Scott v. State

MacDaniel, J., delivered the opinion of the Court. Appellants Joseph Leroy Owens and Cedric Eugene Scott were indicted for first-degree murder, armed robbery and related offenses and in July, 1979, they were tried jointly by a jury in the Criminal Court of Baltimore. They were convicted of felony-murder and use of a handgun in the commission of a felony or crime of violence. Each appellant was sentenced to concurrent terms of life imprisonment and fifteen years’ imprisonment for felony-murder and the handgun offense, respectively.

In this consolidated appeal they raise a host of issues, some jointly, others individually. We preface our consideration of these with a statement of the facts of the case. On the evening of March 2, 1979, in Baltimore City, as appellants were about to enter the School Street apartment of their friend Joanne Chester, they saw the victim, an off-duty police officer, trying to unlock his car door. The man was very drunk, and looked it, so appellants immediately decided to leave the Chester residence and rob him.

What happened next was seen or heard by at least four people. A neighbor, Cynthia Rhodes, and her friend Johnny Norris entered the Chester residence soon after appellants ⁷² left; Rhodes saw the victim "leaning on his car” while appellant Owens was "patting him up and down”; appellant Scott was "standing around, looking around.” As Rhodes and Norris entered the house Ralph Willet, another of Ms. Chester’s guests, was on the second floor, looking out a bedroom window on the scene below. First he saw the victim fumbling with his car keys, trying to unlock the vehicle. Then he saw appellant Owens grab the man, fling him to the ground and kick him.

Appellant Scott searched the victim first. Then Owens went through the victim’s pockets; he removed a revolver from the man’s top coat and exclaimed "This is my lucky day!” Owens fired the gun into the air twice. Then Willet saw him aim the revolver at the victim and fire a third and fourth time. Ms. Chester, Cynthia Rhodes and Johnny Norris, inside the house, heard the shots.

Later that evening appellants went to the Exeter Street residence of Ruby Keesler. Ruby’s sister, Eva Pearl, was there and she heard appellant Owens state that "he had killed a cop” in self-defense. She saw him "handing the gun around, trying to sell it.” Appellants were arrested within twenty-four hours of the commission of the crime. Police detectives also found the gun during a search of the Exeter Street residence.

Additionally, each appellant gave the police a signed statement, admitting complicity in the robbery but blaming the other for the murder. We shall first consider the issues raised by appellant Owens individually, then those raised by appellant Scott and, finally, those issues raised by appellants Owens and Scott jointly. Owens I. Appellant Owens first contends the trial court erred in refusing to permit him to cast doubt upon the identification testimony against him by referring to the complexion of a ⁷³ juror for purposes of comparison. The trial court is vested with discretion to permit or deny the reception of demonstrative evidence, and we find no abuse of that discretion here.

See Tripp v. State, 36 Md. App. 459 , cert. denied, 281 Md. 745 (1977). In any event, our review of the transcript persuades us that there was sufficient testimony to support appellant’s point without involving one of the jurors.

II

Appellant Owens contends the trial court improperly admitted hearsay testimony into evidence. He refers to the State’s witness’s testimony that Owens exclaimed, "This is my lucky day!”, and that he expressed concern that "they” (presumably the police) "might have got” his co-defendant following the commission of the crime. In each case the admissions were proper; in any event, the evidence against Owens was overwhelming, and the statements were insignificant by comparison. Dorsey v. State, 276 Md. 638 (1976).

III

Owens contends that the trial court misinstructed the jury as to the doctrine of felony-murder. The court said: "(H]owever, there is no criminal liability on the part of a defendant if the killing was a fresh and independent product of the mind of another accomplice outside the scope of or foreign to the common object or purpose for which they combined, that is, robbery.” Appellant complains that the trial court should have further instructed the jury that even the person who did the shooting could not be convicted of felony-murder if the murder was committed as an act independent of and separate from the underlying felony. There was absolutely no evidence in the case to have warranted such an instruction. All the evidence ⁷⁴ indicated that the murder was committed during the course of the robbery, either to silence the victim or to allow the robbers to escape, or both.

