Raley v. State

Melvin, J., delivered the opinion of the Court. On March 24, 1975, the appellant, Thomas John Raley, was indicted by the Grand Jury of Baltimore County. The four-count indictment charged that on February 17, 1975, the appellant 1) murdered one Joseph Stephen LeFevre; 2) assaulted his wife, Linda Agnes Raley, with intent to murder her; 3) assaulted Linda Agnes Raley; and 4) unlawfully “used a handgun in the commission of a felony or ⁵¹⁷ a crime of violence as defined in Section 441, of Article 27, of the Annotated Code of Maryland, to wit: murder;... The events leading to the indictment can be briefly stated: At about 4:15 A. M. on February 17, 1975, appellant telephoned the Baltimore County Police Department to say that two people had been shot at his home in Baltimore County.

After the telephone call was received, Officer Fisher called back to the Raley residence and was told by Raley that he had shot his wife in the chest and a man in the chest. Officer Beatty was dispatched to the address given by Raley, arriving there at 4:27 A. M. Upon arrival, he saw Raley standing in the doorway with a gun in his hand. Raley told Officer Beatty, “I am the one that called you, I shot them both”. Upon entering the house, the officer found the victims, LeFevre and Mrs. Raley, lying on the floor, both fully clothed.

LeFevre was dead with a bullet hole in his chest. Mrs. Raley had a bullet wound in her throat but was alive and eventually recovered. Officer Glos arrived at the scene shortly after Officer Beatty arrived. Raley gave to Officer Glos two spent revolver casings and three unspent bullets.

Officer Glos heard Raley say, “They both came out of the kitchen” and that he “shot them both”, and, “They didn’t belong there like that”. These statements were not elicited from Raley by any questions put to him by anyone and were made in the kitchen of the home shortly after Officer Glos’ arrival. A baby-sitter whom Mrs. Raley had engaged for the evening testified that Raley and his wife had been separated for about four weeks prior to February 17, 1975, but that Raley had been out with his wife and spent the night with her February 14, 1975. Mrs. Raley was called as a witness for the state but refused to testify against her husband; Raley elected not to testify in his own defense.

On July 9, 1975, after three days of trial before a jury in the Circuit Court for Baltimore County (Judge John N. Maguire presiding), appellant was found guilty on Count III (assaulting his wife) and Count IV (using a handgun in the commission of a crime of violence), but was acquitted of Count I (murder of LeFevre) and Count II (assault with ⁵¹⁸ intent to murder his wife). On July 31, 1975, Judge Maguire sentenced appellant to the custody of the Division of Correction for twenty years as to Count III and for fifteen consecutive years as to Count IV. In this appeal, appellant seeks reversal of both convictions on several grounds. We conclude there is merit in none and shall affirm both convictions.

I The first five grounds alleged are related to the propriety of the handgun conviction under Count IV of the indictment. (a) In his advisory instructions to the jury concerning Count IV of the indictment, the trial judge said: “The fourth count of the indictment charges the Defendant with the Use of a Handgun. Under our law, Article 27, section 36B, subsection d, any person who uses a handgun in the commission of any felony or crime of violence, shall be guilty of a separate misdemeanor. That is a separate crime.

A handgun shall include any pistol or revolver, or any firearm capable of being concealed on the person, and a crime of violence, of course, would include Murder, Robbery, Rape, or an attempt to commit any of these offenses. The felony alleged in this Count is Murder. ” (Emphasis Added) No exceptions were taken to this instruction. After deliberating for nearly three hours, the jury sent out a question to the court concerning a “description of charges to be considered”. After conferring with counsel, the jury was brought back to the courtroom and the judge “re-read” to the jury “all the charges with respect to this case of Thomas Raley”, including a word-for-word repetition of his advisory instruction concerning Count IV.

When the judge completed the re-instruction, appellant’s counsel said to the judge: “. .. . They asked for charges, and the Court defined ⁵¹⁹ as the fourth count Use of the Handgun. The law specifically says Involuntary Manslaughter is an exception as well as Common Law Assault. It was covered in argument.

I would ask that the Court indicate that Involuntary Manslaughter and Assault are specifically excepted from the crime of Handgun Violation.” The judge declined to supplement the advisory instruction as requested. Appellant contends the judge’s refusal constituted reversible error. We disagree. Section 36B (d) of Article 27 of the Code provides: “(d) Unlawful use of handgun in commission of crime. — Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.” Section 441 (e) of Article 27 provides: “The term ‘crime of violence’ means abduction; arson; burglary, including common-law and all statutory and storehouse forms of burglary offenses; escape; housebreaking; kidnapping; manslaughter, excepting involuntary manslaughter; mayhem; murder; rape; robbery; and sodomy or an attempt to commit any of the aforesaid offenses; or assault with intent to commit any other offense punishable by imprisonment for more than one year.” Appellant argues, correctly of course, that “common law assault is a misdemeanor and since it is not listed as a crime ⁵²⁰ of violence, it cannot serve as the basis for a conviction under the handgun violation charged in the indictment”.

