Tisdale v. State

Moore, J., delivered the opinion of the Court. Appellant, Robert Tyrone Tisdale, was convicted by a jury in the Criminal Court of Baltimore, Hargrove, J. presiding, of robbery with a deadly weapon and the use of a handgun in the commission of a felony. He was thereafter sentenced to terms of 15 years and 5 years, respectively, the sentences to ³³⁶ run concurrently. Appellant contends here that the trial court committed reversible error'when it: 1) Refused to strike for cause two jurors who admitted on voir dire that they would give more weight to the testimony of a police officer merely because he was a police officer; 2) Denied appellant’s motions to dismiss the handgun count and refused to grant appellant’s instruction concerning the definition of a handgun; 3) Refused to give instructions regarding the voluntariness of appellant's statement to the police; 4) Refused to permit introduction of certain testimony during the cross-examination of Officer Watkins for the reason that it would be hearsay; 5) ' Refused to give a limiting instruction on the burden of proof during the course of the opening statement by the State; and 6) Denied appellant’s motion for a continuance to obtain counsel of his choice.

Testimony was produced at trial from which the jury could find that the facts were as follows: On October 2,1974, at approximately 12:20 A.M., the victim, William Cunningham, was operating his taxicab in the vicinity of Warwick and North Avenues, Baltimore, Maryland, and picked up appellant as a fare. Upon reaching his destination at the 1500 block of Whitelock Street, appellant alighted from the taxicab, pulled a gun out of his pocket and demanded Mr. Cunningham’s money. He then took eight or nine dollars from Cunningham’s shirt pocket, disabled his radio and told him to drive off. Mr. Cunningham drove one quarter block, stopped the cab, took a revolver from under the seat and began to pursue appellant, firing several shots before overtaking and apprehending him.

Officer Boysie Watkins, on routine patrol, came upon the ³³⁷ scene and observed Mr. Cunningham holding the appellant against the side of his cab. Mr. Cunningham explained that he had just been robbed. At that point, according to the testimony of the officer and the victim, appellant made an utterance in which he admitted the robbery. He was then arrested.

Appellant’s weapon was described as a .22 caliber gas pistol. It had been submitted to the police ballistics laboratory but was not processed because it was a “blank gun.” 1. Refusal To Stnke Two Jurors For Cause On voir dire the prospective jurors were asked the following questions by the court: “Now, are there any of you here who are inclined or would be inclined to give more weight to a police officer’s testimony merely because he is a police officer than the testimony of any other witness in the case? ” Thereupon, a juror from Judge Ross’ panel who identified himself as Markland Boyce, juror 21, responded: “I would give more weight to it.” A second juror then arose and gave his name as “Louis Schneider, 1 Judge Ross’ panel, number 10.” Counsel for defendant challenged these two jurors for cause. The court ruled “[T]hat is not enough to disqualify ...

I think you have to use your strikes. . . .” He also observed that each juror challenged for cause had “indicated there’s no reason at all that he would not render a fair and impartial verdict based on the evidence.” Appellant was entitled to exercise twenty peremptory challenges. Maryland Rule 746 a. Turpin v. State, 55 Md. 462 (1881); Johnson v. State, 9 Md. App. 143 , 262 A. 2d 792 ³³⁸ (1970). As the Court of Appeals stated in Brice v. State, 264 Md. 352, 366 , 286 A. 2d 132 (1972): “[T]he right to exercise the peremptory strike is unfettered and may be exercised by either party for any reason or indeed for no reason.

Hunch, passing impression, appearance of the prospective juror, or any other consideration may lead to the exercise of the peremptory challenge and no inquiry may be made in regard to why it is exercised.” While the challenge for cause permits rejection of a juror only on the specified, provable and legally cognizable basis of partiality, the peremptory challenge permits rejection for an imagined partiality. See, Johnson v. State, supra, quoting extensively from Swain v. Alabama, 380 U. S. 202 (1965). A challenge for cause is proper where it is shown that the mind of a juror is not free to hear and impartially consider the evidence and render a verdict thereon. Garlitz v. State, 71 Md. 293, 300 , 18 A. 39 (1889).

The fact that a prospective juror would give more weight to the testimony of a police officer plainly indicates his lack of impartiality — assurances to the court of an ability to weigh the evidence impartially being patently inconsistent — and the two challenges for cause in the proceedings below should have been sustained. State v. Jones, 282 So. 2d 422 (La. 1973), on rehearing at 430; Harvin v. United States, 297 A. 2d 774, 778 (D.C. App. 1972); Chavez v. United States, 258 F. 2d 816 (10th Cir. 1958). In Harvin , the Court observed: “[T]he very purpose of the voir dire is to permit counsel to satisfy themselves that they have an impartial jury. Nothing could be plainer than that a predisposition to attach greater or lesser credence to any witnesses’ testimony is inconsistent with this fundament of our legal system. . . .” (Footnote omitted.) And in Chavez, supra, the Court stated at p. 819: “But the inquiry should be directed to the question of whether the prospective juror would give greater ³³⁹ or less weight to the testimony of a law enforcement officer than to that of another witness simply because of his official character.

