Tharp v. State

THIEME, Judge. Appellant Todd Tharp was convicted by a jury in the Circuit Court for Baltimore County of second degree murder and robbery with a dangerous or deadly weapon. Tharp appeals from his convictions and presents the following questions: 1. Did the trial judge err in refusing to give an instruction on the crime of accessory after the fact to murder? 2.

Did the trial judge err in refusing to grant relief after prohibiting defense counsel from observing a co-defendant’s trial as part of his preparation for Tharp’s trial? 3. Did the trial judge err by preventing defense counsel from cross-examining the accomplice on the fact that his attorney was in the courtroom during his testimony? 4. Was the evidence legally insufficient to sustain the convictions for armed robbery and robbery? We answer “no” to each of the questions.

Facts On March 28, 1997, at approximately 6:00 p.m., Baltimore County Police were dispatched to a wooded area near a pond in the vicinity of Route 40 and Jones Road. There they found the dead body of Michael Keller. An Assistant Medical Examiner performed an autopsy the next day; she testified that Keller sustained nine stab wounds to the back. One stab wound went completely through his left lung; another went through his right lung.

A stab wound to the front struck Keller’s heart and cut the aorta. A fourth wound went through Keller’s diaphragm and damaged his liver. Any of these wounds by itself would have caused death within two minutes; in combination they killed Keller in less than one minute. The medical examiner also testified that Keller sustained a one-inch deep cut to his throat; Keller was alive when that non-fatal wound was inflicted. ³²⁶ Testimony at trial revealed that three individuals were involved in Keller’s killing: Tharp, Keith Sellers, and William Minton.

Minton testified for the State pursuant to a plea bargain, wherein he would plead guilty to second degree murder and the State would drop the first degree murder charge and recommend a thirty-year sentence. At trial, Minton described Tharp and himself as “really close friends.” At age 25, Tharp was five years older than Minton and “like an older brother to” him. Minton met Sellers just days before the murder of Keller and had not met Keller before that day. According to Minton’s testimony, Tharp and Sellers came to Minton’s house on March 25, 1997.

Sellers said he wanted to inflict a severe beating on Keller, his roommate, because Keller had been stealing from him and had not been contributing money toward rent or food. Sellers asked Minton to help him. Minton’s understanding was that Keller would be taken to Delaware, where Tharp, Minton, and Sellers would assault him, take his money, and then leave him. They decided to move the location of the assault closer to home when Tharp and Sellers were paid by their employer later than expected. 1 On March 27 th, Tharp and Minton examined the area near Jones Road and found it suitable for their attack on Keller.

Minton further testified that later that night, after Sellers told Keller about a party at Jones Field, Tharp, Minton, and Sellers took Keller to the Jones Road area. All four individuals walked down a dirt road to a pond. According to Minton’s account of the incident, Minton was knocked over by Sellers, who had Keller in a bear hug. Sellers quickly had Keller face-down on the ground and was trying to handcuff his hands behind his back.

Tharp stood by watching, even though Sellers asked for help. In response to Sellers’s explanation for the attack, Keller said he would pay the money he owed. Sellers said it was too late. At that point, Tharp kicked Keller ³²⁷ in the ribs and the groin.

Sellers kicked Keller in the face, head, and ribs and stomped on his back. Minton himself kicked Keller in the ribs, shoulder blade, and hip. Minton then claimed to have a sprained ankle and walked five to twenty feet away; he remained there with his back to the others. Minton heard Tharp, sounding startled and upset, say, “What the [f — ] are you doing — are you crazy?” Minton turned around and saw Sellers stab Keller three times in the back.

Minton testified that he turned away and refused to look again, though he “heard the stabbing continue ... [ajbout six or seven more times.” When Sellers asked Tharp to help him roll Keller over, Tharp refused and said, “Can’t you just leave him alone? Haven’t you done enough?” Minton heard stomping and kicking noises. Tharp then walked up to Minton and whispered, “Let’s go.” They tried to leave before Sellers noticed, but Sellers caught up with them. When the three were in the car, Minton noticed Sellers with Keller’s necklace.

