Ball v. State

Decision Date02 February 1984
Docket NumberNo. 75,75
Citation57 Md.App. 338,470 A.2d 361
PartiesSheldon Savior BALL and Joseph Melvin Wright and Kenneth D. Coley v. STATE of Maryland. Sept. Term 1983.
CourtCourt of Special Appeals of Maryland

Mark Colvin, Assigned Public Defender, for Wright; John Kopolow, Asst. Public Defender, for Coley; Clarence W. Sharp, Assigned Public Defender, for Ball; with whom was Alan H. Murrell, Public Defender of Maryland on all the briefs.

Jillyn K. Schulze, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland, Kurt Schmoke, State's Atty. for Baltimore City, and James Maggio, Asst. State's Atty. for Baltimore City on the brief, for appellee.

Argued before MOYLAN and WILNER, JJ., and MORTON, JAMES C., Jr. (Ret.), Specially Assigned Judge.

MOYLAN, Judge.

The appellants, Sheldon Savior Ball, Joseph Melvin Wright, and Kenneth D. Coley were jointly tried by a Baltimore City jury, presided over by Judge Robert I.H. Hammerman, for murder, attempted armed robbery, and related offenses. The appellant Wright was convicted of 1) felony-murder, 2) the use of a handgun in the commission of a felony, and 3) the unlawful carrying of a handgun. He was sentenced to life imprisonment. The appellant Coley was found guilty of felony-murder and sentenced to life imprisonment, an indefinite fifteen years of which sentence were suspended. The appellant Ball was found guilty of 1) murder in the second degree, 2) the use of a handgun in the commission of a crime of violence, and 3) the possession of a handgun. He was sentenced to thirty years on the murder conviction and fifteen years on the use of the handgun in a crime of violence, the two sentences to be served consecutively.

The appellants Wright and Ball both raise the following contention:

1. That the trial judge committed reversible error when he refused to sever their trials from each other and from the trials of the appellant Coley and another codefendant, Dwight Gilmore;

The appellants Wright and Coley both raise the following contention:

2. That the trial judge erred by refusing to instruct the jury that felony-murder is murder in the first degree;

The appellant Ball alone raises three other contentions:

3. That the evidence was not legally sufficient to sustain his convictions;

4. That he was denied a fair trial by the prejudicial nature of the State's closing argument; and

5. That the trial judge erroneously admitted an excised statement given by codefendant Coley; subsequently admitted the same statement with the names disclosed; and refused to permit the appellant Ball to cross-examine his codefendant, Kenneth Coley.

The appellant Coley alone raises six separate contentions:

6. That the evidence was not legally sufficient to sustain his conviction for felony murder;

7. That the trial judge erroneously refused to suppress his extrajudicial confessions 8. That the trial judge erroneously refused to allow him to cross-examine Sergeant Brandner as to what the Assistant State's Attorney told the appellant prior to the execution of the plea agreement;

9. That the trial judge erroneously refused to permit defense counsel in closing argument to read a principle of law from a Court of Appeals opinion;

10. That the trial judge erroneously instructed the jury that the appellant's testimony was given freely and voluntarily; and

11. That he is entitled to be resentenced because the sentence imposed is vague and indefinite.

The appellant Wright alone raises two additional contentions:

12. That the trial court erred in accepting a verdict of guilty on the charge of using a handgun in the commission of a felony or a crime of violence, where the verdict sheet indicated that the jury had acquitted him of that offense; and

13. That his trial and conviction for felony-murder and for the use of a handgun in the commission of a felony were barred by the protection against double jeopardy.

Contentions 3 and 6:

Legal Sufficiency of the Evidence

We will consider first the respective claims of the appellants Ball and Coley that the evidence was not legally sufficient to sustain their various convictions. The contentions are literally absurd. The evidence established indisputably that, on the morning of February 19, 1982, Henderson McInnis, a security guard at the A & P Supermarket on Frederick Avenue, was shot and killed in the course of an attempted armed robbery. As to the corpus delicti of the crime, Charlotte Locklear, clerk at the A & P, testified that, shortly after 9 A.M., "three guys were up by the guard and I guess they were talking, and then I heard a bang go off ... and then I heard another one go off and then I hit the floor and then I heard two more go off." The witness testified that the men were wearing masks and ran toward Frederick Avenue after the shots were fired.

