Veney v. State

Smith, J., delivered the opinion of the Court. The appellant was tried by a jury in Frederick County under four indictments returned by the Grand Jury of Baltimore City. He was convicted of assault with intent to murder Lt. Joseph P. Masked of the Baltimore City Police Department, robbery of Deo Lewis and Clarence Robert Friday with a dangerous and deadly weapon, and assault and battery upon John Drake.

The charges in these indictments grew out of an incident which took place at Luxie’s Liquor Store at 2002 Greenmount Avenue, Baltimore City, at approximately 9:40 P.M. on December 24, 1964. There was evidence before the jury of entry into the liquor store of a man with a gun who announced a holdup. He cleaned out two cash registers. Leo Lewis was the manager on that evening.

A second man entered the store and at the direction of the man with the gun pulled a burglary camera from the wall. Customers in the store, including Drake, were directed to a certain part of the store. Drake and a fellow customer were directed at gun point to place their hands on the counter. Friday, a customer, had a $10.00 bill in his hand with which he was bargaining for a transistor radio.

The person holding the gun directed Friday to come to him, waving the pistol at him. Friday was then relieved of the $10.00 by the man holding the ¹⁶² pistol. Friday identified appellant as the person who held the pistol. The robbers left the store upon being advised that the police were coming.

Lt. Joseph P. Maskell testified he arrived at the scene, saw two men standing in the doorway of the liquor store and intercepted one of the men. He was in the process of frisking the intercepted man when three other men appeared in the doorway of the liquor store, one of whom fired a shot which struck Lt. Maskell in the right chest.

Lt. Maskell then dove through the air, landing on his face. While attempting to get his revolver from his service holster, he was shot in the back. Lewis, the store manager, also testified as to the shooting of the police officer.

Willis E. Taylor testified as to the planning of the robbery that afternoon by Timothy Brown, Samuel Veney, Taylor and appellant. He further testified as to the entry in the store for the robbery of Samuel Veney and Taylor, later followed by Timothy Brown and appellant. He identified appellant as the one who pulled the camera down. He identified Samuel Veney as the one whom Lt.

Maskell had apprehended. Taylor said he saw appellant shoot Lt. Maskell. Walter Ferguson stated that he knew appellant, Samuel Veney, Timothy Brown and Willis Taylor.

He saw them on the night in question on a street corner near Luxie’s Liquor Store. They told him they were going to rob the store. He left to get his suit from the tailor’s shop. When he returned they were in the process of going in and robbing the store.

He testified Taylor and Samuel Veney were the first two who went in. He saw the arrival of Lt. Maskell and the ensuing scuffle. In response to the question, “What happened after something hit the ground ?”, Ferguson replied, “That is when I seen Earl Veney—he shot the police officer.” Frances Mitchell testified that on Christmas Eve of 1964 she was at the home of Thelma Langley.

She had known appellant and his entire family for a number of years. Appellant came to the Langley home at approximately 10:00 P.M. on that evening. She overheard appellant and the other two individuals who came in about the same time (Samuel Veney and Taylor) ¹⁶³ talking among themselves about a policeman who had been shot. She heard appellant say he thought he had shot the policeman.

I. Appellant claims error by the lower court in overruling his exceptions to the State’s answers to demands for particulars. Demands for particulars were filed in all four cases. One demand requested the name and address of each and every person who was present at the scene at the time of the alleged crime, including the alleged victim. The State excepted to the request for names and addresses of those present at the scene of the alleged crime as not being a request properly obtainable on demand for particulars.

Appellant demanded the nature of the weapon alleged to have been used including description of the size; manufacturer, if any; serial number, if any; and the color of such weapon. The State excepted to the request for description of size, manufacturer, serial number and color as being a matter of proof at the trial and not properly available on demand for particulars. Maryland Rule 715 a provides in pertinent part: “On motion of the defendant, the court may order the filing of a bill of particulars within such time as the court may fix. * * (emphasis supplied) The grant or refusal of particulars is within the sound discretion of the trial court. It is not a matter of right.

Hadder v. State, 238 Md. 341, 350 , 209 A. 2d 70 (1965). Pearlman v. State, 232 Md. 251, 261 , 192 A. 2d 767 (1963), cert. denied, 376 U. S. 943 (1964), Seidman v. State, 230 Md. 305, 313 , 187 A. 2d 109 (1962) cert. denied, 374 U. S. 807 (1963). The purpose of a bill of particulars is to guard against the taking of an accused by surprise by limiting the scope of the proof, Hadder v. State, supra. This Court will not reverse a denial of particulars unless there has been a gross abuse of discretion resulting in injury to the accused.