The next day, Sellers said he had taken Keller’s identification and left a crack vial and heroin or a similar substance on Keller’s person so that the murder would appear drug-related. Christina Torres, Tharp’s girlfriend in March of 1997, also testified at the trial. She testified that on March 26th Tharp told her that after they got paid the next day, Tharp was going to drive Sellers and Keller into Delaware, where Sellers would kill Keller. Because they did not get paid the next day, however, the plan was changed to eliminate the drive to Delaware.

According to Ms. Torres’s testimony, Tharp said Keller was taken to a secluded spot in Maryland where Tharp “double-punched” him in the chest and slit his throat, Minton kicked him, and Sellers handcuffed, beat, and stabbed him. Detective Jay Landsman took a statement from Tharp on the evening of March 29, 1997. According to that statement, as related by the detective, Tharp drove down Route 40 on the previous night with Sellers and Keller in his car. Sellers asked Tharp to pull over.

When Tharp pulled over, Sellers and Keller got out of the car. Sellers told Tharp to “swing ³²⁸ back.” Sellers and Keller then ran across Route 40, and “[a]ppellant drove to White Marsh Mall.” He returned about an hour later. Seeing Sellers alone, Tharp asked, “[WJhere is Mike?” Sellers said he was still in the woods and then entered Tharp’s car. Tharp said he first learned of Keller’s death from a Channel 13 news story he heard on the night of the murder.

On the afternoon of March 31st, Landsman and two other officers arrested Tharp at his place of employment, the European Bus Company. 2 After Landsman read Tharp the Miranda warnings, Tharp asked if he needed a lawyer. Landsman responded that that was up to Tharp. During the ride to the station house, Tharp said to the officer that he would “tell [him] everything.” Eventually, Tharp offered to show the officers where the knives were. He directed them to some woods behind a K-Mart store, where he had disposed of the knives and various other items the day after the incident.

Among the items Tharp located for the officers were two knives and handcuffs used in the assault. Later, at police headquarters, Tharp was re-advised of his rights and waived them. He then gave a statement in which he explained that Sellers induced Keller to accompany himself (Sellers), Minton, and Tharp to a party. In the lengthy statement, Tharp described the attack in detail, stating, “I just wanted to put [Keller] out of his misery, so I cut his throat.” Tharp said that the day after the attack, when he vacuumed his car, he found Keller’s necklace and gave it to Sellers.

Throughout the trial, Tharp maintained that he believed Sellers only intended to fight Keller, not to kill him. Tharp testified that Sellers did not begin to stab Keller until after Tharp had walked about twelve feet away, and that eventually he screamed at Sellers to cease the stabbing. Moreover, Tharp said that he did not stab Keller’s neck to “put him out of his misery,” but because he was yielding to Sellers’s commands to “do something.” Tharp testified that he believed ³²⁹ Keller was already dead when he stabbed his neck because Keller was not moving and had been stabbed many times. Discussion I. Jury Instruction on Accessory After the Fact, to Murder The Court of Appeals has held that “the standard of review for jury instructions is that so long as the law is fairly covered by the jury instructions, reviewing courts should not disturb them.” Farley v. Allstate, 355 Md. 34, 46, 733 A.2d 1014 (1999) (citing Jacobson v. Julian, 246 Md. 549, 561 , 229 A.2d 108 (1967)).

Accordingly, Md. Rule 2-520, “Instructions to the jury,” states in pertinent part: (c) How given. The Court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instructions on its own, or by combining any of these methods. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given. See also Myers v. Estate of Alessi, 80 Md.App. 124, 132 , 560 A.2d 59 , cert. denied, 317 Md. 640 , 566 A.2d 101 (1989) (“It is firmly established that under Md. Rule 2-520(c) a trial judge is not obligated to give a requested instruction if the matter is fairly covered in the instructions actually given.”).

