Thomas v. State

KARWACKI, Judge. Terry Steven Thomas, the appellant, was convicted by a jury in the Circuit Court for Howard County (Nissel, J. presiding), of the first degree murder of Dwayne Matthews, the use of a handgun in the commission of that crime of violence, and conspiracy to rob Dwayne Matthews. For the murder he was sentenced to life imprisonment. A ten year consecutive sentence was imposed on the handgun charge, and a concurrent ten year sentence ordered on the conspiracy conviction.

Dwayne Matthews was a dealer in marijuana and cocaine. On January 5, 1984, Officer Joseph Johnson of the Howard County Police Department responded to a call about a shooting at Matthew’s apartment. Officer Johnson found the apartment in disarray. He discovered Matthews’s body in the bedroom, lying face down on the bed.

Matthews’s hands had been tied behind his back and he had been shot in the back of the head. Two women and one man were ³⁴⁰ outside the apartment. Officer Johnson testified that the man, Dexter Marshall, was visibly upset. Dexter Marshall testified that he knew the victim very well.

He also stated that he knew Ricky Reese and that Reese and he had occasionally visited the victim’s apartment together. Marshall had been at the victim’s apartment on the evening of January 4, 1984 with Reese, a cousin of the appellant. The next morning, Marshall returned to the apartment and discovered the victim’s body. When questioned by defense counsel about his suspected involvement in a drug operation with the victim, Marshall exercised his Fifth Amendment right and refused to answer.

Defense counsel further attempted to question Marshall about an alleged argument with the victim on January 4th, the subject of which was the drug operation. Marshall again refused to answer, although on redirect he denied having an argument with the victim. On the evening of January 4, 1984, the victim had been conducting the sale of drugs with the assistance of a man named Giovani Pickett. Pickett testified that on that evening Marshall and the victim had had a disagreement about drug sales.

Nathan Lee, another friend of the victim, had also been in the apartment on January 4th. He testified that although he had never seen the appellant with the victim, he had seen the appellant with Ricky Reese. Lee had seen Reese in the victim’s apartment on occasion. Lee also refused to answer any questions on cross-examination concerning his alleged involvement in a drug dealing operation with Dexter Marshall and the victim.

In January of 1984 the Prince George’s County Police received information from an informant about Matthews’s death. The police were told that three men were involved, one of whom was named Angelo Johnson. The informant also implicated the appellant as the man who actually shot the victim. Angelo Johnson testified at trial pursuant to a plea agreement with the State. ³⁴¹ According to Johnson’s testimony, on January 4, 1984, he and the appellant were discussing ways to raise money when the appellant suggested a “hustle.” Johnson drove the appellant to the appellant’s apartment, where the appellant got a shotgun and placed it in the trunk of Johnson’s car.

The two men then drove to Laurel to pick up Ricky Reese. According to Johnson, as he drove the car, following directions given by the appellant, Reese described a cocaine buy for $27,000.00 which was to take place at the victim’s apartment that night. Reese described the victim’s apartment and the location of guns and money. Johnson testified that the appellant said to Reese, “I’m going to have to take him out.” Johnson stated that when they arrived at the apartment complex, Reese got out of the car to check Matthews’s apartment, and when he returned, said that he thought Matthews was at home.

Reese and the appellant then went into the building, leaving Johnson in the car. Ten or fifteen minutes later, Reese returned to the car and said that the appellant was still in the victim’s apartment. A short time later, Johnson and Reese went to the door of the apartment, through which they could hear the victim pleading with the appellant. The appellant opened the door to the apartment, and Johnson and Reese then proceeded to remove a number of items from the apartment.

Johnson testified that he saw the appellant with a gun in his hand, forcing Matthews into the bathroom. Johnson and Reese then returned to the car to wait for the appellant. After fifteen minutes, the appellant returned to the car carrying a stereo speaker. Johnson then drove away.

Johnson testified that the appellant asked him to stop the car so that he could check a gun. The appellant said to Johnson, “I had to off him.” He told Johnson that he thought a bullet might have stuck in the gun and he wanted to check it, and that if a bullet had stuck in the gun, “he would have to go back and finish the job.” According to Johnson, the appellant found no bullets in the gun. ³⁴² Upon their return to the appellant’s apartment, the three men divided the items taken from the victim’s apartment. Johnson took his share, which included a jacket and a telephone, home with him. A number of the other items were found in the appellant’s apartment.

