Timney v. State

GARRITY, Judge. The appellant, David Chalmer Timney, was convicted by a jury in the Circuit Court for Garrett County (Thayer, J., presiding) of conspiracy to escape and subsequently sentenced to ten years consecutive to a sentence he was ³⁵⁹ already serving. He presents the following issues for our review: I. Whether the trial judge erred in admitting into evidence documents seized from a co-conspirator’s cell.

II

Whether the trial judge erred in admitting testimony relating to the appellant’s motive and intent.

III

Whether the trial judge’s cautionary instructions concerning evidence of motive and intent were adequate.

IV

Whether the evidence was sufficient to support the appellant’s conviction for conspiracy to escape. V. Whether the trial judge properly denied the appellant’s motion to dismiss the conspiracy counts.

VI

Whether the trial judge abused his discretion in sentencing the appellant to a term of ten years. Facts On or about December 17, 1987, James Richard Farris, an inmate at the Washington County Detention Center, overheard the appellant tell another prisoner that he was going to escape from the detention center aided by an unnamed individual. On December 28, 1987, the appellant and Farris engaged in a discussion with two other inmates, Roger Sills and Jack Richardson, in which the appellant asked Farris if he was interested in joining the others in an escape. The plan at that time involved the appellant having an unnamed acquaintance outside the institution seize a school bus carrying children and hold the children as ransom for the release of detention center inmates.

Farris reported the conversation to Detective Richard Johnson of the Hagerstown Police Department, who told him to continue to find out what he could about the escape plan. At some point between December 28 and 26, 1987, an alternative plan was discussed by the appellant, Farris, Sills, and Richardson. This involved kidnapping Washing* ton County State’s Attorney Kenneth Long and his wife and children. The parties agreed that their ultimate destination ³⁶⁰ would be Mexico, and discussed different routes of travel.

The group decided on a New Year’s Eve departure date, their theory being that fewer guards would be on duty at that time. An alternative method of escape was discussed, involving having someone outside the institution cut a fence. The appellant inquired of Farris whether he knew of someone who could supply the group with weapons or help his acquaintance on the outside “pull off” the escape. On December 26 Farris relayed to the authorities that the appellant and “old man Jack” (Jack Richardson) had people outside the institution to assist them in their escape attempt but were still in need of a driver.

Farris learned that the appellant’s connections on the outside were named Mankins and “Rambo,” the latter nickname attributed to the appellant’s co-defendant in the case, David Alan Goggin. The police established an investigative plan whereby Detective Johnson passed to Farris the name and number of “Charlie,” Farris being instructed to tell the appellant that “Charlie” was interested in acting as a driver for purposes of the escape. “Charlie” was in reality Corporal Charles Poole of the Maryland State Police Criminal Enforcement Division, Special Assignment Unit. Farris relayed the information to the appellant on December 27, 1987, after which the appellant advised Farris that the appellant and his acquaintance on the outside would “take care of setting everything up” regarding the escape. Co-defendant Goggin eventually contacted Corporal Poole and requested that Poole supply him with a gun, a car, and money.

At some point near Christmas Day, 1987, the appellant told his long-time friend Mary Oster that he was “getting out” and offered to pay her husband $1,000.00 to take him to New Mexico. He also requested that she bring whatever firearms she had in her home to an unspecified location in Hagerstown. In the same telephone conversation the appellant asked Oster’s husband, Roger, to bring a pair of wirecutters so that he could break out of jail. ³⁶¹ Some time between December 26 and 30, 1987 co-defendant Goggin asked an acquaintance, Cynthia Shank, with whom he was temporarily staying, to relay the phone number of their apartment to a mutual friend, Woodrow Stoddard, then also incarcerated at the Washington County Detention Center. Goggin instructed her to tell Stoddard to pass on the phone number to the appellant.

Additional facts shall be discussed infra as necessary to resolve each of the appellant’s contentions. I. On December 30, 1987, a deputy at the Washington County Detention Center searched the cell of co-conspirator Jack Richardson and found several sheets of paper on which were written immigration and geographical information about Mexico, one map of Mexico and one map showing routes to Mexico from several American cities. 1 Portions of the documents seized from Richardson’s cell read: Before entering Mexico you need a Mexican tourist card which is free. Tourists cards are available at the border crossing or your travel agent or airline. You have to demonstrate you’re an American or Canadian citizen.

A passport, birth certificate, voting card or naturalization papers are all you will need. The tourist card allows you up to 180 days in Mexico. sjc * # :{« * * You can apply for permanent resident immigrado status at any Mexican consulate in the U.S. or the immigration office in Mexico City. The permit can be issued to any foreigner meeting certain requirements having a permanent income ... This permit is issued on a temporary basis but becomes permanent after five years.

