Robinson v. State

MOYLAN, Judge. The appellant, Jacqueline Camille Robinson, was convicted by a Prince George’s County jury, presided over by Judge Howard S. Chasanow, of 1) assault with intent to disable and 2) the use of a handgun in the commission of a felony. Upon this appeal, she raises four contentions: 1) That the evidence was not legally sufficient to sustain the convictions; ²⁴⁸ 2) That Judge Chasanow erroneously refused to give a requested instruction on accidental shooting and erroneously instructed the prosecutor to clarify the concepts of specific intent to murder and specific intent to disable; 3) That the opening statement of the prosecuting attorney amounted to prosecutorial misconduct; and 4) That Judge Chasanow erroneously limited the cross-examination of a State’s witness. The appellant’s fourth contention, imperfectly preserved but partially salvaged for appellate review, involves a subtle and interesting point of evidence — one of the less routine exceptions to the Hearsay Rule.

There is nothing to the first three contentions, and we will dispose of them summarily to clear the deck for a fuller consideration of the fourth. LEGAL SUFFICIENCY OF THE EVIDENCE ,We have reviewed the evidence and find it legally sufficient to support the convictions. The appellant, at the time of the shooting, was a medical student at the Howard University Medical School where the victim, Dr. Henry Lloyd Garvey, was a Professor of Pharmacology. Although Dr. Garvey was married, there was a romantic liaison between himself and the appellant, punctuated by several domestic quarrels in the weeks immediately preceding the shooting.

On September 3, 1984, the appellant shot Dr. Garvey in the upper thigh. Dr. Garvey drove himself to the hospital, where surgery revealed that the bullet had entered and exited his thigh and then entered his abdomen, causing extensive bleeding. Several months later, Dr. Garvey suffered a stroke which prevented him from appearing at the trial or testifying. Despite the appellant’s self-serving explanation that the shooting was an accident as she and her estranged lover struggled for possession of her gun in the course of an argument, the fact finders had it within their unfettered prerogative to disbelieve utterly that expla ²⁴⁹ nation.

The physical circumstances of the shooting, buttressed by other surrounding circumstances, clearly established a prima facie case with respect to both convictions. Those other surrounding circumstances, indeed, carried the State’s burden of production far beyond that barely minimal level necessary to support a prima facie case. Officer Douglas Betman, a Takoma Park City policeman, testified that he and another officer responded to the appellant’s apartment toward the end of July after a neighbor had reported “a lot of crying coming from” the apartment. Responses received from the appellant on that occasion indicated to the officers that there had been a “domestic problem, crying over a problem with a boyfriend or something.” Officer Betman testified to another incident approximately three weeks before the shooting when he again responded to the appellant’s apartment for “screaming and crying” and “a loud disturbance.” Finding the appellant alone, screaming and crying hysterically, he asked what was wrong and received the reply that, “it was her boyfriend.” Even more damaging testimony came from Victorine Patricia Garvey, the shooting victim’s wife of eleven years.

She testified to having received a telephone call at her place of employment on August 7, 1984, and “about three times subsequent” from the appellant. The appellant told Mrs. Garvey that she wanted her to leave her husband, that the appellant had been seeing Dr. Garvey for quite awhile, and that she had no intention of giving him up. Mrs. Garvey testified to another call on August 21 wherein the appellant asked if Mrs. Garvey had signed divorce papers and wherein the appellant informed Mrs. Garvey that she, the appellant, was pregnant. In a third call on August 31, the appellant asked Mrs. Garvey if she was “going to New York with Lloyd this weekend” and telling her that “if you go to New York and you spend the weekend with him this weekend, when you get back, you’ll be sorry.” ²⁵⁰ On September 3, three calls came in from the appellant asking to speak to Dr. Garvey.

In one of them, the appellant told Mrs. Garvey that she had “some unfinished business to discuss with him and that if I didn’t put him on and let him talk to her, I would be sorry.” At about 8:30 that evening, the telephone rang again and was answered by Dr. Garvey, who left the home ten or fifteen minutes after the telephone conversation. Under all of the circumstances, it is to state the self-evident to hold that Judge Chasanow was not in error in submitting the case to the jury. Williams v. State, 5 Md.App. 450, 459 , 247 A.2d 731 (1968); Metz v. State, 9 Md.App. 15, 23 , 262 A.2d 331 (1970). JURY INSTRUCTIONS The second “contention” consists of two essentially unrelated subcontentions, the only common thread being that they both relate to jury instructions.

