Wilson v. State

Weant, J., delivered the opinion of the Court. On January 19,1979, Robert Michael Wilson, the appellant, was convicted by a jury in the Circuit Court for Talbot County (Clark, J.), of the armed robbery of Calvin Scott, the armed robbery of Elsie Scott, burglary, conspiracy to commit burglary, and the use of a handgun in the commission of a ³²⁰ crime of violence. At the conclusion of the trial he was committed to the custody of the Division of Correction for a period of fifteen years for the Calvin Scott robbery with consecutive sentences of fifteen years for the Elsie Scott robbery, ten for the burglary, five for the conspiracy, and five for the handgun offense; a total of fifty years consecutive to any sentences he was already serving in other jurisdictions. On appeal he contends: 1.

The court erred in failing to adequately instruct the jury on the standard of proof beyond a reasonable doubt; 2. the court erred in refusing to allow him to make his own closing argument to the jury; 3. the jury’s verdicts were coerced by the time limit imposed by the court on its deliberations; 4. the burglary verdict was coerced by the court’s supplemental instruction to the jury that it was “absolutely necessary” to return a verdict on this count; 5. a motel registration card was improperly admitted as a business record; 6. he was denied a fair and impartial trial by virtue of 1) the circumstances of his pre-trial detention, 2) his extradition to Maryland without a hearing, and 3) the court’s refusal to grant him a continuance. The record before us shows that at about 9:00 P.M. on Saturday, February 5, 1977, two masked men, armed with guns, broke into the home of Calvin Scott, a used car dealer, by firing a shot through the doorway as Calvin Scott was putting on the night latch. Calvin Scott was escorted upstairs where he and Mrs. Scott were robbed. The house was searched and the intruders discovered a safe.

The Scotts were next brought downstairs and beaten until Calvin Scott opened the safe from which the intruders took approximately $70,000.00 in cash. Thereafter the Scotts were taken back upstairs and handcuffed to their iron frame bed where they remained until they were found the next afternoon by their granddaughter. ³²¹ Investigation by the police revealed that at the time of the robbery a 1970 Chrysler had been seen parked near the Scott residence with an unidentified woman slumped down in the seat. The bullet that had been fired was recovered and determined to have come from a German Luger pistol. On May 18,1977, James Harkum, another used car dealer, gave a statement to the State’s Attorney for Talbot County which was read into evidence during the trial.

In this statement Harkum admitted that he had told one of his free-lance salesmen, Heinz Peter Cable, that Calvin Scott kept large sums of money at his house. Harkum said that on Saturday, February 5,1977, Cable had advised him that Scott was to be robbed. Early the next morning Harkum said that he had received a call from Cable that the robbery had been accomplished and that later the same day Cable had given Harkum $2,000 as Harkum’s share of the proceeds. Thereafter, on the following Monday, Harkum stated that Cable admitted to having a 1970 Chrysler that belonged to Harkum; the car was returned the same day. 1 Harkum described Cable as a man of violent propensities who subsequently proposed that Harkum join him in other criminal adventures.

Harkum added that he was afraid of Cable. He said he did not know any more about the robbery than what he read in the newspapers. He said that Cable’s confederate was a park policeman named Wayne Morris. He also said that Larry Mears, another car salesman friend of Cable’s, had suddenly shown up with $25,000 in cash to buy a boat.

While testifying for the State Harkum said that he was to receive probation and jail time; he also indicated that the police “wired” him for sound so that they could monitor his conversations with Cable. The record does not reveal any follow-up investigation by the State of Morris who died prior to the trial. ³²² Heinz Peter Cable, a bouncer at a night club in the Annapolis area, also testified for the State in exchange for a five year sentence and the nol prossing of some unrelated charges. He said that while in Florida in the fall of 1976 he had met with William Gary Reynolds in order to plan a robbery of Scott. Thereafter, “at the beginning of February,” Cable said that he had met Reynolds and the appellant at a bar in Glen Burnie.

Then on Saturday, February 5, 1977, Reynolds, the appellant, and a young woman named “Tammy” had come to his boat. The group drove over to Easton where Cable said he had pointed out the Scott residence before returning to the Annapolis area. Late that night Cable said he met with the trio again and was advised that the robbery had been accomplished. At this time he was given his share of the proceeds.

