Wilson v. State

Finan, J., delivered the opinion of the Court. On August 18, 1969, the appellant, Irving Lee Wilson, shot and killed one Walter “Kidd” Henderson. The incident occurred at approximately 12:30 P.M. in the Spot Bar in Baltimore. About 12:35 P.M., the appellant entered the Western District Police Station, announced to the desk sergeant that he had just killed a man in the Spot Bar and surrendered a .32 caliber revolver containing two live and four spent cartridges.

At about 2:00 P.M. the appellant was questioned at the Western District Police Station by Detective Sergeant George Christian of the Homicide Division of the Baltimore City Police Department, who obtained an oral statement from him. A second oral statement was obtained at about 3:00 P.M. at Central District Police Headquarters by Det. Sgt. Christian in the presence of Assistant State’s Attorney Fred K. Grant (who prosecuted the case below) and two other police officers.

The appellant was indicted August 19, 1969. The case was removed to the Circuit Court for Caroline County, and tried before a jury on December 17, 18,19,1969, with Chief Judge J. DeWeese Carter presiding. The defense twice made unsuccessful motions for judgment of acquittal during trial. Maryland Code (1971 Repl.

Vol.) Art. 27, § 593; Maryland Rule 755. The jury found the appellant guilty of murder in the first degree without directing that the sentence be life imprisonment. Code ⁵⁵⁵ (1971 Repl. Vol.) Art. 27, §§ 412, 413.

New counsel entered the case on behalf of the appellant and moved for a new trial. After a hearing on March 23, 24, 1970, the motion was denied, and Judge Carter imposed a sentence of death. An order for appeal was entered the samé day. New counsel again entered the case on behalf of the appellant, and the appeal was brought directly to this Court.

Code (1968 Repl. Vol.) Art. 5, § 12 and Code (1970 Cum. Supp.) Art. 5, § 5A (3). Present counsel for the appellant suggest nine reasons in support of their request for a reversal of the conviction or a new trial.

We find nothing in the arguments presented or from an independent review of the entire record which would merit reversal, and we therefore affirm the decision of the trial court. However, because of the seriousness of the crime and the nature of the sentence imposed, we shall discuss the appellant’s contentions in some detail. Although nine separate grounds are contained in the appellant’s brief, they resolve themselves into six major areas of contention, as follows: I. THE TESTIMONY OF BARBARA ANN LEWIS The appellant urges that the testimony of Mrs. Barbara Ann Lewis (an eyewitness) was coerced by the State and contradictory in nature, and that to admit her testimony into evidence was reversible error. As of August 18, 1969, Mrs. Lewis was a full time exotic dancer at the Gayety Club on Baltimore’s “Block” and was also employed on a part-time basis as a barmaid at the Spot Bar.

On the day in question she was working at the Spot Bar. Shortly after the shooting, she gave the police a signed statement to the effect that she had not seen the appellant at all that day, that she had not seen the appellant shoot Henderson, and that she had dropped behind the bar to the floor of the tavern when she heard the first shot. The next day she was summoned to testify before the grand jury, and just prior to her testifying was advised by the police and the prosecutor ⁵⁵⁶ of the penalties for perjury and told that she could be arrested and jailed if she lied to the grand jury. She changed her version of the incident before the grand jury, and testified that she had seen the appellant shoot and kill Henderson.

At the trial, although obviously reluctant to answer many of the questions put to her, Mrs. Lewis testified on direct examination by the State that she heard “some gun shots,” saw Henderson run to the back of the bar, and saw the appellant shoot Henderson while the deceased was on the floor and after he had asked the appellant not to shoot him. She did not recall the number of shots that were fired. On cross-examination she admitted that she had given a contradictory statement to the police on the day of the shooting and that the representatives of the State had discussed perjury with her before her testimony to the grand jury. However, she maintained that the police did not suggest any testimony to her, nor did they promise her anything in order to make her testify.