Pearlman v. State, supra. It would appear, as we said in Williams v. State, 226 Md. 614, 619 , 174 A. 2d 719 (1961), cert. denied, 369 U. S. 855 (1962), that the demand was calculated not so much to amplify the allegations of the indictment as to require complete disclosure by ¹⁶⁴ the State of the evidence it relied upon. There is no abuse of discretion in sustaining the State’s exception to a demand under such circumstances. Williams v. State, supra.

In general, the rule in other jurisdictions is in accord with that of Maryland. See annotation in 5 A.L.R. 2d 444 , 447 (1949). We believe the appellant was fairly apprised of the scope and nature of the charges against him. On the basis of the indictment the appellant was clearly able to prepare his defense.

The language of the indictment was such as to protect him against a subsequent prosecution for the same offense. Seidman v. State, supra.

II

The motion for discovery and inspection filed by the appellant asked for copies of all written statements of three co-defendants who were charged with the same crimes with which appellant was charged. Appellant contends he is prejudiced by refusal of the lower court to require the State to submit this information. Under Maryland Rule 728 a the State may be required to supply a copy of any written statement made by the appellant, the substance of any oral statement made by the appellant which the State proposes to produce as evidence to prove its case in chief and the substance of any oral confession made by him. No Maryland rule provides for disclosure of written statements of a co-defendant.

Rule 16 of the Federal Rules of Criminal Procedure requires no such disclosure. Maryland Rule 728 was modeled on Rule 16, Kardy v. Shook, 237 Md. 524, 539 , 207 A. 2d 83 (1965). In some respects the Maryland rule is broader than the Federal rule in that it does permit discovery as to witnesses the State proposes to call. It is to be noted that in prosecutions in the United States Courts the statement sought by appellants would be obtainable under 18 U.S.C. 3500, but not until after the witness had testified on direct examination.

There is no similar statute in Maryland. 23 Am. Jur. 2d, Depositions and Discovery, § 316 states: “* * *. It has been held that statements obtained from codefendants or coconspirators, even if they were ¹⁶⁵ given pursuant to a subpoena, are not discoverable under Federal Criminal Rule 16.” See also annotation on the subject in 7 A.L.R. 3d 8 (1966). A somewhat similar question was before this Court in McKenzie v. State 236 Md. 597 , 204 A. 2d 678 (1964).

Appellant there maintained the trial court denied him equal protection and due process when it refused to order the State to produce written statements of the two complaining witnesses. This was a case involving unnatural and perverted sexual practice. There was a contention by the defense that these witnesses were accomplices and in one aspect of the opinion they were so treated for the purposes of argument, although not on the discovery issue. Judge Sybert for this Court said: “To support his request for the statements the appellant relies on Jencks v. United States, 353 U. S. 657 (1957), but the Supreme Court has stated that that decision was applicable only to federal criminal prosecutions, Palerma v. United States, 360 U. S. 343, 345 (1959).

The appellant admits in his brief that his request was beyond the scope of Maryland Rule 728 dealing with discovery in criminal cases. We have stated consistently that a request for the production of documents or statements in the possession or control of the State is within the sound discretion of the trial court. Williams v. State, 226 Md. 614 , 174 A. 2d 719 , cert. den. 369 U. S. 855 (1961); Glaros v. State, 223 Md. 272 , 164 A. 2d 461 (1960); Whittle v. Munshower, 221 Md. 258 , 155 A. 2d 670 , cert. den. 362 U. S. 981 (1959), and see case note, 20 Md. L. Rev. 292 ; State v. Haas, 188 Md. 63 , 51 A. 2d 647 (1947). Here, the defense failed to state adequate reasons for the request or to state what it was hoped the statements would show if produced.

It would seem that the request was nothing more than a ‘fishing expedition’. * * *. Upon the facts before us we do not believe the trial court abused its discretion.” 236 Md. at 602 . In the case note mentioned, 20 Md. R. Rev. 292 (1960), ¹⁶⁶ after commenting on Maryland Rule 728 and its provisions it is said: * * [T]his rule is considered an exception to the general rule throughout the country, and it should be kept in mind that the matter of inspection being left to the discretion of the trial court prevents such inspection from being a matter of right. * * 20 Md. L. Rev. at 297. Appellant also sought to require the State to say when and where the alleged oral statements made by appellant were made.