A defendant cannot be fairly tried by a juror who would be inclined to give unqualified credence to a law enforcement officer simply because he is an officer.” (Emphasis in original.) For the view that prospective jurors need not be excused for cause when they respond that they would believe more readily a police officer when he is testifying “as to matters for which he is trained,” see Parson v. State, 275 A. 2d 777 (Del. Supr. 1971) and, with respect generally to voir dire interrogation concerning prejudice as to certain witnesses, see 47 Am. Jur. 2d, Jury, Sec. 285. Since appellant was required to use peremptory challenges in order to eliminate the two jurors who had properly been challenged for cause, his total number of peremptories was effectively reduced from 20 to 18.

The failure of the trial court to allow the appellant 20 peremptory strikes was reversible error. Pearson v. State, 15 Md. App. 462 , 291 A. 2d 167 (1972); Swain v. Alabama, supra. No showing of prejudice is necessary. As the Supreme Court stated in Swain , at 219: “The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury. . . .

Although ‘[t]here is nothing in the Constitution of the United States which requires the Congress [or the States] to grant peremptory challenges,’ . . . nonetheless the challenge is ‘one of the most important of the rights secured to the accused,’ . . . The denial or impairment of the right is reversible error without a showing of prejudice.” (Citations omitted.) (Emphasis added.) We observe, although the subject is not addressed in appellee’s brief, that trial counsel for appellant stated in response to an inquiry by the clerk before the jury was ³⁴⁰ sworn, “The panel is acceptable to the defense.” The State also replied, “Acceptable,” and the jury was then sworn. No waiver of appellant’s challenges for cause occurred. His objection to the two jurors, for cause, had been clearly stated on the record and counsel’s response — that the jury ultimately selected was “acceptable” — was merely obedient to the court’s rulings and obviously not a withdrawal of the request, timely made, that the jurors be excused for cause.

The situation here is, therefore, distinguishable from that presented in Neusbaum v. State, 156 Md. 149 , 143 A. 872 (1928) where defense counsel was given the opportunity for an entirely new panel but refused it and elected to go forward with a panel already chosen, some of the members of which had heard a prejudicial remark by the prosecutor. It is also distinguishable from the more recent case of Glover, Robinson and Gilmore v. State, 273 Md. 448 , 330 A. 2d 201 (1975), citing Neusbaum , which involved an objection that talesmen were not selected in accordance with Code, Art. 51, Sec. 9 (e). The Court found it unnecessary to consider that question, ruling the objection had been waived when defense counsel, at the court’s suggestion, deliberately consulted with each of the defendants as to whether they were satisfied with the jury and then announced to the court, “. . . the Defendants have expressed that they are satisfied with the jury.” 2 We note in this case, furthermore, that the claim of error was diligently pursued in trial counsel’s motion for a new trial and in oral argument on that motion. Accordingly, we must reverse on this ground alone.

In addition, as will next be shown, there are independent grounds for reversal of appellant’s conviction of a handgun violation. ³⁴¹ 2. Handgun Violation The victim, William Cunningham, testified that at the time of the robbery the appellant pointed a pistol at his head and demanded his money. The weapon was, as previously indicated, subsequently taken from the appellant by the victim after the latter armed himself with his own revolver and gave pursuit. At trial, during the testimony of Officer Watkins, the “gun” was described as a .22 caliber gas pistol and was received in evidence over objection.

The officer also testified that it was not processed by the Ballistics Unit because it was a “blank gun.” There was no other testimony — expert testimony or otherwise — adduced by the prosecution or the defense with respect to the precise nature of the weapon or the manner in which it was designed to operate, if at all. On appeal it is contended that the court erred in denying appellant’s motion to dismiss the handgun count prior to trial, in refusing to grant appellant’s requested instruction concerning the handgun count, in denying appellant’s motion for judgment of acquittal and appellant’s motion for a new trial on that count. The question has been abundantly preserved for our review. Appellant’s requested instruction was as follows: “You are instructed that to convict a Defendant of the charge of unlawful use of a handgun in commission of a crime of violence the State must prove beyond a reasonable doubt that a handgun was used.

A handgun is defined as ‘any pistol, revolver or other firearm capable of being concealed on the person. ’A firearm has been defined as a ‘gun capable of firing shot, shell or bullets by the action of gunpowder exploded within it. ’ If you find from all the evidence in this case that the Defendant was carrying a blank gun at the time of the alleged incident, and that a blank gun is not a handgun, then you must find him not guilty of the charge of use of a handgun in commission of a crime of violence.” (Emphasis added.) ³⁴² This instruction was denied and the court instead instructed as follows with respect to the definition of a handgun: “Now I should also advise you that the term handgun under the law of Maryland