She also maintained that she had told the truth to the grand jury and was telling the truth at trial. She admitted to having had an argument with the appellant two years prior to the shooting, in which the appellant accused her of being a lesbian, but she felt that they had been on good terms since that time. Mrs. Lewis was recalled as a defense witness later in the trial and testified that she was fixing a drink for one of three unknown seamen in the bar at the time and that Harry Cole, the owner of the Spot Bar, and a girl known to her only as Margaret were also present. She heard what she thought were two or three gunshots coming from the front of the bar which was about 40 or 50 feet long.

She turned around, was “shocked” at what she saw, “dropped to the floor and started crawling” about “half way down the bar,” continued crawling “to the back” and “tried to get to the cellar.” She stated that after the first series of shots, Henderson was running toward the rest ⁵⁵⁷ rooms in the back of the bar. Henderson fell “at the end of the bar” and the appellant “was behind him.” Henderson asked the appellant “not to shoot him — not to kill him.” Mrs. Lewis also stated that “[w]hen he [Henderson] fell to his knees, that’s when he asked Irving Lee [Wilson] not to kill him, and he [the appellant] shot Kidd in the head.” There then followed this colloquy among the appellant’s attorney, the trial judge, and Mrs. Lewis: “Q. You observed this entire affair,— “A. Yes, I did. “Q. Is that correct ? THE COURT: What do you mean by, “he shot Kidd?” THE WITNESS: Irving Lee. BY MR.

RUBENSTEIN: “Q. How many times did he shoot him? “A. I don’t know. “Q. Is it then that you dropped behind the bar ? “A. After he shot Kidd ? “Q. Yes. “A. Yes.” Whether or not the statement which Mrs. Lewis gave to the grand jury and repeated throughout the course of her examination at trial in recounting her version of the event was coerced, and therefore presumably untrue, was a question for the jury, and goes to the weight of evidence and the essential credibility of the witness involved. The appellant contends that the first statement Mrs. Lewis gave to the police “is more to be believed than the statement given later while under undue pressure” and states that it is “as logical, if not more logical, that a barmaid in a rough tavern, on hearing shooting, would instinctively drop to the floor and attempt to crawl away from a ‘shoot out’.” It appears equally probable that, as Mrs. Lewis testified, her first statement was false and that she lied to the police because she “just wanted to get out of the mess and go about my business.” This seems ⁵⁵⁸ especially likely in. view of her obvious displeasure at being involved in the entire matter even while testifying at trial. In any event, questions such as this are peculiarly within the province of the jury. It is apparent in this case that the jury chose to believe Mrs. Lewis’ second version.

She repeatedly stated that there was no inducement by the police to get her to testify as she did. She admitted that she was warned of the possibility of perjury prosecution if she lied to the grand jury, but maintained throughout that she told the grand jury the truth and was telling the truth at the trial. There is nothing in the record which supports the appellant’s allegation of coercion, and there was no error in admitting the testimony into evidence and allowing the jury to evaluate it. In a related argument, the appellant contends that the trial court erred by allowing the jury to choose between contradictory statements of Mrs. Lewis, and cites Kucharczyk v. State, 235 Md. 334 , 201 A. 2d 683 (1964) as principal support for his position.

The problem with such an argument is that Kucharczyk related to contradictory statements at trial, and stated that in that case the evidence was so unreliable on its face as to be without any probative value. The contradiction in the case at bar exists between the statement given by the witness prior to her testimony to the grand jury, and the later testimony before the grand jury and during the course of the trial. There was no contradiction in her testimony during trial or before the grand jury. Mrs. Lewis gave only one version of the events in question at the trial and that version was the same one she had given to the grand jury.

See Brooks v. Daley, 242 Md. 185, 192 , 218 A. 2d 184 (1966). The jury was well aware of the prior inconsistent statement of the witness, originally given to the police, and was faced with judging her credibility in the light of such inconsistency. That, of course, is a task for the jury rather than the appellate tribunal. ⁵⁵⁹ II. SUFFICIENCY OF THE EVIDENCE AND SELF DEFENSE The appellant next argues that the evidence presented was insufficient as a matter of law to sustain a conviction of first degree murder, and that the lower court’s denial of his motions for judgment of acquittal made both at the close of the State’s case, and again at the close of all testimony, was reversible error.

