Johnson v. State, 511

• Citation: 411 A.2d 118,44 Md.App. 515
• Decision Date: 13 February 1980
• Docket Number: No. 511,511
• Parties: Leon Gregory JOHNSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 515

44 Md.App. 515

411 A.2d 118

Leon Gregory JOHNSON v. STATE of Maryland.

No. 511.

Court of Special Appeals of Maryland.

Feb. 13, 1980.

Certiorari Denied May 2, 1980.

Alan H. Murrell, Public Defender and Victoria A. Salner, Asst. Public Defender, for appellant.

Stephen H. Sachs, Atty. Gen., Valerie A. Leonhart, Asst. Atty. Gen., Sandra A. O'Connor, State's Atty. for Baltimore County and Steven Scheinin, Asst. State's Atty. for Baltimore County, for appellee.

Submitted to MORTON, THOMPSON and LOWE, JJ.

MORTON, Judge.

The appellant, Leon Gregory Johnson, was convicted by a jury sitting in the Circuit Court for Baltimore County (Land, J., presiding) of armed robbery (art. 27, § 488) and the use of a handgun in a crime of violence (art. 27, § 36B(d)). He was sentenced to ten years for the armed robbery and five years for the handgun violation, the latter sentence to be served consecutively to the first. On appeal he questions the sufficiency of the evidence for the handgun violation and the propriety of four decisions by the trial judge: his refusal to grant a change of venue, his refusal to strike a certain juror, his lack of a ruling on a motion to suppress and his refusal to allow appellant to discharge his court appointed counsel.

Sufficiency of the Evidence

The evidence consisted of testimony of two eyewitnesses. They were both employees of a Pantry Pride store and were in the office of that establishment on the day of the crime. One of them, Robin Litz, was working the check cashing window. She testified:

"I was standing at the check cashing window, and this gentleman came up and I asked if I could help him. He said give me your money, and I looked at him. I leaned over to look over the ledge to see if he had a check. That's when he pulled the gun, and he asked me to give him his money and he gave me a blue duffle bag to put the money in.

Q. What was the color of the gun, do you know?

A. It was like a silver gray.

Q. And how much of the gun could you see?

A. Well, he pulled it out and I don't know if it was under the bag or his coat. I saw like where you put the bullets in, and then what you shoot out of."

Ms. Litz identified the appellant in court as the robber.

The other eyewitness, George Krause, was not on duty but was standing next to Ms. Litz at the time of the crime. He testified:

". . . I was in the office talking to Mr. Pogach, and approximately at that time a gentleman came up and pointed a gun at Robin and asked for all of the money.

Q. Okay. Now, how much of this could you see and hear from where you were standing?

A. Well, I was approximately three to four feet behind Robin, and Robin drew my attention. I don't know how long the gentleman was there, but she drew my attention, and I saw pretty much. I saw Robin give him the money. I could not see I could not see the gun, but I could see his face and approximately down to his chest, and I could see Robin fill the bag full."

Mr. Krause also made an in court identification of appellant as the robber. The gun was not introduced into evidence.

Appellant contends that the testimony was insufficient to establish beyond a reasonable doubt that the gun was a "handgun" as that term is used in art. 27, § 36B(d). We disagree. Article 27, § 36F(a) defines a "handgun" as: "any pistol, revolver or other firearm capable of being concealed on the person . . . ." In Howell v. State, 278 Md. 389, 396, 364 A.2d 797, 801 (1976), the Court of Appeals concluded that:

"to be a firearm it must propel a missile by gunpowder or some such similar explosive . . . ."

Appellant relies on Tisdale v. State, 30 Md.App. 334, 353 A.2d 653 (1976) and Pharr v. State, 36 Md.App. 615, 375 A.2d 1129 (1977), Cert. denied, 281 Md. 742 (1979). In Tisdale we reversed a handgun conviction because the weapon there was described as a ".22 calibre gas pistol," a "blank gun." 30 Md.App. at 341, 353 A.2d 653. We held that this was insufficient evidence "as to the nature of the weapon." 30 Md.App. at 345, 353 A.2d at 660. In Pharr we reversed another handgun conviction because, although the victim had testified her assailant had used a "silver handgun," the defendant had confessed to having (and, we infer, using) a "silver blank gun." 36 Md.App. at 632, 375 A.2d 1129.