Maryland rules do not require such disclosure. Appellant claims prejudice in that he asked in his motion for discovery and inspection that he be furnished with reports of any experts whom the State intended to call at the trial of the case. Maryland rules require no such disclosure. Accordingly, in each instance we conclude there was no abuse of discretion by the lower court.

III

Appellant claims a denial of due process of law because the testimony of two of his alleged accomplices was admitted into evidence. Willis Eugene Taylor was an admitted accomplice. Walter Ferguson denied complicity. Both testified.

Appellant cites for his authority Nash v. Illinois, 389 U. S. 906 , 19 L. Ed. 2d 223 , 88 S. Ct. 222 (1967). The citation is to an opinion dissenting from the denial of certiorari by the Supreme Court of the United States. 1 Nash was convicted of murder on the testimony of an accomplice in the crime. The accomplice was promised leniency if he testified against the petitioner. The accomplice denied on the witness stand that he had been promised anything.

The prosecutor knew the testimony of the accomplice was false. The jury heard the testimony of the accomplice under the erroneous impression that no promises of leniency had been made. Subsequently, the prosecutor and counsel for the accomplice were ¹⁶⁷ called as witnesses. They admitted the prosecutor had promised leniency to the accomplice if he would testify.

The dissent in Nash was based on the principle of Napue v. Illinois, 360 U. S. 264 , 3 L. Ed. 2d 1217 , 79 S. Ct. 1173 (1959), where it was held that the prosecutor’s knowing acquiescence in the lie of a witness deprived the defendant of a fair trial under the Fourteenth Amendment, even though the jury had been apprised that the witness might have been lying about whether he had any interest in testifying. In Nash, supra, Mr. Justice Fortas said: “* * * [T.]he subsequent admission by the prosecutor, later in the trial, might not adequately overcome the jury’s initial impression of the testimony. Accordingly in these circumstances, I must conclude that petitioner was prejudiced by the prosecutor’s acquiescence in the misrepresentation by his witness. “* * * Especially in a capital case, a false denial by the critical State’s witness that he was promised leniency in return for his testimony, knowingly acquiseced in by the prosecutor, requires reversal of a state conviction, even though the prosecutor was later compelled to admit that the denial was untrue.” 389 U. S. at 907 . Since appellant has indirectly relied on Napue v. Illinois, supra, by his reliance on Nash v. Illinois, supra, it may be well to briefly discuss the facts of that case.

Napue was convicted of murder on the testimony of an accomplice. During the course of his testimony the prosecutor asked the accomplice if the prosecutor or anyone else (naming several others) had promised leniency to the accomplice for his testimony. The witness said he had not been promised anything. The statement was false.

The prosecutor had himself promised a recommendation for leniency, but failed to divulge the falsity of the statement of the witness. The only indication of an attempt for leniency was the testimony of the witness that some public defender would try to obtain a reduction of the sentence of the accomplice. On the basis of the false statement, the Supreme Court of the United States reversed the conviction on the ground that petitioner had ¹⁶⁸ been denied due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. A consideration of the two cases results in the conclusion that the Napue case, supra, is the stricter holding of the two.

In that case the jury never was cognizant of the fact that the accomplice was promised leniency. Had Nash, supra, been reversed, the Napue principle would have been broadened to include instances where a witness himself denies any promise of leniency, testifies before the jury, and is later contradicted when actual evidence is produced to show the existence of some promise of leniency. In this case both of the alleged accomplices admitted under cross examination the reason they were testifying in this case was the State’s Attorney had indicated he might be disposed to drop indictments against them. Based on the admissions of both witnesses, this case is factually distinguishable from both Nash and Napue .

The Napue principle is clearly inapplicable to the present circumstances. The principle espoused in the Nash dissent is inapplicable both because of the difference in facts as well as because the principle urged is by a dissenting minority in a case where certiorari was denied. The testimony of Taylor and Ferguson was admissible. An accomplice is clearly competent to testify.

Howard v. State, 238 Md. 623 , 209 A. 2d 604 (1965); Foster v. State, 230 Md. 256, 259 , 186 A. 2d 619 (1962) ; Garland v. State, 112 Md. 83, 99 , 75 A. 631 (1910). See also 23 C.J.S. Criminal Law, §802. The credibility and the weight of the testimony of the accomplices was for the trier of facts. McKenzie v. State, 230 Md. 513,514 , 187 A. 2d 885 (1963).

