Shotkosky v. State

Thompson, J., delivered the opinion of the Court. William Joseph Shotkosky, the appellant, was convicted of second-degree murder in a jury trial before Judge Solomon Liss in the Criminal Court of Baltimore and sen ⁴⁹⁴ tenced to a term of twenty-five years. On appeal he contends: (1) the trial court erred in denying his motion for a mistrial; (2) in not admitting expert testimony from a police officer; (3) in allowing the jury to consider first degree murder as a possible verdict; (4) in making a plain error in the instructions; and (5) in improperly excluding from the jury’s consideration a statement given by a defense witness. On Saturday, August 27, 1966, at approximately 11:30 A.M., Daniel Jerome Baker was found dead in his apartment by Harry E. Potts and Officer Edmund Welsh.

Inside the victim’s apartment the furnishings appeared normal without signs of a struggle or other violence. Baker’s body was found face down on the living room sofa fully clothed, but without shoes and socks. His hands had been taped at the wrists behind his back; his upper arms were bound by a robe belt; his feet were bound with shoelace-type string. A handkerchief had been put in his mouth, and the mouth taped closed with adhesive tape.

An electric cord was around his neck, the cord having been twisted tourniquet style about six turns. The victim’s wallet, containing six dollars and various cards but no driver’s license, was found apparently undisturbed in the victim’s pants pocket. The body had decomposed to a significant degree. Officer Welsh and Mr. Potts found $129. in the kitchen.

Detective Cousins, who arrived later, testified substantially the same as Potts and Welsh, saying fingerprints were taken in the apartment and, along with the other physical evidence, were turned over to the laboratory. No fingerprints were admitted in evidence. A search of the victim’s car parked nearby, yielded some miscellaneous articles and $121.42 in cash. On objection Cousins was not allowed to answer the cross-examination question of whether, in his opinion as an expert in homicide cases, this was a “professional” as opposed to “amateur” killing.

The body of the victim was removed to the morgue ⁴⁹⁵ where an autopsy was performed on Sunday, August 28, 1966 about 10:35 A.M. The description of the body at the time of the autopsy was substantially the same as that description given by Potts, Welsh and Cousins. The medical examiner testified that, except for the indentations on the neck, wrists and ankles from the ligatures, there were no marks of violence on the body, but the body was badly decomposed. Blood alcohol content was insignificant. No tests were done on the corpse for the presence of drugs.

The cause of death was given as strangulation by ligature (the tightly twisted electric cord) and the gag within the mouth. Time of death was set at 48 to 96 hours before the time of the autopsy. (Calculation would place the time of death at between 10:35 A.M. on Wednesday, August 24, 1966 and 10:35 A.M. on Friday, August 26, 1966). The medical examiner testified that the death was not a suicide.

Nancy Stokes, defendant’s niece, nineteen years old at the time of the crime, testified for the prosecution. After the crime but before trial, she married, and changed her name to Nancy Stokes Green. She stated she had known the defendant for some time since he was her uncle and that previous to her moving to Baltimore in 1960, she had spent summers with him and his family. Mrs. Green testified that she was raised by her grandparents living in a house owned by the defendant.

She testified her relationship with the defendant was a typical uncle-niece relationship, but the defendant seemed overly concerned about her male friends. Mrs. Green testified that she met the victim, Baker, in March, 1966, when he came to her grandparents house to demonstrate a camera her grandfather had won in a contest. After this initial meeting, she saw the victim approximately ten times between March and August, 1966, including the times the victim gave her a ride home from work. After the first meeting, the next time she saw the victim was approximately two weeks later when he called and came by to see her.

On the second date, the ⁴⁹⁶ victim told Nancy that he was 38 years old and had a divorce pending. She testified she never asked about his domestic situation nor' visited his apartment. She described her relationship with the victim as being merely friends, and most of their social contact consisted of rides home from her job, going to movies, or visiting friends. Mrs. Green denied the victim came to visit her while she was babysitting in other people’s homes, or that she secretly went out at night to meet him.

She testified her last meeting with him was on August 18, 1966, when he picked her up after she had worked late. They went to Sparrow’s Point for something to eat, and stopped to buy gas. While the victim was paying for the gas, he showed Nancy a photograph of herself that she had given him in April, 1966, at his request. Also at that time, she recalled seeing the victim’s then current Maryland driver’s license in his wallet with the photograph.

