Bedford v. State

• Decision Date: 29 November 1989
• Citation: 566 A.2d 111,317 Md. 659
• Parties: Robert BEDFORD, Jr. v. STATE of Maryland. 112 Sept. Term 1987.
• Court: Maryland Court of Appeals

Page 659

317 Md. 659

566 A.2d 111

Robert BEDFORD, Jr. v. STATE of Maryland.

112 Sept. Term 1987.

Court of Appeals of Maryland.

Nov. 29, 1989.

George E. Burns, Jr., Julia D. Bernhardt, Asst. Public Defenders (Alan H. Murrell, Public Defender, all on brief), Baltimore, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Jillyn K. Schulze, Asst. Atty. Gen., all on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

COLE, Judge.

A jury sitting in the Circuit Court for Baltimore County (Nickerson, J.) found Robert Bedford guilty of first degree premeditated murder, first degree felony murder, first degree rape, robbery with a deadly weapon, and theft of over $300.00. The circuit court sentenced him to death on the murder charge. This case is an automatic appeal, pursuant to Md.Code (1957, 1976 Repl.Vol.) Art. 27, § 414(a), to this Court's exclusive appellate jurisdiction, under Md. Code Courts and Judicial Proceedings Article § 12-307(4) (Supp.1988), in cases where the death penalty has been imposed.

A detailed account of the gruesome facts is unnecessary for our resolution of the issues raised. Here the victim was found murdered and sexually abused in the bedroom of her home. At this time she was separated from her husband and her daughter was away at college. The house had been ransacked, personal items had been removed therefrom, and her car had been stolen. Evidence from passengers of the stolen car led to Bedford's arrest, and a subsequent search of his residence led to the recovery of a stereo record player and other personal items belonging to the victim. When arrested, Bedford was found wearing around his neck a gold chain belonging to the victim. Nevertheless, Bedford maintains that he is not the criminal agent.

Bedford's basic attack concerns the admission of certain evidence during the course of the guilt or innocence phase of this trial. ¹ He presents three issues which he argues should be resolved in his favor and thereby entitle him to a new trial: (1) it was reversible error for the court to admit evidence of two instances of alleged attempts to escape as demonstrating a consciousness of guilt; (2) the trial court improperly conducted voir dire of the jury in that it denied him the right to communicate with his counsel and portrayed him to the jury as a dangerous man; and (3) the trial court improperly admitted nine color photographs of the victim. For all or any of these reasons, Bedford claims he is entitled to a new trial.

I

At trial, the State sought to introduce evidence purporting to show that Bedford had attempted to escape on two occasions since his arrest in 1987 for these offenses and that this conduct gave rise to an inference that Bedford was guilty of the charged offenses. Over Bedford's objections, the trial judge admitted evidence that during a February strip search, prison guards discovered a four inch wire hidden on Bedford and that in May, guards found Bedford, who had been taken to court for trial, unescorted and wandering inside the courthouse. The trial court noted that while the State's evidence was circumstantial in nature, nonetheless it was admissible as tending to demonstrate Bedford's consciousness of guilt.

This Court has previously examined the admissibility of evidence of flight after a crime has been committed. In Sorrell v. State, 315 Md. 224, 554 A.2d 352 (1989), we concluded that "[e]vidence of flight following a crime has generally been held admissible to show consciousness of guilt in Maryland" Id. at 227, 554 A.2d at 353; see also Hunt v. State, 312 Md. 494, 508-09, 540 A.2d 1125, 1132 (1988); Huffington v. State, 295 Md. 1, 16, 452 A.2d 1211, 1218 (1982), cert. denied 478 U.S. 1023, 106 S.Ct. 3315, 92 L.Ed.2d 745 (1986); Tichnell v. State, 287 Md. 695, 716-17 n. 11, 415 A.2d 830, 841 n. 11 (1980). "Flight" includes an escape or attempted escape from confinement. C. McCormick, McCormick on Evidence § 271 (3d ed. 1984); see 2 J. Wigmore, Evidence § 276 (J. Chadbourn rev. 1979).

Although flight is not conclusive of guilt in and of itself, it is one of the factors to be considered in establishing guilt and consciousness of that guilt. 1 Wharton's Criminal Evidence § 214 (C. Torcia 13th ed. 1972). Any evidence contradicting the inference of guilt derived from flight "does not render the evidence of flight inadmissible, but is merely to be considered by the jury in weighing the effect of such flight." Sorrell, 315 Md. at 228, 554 A.2d at 354 (quoting 1 Wharton's Criminal Evidence § 214 at 450). With this background in place, we now examine the incidents in question.