In reviewing the propriety of the court’s refusal to give a requested jury instruction, we must examine “whether the requested instruction was a correct exposition of the law, whether that law was applicable in light of the evidence before the jury, and finally whether the substance of the requested instruction was fairly covered by the instruction actually given.” Farley, 355 Md. at 47 , 733 A.2d 1014 (citing Wegad v. Howard Street Jewelers, 326 Md. 409, 414 , 605 A.2d 123 (1992)). The burden is on the complaining party to show both prejudice and error. Farley, 355 Md. at 47 , 733 A.2d 1014 (citing Harris v. David S. Harris, P.A, 310 Md. 310, 319 , 529 A.2d 356 (1987)). In this case, defense counsel asked the trial court to instruct the jury on the crime of accessory after the fact to ³³⁰ murder.

The request was not granted, and Tharp contends on appeal that denying the request was error. We disagree. Under Maryland Rule 4-325(c), a trial judge shall, at the request of a party, “instruct the jury as to the applicable law.” The rule imposes a duty on the court to instruct on any crime “so long as it [i]s a permissible verdict generated by the evidence.” Dishman v. State, 352 Md. 279, 292 , 721 A.2d 699 (1998). A verdict as to a particular crime is permissible if it was charged by the State.

See Dishman, 352 Md. at 292 , 721 A.2d 699 (citing Ball v. State, 347 Md. 156, 190 , 699 A.2d 1170 (1997) (observing that Md. Rule 4-325(c) applies to a request to instruct on charged offenses but does not apply to a trial court’s refusal to instruct on uncharged offenses)). Thus, our inquiry centers on whether the State charged Tharp as an accessory after the fact. In this case, the State charged Tharp with murder using the statutory short-form set forth in the Maryland Code, which essentially relaxed the formal requirements for an indictment in homicide cases. Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 616.

The statute provides: In any indictment for murder or manslaughter, or for being an accessory thereto, it shall not be necessary to set forth the manner or means of death. It shall be sufficient to use a formula substantially to the following effect: That A.B., on the ..... day of ..... nineteen hundred and ....., at the county aforesaid, feloniously (wilfully and of deliberately premeditated malice aforethought) did kill (and murder) C.D. against the peace, government and dignity of the State. The Court of Appeals held in State v. Williamson, 282 Md. 100, 110 , 382 A.2d 588 (1978), sentence vacated, 284 Md. 212 , 395 A.2d 496 (1979), that the use of the short-form indictment was sufficient to charge Williamson with being an accessory before the fact to her husband’s murder. Tharp argues that the Court of Appeals, in its recent opinion in Dishman, 352 Md. at 292 , 721 A.2d 699 , concluded without holding in the ease before it that a § 616 indictment also ³³¹ charges accessory after the fact to murder.

We find that Tharp’s contention misconstrues the Court’s analysis in Dishman . In the Dishman case, the State charged Dishman with murder using the short-form indictment. The Court held that Dishman was then also charged with manslaughter, notwithstanding inclusion of the terms “deliberately” and “premeditated” in the indictment. 352 Md. at 287, 290 , 721 A.2d 699 . Accordingly, and because the evidence generated an issue of manslaughter, the trial court erred in refusing to propound a requested manslaughter instruction.

Id. at 294-302 , 721 A.2d 699 . The Court noted that, “[ajlthough we do not address accessoryship in this appeal,” the analysis would be the same for “the charge of being an accessory to murder.” Id. at 290 , 721 A.2d 699 . The Court then cited Williamson, acknowledging in a parenthetical note that the issue in Williamson was accessory before the fact. The Court concluded that in Dishman the short-form indictment charged the defendant with first and second degree murder, manslaughter, and “with being an accessory to murder.” We find that Dishman , in which the Court expressly declined to address the accessory after the fact issue, does not establish that the short-form indictment includes an accessory after the fact charge.

Indeed, the Court explicitly rejected such an argument, in dicta, in Osborne v. State, 304 Md. 323, 336 , 499 A.2d 170 (1985). The Court explained: The State asserts that an accessory after the fact need not be specifically charged with that offense. In State v. Williamson, ... we held that an accessory before the fact need not be named as such in an indictment. The Court reasoned that because the “distinction between accessories before the fact and principals continually grows more illusory,” it is no longer necessary to require that one be specifically charged as accessory before the fact in an indictment.