Intertwined with his argument in this regard is a basic claim that he was acting in self-defense, and as stated by counsel for the appellant in their brief, “the fear, panic, prior knowledge of the decedent’s propensity to homicide, the folkways of the underworld and the self-preservation instinct of the appellant should have been considered by the experienced trial judge to the end that first degree and possibly second degree murder acquittal motions should have been granted.” 1 In order for the appellant to justify a homicide on the basis of self-defense, he must have had “reasonable grounds to believe, and have in fact, believed himself to be in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant.” Tipton v. State, 1 Md. App. 556, 560 , 232 A. 2d 289 (1967). And, the burden is upon him to prove by a preponderance of the evidence that he acted in self-defense. Chandler v. State, 7 Md. App. 646, 651 , 256 A. 2d 695 (1969). In support of his actions, the appellant testified at trial that he had been working for Henderson delivering packages on a part-time basis for about ten months.

He thought the packages contained “numbers slips,” but he discovered that they contained narcotics instead, and ⁵⁶⁰ three days before the shooting told Henderson that he “wanted out.” Henderson supposedly told him to “hang on,” that he would get $10,000, and that he knew too much about Henderson’s business for him to let Wilson go. The appellant further testified that on August 16th, two days before the shooting and the day after his conversations with Henderson, three men attempted to kill him, shooting up his car, in the vicinity of the Spot Bar, but he escaped their fire. When he spoke to Henderson about the incident, the deceased allegedly told him “You know how those things are” and that there “Ain’t no getting out now.” They made arrangements to meet at the Spot Bar on Monday, August 18th, at about noon. At the tavern, according to the appellant’s testimony, Henderson beckoned him down the bar “a little past half way.” The appellant asked for some “scratch.” Henderson told him that he had no money, “and if you don’t like that, you know what I can do.” Appellant contends that at this point Henderson “backed off of me and put his hand under his shirt like he was pulling up his pants.” Allegedly, the appellant had been with Henderson on a previous occasion when Henderson performed the same maneuver (at various times referred to as a “trouser dance”) just prior to shooting and killing his victim.

Apparently fearful of meeting an identical fate, the appellant drew his own gun, and fired several times at Henderson because he “didn’t show any signs of being hit until I have hit him the third time I believe it was.” Appellant further testified that “he didn’t fall, and * * * as far as I’m concerned he was still trying to get his pistol out.” (The appellant had earlier stated that when Henderson backed away he saw the barrel of a silver gun in his shirt, and that the deceased always carried a gun on his person.) He denied that Henderson ever asked him not to kill him, or that Henderson ever spoke a word while being shot. On cross-examination, the appellant testified that the first shot he fired went into the floor of the tavern and would have “had to ricochet” if it hit the deceased. The ⁵⁶¹ next three shots were fired directly at Henderson. Appellant denied that he had ever fired at Henderson when Henderson was on the floor and maintained that by the time the fourth shot was fired the deceased was falling forward, but he “couldn’t say” whether Henderson’s head was between the appellant’s gun and the floor when he fired the fourth and final shot.

Under questioning by his attorney, the appellant stated that he shot the deceased because he “feared that Mr. Henderson would have shot me” and he surrendered to the police “because they [Henderson’s associates] would have killed me.” Tending somewhat to substantiate the appellant’s testimony was a portion of the testimony given by Det. Sgt. Christian of the Baltimore City Police Department. Sgt.