With respect to the appellant’s requested instruction on the excuse of accident, it is well settled that if the instruction actually given adequately covers the subject, no particular additional instruction and no particular version of the instruction is necessary. In this case, Judge Chasanow fully and correctly instructed the jury that the crime of assault with intent to disable required a finding that there was a “deliberate, intentional wounding,” with the “specific intent to incapacitate or physically impair the victim” without “any legal excuse or justification.” It is clear beyond doubt that an accidental shooting would not satisfy that stringent mens rea requirement. It is not necessary to reiterate in negative terms what is already fully and adequately expressed in affirmative terms. The other subcontention is that Judge Chasanow somehow erred “in delegating to the prosecutor [the court’s] duty to instruct the jury by requesting ... that the prosecutor clarify to the jury the concept of specific intent to ²⁵¹ commit assault with intent to murder and assault with intent to disable.” The short answer to this subcontention is that whatever transpired in this regard at an off-the-record bench conference at the conclusion of the State’s argument, nothing has been preserved for appellate review.

Following the bench conference, no record of which is before us, the prosecuting attorney addressed the jury again, briefly but quite accurately, on the mutually exclusive natures of a specific intent to kill and a specific intent to disable. There was no objection by the appellant before this brief reargument, during the reargument, or following the reargument. The merits of what may or may not have happened are not before us, and we decline to consider them, even assuming we could. Nothing has been preserved for appellate review.

Md.Rule 1085; Fowler v. Benton, 229 Md. 571, 575 , 185 A.2d 344 (1962). PROSECUTOR’S OPENING STATEMENT Our answer is the same with respect to the appellant’s untimely claim that the prosecutor was guilty of misconduct in the course of his opening statement. The prosecutor, of course, cannot commit error as “error” is used as an appellate term of art. Only the judge can commit error when he, called upon to rule, omits to rule or makes an incorrect ruling.

Braun v. Ford Motor Company, 32 Md. App. 545, 548 , 363 A.2d 562 (1976); Ball v. State, 57 Md.App. 338, 358-360 , 470 A.2d 361 (1984). In this regard, the appellant did not call upon the judge at any time to do anything. Ordinarily, with rare exceptions not here pertinent, there could be no error. THE “STATE OF MIND” EXCEPTION TO THE HEARSAY RULE The final contention, which the appellant boldly poses as a constitutional issue without significantly maintaining it at that lofty level, is more accurately a problem of common ²⁵² law evidence. 1 The State produced Deputy Sheriff James E. Turner, Jr., who had an off-duty job as a part owner of a gun shop.

Mr. Turner testified that the appellant applied for a permit to purchase a handgun on August 4, 1984, and that, following the successful processing of her application, picked up the handgun on September 1, 1984. On the cross-examination of Mr. Turner, the appellant asked the following questions, to which the State’s objections were sustained: “Q. All right, sir. Did Miss Robinson tell you that she was purchasing a gun to protect herself? Ms. Lieberman: Objection.

The Court: Sustained. By Mr. Camus: Q: Did you tell Officer Betman that Miss Robinson stated to you she was purchasing the gun to protect herself? Ms. Lieberman: Objection. The Court: Sustained.

By Mr. Camus: Q: Did Miss Robinson tell you why she was buying the gun? Ms. Lieberman: Objection. The Court: Mr. Camus, I have sustained the objection to that whole line of questioning, not the phraseology. Mr. Camus: All right.

That is all I have.” The line of questioning that was thus curtailed obviously looms far larger now than it did then. The response, “All ²⁵³ right. That is all I have,” has evolved, through many months of hindsight, into three separate and arcane theories of exemption from the foreclosing effect of the Hearsay Rule. The obvious reason for the State’s objections and the obvious reason for the sustaining of those objections was that the evidence solicited was clearly hearsay.

