White v. State

McAULIFFE, Judge. Derrick Quinton White murdered Victor Joseph Furst on 14 August 1981, during an attempt to rob Furst. In 1982, White was convicted of murder and related offenses by a jury in the Circuit Court for Baltimore County, and sentenced to death. This Court affirmed the conviction and sentence.

White v. State, 300 Md. 719 , 481 A.2d 201 (1984), cert. denied, 470 U.S. 1062 , 105 S.Ct. 1779 , 84 L.Ed.2d 837 (1985). In 1986, White filed a petition for relief pursuant to the Uniform Post Conviction Procedure Act, Article 27, §§ 645A through 645J, Maryland Code (1957, 1987 Repl. Vol.). In 1988, the post conviction court denied relief that would affect the verdict of guilt, but directed that the sentence of death be vacated and the defendant be given a new sentencing proceeding.

White waived his right to a jury determination of sentence. The sentencing proceeding was held before Judge J.G. Turnbull, II, in January, 1990, and the defendant was again sentenced to death. In this appeal White raises several questions, the resolution of one of which will require that we again vacate the sentence and remand the case for a third sentencing proceeding. ⁷⁴¹ Facts We repeat the facts relating to the offense as originally set forth in White v. State, 300 Md. at 723-25 , 481 A.2d 201 : “On August 14, 1981, White, then age 18, shot and killed Victor Joseph Furst (Furst), age 61, during an attempt to rob Furst of the moped he was riding. The State proved the following facts, in large part through White’s accomplice, Gerard Eugene Anthony (Anthony) also age 18. “White and Anthony each lived on the west side of Baltimore City.

They had known one another for about two months prior to the murder. Neither was employed. They had discussed getting some money illegally. On the morning of August 14 Anthony took his father’s loaded revolver from their home and met White nearby.

Anthony put the gun in the glove compartment of the red 1981 Pontiac T1000 which White had been driving. With Anthony at the wheel of the car, they drove into western Baltimore County. White directed them to a tile store at Rolling Road and Route 40 West which they intended to rob. With White in possession of the gun, they entered the store; but it was too crowded and they left. “Anthony resumed driving with White in the front passenger seat giving directions to another store in the vicinity to rob.

On their way they drove by Furst, who was riding a new moped in the opposite direction. White told Anthony that it was a good model moped, that an old man was riding it and that they were going to get it. Anthony said they should forget about the moped and ‘go to the money.’ White persisted and said that the moped would fit in the back of the Pontiac. Anthony turned the car around.

They pursued the man on the moped and caught up to him in the 7400 block of Dogwood Road. “As Anthony drove abreast of Furst, White pointed the gun out of the window on the passenger side at Furst. About five seconds later White fired, as Furst was turning his head away from the gun. Anthony immediately accelerated leaving Furst and the moped lying alongside ⁷⁴² the road. When Anthony asked ‘what the hell did he do that for,’ White said that ‘[Furst] looked like he wasn’t going to stop.’ Furst died of a single gunshot wound which entered his chest from left to right and pierced the aorta. “Within one-half hour of the shooting the murderers were arrested nearby, in the Pontiac.

Occupants of a car which had been proceeding toward the scene at the time of. the crime described the red car and gave partial descriptions of its driver and passenger. At the time of arrest, the handgun, with one spent cartridge in the chamber and five live rounds in the cylinder, was recovered from the floor of the front passenger seat occupied by White.” Additional facts are included in our subsequent discussion of the defendant’s contentions. Weighing of Aggravating and Mitigating Circumstances Judge Turnbull found beyond a reasonable doubt that a single aggravating circumstance existed in this case —“[t]he defendant committed the murder while ... attempting to commit a robbery____” Art. 27, § 413(d)(10). He found the defendant had shown by a preponderance of the evidence the existence of at least one statutory mitigating circumstance 1 — the defendant had no prior record of a ⁷⁴³ criminal violation within the meaning of Art. 27, § 413(g)(1).

Additionally, the trial judge specifically found as a non-statutory mitigating circumstance “the defendant’s background,” and considered as well “the defendant’s age at the time of this crime, ... the fact that he can function in a structured setting, [and] the fact that he has psychological shortcomings.” In his discussion of the weighing of aggravating and mitigating circumstances, Judge Turnbull said, “[t]his case has been extremely difficult for the court.” The defendant contends that from a reading of the transcript of the oral opinion and findings of the court that followed, during which the judge described the burden and standard he applied in reaching his decision, it is apparent that the judge misapplied the law, or, in the alternative, that the record does not permit this Court to find with any reasonable degree of confidence that the trial judge applied the law correctly. We reproduce the portion of the transcript of Judge Turnbull’s findings, supplying emphasis to those statements which give rise to the defendant’s concern: “It’s my duty to weigh those aggravating circumstances found unanimously by me to exist against the mitigating circumstances that I have found to exist. I must determine that the State has proven by a preponderance of the evidence that the mitigating circumstances outweigh the aggravating circumstances. “There is no doubt whatsoever from the testimony that this defendant, Mr. White, grew up in a poor, unfortunate background and surrounding. He, obviously, was on his own at an early age and usually, if not always, with one or more of his peers when he began a life of violating the laws of this State and committing various crimes.

