a lesser charge, in exchange for Brown’s cooperation in building the State’s case against appellant. At the trial below, the State’s major witness against appellant was Samuel Brown, Jr. He testified that, on the evening of the alleged offenses, he first met appellant, who was a friend of Brown’s younger brother, and decided to commit a robbery with him. Brown was in particular need of money, his father having threatened to turn him out of the ⁶⁸⁵ house if he had not procured a job by that date.

Appellant was, at that time, in possession of a handgun. The duo began to explore the neighborhood in search of a victim, but before settling upon one, stopped in a sandwich shop, where Arvin Johnson, a friend of Brown’s joined them in their endeavor. The occupant of the car parked at the Derby Bar was eventually chosen as their prey. Brown’s role was to trick the occupant into lowering his car window, and then to retreat and act as a look-out.

This having occurred, appellant and Johnson approached the victim. Brown heard them arguing over who would receive the money; a shot rang out, and Brown saw appellant with the gun in his hand. Expert fingerprint evidence was produced by the police to the effect that a latent palmprint found on the window of the victim’s car matched appellant’s left palmprint. Appellant testified in his own defense to an entirely different version of his activities.

On the evening prior to the homicide, October 15th, appellant was robbed of a leather coat, and borrowed a gun from his cousin, Charles Thomas, presumably to protect himself during his walk home. He resided with his mother and two sisters in the Cherry Hill section of the city, and, that same night, inquired of his mother whether he should attempt to purchase the gun for her protection because of his imminent entry into the Merchant Marine. 2 Appellant’s mother declined this offer, and requested that he return the gun. During the afternoon of October 16th, appellant visited his cousin, Joseph Thomas, brother of Charles Thomas, at his place of work. Joseph invited him to dinner and, upon learning that appellant intended to return the gun to Charles that evening, also offered to drive appellant to Charles’ house, after dinner.

Appellant accepted the invitation, accompanied his cousin home, and, before dinner, helped him wash his car. While appellant worked on the car’s interior, Joseph having gone inside the house, Samuel Brown and a friend stopped ⁶⁸⁶ by. Brown stated that he had “burned a man for some dope” and needed a place to hide. Appellant refused this request, but offered instead to loan Brown the unloaded gun, provided Brown would return it to him that evening.

Brown then took the gun and left. Appellant said he informed his cousin Joseph about the incident, and the latter was upset. He further testified that he had dinner and spent the entire evening at his cousin’s house. Later that night, Brown reappeared, returned the gun, and stated to appellant that he had shot a man.

After Brown left, appellant ran to the vicinity of the Derby Bar, where Brown had said the shooting occurred, saw the parked car, and then ran back to his cousin’s house. Appellant claimed to have been absent from the house for only this ten-minute period during the entire evening. He subsequently returned the. gun to his cousin, Charles Thomas, and learned, at that time, that the gun contained bullets. Joseph Thomas and his wife, Shirley, corroborated appellant’s testimony that he had spent the entire evening at their home on the date of the incident, and that he had been gone for “no more than five minutes” late that night.

Joseph further acknowledged that appellant had told him about lending the gun to a friend before dinner. I At the close of the trial court’s instructions, appellant’s counsel excepted to the court’s failure to charge the jury with respect to the alibi evidence presented. The following proposed instruction had previously been submitted in writing by appellant: “Evidence has been introduced in this case by the Defendant, Rodney Pulley, tending to establish that at the time of the alleged offense he was elsewhere, specifically, at the home of his cousin, Joseph Thomas. In this regard, I remind you that the burden of proving the Defendant guilty is upon the prosecution.

The law never imposes upon a ⁶⁸⁷ defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. “If, after consideration of all of the evidence in this case, you have a reasonable doubt as to whether the Defendant was present at the time and place the alleged offense was committed, you must acquit him.” The court declined to give a separate instruction on alibi, stating: “Well, alibi under the recent cases, is being held just one of the other elements that the State has to prove, namely, that the man was present at the scene of the crime. . . . [I]f the defendant. . . seeks to call to the attention of the jury one fact which they have tried to disprove, namely, the lack of presence at the scene of the crime, then the State, it seems to me, is entitled to a reference to the other testimony, that showing that he was at the scene of the crime and pulled the trigger. I think alibi testimony is really a separate and distinct instruction. ... It is no longer a facet that requires special reference. It is one factor concerning presence at the scene of a crime, which the State either proves or doesn’t prove. ...” Judge Grady was, of course, eminently correct in ruling that “alibi” does not constitute an affirmative defense.

As Judge Moylan stated for this Court in Robinson v. State, 20 Md. App. 450, 459 , 316 A. 2d 268, 272 (1974): “We think the sound view to be that an alibi is not an affirmative defense, placing any burden upon a defendant beyond the self-evident one of attempting to erode the State’s proof to a point where it no longer convinces the fact finder beyond a reasonable doubt. Proof of an alibi, like any other defense testimony, is simply a means of controverting the State’s effort to establish criminal agency.” Daniels v. State, 24 Md. App. 1, 5 , 329 A. 2d 712, 715 (1974); Jackson v. State, 22 Md. App. 257 , 322 A. 2d 574 ⁶⁸⁸ (1974); State v. Grady, 276 Md. 178 , 345 A. 2d 436 (1975) . We hold, however, that the trial court drew an erroneous conclusion from this proposition when it ruled that a separate alibi instruction was not required. It is a settled proposition of law in Maryland that the trial court, in a criminal case, is obliged to give advisory instructions “on every point of law essential to the crime charged and supported by the evidence” at the request of any party.

Carter v. State, 15 Md. App. 242, 248 , 289 A. 2d 837, 840-41 (1972); Md. Rule 757(b). 3 The application of this principle to the subject of alibi was implicitly recognized in Couser v. State, 36 Md. App. 485 , 374 A. 2d 399 (1977). We there held, however, that the lower court’s failure to instruct on alibi was not erroneous where a request for a specific instruction had not been made below, and no evidence had been presented to support an alibi charge. 36 Md. App. at 499 , 374 A. 2d at 406-07 . In the instant case, a request for a specific alibi instruction was, of course, made. Further, the evidence presented by appellant, i.e., his own testimony, corroborated by that of his cousins, Joseph and Shirley Thomas, if believed, would have been sufficient to establish an alibi for the entire period during which the sequence of events related by the State’s witness, Samuel Brown, unfolded.

Under these circumstances, the court’s refusal to grant appellant’s request for an alibi instruction, where the instruction correctly stated applicable law, see Dillon v. State, 27 Md. App. 579 , 342 A. 2d 677 (1975), aff'd, 277 Md. 571 , 357 A. 2d 360 (1976), was reversible error. Our holding is in conformance with the prevailing rule in the majority of state