The rationale in Williamson does not hold true for accessoryship after the fact. As previously noted, accessoryship ³³² after the fact is a distinct offense, separate from the principal crime. Id. at 336, 499 A.2d 170 . As the State points out in its brief to this Court, “[t]he dicta in Osborne , that a short form indictment as set forth in Section 616 charges accessory before the fact to murder, but not accessory after the fact, finds abundant support in treatises considering the question.” For example, Wharton’s The Law of Homicide states: And the offense of an accessory after the fact in homicide being distinctively his own, and not that of his principal, a charge of homicide does not include the offense of an accessory after the fact, even under statutes abolishing'the distinction between principals and accessories; and a person indicted for homicide cannot be convicted of being an accessory after the fact.

Francis Wharton, The Law of Homicide § 68, at 86 (Frank H. Bowlby ed., 3d ed.1907). Similarly, Professor LaFave explained: This development whereby the accessory after the fact is dealt with in a distinct way is a most appropriate one and does not conflict at all with the modem tendency to abolish the distinctions between principals in the first degree, principals in the second degree, and accessories before the fact. The later three types of offenders have all played a part in the commission of the crime and are quite appropriately held accountable for its commission. The accessory after the fact, on the other hand, had no part in causing the crime; his offense is instead that of interfering with the processes of justice and is best dealt with in those terms. 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 6.9, at 170 (1986) (footnote omitted). 3 ³³³ We find that the State did not charge Tharp as an accessory after the fact in the short-form indictment.

Therefore, a verdict on that crime would not have been permissible. As the requested instruction was not a correct exposition of the law as applied in this case, the trial court did not err in refusing to instruct the jury as to accessory after the fact. See Farley, 355 Md. at 47 , 733 A.2d 1014 ; Dishman, 352 Md. at 292 , 721 A.2d 699 ; Ball, 347 Md. at 190 , 699 A.2d 1170 .

II

Exclusion Order Tharp next argues that the court erred in denying him relief in the form of a dismissal or a new trial after prohibiting defense counsel from observing co-defendant Sellers’s trial approximately one year earlier. 4 Tharp contends that sequestering defense counsel during Sellers’s trial hampered counsel’s trial preparation in Tharp’s case, and thus violated fundamental fairness and due process of law. We disagree. Sellers listed Tharp’s attorney, Edward Barry, as a potential defense witness in his trial. Sellers’s attorney, Mr. Santini, moved for sequestration of witnesses, but excepted Mr. Barry from the motion.

The court left the decision to the prosecutor, Mr. Meyer, 5 as to whether or not Mr. Barry would be allowed to attend Sellers’s trial. Mr. Meyer did not want Mr. Barry present; accordingly, the court ordered him to leave the courtroom. The next day, Mr. Barry asked the court to reconsider the exclusion order. The court again declined to permit Mr. Barry to be present in the courtroom.

In the alternative, Mr. Barry requested an order allowing him to depose those witnesses who testified in the Sellers case and would later testify in Tharp’s case. He argued that this would give him the pretrial benefit of seeing and hearing those witnesses testify, an opportunity he otherwise would not have in light of the exclusion order. This request was denied. ³³⁴ After unsuccessfully arguing in the Sellers case that he should not be sequestered, Mr. Barry raised the issue in a pretrial motion in Tharp’s case. First, Mr. Barry moved to dismiss the charges against Tharp.

The court denied the motion. In the alternative, Mr. Barry requested that he be permitted to depose the witnesses who testified in the Sellers case and would be called by the State to testify against Tharp in this case. The court denied this request as well. On appeal, Tharp argues that dismissal “is the most appropriate remedy” because “the defense cannot recover what it was denied and the State provided, an opportunity to view the witness’ initial testimony.” As an alternative remedy on appeal, Tharp contends that “[a] retrial is necessary so that counsel may avail himself of the opportunity for trial preparation that was available to the State.” Specifically, Tharp argues that because Mr. Barry was not given a chance to observe the witnesses in Sellers’s trial “under deposition and then [to] utilize the information obtained” in Tharp’s trial, a retrial is warranted.

Significantly, the only information this Court has regarding the sequestration order in Sellers’s case is contained in the written transcript of the pretrial motions argument in this case. During that argument, Mr. Barry described in detail the circumstances surrounding the sequestration order. It is the parties’ and the court’s collective recollection of those circumstances that we set forth and rely on in this opinion. During argument on the pretrial motion to dismiss, the following discussion ensued: MR.