As a matter of fact, and in view of the evidence, we think appellant got more than he was entitled to in the instructions actually given. Furthermore, in other instructions the trial court clearly stated that neither appellant could be convicted unless the jury found, beyond a reasonable doubt, that the killing was committed during the perpetration of the robbery, and this was both correct and sufficient. State v. Garland, 278 Md. 212 (1976).

IV

Appellant Owens contends that the trial court erred in refusing to propound certain questions on voir dire. The questions were posed in an attempt to establish whether the prospective jurors would apply proper legal principles. It is well-settled that the nature and extent of permissible inquiry on voir dire rests in the sound discretion of the trial court. Twining v. State, 234 Md. 97, 99 (1964).

We find no abuse of that discretion here. Scott I. Appellant Scott maintains he was convicted of a crime with which he was not charged. He states that the indictment against him charged that he "with . .. deliberately premeditated malice aforethought and did kill and murder” the victim, and specified, in parentheses, "Art. 27, § 407 and Common Law,” whereas he was found guilty of felony-murder, a violation of Article 27, § 410 of the Maryland Annotated Code. We think the assertion is meritless (Brooks v. State, 2 Md. App. 291 (1967)) but, at any rate, the record reflects that appellant made no motion at trial to dismiss the indictment on this ground, nor did he raise this issue in any other way below.

Therefore, the question is not preserved for appeal. Maryland Rule 1085. ⁷⁵ II. Appellant Scott also maintains that the evidence was insufficient to sustain his conviction for felony-murder. We shall answer this contention more fully later in this opinion.

We shall simply note here that there was evidence from which the trier of fact could find that both appellants robbed the victim; that the victim was shot and killed during the robbery, and that the murder was done at the behest of both, to facilitate the robbery. This was sufficient to sustain his conviction, Newton v. State, 280 Md. 260 (1977), McDowell v. State, 31 Md. App. 652 (1976), Brooks v. State, 2 Md. App. 291 (1967). And this was so regardless whether Owens or Scott fired the fatal shots. See Jackson v. State, 286 Md. 430 (1979), infra.

Owens and Scott Appellants Owens and Scott raise the following issues jointly: I. The trial court abused its discretion in refusing each appellant’s motion to sever.

II

The trial court erred in admitting into evidence the extrajudicial statements of the co-defendants; admission violated appellants’ Sixth Amendment constitutional right to confrontation (citing the so-called Bruton rule).

III

Each appellant’s extrajudicial statement should have been suppressed as it was obtained during a period of reasonable delay in violation of Maryland District Rule 723 a.

IV

The trial court erred in refusing appellants’ motions to dismiss for violation of Maryland Rule 746, as amended, and as interpreted by the Court of Appeals in State v. Hicks, 285 Md. 310 (1979). ⁷⁶ I. and II. As separate but interrelated allegations of error, both appellants contend that the trial court erred in refusing to grant their motion for severance, and in admitting their extrajudicial statements into evidence. Appellants object to the admission of the statements even though they concede that the statements were introduced only as evidence against the declarant, and that the trial court gave an appropriate cautionary instruction to the jury. To reiterate, each appellant maintained that the other committed the murder.

Their motions for severance were entered in an effort to avoid the impact of the introduction of both such statements at one trial. In this appeal they assert that the introduction of the statements violated their Sixth Amendment constitutional right to the confrontation of witnesses, as interpreted by the Supreme Court in Bruton v. United States, 391 U.S. 123 , 88 S. Ct. 1620 , 20 L. Ed. 2d 476 (1968). The State relies on Parker v. Randolph, 442 U.S. 62 , 99 S. Ct. 2132 , 60 L. Ed. 2d 713 (1979), as authority for its position that Bruton did not require reversal of a defendant’s conviction when the defendant himself confesses and his confession "interlocks with and supports” the confession of his co-defendant. But the Court’s opinion in Parker is so dissonant that we fail to see how it can be cited as authority for anything.