Christian 1 stated that he obtained two oral statements from the appellant on the day of the shooting, the first at about 2:15 P.M. when he was alone with him at the Western District Station, and the second in the presence of other police officers at Central District Police Headquarters at about 3:00 P.M. In both statements the appellant noted that he was supposed to be paid $10,000 by Henderson at the Spot Bar, that there was an argument, and that he shot the deceased because he thought Henderson was going to shoot him when he saw Henderson reaching for his pants. Also, there was testimony by one Vernon Laws, an employee and associate of Henderson’s who had accompanied him to the Spot Bar that day, but did not go inside with him. Mr. Laws testified that the deceased was known to carry a gun in a holster inside his pants. Had this been the only testimony on the question of premeditated murder vis a vis self-defense, the appellant might have sustained his burden of proof, and a motion for judgment of acquittal may have been proper.

However, there was other substantial evidence presented (in addition to the eyewitness account of Barbara Ann Lewis which contradicted the appellant’s version of the events) tending to show a deliberate and premeditated killing. ⁵⁶² First, there was the autopsy report (entered in evidence by stipulation of counsel) which discussed the four gunshot wounds and concluded that the victim must have been on the floor when one of the shots was fired, as one of the bullets had grazed his face and struck the floor, throwing off metal fragments which caused minor abrasions and cuts to the right side of the face. Second, there was the testimony of Officer Charles Owens of the Baltimore City Police Department that he was the first to arrive at the scene of the crime (at approximately 12:33 P.M.) and that he found no weapon on the deceased’s person during a preliminary search of the body. Third, there was the testimony of Detective Howard Corbin of the Baltimore Police Department Homicide Squad that he found the deceased’s gun in his automobile, which was parked across the street from the Spot bar. Fourth, there was the testimony of Mr. Laws who (in addition to his testimony mentioned earlier) stated that he did not see any gun on the deceased’s person that day, and that, because of the kind of clothes which Henderson was wearing, he felt certain that he would have seen a gun had Henderson been wearing one.

Fifth and last, there was the testimony of Sgt. Christian, who had taken the oral statements from the appellant. In addition to his previously mentioned testimony he also stated that (1) the appellant did not mention at either of the two questioning sessions on the day of the shooting that Henderson had a gun, (2) that the appellant had demonstrated to him the “dance” which Henderson had supposedly done prior to being shot, and that, as demonstrated by the appellant, his thumbs were tucked inside the waistband of his pants, with his hands visible, and (3) that the appellant had made no mention to him of Henderson having put his hand under his shirt. 2 He stated, also, that no gun had been found in a search of the tavern, and that, although he had not personally asked any of the other patrons of the Spot Bar whether they had seen a gun other ⁵⁶³ than the appellant’s, Officer Owens had made such an inquiry and none had been seen. As stated earlier, a defendant who relies on a claim of self-defense has the burden of proving it by a preponderance of the evidence.

Chandler v. State, supra. In the absence of any showing of excuse, justification, or mitigation, it is presumed that all unlawful homicides are committed with malice aforethought and are therefore murder. Gunther v. State, 228 Md. 404, 408-409 , 179 A. 2d 880 (1962) ; Chisley v. State, 202 Md. 87, 105 , 95 A. 2d 577 (1953). The law in Maryland divides murder into grades.

Code (1971 Repl. Vol.) Art. 27, §§ 407, 411. In such a case, it is presumed that the homicide was murder in the second degree, and in order for the State to elevate the crime to first degree murder it must show that the killing was wilful, deliberate, and premeditated. Chisley v. State, id.

And, of course, the State must establish the defendant’s guilt of the crime alleged beyond a reasonable doubt. Johnson v. State, 227 Md. 159, 163 , 175 A. 2d 580 (1961). Such is the posture of the trial when the case goes to the jury for its verdict. What, then, is the function of this Court when asked to rule on the sufficiency of the evidence adduced at trial ?

The standard for appellate review of a jury verdict in a criminal trial (whether by the court or by the jury) was stated as follows in Royal v. State, 236 Md. 443 , 204 A. 2d 500 (1964) : “* * * in order to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence it is necessary to show that there was no legally sufficient evidence or inferences drawable therefrom on which the jury could find a defendant guilty