Van Meter v. State

Lowe, J., delivered the opinion of the Court. Clinton Edward Van Meter was convicted by a jury in the Circuit Court for Allegany County of murder, unlawful use of a handgun, assault, and unauthorized use of a motor vehicle. Upon appeal he raises 13 questions, 4 of which we decline to consider. Under Md. Rule 1031 c 5, appellant is required to provide argument in his brief to support his position.

In questions VI and VIII issues are raised but are not supported by argument. Questions IV and V are each followed by two sentences which are in no sense argument. ⁴⁰⁸ The Court of Appeals has held that issues can be waived for failure to comply with the procedural requirements to preserve the right of appellate review. Harmon v. State Roads Comm., 242 Md. 24, 29-32 ; Hyde v. State, 228 Md. 209, 218 ; see also Comptroller v. Aerial Products, 210 Md. ..627, 644-645. “Surely it is not incumbent upon this Court, merely because a point is mentioned as being objectionable at some point in a party’s brief, to scan the entire record and ascertain if there be any ground, or grounds, to sustain the objectionable feature suggested.” State Roads Comm. v. Halle, 228 Md. 24, 32 . While we have strained in order to find that that which follows several other questions is “argument,” we will not consider questions IV, V, VI and VIII.

GAI Audio of N. Y. v. C.B.S., 27 Md. App. 172, 183 ; Kimbrough v. Giant Food, Inc., 26 Md. App. 640, 654 . We cannot be expected to delve through the record to unearth factual support favorable to appellant and then seek out law to sustain his position. Cf. Clarke v. State, 238 Md. 11 .

We have perhaps gone too far in that direction by considering other questions with skeletal argument and referential legal support, e.g., questions VII and XIII. The Facts “O, beware, my lord, of jealousy; It is the green-eyed monster, which doth mock The meat it feeds on; that cuckold lives in bliss Who, certain of his fate, loves not his wronger; But, O, what damned minutes tells he o’er Who dotes, yet doubts, suspects, yet strongly loves!” 1 Appellant’s conviction of murder rested heavily upon the testimony of his paramour Debra Turner, who used appellant’s jealousies to bring about his own misfortune, in ⁴⁰⁹ much the same manner as did Othello, the Moor of Venice. She was present when the victim was killed and testified that it was her accusation, later retracted, that the victim had sexual relations with her which so infuriated appellant that he shot him. The sufficiency of the evidence to convict appellant of any of the charges upon which the jury found him guilty is not contested.

The errors alleged are primarily procedural. I “Whether or not the Court erred in overruling the Suggestion for Removal?” The major argument set forth by appellant is that, because his Suggestion of Removal 2 was sworn to be true and notarized, and “[i]nasmuch as there was no demur or traverse of the allegations of fact by the State, the facts averred must be taken as true.” Appellant cites Jones v. State, 185 Md. 481 , 487 and Kemp v. State, 6 Md. App. 463 to support his argument. We do not find support for appellant in these cases. In Kemp , interpreting Jones , we gave recognition to the argument put forth here by appellant: “A reading of Jones shows that pertinent facts, related in the affidavit, were not denied by the State, and therefore accepted as true.” Kemp v. State, 6 Md. App. at 466 .

However, we distinguished that holding in the very next sentence: “The principle has no application where the affidavit states only the conclusions without stating the underlying facts.” Id. at 466 . Van Meter’s affidavit contains three allegations of prejudice and no underlying facts. The first claims prejudice from ⁴¹⁰ extensive coverage by the media, the second and third assert, without factual support, prejudicial statements publicly made by the prosecuting witness and her family; however, appellant failed to show that the extensive coverage alleged resulted in prejudice. Piracci v. State, 207 Md. 499 ; Grammer v. State, 203 Md. 200, 211.

No evidence to support the allegations and conclusions of prejudice were offered to sustain appellant’s burden of persuasion. See Seidman v. State, 230 Md. 305, 324 . In Sizemore v. State, 5 Md. App. 507, 511 , we reviewed prior Maryland cases and stated the rule to be that the burden is on an accused to show that he has been “prejudiced by adverse publicity and that the voir dire examination of prospective jurors .. . would not be adequate to assure him a fair and impartial jury.” See also Laws and Dorman v. State, 7 Md. App. 84, 86-87 . For reasons unexplained, the transcript of the voir dire examination and jury selection are not in the record.

The burden to provide such transcript is also appellant’s if he intends to rely thereon. Md. Rule 1026 a 2 places the burden upon appellant to provide “a transcript of all the testimony.” Thus, in the absence of any jury selection testimony in the transcript, he may not argue for reversal based thereon. Cf. Harris v. State, 11 Md. App. 658, 664 .

The Court of Appeals in Downs v. State, 111 Md. 241, 251 , citing 4 Ency. P. & P. 434, said that: “ ‘Facts must be shown from which the Court can deduce the conclusion that the ground relied on for the change actually exists; and, as a rule, mere belief, opinions or conclusions will not be sufficient to warrant the Court in exercising its power, unless the information upon which the belief is founded, or the grounds upon which the opinions or conclusions are based, are sufficiently shown.’ ” (Emphasis added). Md. Rule 738 b places the burden on the moving party “to make it satisfactorily appear to the court that such suggestion [of removal] is true, or that there is reasonable ground for the same.” Quite obviously it did not ⁴¹¹ “satisfactorily appear to the court” that appellant had reasonable grounds for removal. “If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day.” Holt v. United States, 218 U. S. 245, 251 . In the absence of evidence to show that the court below acted arbitrarily and thereby abused its discretion in refusing the right of removal under the Maryland Constitution, we canncft say that the removal should, or should not, have been granted, and we thus affirm the action of the lower court.