Mr. Turner was being asked about out-of-court assertions made to him by the appellant which were then being offered in court for the truth of the thing asserted: to wit, that the appellant wanted the gun for her own protection, ostensibly from burglars and robbers. Notwithstanding the appellant’s essential acquiescence in the rulings of Judge Chasanow when they were made, she now offers three separate and reasonably subtle theories of admissibility, none of which was made at the time and only one of which was made even in the course of the appellant’s hearing on a motion for a new trial. Ordinarily, we would rely totally on Braxton v. State, 57 Md.App. 539, 549-550, 470 A.2d 1327 (1984), wherein we held: “Accordingly, we hold that refusal to permit an answer to a question which on its face called for hearsay (a self-serving declaration) is not error where trial counsel fails to show that the purpose of the question is to elicit non-hearsay or evidence which would be considered as an exception to the hearsay rule.” Indeed, with respect to the two theories of admissibility which were never even obliquely urged before Judge Chasanow and which were sounded for the first time in appellate brief and argument, we are content to rely upon Braxton in holding that they have not been preserved for appellate review. One of those theories is urged under the so-called doctrine of “curative admissibility.” Robinson v. State, 53 Md.App. 297 , 452 A.2d 1291 (1982). 2 The other theory is ²⁵⁴ urged under the “doctrine of verbal completeness.” 3 With respect to both theories, now offered for the first time, we see no difference between this and the situation before us in Braxton v. State, at 57 Md.App. 549 , 470 A.2d 1327 , where we declined to rule upon issues and theories of admissibility that had not been presented to the trial court: “[W]e note that at no time did defense counsel advise the court that he was offering the Stevie Williams testimony not for the truth of appellant’s response but in order to impeach the testimony of Lindsay Blackwell.

See, e.g., Smith v. State, 273 Md. 152, 161 , 328 A.2d 274 (1974). Neither did defense counsel suggest to the court that the alleged denial was being offered as an exception to the hearsay evidence rule or under the doctrine of verbal completeness.... Therefore, appellant’s present theory ²⁵⁵ of admissibility was neither tried nor decided by the trial judge and we ought not consider it. See Brown v. State, 1 Md.App. 571, 576 , 232 A.2d 261 , cert. denied, 248 Md. 733 (1967); Maryland Rule 1085.

One of the principal purposes of this rule is to require counsel to bring the position of their clients to the attention of the lower court at the trial, so that the trial court can pass upon and possibly avoid or correct any errors in the proceedings.” With respect to the appellant’s third theory of admissibility, however, we are willing to consider it on the merits. Notwithstanding the failure of the appellant to articulate a theory of exemption from the Hearsay Rule or to make a proffer of what the answer to the question would probably have been at the time when the objection to the question was initially sustained, Judge Chasanow very candidly made it clear, at the subsequent hearing on the new trial motion, that he had fully understood the theory under which the appellant had been offering the testimony: “Now, with regard to the specific evidentiary issue, Deputy Turner was asked when the defendant came in to apply for authorization to purchase a gun, which was almost a month before the actual shooting, if she indicated that she wanted a gun for protection. That issue is certainly preserved. I think there was certainly enough of a proffer that I knew what the answer would be.

So, Mr. Camus, you can’t say that you failed to protect the record. I will say for the record I fully anticipated the answer would be, ‘Yes, she said that she wanted to purchase the gun for protection.’ So, I just want to make it clear there is no procedural deficit in this case ...” The underlying purpose for the insistence on timely objection is to alert the trial judge to the fact that an issue is before him for decision. Where, as here, it is clear that the trial judge was so alerted, a rigorous insistence on timely objection would serve no purpose and would simply exalt form over substance. ²⁵⁶ We turn, therefore, to the “state of mind” exception to the Hearsay Rule. It was not until the filing of her reply brief that the appellant pinpointed precisely this theory of admissibility, but it does seem clear that she was groping in this direction from the beginning.

The “state of mind” exception is part of a cluster of related exceptions that have arisen in the zone that some writers call the “borderland of hearsay.” Professor Edmund Morgan, both in A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229 (1922) and Res Gestae, 12 Wash.L.Rev. 91 (1937), pointed out that the now repudiated notion of res gestae had a rough utility because it embraced seven classes of cases in which out-of-court declarations were deemed admissible. He pointed out further that three of those classes dealt with verbal acts and circumstantial evidence that were not hearsay at all and that four other classes dealt with legitimate exceptions to the Hearsay Rule. These four now possess distinct identities as 1) excited utterances, 2) declarations of bodily feelings, 3) declarations of mental state, and 4) present sense impressions, although until relatively recent times they were covered by the amorphous umbrella term “res gestae.” C. McCormick, Law of Evidence (2d ed. 1972), groups together in Chapter 29, “Spontaneous Declarations,” almost as did Morgan, several instances of nonhearsay, declarations of bodily feelings, declarations of mental state, excited utterances and present sense impressions. Our concern is with the single one that Professor Morgan calls “declarations of mental state.” 4 ²⁵⁷ Even the limited exception “declaration of mental state” is not monolithic, but embraces two subspecies: 1) a declaration of present mental or emotional state to show a state of mind or