Allen v. State

• Decision Date: 01 September 1991
• Docket Number: No. 1100,1100
• Citation: 91 Md.App. 705,605 A.2d 960
• Parties: William Reed ALLEN, Jr. v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 705

91 Md.App. 705

605 A.2d 960

William Reed ALLEN, Jr. v. STATE of Maryland.

No. 1100, Sept. Term, 1991.

Court of Special Appeals of Maryland.

May 5, 1992.

Charles G. Bernstein (C. Robert Loskot and Bernstein, Sakellaris & Ward, on the brief), Baltimore, for appellant.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on the brief), for appellee.

Argued before ALPERT, CATHELL and DAVIS, JJ.

ALPERT, Judge.

This appeal involves a murder-for-hire scheme that resulted in one conviction but, fortunately, no deaths. We shall affirm.

Procedure below

The grand jury for Allegany County indicted Dr. William Reed Allen, Jr., appellant, on two counts of common law solicitation to commit murder. Count one charged Allen, a dentist, with soliciting an undercover police officer to kill a Deputy State's Attorney; count two charged Allen with soliciting the undercover police officer to kill a City of Cumberland Police Officer. Judge Gary G. Leasure of the Circuit Court for Allegany County, acting in response to appellant's motion for removal, ordered that Allen's case be removed to the Circuit Court for Baltimore County. In a written opinion, Judge Leasure concluded that the totality of the circumstances indicated that the impartiality of jurors in his jurisdiction would be affected by pre-trial matters. ¹

Thereafter, on March 12 through 15, 1991, Judge Joseph F. Murphy, Jr. of the Circuit Court for Baltimore County presided over appellant's jury trial. After deliberating, the jury found Allen guilty on count one and not guilty on count two. Allen moved for a new trial; Judge Murphy denied the motion and sentenced him to twenty-five years' imprisonment, ten years suspended in favor of five years' probation. In this appeal, Allen asks us to answer a number of questions.

1. Did the trial court err in denying the Defendant's Motion for Judgment of Acquittal?

A. Does conviction and punishment for Solicitation violate Article 5 of the Maryland Declaration of Rights?

B. Does the use of Solicitation as a Common Law crime violate the 8th and 14th Amendments to the United States Constitution and Articles 8 and 17 of the Maryland Declaration of Rights?

C. If Solicitation exists in Maryland, does it exist as anything other than a species of attempt?

D. Was the evidence sufficient to show that the defendant was the solicitor or was he merely a solicitee who acquiesced to the state agent's solicitations?

E. Was the alleged Solicitation too vague and indefinite to support a conviction?

F. If a Solicitation occurred, did it occur at a time prior to the times charged in the indictment?

G. Should the indictment have been dismissed for duplicity?

2. Were the court's instructions erroneous?

A. Did the Court err in charging the elements of the crime?

B. Did the Court err in adding "predisposition" in its instructions on solicitation?

C. Did the Court err in failing to instruct with regard to the state witness' prior criminal record, status as an accomplice, as an informer and as a drug abuser?

D. Did the Court err in failing to instruct with regard to a law enforcement witness?

Appellant ran afoul of the law, apparently quite by accident. On the evening of September 9, 1988, Officer Shawn Grove of the City of Cumberland Police Department, along with his partner, Officer David Hartman, responded to a complaint regarding a burglar alarm at 820 Windsor Road (Cumberland, Maryland). Observing an open rear door at the residence, Grove entered in search of intruders. Once inside, he saw what he believed to be marijuana. He notified the Narcotics Task Force (NTF), which responded to the scene. In addition, Grove applied for (as co-affiant) and received a warrant to search and seize items in 820 Windsor Road.

Barry Levine, Deputy State's Attorney for Allegany County, accompanied the NTF as it executed the warrant. Appellant, along with a female companion, arrived at 820 Windsor Road as the officers executed the warrant. Upon learning that Allen resided at the premises, the officers arrested and charged him with drug related offenses. Prior to the chance encounter that evening, neither Grove nor Levine had occasion to know appellant.

Levine, who, at that time, was primarily responsible for drug prosecutions in Allegany County, represented the State in the prosecutions against Allen. Levine presented the State's position at a suppression hearing at which Grove served as a witness. Subsequently, Levine was present when appellant pled guilty to the charges against him. The court sentenced Allen to eighteen months' imprisonment, seventeen months suspended (supervised probation for three years, including drug testing), and one month of work release with Friends Aware, Inc. (FAI), a non-profit organization for mentally and physically disabled persons. ² Levine was on hand when the court handed down appellant's sentence.