He started as a juvenile with minor crimes that required that ⁷⁴⁴ he be placed in various detention facilities and/or group homes and, thereafter, slowly worked his way up to more serious crimes, the last being as a juvenile the crime of burglary. It caused him to be waived into the adult court and resulted in his incarceration in the Department of Correction, subsequently to be sent to Hagerstown. Shortly after his release on parole, he committed this senseless homicide. From the testimony, I find that all of the experts agree that he either will present a future danger and/or will never be able to function outside of an extremely structured environment. “The sentence in this case must by law be either life or death, as I have already ruled that life without parole is not an option that I can consider at this time.

When I take into account the defendant’s age at the time of this crime, his overall background and the fact that he can function in a structured setting, the fact that he has psychological shortcomings, I have some, perhaps a great deal of sympathy for the defendant. The question then becomes one of whether the mitigating circumstances and factors outweigh the aggravating circumstances, since I find he was the principal in the first degree to the murder. I cannot put aside or ignore, however, that a 61 year old man on a pleasant August day in 1981 was minding his own business, out for a short trip on his new moped to see a gentleman about purchasing some steamed crabs and was coldly, bloodily, without any provocation whatsoever on his part, killed. This was not a case of revenge or jealousy or bad blood between parties.

The defendant and Victor Furst were complete strangers. One moment he is alive and well on Dogwood Road in Baltimore County and one moment later he was dead, the tragic victim of what could only be called a bungled robbery. I cannot find that the aggravating circumstances have outweighed the mitigating circumstances. I, therefore, determine that the judgment and sentence of this Court shall be death.” ⁷⁴⁵ The law that the trial judge was required to apply is clear — the burden is on the State to prove by a preponderance of the evidence that the aggravating circumstances outweigh the mitigating circumstances in order to secure a verdict of death.

Collins v. State, 318 Md. 269, 296 , 568 A.2d 1 , cert. denied, — U.S. -, 110 S.Ct. 3296 , 111 L.Ed.2d 805 (1990); Harris v. State, 312 Md. 225, 256 , 539 A.2d 637 (1988); Scott v. State, 310 Md. 277, 284 , 529 A.2d 340, 343 (1987). Thus, if the aggravating circumstances do not outweigh the mitigating circumstances, or if the weight of the aggravating circumstances is equal to the weight of the mitigating circumstances, the sentence cannot be death. In the course of his oral opinion, the trial judge referred on three occasions to the law governing his task as the sentencing authority. First, the judge said “I must determine that the State has proven by a preponderance of the evidence that the mitigating circumstances outweigh the aggravating circumstances.” The correct test is whether the State has proven by a preponderance that the aggravating circumstances outweigh the mitigating circumstances.

It is possible, of course, that the judge unwittingly transposed the words “mitigating” and “aggravating” when he spoke. 2 Transposing those words produces a correct statement of the law. The second reference to the weighing process is either incomplete or similarly flawed. The judge said “[t]he question then becomes one of whether the mitigating circum ⁷⁴⁶ stances and factors outweigh the aggravating circumstances.” Read literally and in the light of this Court’s decisions, the statement does not address allocation of the burden of proof. The statement can be read to describe one possible result of the weighing process.

See Foster, Evans and Huffington v. State, 305 Md. 306 , 503 A.2d 1326 (1986); Foster v. State, 304 Md. 439, 476-80 , 499 A.2d 1236 (1985), cert. denied, 478 U.S. 1010 , 106 S.Ct. 3310 , 92 L.Ed.2d 723 (1986). If, however, the court intended to include allocation between the parties of the burden of proof, then we face the same problem presented by the first statement. This may have been a simple misstatement, because transposing the two words corrects the statement. On the other hand, repetition of the error may be more indicative of misunderstanding than of an isolated misstatement.

The final reference is the most disturbing. The judge said “I cannot find that the aggravating circumstances have outweighed the mitigating circumstances.” If that were literally true, the sentence would have to be life imprisonment, and that is obviously not what the judge intended. If the explanation is that the judge inadvertently transposed the words, as he may have done before, there is still a problem because his statement then indicates he applied the wrong test. If the court meant to say that it could not find that the mitigating circumstances outweighed the aggravating circumstances, the statement would still embrace a state of mind in which the factors were evenly balanced.

As we have pointed out on numerous occasions, the defendant does not have any burden to show that