There is nothing in the record concerning the further investigation of Reynolds although his physical build was similar to one of the masked men who robbed the Scotts. Although “Tammy” had testified before the grand jury, she could not be located by the State at the time of trial. However, in its case-in-chief and on rebuttal the State introduced evidence that “Tammy” had registered for two rooms with a party of two at an Annapolis motel the night of the robbery. The appellant, who was acquainted with the Maryland area, presented testimony that in late January or early February of 1977 he had met Reynolds and Cable at a bar in Glen Burnie.

This testimony showed he had sold his German Luger pistol, on credit, to Cable who was interested in and collected Second World War guns. Allegedly, this was the only contact he had had with Cable. Members of the appellant’s family testified that on the night of February 5, 1977, he was at a party in Boston in honor of his niece. On his own behalf, the appellant testified that in mid-February of 1977, while driving to Florida to sell certain paintings, 2 he stopped in Baltimore and recovered his German ³²³ Luger from Gary Reynolds.

In addition he explained in detail that he was an expert safe cracker and that, if he had done the robbery, he would have popped the safe open in two or three minutes. He said that his modus operandi did not involve beating elderly people like the Scotts just to get a safe open. He admitted committing many crimes but steadfastly denied robbing the Scotts. At allocution he reiterated his innocence and cautioned the court that the Scott robber was still at large. 1.

The appellant first contends that the court inadequately instructed the jury as to the law regarding the meaning of the term “beyond a reasonable doubt.” After the jury was empaneled the court gave a series of preliminary instructions wherein it explained the term “beyond a reasonable doubt” as follows: The test of the evidence is, as I have said, one of reasonable doubt. And reasonable doubt is a doubt based on reason and common sense, the kind of doubt that would cause a reasonable person to hesitate to act. Proof beyond any reasonable doubt is therefore that proof which is of such a character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs. Thus, the State is not required to prove the defendant guilty beyond all possible doubt, or to a mathematical certainty, nor is the State required to negate or deny the existence or truth of every conceivable circumstance of innocence.

The defendant is entitled to every favorable inference which can reasonably be drawn from the evidence. The jury will remember that the defendant is never to be convicted on mere suspicion, conjecture, or guesswork. The burden is always upon the State to ³²⁴ prove guilt beyond a reasonable doubt. This burden of proof never shifts to the defendant.

The law does not impose upon the defendant the duty of calling any witnesses or producing any evidence at all. So, if the jury, after careful consideration of all the evidence, has any reasonable doubt that the defendant is guilty, it must acquit. If the jury views the evidence as reasonably permitting either of two conclusions, one of innocence and one of guilt, the jury should adopt the one of innocence. Furthermore, instructions delivered at the close of all the evidence covered twenty four pages of transcript and contained at least ten references to the phrase “beyond a reasonable doubt.” At the conclusion of the latter instructions, the appellant objected to the wording of one of the instructions in which the term “beyond a reasonable doubt” was used.

He did not however make any objection which can be read as raising the contention now before us, i.e., that because the term “beyond a reasonable doubt” was explained to the jury before the presentation of evidence but not afterwards, the court’s instructions were inadequate. As stated in Maryland Rule 757.L: If a party has an objection to any instructions, to any omission therefrom, or to the failure to give an instruction he shall make the objection on the record before the jury retires to consider its verdict and shall state distinctly the matter or omission, or failure to instruct to which he objects and the grounds of his objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. [Emphasis added]. We therefore find that the issue now being considered was not preserved for appeal.

Maryland Rule 1085. See also Brown v. State, 203 Md. 126 , 100 A.2d 7 (1953); Patterson v. State, 22 Md. App. 13 , 321 A.2d 544 (1974), aff’d, 275 Md. 563 , 342 A.2d 660 (1975); Law v. State, 21 Md. App. 13 , 318 A.2d 859 (1974), cert. denied, 272 Md. 744 (1974) and 272 Md. 749 (1974). ³²⁵ We are nevertheless cognizant of Maryland Rule 757.h. which provides that [a]n objection is not reviewable as of right unless it is made in compliance with section f of this Rule. An appellate court, either upon its own motion or upon the suggestion of a party, may take cognizance of and correct any plain error in the instructions, material to the rights of the defendant even though the error was not objected to as provided by section f of this Rule. [Emphasis added]. We, however, are unable to find “any plain error in the instructions, material to the rights of the [appellant].” Maryland Rule 757.b. provides in part that “[t]he court need not grant any requested instruction if the matter is fairly covered by the instructions actually given,” (emphasis added).