On the morning of May 20, 1987, Bedford was transported by two officers from the Detention Center to the Baltimore County Circuit Courthouse where he was to attend his trial. Bedford and eleven other prisoners were handcuffed one to the other forming a human chain and led out of the police wagon. They were then led into the building, through the underground garage, and down a hallway toward the holding cells (called the bull pen area). Normally, at this point, prisoners are uncuffed and placed into the cells. One of the transporting officers testified that for reasons he just did not know, Bedford never made it into his assigned lockup cell. In an agreed statement of facts, however, both parties conceded that the prisoners' cuffs had been unlocked by the officer and each prisoner directed into a cell. Bedford had stepped behind the officer as did other prisoners preparing to enter the cell. Bedford, however, did not enter as presumed but instead walked away from the cellblock.

Not long thereafter, Bedford was spotted by an officer who was transporting prisoners down one of the ground floor hallways. That officer testified that he saw someone duck into an open cell in a twenty to thirty foot long dead-end hallway, which at that time was "completely dark except for the light from the hallway going in." The officer approached Bedford and asked him to identify himself and state his purpose for being in the hallway. Bedford did not identify himself, but stated that he had come in through the exit at the end of the hallway. The officer discounted this reply as false since the exit remained locked, and there was only one way into and out of the area. There was no access to any area open to the public. The officer asked Bedford to accompany him to the main desk where other officers recognized and immediately handcuffed Bedford. ² 2]

Bedford argues that he did not "escape" because he never left the courthouse. Any departure "from the bounds where [the defendant] has been assigned," however, is sufficient to constitute escape under Md. Code (1957, 1976 Repl.Vol.) Art. 27, § 139(a)(1). Stewart v. State, 275 Md. 258, 271, 340 A.2d 290, 297 (1975).

Bedford may attempt to convince the jury that his "failure" to leave the courthouse is inconsistent with flight giving rise to an inference of guilt. As stated in Sorrell, such testimony would go to counteract the weight given the effect of such flight, but would not prevent its admission. We therefore hold that evidence regarding the May 20th incident was admissible.

We turn now to the February incident. On February 25, 1987, following arrest and incarceration on charges of first degree murder, robbery, and rape, Bedford was scheduled to be transported from his cell in the Baltimore County Detention Center to the office of a psychiatrist outside of the prison complex. Consistent with normal procedure for all inmates leaving the Center, deputies requested Bedford to remove his clothing in preparation for a "strip-search" to detect the presence or absence of contraband or any tools which might aid his escape. Bedford verbally resisted, asking to see his lawyer or a police captain. This request was denied and Bedford was searched. Inside his "long-johns" the officers discovered a four-inch piece of metal wire sharpened to a point and wrapped in toilet paper. The officer who conducted the search testified at trial that he personally had seen such instruments used to open handcuff locks. When asked to unlock handcuffs by using the four inch wire, however, he was unable to do so. Nevertheless, the State maintained that the wire was properly admitted into evidence as supporting the inference that Bedford planned to escape once enroute to his destination.

We note that the crime of criminal attempt in Maryland is governed by a "substantial step" test, whereby a defendant will be found guilty of attempt only where the evidence demonstrates that he took "substantial step[s] toward the commission of [a] crime whether or not his intention [to commit that crime] be accomplished." Young v. State, 303 Md. 298, 311, 493 A.2d 352, 359 (1985). In Young, we also pointed out that no "substantial step" will be found unless the conduct is "strongly corroborative" of a criminal intention. Id. Here, the State argues that Bedford is guilty of attempted escape since he was caught with a sharpened four-inch piece of wire useful to pick handcuff locks.

Bedford retorts that this evidence only shows mere possession of a wire. Standing alone, this evidence is not enough to be regarded as a "substantial step" toward escape and is certainly not corroborative of an intent to flee. First of all, he argues, there is no indication of what he planned to do with the wire. It could have been used for other purposes which do not support the consciousness of guilt theory, i.e., a defensive or offensive weapon, a tool for intra-prison work activity, or any other purpose unrelated to the charges against him.

But in any event, Bedford maintains that the prejudice generated by the evidence that he was in possession of a wire outweighed any probative value that that evidence might have had. It did not imply that he knew that he was guilty of the crimes charged; rather, Bedford...