Wright v. State

Thompson, J., delivered the opinion of the Court. Victor John Wright, appellant, was convicted for murder in the first degree and the unlawful use of a handgun by the Criminal Court of Baltimore, Judge Solomon Liss presiding with a jury. He received a life sentence for the murder and a five year consecutive sentence for the handgun violation. FACTS Stephen Christian testified that on June 9, 1973, at approximately 1 a.m., he and the victim, Gerald Miller, were sitting together behind an apartment complex in Baltimore City.

The appellant approached the witness and asked him what relation the victim was to him. Upon being informed that Miller’s brother was his brother-in-law, the appellant ³¹¹ said he was going to kill Miller and the witness should remain seated and not run or else he would “get” him. The appellant drew a handgun from his belt, walked behind the victim and shot him in the back of the head from a distance of 10 to 15 feet. The victim was seated with his head in his hands, apparently under the influence of narcotics.

The appellant thereupon fled the scene. Christian then went to his mother’s apartment, called the operator and reported the shooting without giving his name. Christian identified the appellant, whom he had known for 6 years, as Miller’s murderer. Miss Julia Taylor, the appellant’s girlfriend, testified that the appellant was with her at the time the murder was committed.

The appellant did not testify. I Sufficiency of the Evidence The appellant contends that the evidence was insufficient to support his convictions because the testimony of Stephen Christian, the eyewitness, was “so fraught with inconsistencies regarding the critical issue of this case that it should be entirely disregarded.” Once again an appellant has attempted to come within the confines of what has become known as the Kucharczyk doctrine. Kucharczyk v. State, 235 Md. 334 , 201 A. 2d 683 (1964). See Bailey v. State, 16 Md. App. 83 , 294 A. 2d 123 (1972).

Once again we hold that Kucharczyk is inapposite. The appellant bases his contention on what he asserts are four inconsistencies in Christian’s testimony: (1) On direct examination Christian testified that after the appellant told him he was going to kill the victim, “He (appellant) told me I had better sit down, I better not run or he will get me.” This was said just prior to the murder. On redirect Christian testified that the appellant also said that if he (Christian) said anything he would kill him. We find no material discrepancy in this testimony.

(2) On direct examination Christian was asked if he had said anything to the appellant after being informed that the appellant intended to kill the victim. Christian answered, ³¹² “Not that I can remember, I was shocked. I didn’t really believe him.” On cross-examination Christian testified that he said, “Think about it, something like that. ‘Don’t do that,’ I can’t remember what it was. It was so long ago.” This discrepancy clearly dealt only with minor or peripheral details and not with the core issues of the very occurrence of the corpus delecti or of the criminal agency of the appellant.

As such Kucharczyk v. State, supra, does not apply. Bailey v. State, supra at 96. (3) On direct examination, Christian said that after the shooting he ran up to his mother’s apartment and called the police to inform them of the shooting. On cross-examination, it was disclosed that he did not in fact talk with the police but that he gave the information to the operator.

Here again the discrepancy goes to a very minor point and Kucharczyk does not apply. Bailey v. State, supra at 96. (4) Several days after the murder Christian told the police that he had been at a store at the time of the murder and that when he returned to the scene Miller was already dead. He added that he had not come forward earlier with correct information because he was threatened.

At appellant’s trial, however, Christian testified that he did not inform the police of what he knew because his mother would not allow him out. Kucharczyk does not apply because a witness’s trial testimony is contradicted by other statements which the witness has given out of court. Bailey v. State, supra at 95. II Juror Misconduct The appellant also contends that the trial judge erred in denying his motion for a new trial.

That motion was based on an allegation that the foreman of the jury fell asleep during the court’s advisory instructions at the close of the case. There is no record of this occurrence in the transcript of appellant’s trial. The trial judge during the course of the hearing on appellant’s new trial motion clarified the situation: “The Court: Let the record show that for a moment the foreman of the jury dozed and I ³¹³ awakened him immediately and there was no question whatsoever concerning his attention before or after.” The disposition of a new trial motion is within the sound discretion of the trial judge and will not be disturbed on appeal unless a clear abuse of that discretion is shown. White v. State, 17 Md. App. 58, 67 , 299 A. 2d 873 (1973).