In the instant case the uncontradicted testimony of Ms. Litz was that appellant pulled a gun from either his duffle bag or his coat; and that she knew it was a gun because she could see where "you put the bullets in" and "what you shoot out of." Unlike the situation in Tisdale and Pharr, there is no testimony to indicate that the weapon here may have been a blank gun and not a "firearm," outside the scope of § 36F, as defined by Howell.

Rather, the situation is more properly analogous to that in Couplin v. State, 37 Md.App. 567, 378 A.2d 197 (1977). There the victim gave an imprecise description of the weapon ("It had two barrels. It was a handgun and that's about it." 37 Md.App. at 576, 378 A.2d at 202), which was not introduced into evidence. We said, in affirming the handgun conviction:

"In Todd (V. State, 28 Md.App. 127, 343 A.2d 890 (1975)), this Court stated at 28 Md.App. 132, 343 A.2d 890 that '(t)angible evidence in the form of the weapon used in an offense is not an essential to proof of the use of a weapon.' A fortiori, such proof may rest upon extrinsic evidence as to the nature of the weapon." 37 Md.App. at 578, 378 A.2d at 203.

In this case the uncontradicted extrinsic evidence as to the nature of the weapon is that it was a firearm capable of being concealed in appellant's coat or duffle bag. As such it was sufficient to convince the trier of fact beyond a reasonable doubt that it was a handgun within the scope of § 36B.

Venue

Prior to the trial appellant moved for a change of venue to Baltimore City because he believed that the ratio of black people to white people on the petit jury panels in Baltimore County was disproportionately small, a problem which he believed would be rectified in Baltimore City.

If this were all that appellant contended we would have no problem affirming the trial judge's denial of his motion on the basis of Garland v. State, 34 Md.App. 258, 367 A.2d 30 (1976). In Garland we held that neither the defense nor the State may have a change of venue in order to be tried by a more desirable "peer group" that makes up the jury. 34 Md.App. at 266, 367 A.2d 30.

But this is not all that appellant contends. His motion for a change of venue was based upon an alleged constitutional defect in the petit jury. He relied on the testimony of Nelson Carlisle, Jury Commissioner for Baltimore County. Mr. Carlisle testified that accurate figures were not available, but that in his opinion about ten percent of the members of petit jury panels were black. Appellant contends that this shows an unconstitutional underrepresentation of blacks, proscribed by Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), and Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972).

The rule of Castaneda states:

"Thus, in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. This method of proof, sometimes called the 'rule of exclusion' has been held to be available as a method of proving discrimination in jury selection against a delineated class. Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case." (Footnote and citations omitted.) 430 U.S. 482 at 494-95, 97 S.Ct. 1272 at 1280, 51 L.Ed.2d 498.

This rule was recently affirmed in Rose v. Mitchell, 443 U.S. 545, 565, 99 S.Ct. 2993, 3005, 61 L.Ed.2d 739 (1979). In Rose the Supreme Court found that under the Castaneda criteria the respondents had failed to make out a prima facie case of discrimination against grand jury foremen in Tennessee. The evidence had consisted of the testimony of three foremen, none of whom could remember any other foremen who were black. This evidence was insufficient because it did not cover a significant period of time, was subjective and did not include the total number of foremen appointed in that county during the critical period of time. 99 S.Ct. at 3007-3008.

The evidence in the instant case consisted solely of the opinion of the jury commissioner as to the relative amount of blacks empanelled on petit juries over a three month period. Like the evidence in Rose, it is subjective (i. e., the impressions of one man). In fact, Mr. Carlisle testified that it was not possible to make an objective analysis because no statistics were kept. Furthermore, the evidence covers only a three month period, less than the time involved in Rose, which was held to be inadequate. And finally, there is no evidence at all as to what proportion of Baltimore County's total population is made up of blacks. Thus, even if we assume the accuracy of Mr. Carlisle's estimate that ten percent of the petit jurors were black, there is no way to ascertain whether that constitutes an underrepresentation. Thus, appellant has failed to make a prima facie case of substantial underrepresentation as required by Castaneda...