She testified the victim gave her a ride home, but let her off a block from the house so as to avoid family arguments over their being together. Mrs. Green testified that Mrs. Stokes, her grandmother with whom she was living, first protested the dating after the death of her husband (Mrs. Green’s grandfather) on May 1, 1966. By this time Nancy had gone out with the victim approximately four times and the victim had visited the house several times. She said her grandmother’s reasons for resisting her relationship with the victim were the victim’s age and marital status.

Even before her grandmother’s instructions not to date the victim, Mrs. Green avoided bringing the victim to her house if she knew that Mrs. Shotkosky, the defendant’s wife, was visiting since she feared arguments concerning her relationship with him. . It also appears from Mrs. Green’s testimony that there had been at least two conversations between herself and the defendant over her seeing the victim. The first of these conversations occurred on an unspecified day in 1966 when the defendant asked her if she would have ⁴⁹⁷ an affair with him like she was with the victim. Nancy-denied having such an affair with Baker.

The other protest by the defendant occurred at the time of the grandfather’s death on Sunday, May 1, 1966. On that day, the victim came by the grandmother’s house to express his regrets, saying that he had read of the death in the paper. At that time the victim and defendant met and conversed for the first time. On the Tuesday following the grandfather’s death, according to Nancy, the defendant stated that if Baker came to the grandfather’s funeral he would have the victim physically ejected.

Baker did not attend the funeral. After the funeral Nancy and her grandmother went to Oklahoma for a visit from early May to early July, 1966. The next time that Nancy saw the victim was in early July and four or five times thereafter. With this background, our attention is turned to Wednesday, August 24, 1966, the last day on which the victim was seen alive and one of the possible days for the homicide.

Nancy Green testified that on the evening of August 24, she and her grandmother, Mrs. Stokes, went to dinner at a neighbor’s house and returned home about 5:30 or 6:00 P.M. The defendant, his wife, and their two children were present at that time or arrived soon thereafter. At approximately 6:00 or 6:15 P.M. everyone except Nancy left the house together in the defendant’s car to investigate the possible sale of her grandfather’s car. The group returned approximately one half hour later. At about 7:1G P.M. the defendant left the house alone.

Nancy left the house approximately 7:30 and returned about 10:55 P.M. at which time Mrs. Shotkosky and the children were still waiting for the defendant’s return. On direct-examination Nancy stated she did not see the defendant after he left the grandmother’s house on Wednesday evening until Thursday morning. However, on cross-examination she stated that she saw him when he returned to the grandmother’s house at approximately ⁴⁹⁸ 12:50 A.M. on Thursday, August 25, 1966. Although they did not converse they were in the same room.

Nancy stated that the Shotkosky family left the grandmother’s house approximately 1:30 A.M. on Thursday morning, August 25,1966. After arising at approximately 7:30 A.M. on Thursday, August 25, Mrs. Green testified that she answered a knock at the door, and admitted the defendant into the house. She testified that the defendant requested that she awaken the grandmother to go babysit for the Shotkosky children; instead she returned to her bedroom and continued to iron a dress to wear that day, but the defendant came from the living room into the bedroom without knocking and stood beside her while she was ironing. In this position he said “These are what I took from a friend of yours.

Keep them for what they are worth.” Whereupon, he laid on the ironing board the same photograph of herself and current driver’s license of Daniel Jerome Baker that she had seen a week earlier in the victim’s wallet, and a membership card in a sunbathing association that she had not seen before. All three items were admitted in evidence. Nancy stated the defendant then told her she would not be going to work that day, she would not be dating Baker anymore and that she, Nancy Green, did not care whose heart she was breaking. Nancy further testified that the defendant laid a pistol on the ironing board, slapped her twice in the face, and grabbed her around the neck.

A struggle ensued starting in Nancy’s bedroom moving into the hallway outside her bedroom, and into her grandmother’s room across the hallway. During this struggle Nancy was able to extricate herself from the defendant’s grip and started to run into her grandmother’s room when defendant struck her on the head with the gun, causing her to be dazed but not unconscious. In this dazed state she saw the defendant with the gun fire two shots into Mrs. Stokes’ room. Both Nancy and her grandmother were shouting either in pain or fright, while Nancy saw the defendant leave from the grandmother’s room, into the ⁴⁹⁹ hallway where he tore the telephone out and then proceeded out the front door.