We find no abuse in the instant case. In Hall v. State, 223 Md. 158 , 162 A. 2d 751 (1960), the Court of Appeals dealt directly with the problem of a sleeping juror. The Court held that if a defendant alleges that a juror, or jurors, were guilty of misconduct, he is required to prove that the misconduct actually occurred and that he was prejudiced thereby. See also Holt v. State, 3 Md. App. 544, 547 , 240 A. 2d 355 (1968).

In affirming Hall’s conviction the Court, discussing his failure to show prejudice, stated at page 178: “In addition, ‘[t]he length of time the juror was asleep is not shown, nor does it appear what testimony was introduced during that time, nor that it was of any importance or extent, nor whether favorable or unfavorable to the accused. There is no showing that the defendant was in any way prejudiced.’ Braunie v. State, supra, 105 Neb. at 358.” In the instant case, while there is evidence that the foreman of the jury fell asleep, the trial judge stated that he “dozed for a moment”, the appellant has in no way shown how he was prejudiced by the foreman’s momentary inattention. We hasten to add that the problem could easily have been rectified if the appellant had objected at the time the foreman fell asleep and had asked the court to repeat the portion of the instructions, if any, the foreman had missed. Ill Verdicts In the case at bar, when the jury returned with its verdict, the following took place: ³¹⁴ “The Clerk: Members of the jury, have you reached a verdict?

The Jury: Yes, we have. The Clerk: Who shall say for you? Stand up, Mr. Wright. Members of the jury, how say you, is Victor J. Wright guilty of the matter wherein he stands indicted or not guilty?

The Foreman: Guilty. The Court: Now, as to the first count, what is your finding? The Foreman: First degree. Mr. Cohen: I’m sorry, I didn’t hear.

The Foreman: Guilty of murder in the first degree. The Court: As to the fourth count, what is your finding? The Foreman: We didn’t render a decision on that. We never even considered it.

The Court: I had indicated you would consider the first and fourth counts of the indictment, so I will ask you to go back and talk about that count. That is the count of the indictment which charges the Defendant with having used a handgun in the commission of a crime. Let me have the indictment. If you remember, members of the jury, I called your attention to the fact that you were to consider the first and fourth counts.

The fourth count charges the Defendant with unlawfully using the handgun in the commission of a crime of violence. I’ll ask you please to retire to consider that particular count.” Appellant objected to the jury being sent back to deliberate and moved for mistrial. The motion was denied. At the appellant’s request, the jury was polled as to the first count.

The jury was then harkened to the verdict and sent back to deliberate as to the fourth count. They subsequently returned a verdict of guilty as to that count. Appellant contends that the action of the trial judge in ³¹⁵ sending the jury back to deliberate on the fourth count was error. A verdict, finding an accused guilty under one count of a multi-count indictment and being silent as to the remaining count or counts is a valid verdict and is equivalent to a verdict of not guilty as to the remaining counts.

Glickman v. State, 190 Md. 516, 523 , 60 A. 2d 216 (1948); Hechter v. State, 94 Md. 429 , 50 A. 1041 , 56 L.R.A. 457 (1902); Gaskins v. State, 10 Md. App. 666, 671 , 272 A. 2d 413 (1971), cert, denied, 404 U. S. 1040 ; Gibson v. State, 8 Md. App. 1, 4 , 256 A. 2d 890 (1969); Agresti v. State, 2 Md. App. 278 , 280 n. 1, 234 A. 2d 284 (1967). This rule, however, does not apply to the instant case because the trial judge immediately upon learning that the jury had failed to consider the fourth count of the indictment in their original deliberations directed them to return to the jury room and deliberate upon that count. This action was proper under the rule laid down in Heinze v. State, 184 Md. 613 , 42 A. 2d 128 (1945): “Where a verdict is ambiguous, inconsistent, unresponsive, or otherwise defective, it is the duty of the trial judge to call the jury’s attention to the defect and to direct them to put the verdict in proper