The permit must be renewed annually for the first five years. After that a permanent immigration status is granted---- ³⁶² It is a good idea to exchange your dollars to pesos only on an “as needed” basis. In a pre-trial motions hearing, the appellant objected to the introduction of these documents, characterizing them as statements of a co-conspirator and arguing that, as Richardson was unavailable to be called as a witness and cross-examined, the appellant’s right of confrontation was violated. 2 The trial judge denied the appellant’s motion in limine, stating that the appellant could have subpoenaed Richardson himself and could have sought a continuance to do so. The appellant’s objection was renewed at trial and again denied.

That denial is the basis for the appellant’s first allegation of error. 3 We do not accept the appellant’s labeling of the documents as hearsay statements of Richardson. The notes found in Richardson’s cell represented tangible evidence, arguably of an act by Richardson in furtherance of the conspiracy to escape, and were entitled to whatever weight the trier of fact was disposed to give them. The State proposes an apt analogy between the notes above and tickets to Mexico, which would unquestionably represent admissible evidence as part of the corpus delecti of the crime. See Gray v. State, 53 Md.App. 699, 712 , 456 A.2d 1290 (1983).

We hold the documents found in Richardson’s cell were properly admitted into evidence. ³⁶³ II. During the appellant’s trial two witnesses for the State testified to requests made by the appellant for hacksaw blades and a gun. Michael Muir testified that sometime in October or November, 1987, the appellant asked him to deliver a silver pistol and hacksaw blades to “some girl in town.” Witness Mary Ann Timney, the appellant’s niece, testified that in October, 1987, the appellant asked her to deliver hacksaw blades to the Washington County Detention Center. At a pre-trial hearing on the appellant’s motion in limine and at trial the appellant objected to this testimony, labeling it inadmissible evidence of other crimes or “bad acts.” The trial court allowed the testimony as relating to the appellant’s motive and intent to leave the detention center.

The appellant assigns this as error, arguing that the evidence admitted was more prejudicial than probative. Generally, evidence of prior crimes or bad acts independent of that for which a defendant is on trial is irrelevant and inadmissible; Ross v. State, 276 Md. 664, 669 , 350 A.2d 680 (1976); however, there are numerous well recognized exceptions to this rule. Id. Such evidence may be admitted when it tends to establish motive, intent, absence of mistake, a common scheme or plan, identity, opportunity, preparation, knowledge or accident.

Id. at 669, 670-71 , 350 A.2d 680 ; State v. Faulkner, 314 Md. 630, 634 , 552 A.2d 896 (1989). To protect the defendant from unfair prejudice, however, the court in Faulkner set forth a three-step process for the trial court to follow before admitting evidence of other acts. First, it must determine whether the evidence fits within one or more of the Ross exceptions; this is a legal determination and does not involve the exercise of discretion. If one or more of the exceptions apply, the next step is to decide if the accused’s involvement in the act is established by clear and convincing evidence.

We will review this determination to determine whether the evi ³⁶⁴ dence was sufficient to support the trial judge’s finding. If this requirement is met, the trial judge must weigh the necessity for and probative value of the evidence against the undue prejudice likely to result from its admission. This final step implicates the exercise of the trial court’s discretion. Applying Faulkner , we first hold that the trial judge was correct in finding the appellant’s request for a gun and hacksaw blades evidence of the appellant’s intent to escape, and therefore as falling within one of the Ross exceptions. 4 Both Muir and Mary Ann Timney testified to knowing the appellant well and clearly reiterated his statements to them.

Indeed, the appellant’s requests certainly evidenced an intent to leave the detention center. Next, for purposes of the second step of the Faulkner analysis, we hold the evidence was sufficient to support the trial court’s finding that the appellant’s involvement was established by clear and convincing evidence, i.e., more than a preponderance of the evidence and less than evidence beyond a reasonable doubt. Whittington v. State, 8 Md.App. 676, 679 , 262 A.2d 75 (1970). Witnesses Muir and Timney testified to the specific incidences of the appellant’s request and the details of those requests.

Finally, we believe that the trial court properly found that the evidence was necessary to the State’s case. The State's case was based primarily on circumstantial evidence, and the evidence in question paralleled informant Farris’s testimony and provided required corroboration. Likewise, the trial court did not abuse its discretion in finding the probative value of the testimony outweighed any prejudicial impact. The statements at issue were not simply cumulative, nor can we conclude they were offered to suggest that the appellant was a “bad person.” Further, to guard against any prejudicial impact, the trial judge propounded a cautionary instruction at the close of the case. ³⁶⁵ We hold that the testimony of Michael Muir and Mary Ann Timney was properly admitted.

III

In light of the introduction of the motive and intent evidence discussed above, the trial judge gave the following limiting instruction to the jury at the close of all of the evidence: You have heard evidence that David Timney solicited a weapon and hacksaw blades from Mary Ann Timney and from Michael Muir. You may consider this evidence as it relates to David Timney’s motive and intent to commit the conspiracy to kidnap and escape. However, these acts do not constitute any part of the crimes charged and you may not consider them as elements of those crimes. The appellant posits this instruction was inadequate.

Specifically, he argues that the cautionary instruction should have been given immediately after the evidence was offered and then again in the final instructions. 5 The appellant argues that,