While Mrs. Stokes went next door to get help, Nancy returned to her own room where she put the three cards left by the defendant into her pocketbook. She was admitted to the hospital with a head cut requiring five stitches and a slight brain concussion. She did not see the defendant again until the time of trial. Mrs. Stokes became aware of the three cards when the hospital authorities turned over Nancy’s personal belongings to her.

On Friday, August 26, 1966, Mrs. Green spoke to the police in connection with an assault warrant sworn out by Mrs. Stokes against the defendant based on the incident of Thursday morning. During the discussion with the police, Mrs. Green stated that she told them about the three cards; the police officers told her to keep the cards and return them to their owner. Mrs. Green stated that she learned of Baker’s death on Sunday, August 28, 1966, at which time she turned the three cards over to the police. Margaret Stokes, the next witness for the State, is the grandmother of Nancy Stokes Green and the mother-in-law of the defendant.

Her testimony generally corroborated that of her granddaughter, but there were some additions and some minor variations. She testified in glowing terms what a wonderful son-in-law the defendant had been before these instances in 1966. Mrs, Stokes said the defendant was infatuated with Nancy. The source of this opinion being “the way he acted with Nancy and around Nancy.” She said that she spoke with the defendant about Nancy’s dating the victim approximately five or ten times and that she knew that the defendant did not like the victim, Mrs. Stokes testified there had been no notices in the Sunday paper about her husband’s death since he had died suddenly on Sunday afternoon, hence, the victim could not have read about the death in the Sunday paper prior to his sympathy visit.

As to the events of Wednesday, August 24, 1966, Mrs. Stokes testified Nancy was not at home when they re ⁵⁰⁰ turned from the family trip, and that Nancy returned approximately 11:00 P.M. and the defendant returned exactly at 1:00 A.M. on Thursday morning August 25, 1966, by which time Nancy Green had already gone to bed. Upon defendant’s return, Mrs. Stokes noticed that defendant was not wearing the same clothes that he had been wearing when he left the house earlier. When he left about 7:80 P.M., she claimed he was wearing gray slacks and a dress shirt, but when he returned about 1:00 A.M. he was wearing work pants and a plaid shirt. Mrs. Stokes testified that the defendant and his family left her house at approximately 1:30 or 1:40 A.M. on Thursday morning August 25,1966.

Mrs. Stokes said she was awakened Thursday morning, August 25, 1966, by Nancy screaming that the defendant was beating her. Mrs. Stokes said she saw defendant, with a gun pointed in her direction, fire two shots, both of them nearly hitting her. After the defendant left, Mrs. Stokes put ice on Nancy’s cut and got help from a neighbor to take her to the hospital. Mrs. Stokes testified she was given Nancy’s pocketbook at the hospital and she saw the driver’s license and sunbathing association card.

She stated she kept these cards until Sunday, August 28, 1966, at which time she turned them over to the police at the Essex Police Station. On Thursday afternoon, August 25, 1966, she swore out a' warrant for the arrest of the defendant on an assault charge based on the Thursday morning incidents. The State next called William Thomas Werneth, Jr., Who was eighteen years old at the time of the crime, and living directly below the apartment of the victim, Baker. Sometime between 9:00 and 11:00 P.M. on the evening of August 24, 1966, Werneth testified he heard someone knock on the victim’s apartment door and proceed up the stairs to the apartment.

He testified it sounded like two or three people were upstairs, with at least one walking around in hard-soled shoes. Lieutenant Thomas J. McKew testified for the State as ⁵⁰¹ to the extradition of defendant from St. Louis, Missouri in August, 1968. The defendant testified in his own defense, claiming he cared for Nancy Stokes Green only as he would any relative; and denied making any statement concerning ejecting Baker from the grandfather’s funeral. The defendant said that his opinions of the victim were based on reports from Mrs. Stokes and from his wife.

The defendant said he did not know the victim before meeting him on May 1, 1966, did not see him again, did not know where he lived, and had never visited the victim’s apartment. As to Wednesday, August 24, 1966, the defendant testified to substantially the same events as did Mrs. Stokes and Mrs. Green; however, the defendant cited different times for the various occurrences, claiming to have arrived at his own home at 12:15 A.M. He said he spent the rest of the night at home and did not leave again until the morning. As to the events of Thursday morning, August 25,1966, there is considerable difference between defendant’s account and that of Nancy Green. Defendant states he received a telephone call at home approximately 6:30 A.M. from Nancy requesting that he come immediately to the Stokes’ residence to discuss the victim and his