The case was argued before eight justices. Mr. Justice Rehnquist, speaking for a plurality of four justices, held that "admission of interlocking confessions with proper limiting instructions conforms to the requirements of the Sixth and Fourteenth Amendments to the United States Constitution.” The plurality held that Bruton is inapplicable, and that it does not require the reversal of a defendant’s conviction, when the defendant himself confesses and his confession "interlocks with and supports” the confession of his co-defendant. 442 U.S. 72 -75, 99 S. Ct. 2139 -40, 60 L. Ed. 2d 723 -24. In a separate opinion Mr. Justice Blackmun concurred with the plurality’s result, but only because he found the admission of the "interlocking” ⁷⁷ confessions to be "harmless error.” 442 U.S. 77 -81, 99 S. Ct. 2141 -43, 60 L. Ed. 2d 726 -28. He stated that, rather than find Bruton inapplicable, he would follow the Bruton analysis and then determine whether the error was harmless beyond a reasonable doubt.

Finally, Mr. Justice Stevens filed an opinion in dissent, which Justices Brennan and Marshall joined. 442 U.S. 81 -91, 99 S. Ct. 2143 -49, 60 L. Ed. 2d 728 -34. Essentially, he agreed with Mr. Justice Blackmun that the Bruton analysis should be retained, but he found the admissions in the case to have been clearly harmful. In response to this cacophony Judge Ridgely P. Melvin, Jr., speaking for this Court in Earhart v. State, 48 Md. App. 695 (1981), has stated: "In any event, until a majority of the Supreme Court makes up its mind in an opinion that affords us a binding precedent to follow, or until the Maryland Court of Appeals holds differently, we shall adopt the approach expressed by Justices Blackmun and Stevens in opposition to the Parker plurality view expressed by Justice Rehnquist. We do not think that the basic assumption of Bruton — that a jury cannot be expected to disregard an extrajudicial statement by a nontestifying codefendant that inculpates the defendant — is any less valid just because the defendant himself has also made an extrajudicial inculpatory statement.

In other words, we hold that the rule of Bruton is not rendered inapplicable to protect the constitutional confrontation right of a defendant who complains of the admission in evidence of an extrajudicial statement of a nontestifying codefendant that inculpates the defendant in a crime for which they are being jointly tried by a jury — simply because the defendant has himself made an inculpatory extrajudicial statement. In such a situation, the admission into evidence of the ⁷⁸ codefendant’s statement would be constitutional error and warrant reversal unless under all the circumstances it can be said that the error was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 (1967).” ( 48 Md. App. at 706-07 .) Accordingly we hold that admission of both Scott’s and Owens’s confession in this joint trial violated the Bruton rule. Having so ruled we face the question of whether the Bruton error was harmless beyond a reasonable doubt. As the State points out, the heart of appellants’ argument is that, by blaming each other for the shooting, each had erected a successful defense, if believed, to the felony-murder charge.

Appellants are mistaken in this. The Court of Appeals recently expressed the essence of the felony-murder doctrine in Jackson and Wells v. State, 286 Md. 430 (1979), when it wrote, at 441-42: "The basic premise is that '[a] person is only criminally liable for what he has caused, that is, there must be a causal relationship between his act and the harm sustained for which he is prosecuted.’ 1 Wharton’s Criminal Law § 68 (Anderson, 1957). But [i]t is not essential to the existence of a causal relationship that the ultimate harm which has resulted was foreseen or intended by the actor. It is sufficient that the ultimate harm is one which a reasonable man would foresee as being reasonably related to the acts of the defendant. ...

It is not necessary that the defendant personally inflict harm upon the victim. ... To constitute the cause of the harm, it is not necessary that the defendant’s act be the sole reason for the realization of the harm which has been sustained by the victim. The defendant does not cease to be responsible for his otherwise criminal conduct because there ⁷⁹ were other conditions which contributed to the same result.” |Id.] Clark and Marshall, A Treatise on the Law of Crimes, § 4.01, p. 209 (7th ed. (1967)), puts it this way: 'An accused is not responsible for the death of another, unless that fatal harm was caused by the defendant’s act or omission, or by the behavior of persons whose actions are attributable or chargeable to the defendant.’ Actual causation may be examined in terms of the sine qua non.

R. Perkins, Criminal Law 688 (2d ed. 1969). 'In order that conduct be the actual cause of a particular result it