IV

Appellant next contends that even if the testimony of the accomplices were admissible, it was uncorroborated and, therefore, the evidence produced by the State was insufficient to support the convictions of the appellant. It has long been the rule in this State that the uncorroborated testimony of an accomplice is not sufficient to sustain a ¹⁶⁹ conviction. In McDowell v. State, 231 Md. 205, 211 , 189 A. 2d 611 (1963) Chief Judge Bruñe for this Court said: “* * * [T]he corroboration need not be enough to convict exclusive of the accomplice’s testimony, and * * * ‘the important matter is to have * * * [the accomplice] supported in at least some of the material points involved, tending to show the guilt of the accused’ * * * [in that] ‘there must be corroboration of the testimony of an accomplice as to the identity of the accused with the perpetrators of the crime or the crime itself.’ * * Chief Judge Bruñe fully reviewed the authorities in that case. The testimony of Taylor and Ferguson is here corroborated by Lewis, the store manager; Friday, the customer who identified appellant as the individual holding the pistol who took $10.00 from him; and by Frances Mitchell.

V. The appellant contends that the trial court erred in two instances with reference to its advisory instructions to the jury. He claims the trial court’s instruction overemphasized the murder aspects of assault with intent to murder and that the court’s statement to the jury describing the distinction between first and second degree murder so overemphasized the murder aspect of the charge that the appellant was denied a fair trial. At the conclusion of its instructions the trial court asked whether or not there were any objections. Objection as to the murder aspect of the assault with intent to murder charge was made, but no objection was entered relative to the distinction between first and second degree murder.

The court said in response to the objection: “I think they can’t help by knowing the man [Lt. Maskell] testified it couldn’t be murder. But what do you want me to do ?” Defense counsel suggested the making of a statement that the court did not intend to emphasize any particular element in ¹⁷⁰ this case and that there was no intention to overemphasize. The court indicated it would make it clear at the close of the case that the charge was assault with intent to murder.

This appeared to be agreeable to counsel for the accused. Before the jury retired the court instructed the foreman to write down each case number and the charge. In No. 1803 the court said, “It charges Earl Veney with assault with intent to murder Joseph Maskell.” The appellant could not have been guilty of assault with intent to murder unless he could have been properly charged with murder had the victim died as a result of the assault. In its original instruction the trial court said: “The Court advises you that assault with intent to murder is an assault committed which if death had ensued as a result of the assault the perpetrator thereof would be guilty of murder in either the first or second degree.

It is therefore important that you understand the legal definition of murder. Murder in either the first or second degree may be defined as the unlawful killing of another human being with malice aforethought. If it is accompanied by premeditation and deliberation it becomes murder in the first degree. But you are not concerned in this case with the technical difference between murder in the first and second degree, if you believe that had the police officer died as the result of a shooting in this case, a shooting by the defendant, that the defendant would have been guilty of murder in either the first or second degree, that is, guilty of murder, then he would be guilty under that charge or that indictment.

You note that I said murder is the unlawful talcing of human life with malice aforethought, therefore you should know what is meant by malice. Malice may be defined in this connection as the intentional doing of a wrongful act to another without legal excuse or justification, but malice may be inferred—that is, the intentional doing of a wrongful act may be inferred from the act itself, such ¹⁷¹ as by pointing a pistol at your heart and firing it you can infer that I intended to kill you, since I know a bullet through your heart usually results in that happening. So you can infer the intent from the act itself. But malice means, as I have said, hatred or ill will accompanied by the intentional act itself.

It cannot result—if it is absent in intentional doing of the act, then malice doesn’t exist and if death ensues it is not murder. It may be manslaughter or something else, but it would not be murder. In order to convict under that indictment it is necessary for you to determine from the evidence that the defendant fired a shot at the police officer under such circumstances that had the police officer died the defendant would have been guilty of murder.” The jury after deliberating requested the trial court to explain the instructions given to them with respect to the crime of assault with intent to murder. The court instructed as follows: “* * * Now the Court tells you that you have to view the matter in the light of this: if Maskell had died as the result of an assault would the defendant then be guilty of murder in either the first or second degree.

That is, guilty of murder as distinguished from manslaughter or not guilty, and to that extent it was necessary that you