That the instruction, given at the beginning of the trial but not at the close of the evidence, was an “appropriate” one in a criminal case is clear. In Lambert v. State, 193 Md. 551, 559 , 69 A.2d 461, 464 (1949), the Court of Appeals said: In more recent years some of the courts have expressed the opinion that the English language is not adequate to give a specific definition of “reasonable doubt” that would simplify its meaning, for the rule requiring that the jury must be satisfied beyond a reasonable doubt is generally as simple and intelligible as a guide for the jury as any rule that could be formulated. In fact, it is recognized that the rule is quite frequently made obscure by attempts at definition, which serve to create doubts instead of removing them. This danger of confusing the minds of the jurors in attempting to define “reasonable doubt” has prompted some of the trial judges to refuse to attempt to give any definition.

Of course, a definition is not reversible error unless, by reason of peculiar circumstances or phraseology, such an instruction misleads or confuses the jury. State v. Craft, 131 W. Va. 195 , 47 S.E.2d 681, 687 . Nevertheless, it has been the general practice of the ³²⁶ overwhelming majority of the courts of this country to offer the jury some explanation of the term. We therefore believe that even if the appellant had requested the court to repeat its explanation of the term “proof beyond a reasonable doubt,” it would not have been compelled to do so.

Jones v. Jones, 38 Md. App. 288 , 380 A.2d 659 (1977), rev’d on other grounds, 283 Md. 709 , 393 A.2d 1372 (1978); Raley v. State, 32 Md. App. 515 , 363 A.2d 261 (1976), cert. denied, 278 Md. 731 (1976) and 431 U.S. 965 , 97 S.Ct. 2921 , 53 L.Ed.2d 1060 (1977); England v. State, 21 Md. App. 412, 320 A.2d 66 (1974), aff'd, 274 Md. 264 , 334 A.2d 98 (1975). Moreover, in light of the language of Maryland Rule 757.d. which provides that • [t]he court may give its instructions at any time after the close of the evidence. If, however, the court’s charge is not delivered until after the argument of counsel to the jury, the court shall, in advance of such argument, advise counsel of its proposed action on the request for instructions and the substance of the instructions which it proposes to give, [emphasis added] we are unable to say that the court’s failure to repeat the preliminary instructions concerning reasonable doubt warrants reversal of the judgments of conviction in the instant case. The language of Maryland Rule 757.d. is not mandatory, i.e., it does not state that the court shall “give its instructions ... after the close of evidence.” Furthermore, one purpose of the rule, as stated, is, apparently, to give counsel the opportunity to reflect upon the court’s instructions in their argument to the jury.

Such an opportunity is clearly present in a situation where instructions are given to the jury before any evidence is presented, as was the situation in the instant case. Therefore, the court below did not commit plain error in giving instructions in the sequence that it did. 3 ³²⁷ 2. The appellant next argues that the trial court erred in failing to allow him to make his own closing argument to the jury. Having arrived at that point in the case where all of the proof was in and the time had come when counsel ordinarily present their arguments to the jury, the prophetic words of Justice Blackmun in the case of Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed. 2d 562 (1975), were again brought to surface by the request of the appellant to argue his case to the jury, these words having previously been noted in the case of Snead v. State, 286 Md. 122 (1979), in the Court of Appeals of Maryland. 4 In our case the appellant raised the problem with the following: [DEFENSE COUNSEL]: Your Honor, before the jury comes in, Mr. Wilson has requested me to ask Your Honor to permit the argument to the jury to be bifurcated; that is, that I argue to the jury, and that he would argue to the jury those points that I have not raised.

I assume the Court has made a ruling on that. [STATE’S ATTORNEY]: We would, of course, object, Your Honor. [THE COURT]: Yes, I’ll sustain the objection. Relying on the implied constitutional right to self-representation discovered by the Supreme Court in the sixth amendment in the case of Faretta, supra, the Court of Appeals in Snead suggests that Rule 723 of the Maryland Rules of Procedure be used to determine whether or not a defendant has effectively waived the assistance of counsel and has thus established the right to self-representation. That case, however, involved an instance