Another witness to the crime was a customer in the store, Cecilia Kasper. She testified that "three boys came in and the guard walked towards them and they shot him." She testified that the men wore masks and ran toward Frederick Avenue as soon as the shooting occurred.

Dwight Woods also testified as to the corpus delicti. He stated that he was walking toward the A & P store in question, when he saw, for "just a second," "two guys run across Frederick Avenue towards Catherine with dark blue clothing." He made in-court identifications of the appellant Wright and the codefendant Gilmore as the two men he saw running.

Another witness in the A & P store was Chico Young, who was in the store to talk to the security guard about repairing a television set. Young described the shooting as follows:

"And when the store opened at 9:00 o'clock ... while I was in there, I had to wait to see him because four black boys was there talking to him and before I get a chance to talk to the man, there was some shooting ... All I saw was the young man in a light trenchcoat take a revolver from his coat pocket and fire upon the security guard ... They came running out."

He testified that two of the men ran in one direction and two, in another direction. Mary Wilson, the head cashier in the store, also testified that she heard four or five shots but saw nothing.

The establishment of the criminal agency of Ball and Coley began with the testimony of Marcus Taylor. He testified that he "grew up" with all four of the defendants, Wright, Ball, Coley, and Gilmore. On the day of the robbery, Taylor stated that he saw all four of them run by him, put masks on, and enter the A & P store. Shortly after that, he heard "a couple of shots." He then saw the same four run out of the store toward Frederick Avenue.

With respect to the criminal agency of the appellant Ball specifically, Angelo Frazier testified that he was incarcerated for a time in close proximity to both Ball and the codefendant Gilmore. On March 23, 1982, while in a Central District lockup, Frazier heard Gilmore say to Ball, "This is probably the A & P lineup. I can't worry because they can't identify any of us, we had masks on." To that observation, Ball replied, "I know, I ain't worried about it."

With regard to the criminal agency of Coley specifically, Sergeant Gerard Brandner testified as to a statement he took from Coley in which Coley acknowledged that he and his three coconspirators planned to rob the A & P store; that he and one of the codefendants entered the store first; that Ball shot the security guard before the other two codefendants were able to enter the store; that all four men fled immediately; and that all four wore ski masks while in the store.

The appellant Coley, moreover, actually took the stand in his own defense. His trial testimony, in contrast to his earlier statement, shifted the identity of his three co-conspirators from his three codefendants to State's witnesses Marcus Taylor and Dwight Woods and a third individual named Leroy. Although the characters had changed, the plot had not. From his own lips, both extrajudicially and judicially, Coley's guilt was indisputably established.

A. As to Coley: The Corroboration Requirement

The appellant Coley advances the ingenious, albeit strained, argument that the evidence is not legally sufficient to sustain his conviction because it is based upon his own uncorroborated confession. He does not go so far as to argue that there was no corroboration generally, but does argue that the only evidence that the killing was in furtherance of an attempted robbery was evidence that he himself supplied. He reads too much into the requirement that a defendant cannot be convicted upon his confession alone but that there must be some independent evidence, although it need only be slight, tending to establish the corpus delicti of the crime. The salutary purpose of this particular corroboration requirement is to prevent a mentally unstable person from confessing to, and thereby being convicted of, a crime that never occurred. Lemons v. State, 49 Md.App. 467, 469, 433 A.2d 1179 (1981). The requirement that there be some corroborating evidence tending to establish the corpus delicti generally, does not establish an independent corroboration requirement as to each component element of the corpus delicti.

The appellant Coley was, in the last analysis, convicted of murder. There was undisputed independent evidence that the victim, Henderson McInnis, had died of gunshot wounds. Society was amply reassured that the appellant Coley was no mere mental incompetent who had wandered in off the streets to confess to some totally nonexistent crime. Bagley v. State, 232 Md. 86, 96, 192 A.2d 53 (1963); Pierce v. State, 227 Md. 221, 175 A.2d 743 (1961).

Our disposition of the contention on this ground by no means intimates that there was not also independent corroboration, if it were needed, to establish the underlying felonious purpose. When four men enter a commercial establishment, armed and wearing ski masks, a reasonably permitted inference is that their business was robbery. Miller v....

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