468 A.2d 45 (Md. 1983), 129, Calhoun v. State

Docket Nº:129 and 5
Citation:468 A.2d 45, 297 Md. 563
Opinion Judge:[11] Smith
Party Name:James Arthur CALHOUN v. STATE of Maryland.
Case Date:November 21, 1983
Court:Court of Appeals of Maryland

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468 A.2d 45 (Md. 1983)

297 Md. 563

James Arthur CALHOUN


STATE of Maryland.

Nos. 129 and 5

Court of Appeals of Maryland.

November 21, 1983

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[Copyrighted Material Omitted]

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[297 Md. 570] Gary W. Christopher and George E. Burns, Jr., Asst. Public Defenders (Alan H. Murrell, Public Defender and Arthur A. DeLano, Jr., Asst. Public Defender, Baltimore, and Courtland K. Townsend, Jr., Assigned Public Defender, Rockville, and James Cromwell, assigned Public Defender, Silver Spring, on brief), for appellant.

       Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, and Deborah K. Handel, Asst. Atty. Gen., on brief), Baltimore, for appellee.


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SMITH, Judge.

       In this case we shall affirm a death sentence. In the process we once again are involved with the matter of hypnotically enhanced testimony, this being the fifth of a series of cases presenting that issue. See State v. Collins, 296 Md. 670, 464 A.2d 1028 (1983); State v. Metscher, 297 Md. 368, 464 A.2d 1052 (1983); Simkus v. State, 296 Md. 718, 464 A.2d 1055 (1983), and Grimes v. State, 297 Md. 1, 464 A.2d 1065 (1983).

       James Arthur Calhoun was convicted by a Montgomery County jury of first degree, premeditated murder in the death of Philip Metz (principal in the first degree), murder in the first degree (felony murder) in the death of David Myers (principal in the second degree), attempted murder of Douglas Cummins, two violations of the handgun law, robbery with a deadly weapon, and storehouse breaking. A jury sentenced him to death for the murder of Metz. Life imprisonment was imposed for the murder of Myers. He was sentenced to thirty years for the attempted murder of Cummins. The sentence for each of the handgun violations was imprisonment for fifteen years. He was sentenced to twenty years on the robbery charge and to ten years on the count for storehouse breaking. All sentences imposed are to run consecutive to each other except for the sentence for storehouse breaking which is concurrent. The case reaches us by virtue of the provisions of Maryland Code (1957, 1982 Repl.Vol.) Art. 27, § 414 which states that whenever the death penalty is imposed we shall review the case.

i The facts

       The facts are not in dispute. Pursuant to Maryland Rule 828 g the parties have entered into an agreed statement of facts. We shall repeat only so much of the grisly details of [297 Md. 572] this incident as are necessary for a clear understanding of the case and our decision.

       The W. Bell store is located at 1130 New Hampshire Avenue in White Oak, Montgomery County. Banging noises coming from the area of the Bell store were heard by a neighbor across the street at approximately 11:00 p.m. on March 26, 1981. She saw shadows in the area of the roof at the back of the store. The neighbor notified her father, who went outside their home with a flashlight to investigate. He saw people leaving. She saw a car, which looked like a hatchback, parked across the street.

       An employee of Electro Protective Corporation testified that at 6:16 a.m. on March 27, 1981, both the safe alarm and the perimeter alarm at the Bell store were activated. He notified the police; Douglas T. Cummins, Jr., Bell's assistant manager; and David W. Myers, an employee of Electro. Officer Philip Carl Metz, the police officer covering that beat on that particular day, was dispatched to the Bell store.

       Cummins testified that at approximately 6:20 or 6:25 a.m. on March 27 he received a telephone call from Electro. He arrived at the store at about 7:00 a.m. at which time he saw a white station wagon with Electro's name on the door in front of the store. He observed a late model two-door black Cadillac on the other side of the parking lot. A black male in the front seat was the sole occupant.