BARRY: ... The Court will recall that this is the second trial in this matter. The first trial — this is the first trial of Mr. Tharp — Codefendant, Mr. Sellers, was tried approximately a year ago. [A]t that time after the jury was selected, I attempted to sit in the courtroom to observe the witnesses and listen to the testimony. Mr. Santini, representing Mr. Sellers, had included my name among the potential witnesses in the case.

That was so because it was his intention to call Mr. Tharp and have Mr. Tharp either testify or elect to take the ³³⁵ Fifth Amendment and elect not to testify ... On behalf of the Defendant in that case, Mr. Sellers, it was anticipated that I would be standing there with Mr. Tharp at that time as his lawyer. It was known by everyone concerned that I had absolutely no knowledge, no firsthand knowledge, no factual knowledge about the case. That I would be there and present only as Mr. Tharp’s attorney in the matter.

Since I was listed in the matter, when the trial was prepared to commence[,] one of the attorneys, I believe, was Mr. Santini, made a Motion to Sequester. All witnesses were sequestered. Your Honor instructed me that I should leave, as well. I attempted to question that and indicate that I, uhm, was not a participant in the trial.

Your Honor indicated that since I was on the witness list that I must leave. Mr. Santini then indicated that that would not be necessary, as far as the Defense was concerned. Your Honor said, well, then, it’s up to Mr. Meyer [the prosecutor], whether he wants to have you present or not. Mr. Meyer said he’s on the witness list; he, we do not excuse him from that, at which time your Honor ordered me to leave without permitting me to be heard on the question.

The following day I was present in chambers with your Honor ... At that time I asked the Court — I don’t remember if I did it myself or if Mr. Santini asked your Honor to reconsider the order excluding me from the courtroom. Uhm, your Honor indicated that so long as the State was continuing to object to my presence that I would not be permitted to sit in the courtroom, and your Honor asked Mr. Meyer if he was still objecting. Mr. Meyer at that time said, and I, if this isn’t a direct quote, it’s very close, he indicated, Trials are a chess game.

Checkmate. Now, I’m not sure I know what that means, but I took that to mean that he had the upper hand; it was his decision it was not going to do anything ... to jeopardize his case ... and in his opportunity to get a conviction against Mr. Tharp. He also said, as part of that same discussion, that Mr. Tharp’s trial was coming up. That there would certainly be an advantage to my being in court.

Then he said that bit about it’s a chess game. ³³⁶ Your Honor, that’s the wrong reason to exclude someone from the courtroom.... I agree with Mr. Meyer that there was a great strategic advantage to the State in Mr. Tharp’s trial to exclude me from Mr. Sellers’[s] trial. Now, I could get a transcript and, in fact, I did, but there’s a lot more that goes on in that trial than can be covered in a transcript — there’s, there’s how someone testifies, body language, credibility, those sorts of things. ... [Tjhere may be some disagreement about exactly what was said and, so, for all of those reasons, I think that there is a great disadvantage that came to Mr. Tharp because I was excluded from the courtroom, and I think I was excluded for the wrong reason. If it had been a question about a fair trial for Mr. Sellers I think this Court would have been required to do what it did and exclude me from the courtroom.

But when the reasons for excluding me is to gain strategic advantage in this case which was coming up sometime in the future, that’s the wrong reason. I would submit that it is prosecutorial misconduct and I would make a Motion to Dismiss at this time. Mr. Meyer, the prosecutor, then responded. He stated that he wanted Mr. Barry sequestered in the Sellers case because Mr. Barry “was on the defense witness list.” While Mr. Meyer admitted that “we really didn’t know why he was on the list,” he also indicated that “there was a long line of witnesses called by the Defense so it wouldn’t have really surprised me if the Defense called Mr., tried to call Mr. Barry for some obscure reason.” Thus, while acknowledging that the decision was partially tactical, the State maintained that Mr. Barry was excluded “in the case against Mr. Sellers” rather than in consideration of the case against Tharp. 6