Angelo Johnson’s wife, Victoria, testified that after hearing about the murder on the news, she asked the appellant, “How could you kill somebody like that”? to which the appellant replied, “It was nothing to it,” and “It’s done professionally.” She further testified that the appellant had called her from the detention center and told her to change her story. The appellant elected not to testify on his own behalf. He now challenges his convictions on four grounds: I. The trial court erred in denying his motion to strike the testimony of Dexter Marshall and Nathan Lee, after they refused to answer questions relating to drug dealings with Dwayne Matthews; II. The trial court erred in allowing Angelo Johnson to testify concerning comments made by Ricky Reese when he returned from checking Dwayne Matthews’ apartment; III.

The testimony of Angelo Johnson, an accomplice in the offense with which the appellant was charged, was not sufficiently corroborated and the evidence adduced at trial was therefore insufficient to support the appellant’s convictions; and IV. During her opening statement, the prosecutor improperly referred to proposed testimony from Wanda Kenner, who was not called to testify at trial. We have determined that none of these contentions merit reversal, and therefore we affirm the appellant’s convictions. I. The appellant challenges the trial judge’s denial of his motion to strike the testimony of two witnesses who ³⁴³ invoked their Fifth Amendment privilege against self-incrimination.

This motion was made by defense counsel during the cross-examination of Marshall. At that time counsel requested not only that Marshall’s testimony be stricken, but that the testimony of Nathan Lee, who had testified on the previous court day, should likewise be stricken from the record. Although the appellant by his motion to strike has preserved for our review the propriety of the trial court’s denial of that motion in so much as it affected Marshall’s testimony, his motion to strike the testimony of Nathan Lee was untimely. The appellant has therefore waived his right to have us consider that aspect of this issue on appeal.

Maryland Rule 1085. With respect to the trial court’s denial of the appellant’s request to strike Marshall’s testimony, we see no cause to disturb that ruling, since: (1) the trial judge correctly determined that Marshall properly invoked and did not waive his privilege; (2) the judge restricted Marshall’s assertion of the privilege to incriminating questions; and (3) the privileged testimony related to collateral matters, so that the appellant was not denied his Sixth Amendment right to confront the witnesses against him. The United States Supreme Court has provided guidance in determining when the Fifth Amendment privilege may be properly invoked by a witness. The Supreme Court said in Hoffman v. United States, 341 U.S. 479, 487 , 71 S.Ct. 814, 818 , 95 L.Ed. 1118 (1951): The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.

But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish ³⁴⁴ the hazard of incrimination. It is for the court to say whether his silence is justified, and to require him to answer if “it clearly appears to the court that he is mistaken.” (Citations omitted). In Richardson v. State, 285 Md. 261, 265 , 401 A.2d 1021 (1979), the Court of Appeals outlined the appropriate procedure to be followed in those situations where a witness desires to invoke the privilege.

The Court of Appeals stated: Our predecessors clearly set forth in numerous cases the procedures to be followed in determining when a witness may refuse to testify on grounds that the evidence adduced may incriminate him. The witness should first be called to the stand and sworn. Midgett v. State, 223 Md. 282, 289 , 164 A.2d 526 (1960), cert. denied, 365 U.S. 853 , 81 S.Ct. 819 , 5 L.Ed.2d 817 (1961). Interrogation of the witness should then proceed to the point where he asserts his privilege against self-incrimination as a ground for not answering a question.

Shifflett v. State, 245 Md. 169, 173-74 , 225 A.2d 440, 443 (1967). If it is a jury case, the jury should then be dismissed and the trial judge should attempt to “determine whether the claim of privilege is in good faith or lacks any reasonable basis.” Midgett v. State, supra, 223 Md. at 289 [ 164 A.2d 526 ]. If further interrogation is pursued, then the witness should either answer the questions asked or assert his privilege, making this decision on a question by question basis. Royal v. State, 236 Md. 443, 447 , 204 A.2d 500, 502 (1964).

There may occur those instances, however, when a proper invocation of the Fifth Amendment privilege runs afoul of a defendant’s Sixth Amendment right to cross-examine the State’s witnesses. See Douglas v. Alabama, 380 U.S. 415 , 85 S.Ct. 1074 , 13 L.Ed.2d 934 (1965). The test for determining when the Fifth Amendment privilege yields to the Sixth ³⁴⁵ Amendment right to confrontation was well articulated in United States v. Cardillo, 316 F.2d 606 (2d Cir. 1963), cert. denied, 375 U.S. 822 , 84 S.Ct. 60 , 11 L.Ed.2d 55 (1963): Since the right to cross-examine