Larch v. State, 201 Md. 52, 55-56 ; Auchincloss v. State, 200 Md. 310, 314 ; Allers v. State, 144 Md. 75, 78-79 . II “Whether or not the Court erred in Denying the Motion of the Defendant to summon Dr. Sauer, Psychiatrist from Clifton T. Perkins State Hospital?” Appellant complains that he had entered a plea of insanity and that this issue should not have been withdrawn from the jury. Presumably the judge decided the question based on a report from Clifton T. Perkins Hospital, signed by the Superintendent, Dr. Sauer. However, once again, the record is deficient in that it does not contain the report, but only allusion thereto in the trial judge’s opinion.

We repeat our admonition of appellant that he is responsible for the record upon which he requests appellate review. Any material not included in the record will not be presumed to be unfavorable to the State. In Strawderman v. State, 4 Md. App. 689, 697 , we pointed out that: “(1) a man is presumed to have been responsible for criminal conduct and sane at the time of such conduct until, after the filing of a proper plea, there is adduced proof that he lacked substantial capacity ⁴¹² either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.. . .” (Emphasis added). This rule clearly places the burden upon appellant to adduce such evidence.

We went on to say that, procedurally, the court should determine preliminarily: "... whether the proof adduced in support thereof is sufficient to raise a doubt as to the sanity of the accused, as defined, in the minds of reasonable men .’’Id. at 698. (Footnote omitted). We noted in Greenleaf v. State, 7 Md. App. 575 , 578 that any such determination should be predicated upon reasonable medical certainty and that evidence of some undefined mental disorder or instability is insufficient to overcome the presumption of sanity, citing Jenkins v. State, 238 Md. 451 ; Bradford v. State, 234 Md. 505 . Here the appellant produced no evidence of insanity.

The doctor’s report submitted to the court was not introduced into evidence because the doctor was not present and counsel could not agree to stipulate to its admission. Appellant complains that at the hearing on the preliminary question of sanity, the court declined to defer its opinion so as to enable appellant to subpoena Dr. Sauer. Considering the fact that appellant waited until the day of the trial to request the subpoena of Dr. Sauer, the court did not abuse its discretion in declining that request. Furthermore, it was appellant’s burden to produce sufficient proof to surmount the presumption of sanity and the fact that the State had subpoenaed, but not called, Dr. Sauer cannot be relied upon to meet that burden.

In the absence of any evidence of insanity produced by appellant, he must be presumed sane and no issue as to his sanity should have been submitted to the triers of fact. Ill “Whether or not the Court erred in Denying the Motion of the Defendant to withdraw a Juror and ⁴¹³ declare a mistrial on the grounds that the State’s Attorney in his opening statement made specific reference of sexual relations with the witness and perverted or unnatural sex acts which could have no bearing on the charges involved in the case?” We decline to respond to this question because a transcription of the opening statement is not included in the record on appeal. Harris v. State, 11 Md. App. 658, 664 . VII “Whether or not the Court erred with respect to all testimony as to Debbie Turner’s statement about the blackouts?” Questions IV, V and VI, which we have declined to answer for lack of argument, all relate to the questions of appellant’s mental condition and history of “blackouts,” presumably resulting from an accident in which he had been involved.

The short answer to the scattergun contention contained in question VII is that the mental condition of appellant cannot be made a jury question indirectly when he has failed to overcome the presumption of sanity as discussed above. The fact that appellant suffered from “blackouts” prior to the incident giving rise to his conviction, had no bearing on his guilt or innocence apart from the issue of insanity. 3 Moreover, the testimony appellant’s trial counsel sought to elicit, relating to conversations about appellant blacking out at the time the crime was committed, was clearly hearsay. IX “Whether or not the Court erred in admitting the report of Russell Wilhelm with respect to the firing of the gun?” The ballistics expert, Russell Wilhelm, testified positively ⁴¹⁴ that the weapon offered by the State as the murder weapon had fired the cartridges from which casings were found at the scene. Appellant’s argument seems to be that the report of the expert should not have been admitted into evidence because the chain of custody of the gun offered as the murder weapon was not so complete as conclusively to preclude any possibility of tampering with the weapon.

The Court of Appeals has held that the chain of custody must be such as to show with: “ . . . reasonable probability that no tampering occurred.” Breeding v. State, 220 Md. 193, 199 . We have followed that guideline consistently,., e.g., Avey v. State, 1 Md. App. 178, 187 ; Plumley v. State, 4 Md. App. 671, 680 ; Smith and Nelson v. State, 12 Md. App. 130, 134, and do so once again. It should be pointed out that a reasonable probability that no tampering occurred does not require a foreclosing of every possibility as a prerequisite to admissibility of evidence. If that were the rule, trial time would be unnecessarily prolonged without purposeful results.

In the case under consideration, a State trooper testified that he went to Memphis, Tennessee, with Debra Turner and recovered the pistol from a store where Turner had seen appellant sell it. After recovering the pistol, along with its gun belt and holster, he explained: “I brought them back to the State Police Barrack, where they were placed in the evidence locker for a period of time. And they were later transported to Mr. Wilhelm in Pikesville at the Ballistics Laboratory.” Thereafter, Mr. Wilhelm testified that those items were secured while awaiting the ballistics tests and examination which he later conducted. “Q Okay, sir. Now, Doctor, after — or Mr. Wilhelm, after you received the items, you kept them in your custody is that correct?

A They have been secured in the back of the ⁴¹⁵ State Police Lab where we have a property room connected to a burglar alarm, only my assistant and I have keys except for a master key retained by the captain of the police academy, who keeps his master key in a safe. Q And what did you do with those items ultimately then, sir? A They were all turned over to the State’s Attorney yesterday morning.” We agree with the ruling of the trial judge, that the testimony showed that there was no reasonable