Appellant, while working at FAI, met Larry Edwin Westwood. FAI employed Westwood from April to October of 1990. Allen and Westwood worked on projects together and gradually built up a rapport with each other. Eventually, Allen told Westwood how he felt about his drug prosecution. Westwood related the conversation to the jury.

Q: [MR. MONACO FOR THE STATE] Did he [Allen] tell you anything about his arrest and/or conviction on the drug charge?

A: Yes, he did.

Q: What did he tell you?

A: He told me that he thought he had been set up and he wasn't happy with being made an example of by the media and by the judicial system in Allegany County.

. . . . .

Q: When he would discuss either his arrest, his conviction, or his sentence, would he ever mention any specific individuals, would [he] identify names?

A: Yeah.

Q: What?

A: Shawn Grove, the officer that allegedly set him up.

Q: Did he tell you that?

A: Yes. Barry Levine prosecuted him to make an example out of him, just to set an example.

Westwood, in turn, shared the details of his tainted record with appellant.

Q: Mr. Westwood, we have discussed your military record ³ and your criminal background. ⁴ Did you ever tell William Allen about those things?

A: Yes, I did.

Q: At what point in this sequence of events did you make him aware of those facts.

A: At the Department of Motor Vehicles when we were discussing his conviction.

Q: Approximately how long was this after you had met him? Did the military and criminal information come out at different times or was it pretty much the same time?

A: Basically it had come out at the same time. We were just exchanging life histories, I guess you would call it.

. . . . .

Q: What else did you tell him about yourself?

A: That I was rowdy.

. . . . .

Q: Anything else?

A: You know, just--I don't know how to say it. Just my general nature.

Q: Well, did you use specific words? What exactly did you tell him?

A: About drinking and going into bars and terrorizing bars. You know, things like that. Things of that nature.

Levine occasionally saw Allen around Cumberland, which Levine described as a small town. Aside from noticing appellant outside of the courtroom, Levine next encountered appellant when Allen came before the court to face a violation of probation charge. Levine had filed an amendment to the violation of probation petition originally filed by appellant's probation officer Laurie Meredith. The court found that Allen had violated his probation. ⁵ Levine noticed that Westwood attended the hearing. Prior to that hearing, Levine had never seen Westwood. ⁶

Westwood testified that appellant's distaste for the criminal justice system transformed into a machination after the court found appellant violated his probation.

Q: Mr. Westwood, did Mr. Allen and you ever discuss doing anything specific or anything specifically about Shawn Grove and Barry Levine?

A: Yes, there was such a conversation.

. . . . .

Q: When did that topic of conversation first occur?

A: It occurred after the conviction [sic] for the probation violation.

. . . . .

THE COURT: So, your recollection is this conversation took place the first time the Defendant reported for service after his conviction [sic] for violation of probation?

THE WITNESS: Right.

. . . . .

Q: What was the content of those conversations? What did you say and what did he say?

A: He said he wanted to kill.

Q: Who?

A: Barry Levine and Shawn Grove.

Q: What did you say?

A: At first I was shocked as to why. Then he had continued to pursue the conversation with wanting to know if I could obtain dynamite. I told him that I could obtain dynamite. He said he wanted some dynamite to send a package to Mr. Barry Levine because of his pursuit of Billy Allen as an individual.

You see, he felt that he was being singled out and it was just going to be one legal hassle after another because they had it out for him, they wanted him.

Q: Did he ever discuss Shawn Grove?

A: Yes, he did.

Q: What did he say?

A: He wanted Shawn Grove killed, too.

. . . . .

Q: Did you and he have a conversation about killing Shawn Grove and Barry Levine just once?

A: Oh, no. This was after his conviction [sic] on the probation violation. This was a continual conversation with us. After his conviction [sic] for the probation violation, that's when we started to communicate more; two or three times a week. He would call me at my house or I would call him at his house....

Q: When was the first time that you remember the word kill or murder, something equivalent being used by either you or him in this period of time?

A: Right after his conviction [sic] for the probation violation.

Q: Who used it first? Who brought it up?

A: He did.

Q: You didn't bring it up?

A: What the hell--why should I bring it up. I don't have nothing against them. I'm not the ones [sic] that had been convicted.

Appellant informed others of his dissatisfaction with Grove and Levine. Allen's one-time girlfriend, Kerry Susan Murray, testified that she could not...