       The technician in the Electro vehicle identified himself to Cummins. Cummins drove around the store and noticed that the outside of the building appeared to be secure. Officer Metz arrived on the scene at about 7:15 a.m. Cummins unlocked Bell's door with a set of master keys. He, Officer Metz, and Myers entered the building. They first checked the merchandise area. Then they proceeded to the cashroom. It had two doors, both of which supposedly could be opened only from the inside. Cummins put a key into the door. Upon his opening the door Officer Metz stepped in front of him to enter. At that moment Cummins noticed "a shoulder and about half of a back of an individual standing to the right of the doorway." Metz was pulled into the doorway as another, shorter individual armed with a pistol jumped into the hallway area. Cummins did not see the

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place from which the [297 Md. 573] shorter man came. Myers drew his gun and stumbled back into a hallway door when he was shot. Cummins said he realized he had been shot in the upper shoulder area of his chest. After thirty to forty-five seconds the taller man opened the door and dragged Cummins into the office. Cummins at that point observed Metz lying on the floor and bleeding from the head. Cummins said that although he saw or heard no evidence of a third person he had no idea whether there might have been other individuals there who had left through another door by the time he was dragged into the room. He asserted that the shorter man shot him and he could only assume that it was the taller person who shot Metz.

       Cummins complied with the taller man's order to open a combination safe. He was then asked by that same person to open a second safe. He was hit on the left side of his head with a pistol when he reached for his wallet which contained the combination to the second safe. Cummins said that after he failed twice in his efforts to open the second safe this taller person cocked a pistol, put it to the side of Cummins' head and informed him that if he did not open the safe that time he was a dead man. He succeeded in opening the safe. He was then told to sit on the floor. His wrist was handcuffed to a file cabinet drawer. He heard his assailants scramble up through the ceiling of the office "and then back down on the other side." He pulled himself onto a chair, pulled the file drawer from the cabinet, carried the drawer by its handle to a telephone in the loading dock area, and called the police. After failing to detect a pulse from Myers' neck, he went to the door and waited for help.

       Cummins testified that both of the men that he saw were wearing stocking masks which covered their entire heads. Both men wore gloves on their hands. Cummins observed gaps between the sleeve cuffs and the top of the gloves of these persons from which he determined they were black.

       James Adcock testified that while working as a plumber on the fourth floor of a building next door to the Bell store, at approximately 7:00 a.m. on March 27, 1981, he looked out the window and saw two black males running across the parking lot. He said they "skipped" over a fence, jumped over [297 Md. 574] a wall and went into a parked "brown or maroon--looking car" that then drove away.

       Evidence to connect Calhoun with the crime included that of an accomplice who testified pursuant to a plea agreement. His testimony included a description of an attempt by him and another to break into the Bell store through the roof shortly after midnight on the morning of this incident. They were frightened away when they noticed someone watching them with a flashlight from across the parking lot. He related how later, in the early hours of that morning, he and his associates encountered Calhoun, discussed the hole they had put in the Bell roof, and worked out a plan for entering the store. They then waited for the manager to arrive so that the robbery could be effected. He described the operation in detail including mention of weapons, a description of the stocking masks used and their source, and testimony as to the amount of money taken and its division. There was substantial other evidence adduced in addition to that of the accomplice including testimony concerning casts made of footprints found in the area. Two of these casts matched one of the shoes of the accomplice.

       Other relevant facts will be set forth as we review the points raised.

ii Hypnotically enhanced testimony

       Lt. James Roby of the Montgomery County Police Department was asked to conduct hypnotic interviews with Adcock and Cummins to ascertain if they could recall any details of the crime which they had not previously related to the police. Adcock was hypnotized on the day of the crime. Cummins was hypnotized on April 13. An audiotape recording was made of the hypnotic session with Adcock. The session

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with Cummins was placed on video-tape. Dr. David Stern, a licensed clinical psychologist whose qualifications we mentioned in Collins, 296 Md. 670, 464 A.2d 1028, and Metscher, 297 Md. 368, 464 A.2d 1052 [1983], compared Adcock's and Cummins' prehypnosis statements with the tapes of their hypnotic sessions and concluded that hypnotically enhanced memory was not present as to either Adcock or Cummins. [297 Md. 575]

       Prior to hypnosis Adcock made statements to three different police officers. He set forth what he observed while working as a plumber in a building next to the Bell store. He described two black males, apparently teenagers, whom he saw running across the parking lot toward a car. On one occasion he pointed to a burgundy colored Datsun 310 and said the vehicle looked very similar to the one he had seen. On another occasion he indicated that the car in question was a dark, chocolate brown, Honda-type, "sawed-off" foreign car. He described where it was parked. His posthypnotic testimony at the motion to suppress hearing...

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