It does not follow, however, that it was error not to give the requested advisory instruction. Although it is well settled that under Maryland Rule 756 a trial judge, when requested in a criminal case, must give advisory instructions on every point of law essential to the crime charged and supported by the evidence, Christensen v. State, 274 Md. 133 (1975); Mumford v: State, 19 Md. App. 640 (1974); Byrd v. State, 16 Md. App. 391 (1972); Peterson v. State, 15 Md. App. 478 (1972); Hardison v. State, 226 Md. 53 (1961), it is equally settled that a trial judge is not obliged to give a requested instruction that is fairly covered in the instructions actually given, and the jury was not misled upon the subject. Bartholomew v. State, 260 Md. 504 (1971); Brown v. State, 222 Md. 290 (1960); England v. State. 21 Md. App. 412 (1974). In the present case, under Count IV of the indictment the appellant was charged with the “commission of a felony or a crime of violence ... to wit: murder”.

Thus charged, a prerequisite to conviction thereon was proof beyond a reasonable doubt that the appellant used a handgun during the commission of a murder or the lesser included felony or “crime of violence” of voluntary manslaughter. We think this element of the handgun crime charged was fairly covered by the trial judge’s advisory instruction actually given and that the jury was not misled into believing that common law assault could serve as a basis for conviction under that count of the indictment. Having advised the jury of the essential elements of the handgun crime charged, it was not necessary to advise it of elements not included in the charge. 1 ⁵²¹ (b) The appellant contends that the jury verdicts of guilty as to Count IV and not guilty as to Count I (murder in the first or second degree, or manslaughter) and Count II (assault with intent to murder) are fraught with such inconsistency as to amount to a denial of due process of law and equal protection of the law. The verdict as to Count IV, he argues, should therefore be stricken.

While we recognize the logic of appellant’s argument, we think the decision of the Court of Appeals in Ford v. State, 274 Md. 546 (1975) is dispositive of the contention. In that case the jury returned not guilty verdicts as to counts in an indictment charging robbery with a dangerous and deadly weapon, robbery, and assault, but guilty of a count charging unlawful use of “a handgun in the commission of a crime of violence”. Answering Ford’s argument that the conviction was illegal because of the allegedly inconsistent verdicts, the Court said, at pp. 550-551: “We agree with the petitioner that section 36B (d) requires the trier of fact to determine beyond a reasonable doubt, from the evidence, that the accused used a handgun during the commission of either a felony or a crime of violence as a prerequisite to being convicted of unlawfully using a handgun in the commission of either. Nevertheless, in answering the petitioner’s first contention, we think it to be plain from the language of section 36B (d) that the offense delineated in that statute is separate and distinct from the felony or crime of violence during the commission of which the handgun was used.

Since this is so, an individual on trial for the handgun charge does not necessarily need to have been separately accused of the commission of a felony or crime of violence in an additional count or indictment before he can be charged with or convicted of the crime established in section 36B (d). And, when the trier of fact considers an ⁵²² indictment containing both a section 36B (d) handgun count and a felony or crime of violence count, a conviction on the former can still be sustained even if the trier of fact returns a finding of not guilty on the latter — in fact, a finding of guilt under both, since they are not inconsistent, can each stand. A logical corollary then of each of these statements is that when section 36B (d) dictates that any person who is guilty of the handgun offense shall be sentenced ‘in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor,’ it directs that irrespective of the number of years, if any, the defendant receives for the ‘said felony or misdemeanor,’ the court must impose a penalty, within the limitations for confinement contained in the statute, for the independent handgun offense.” (Emphasis supplied.) (c) Appellant argues that the evidence was insufficient to support the handgun violation because the State failed to meet its burden of proving “beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue was properly presented in a homicide case”. As we have seen, the fact that the jury found appellant not guilty of murder, manslaughter, or assault with intent to murder, does not affect the validity of its guilty verdict as to the separate crime of unlawful use of “a handgun in the commission of a felony or crime of violence ... to wit: murder”, contained in Count IV of the indictment.

There must, nevertheless, be sufficient evidence from which the jury could have found beyond a reasonable doubt that the appellant used the handgun during the commission of a felony or a crime of violence — in this case murder (in the first or second degree) or voluntary manslaughter. Even if it be assumed that an issue of mitigation was generated (and we do not decide that it was), and that the State failed to prove the absence of the mitigating circumstances (“heat of ⁵²³ passion on sudden provocation”), the effect would have been merely to reduce the underlying crime, during the commission of which appellant used a handgun, from murder to the lesser included felony or crime of violence of voluntary manslaughter. In short, our review of the record convinces us that there is ample evidence from which the jury could have found beyond a reasonable doubt that appellant