Bloodsworth v. State

Decision Date01 September 1987
Docket NumberNo. 1376,1376
Citation543 A.2d 382,76 Md.App. 23
PartiesKirk Noble BLOODSWORTH v. STATE of Maryland. ,
CourtCourt of Special Appeals of Maryland

George E. Burns, Jr. and Julia Doyle Bernhardt, Asst. Public Defenders (Alan H. Murrell, Public Defender and Laurie I. Mikva, Asst. Public Defender, on the brief), Baltimore, Md., for appellant.

Jillyn K. Schulze, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Sandra A. O'Connor, State's Atty. for Baltimore County, S. Ann Brobst and Michael Pulver, Asst. State's Attorneys for Baltimore County, on the brief, Towson), for appellee.

Argued before BISHOP, ALPERT and ROSALYN B. BELL, JJ.

BISHOP, Judge.

A jury in the Circuit Court for Baltimore County (Smith, J.) convicted Kirk Noble Bloodsworth, appellant, of first degree murder, felony murder and first degree sexual offense under MD.ANN.CODE Art. 27, §§ 407, 410 and 462, respectively. 1 For the first degree murder conviction and for the first degree rape conviction, the trial court sentenced Bloodsworth to consecutive life terms. Bloodsworth asks whether:

I. There was sufficient evidence.

II. The trial court erred in admitting as rebuttal evidence appellant's testimony from his first trial.

III. The State withheld exculpatory evidence.

IV. The trial court abused its discretion in denying appellant a new trial.

V. The trial court erred in admitting "other crimes" evidence.

VI. The trial court erred in admitting certain hearsay evidence.

VII. The trial court erred in excluding certain evidence of a composite sketch.

VIII. The trial court erred in refusing to call a witness as a court's witness.

IX. The trial court erred in admitting photographic evidence of the pattern of the sole of Richard Gray's shoe.

X. The trial court erred in admitting evidence that appellant became a suspect as a result of a "tip".

XI. The State made an improper closing argument.

I. Sufficiency

Bloodsworth challenges the sufficiency of the evidence to convict, just as he did in Bloodsworth v. State, 307 Md. 164, 512 A.2d 1056 (1986) (Bloodsworth I ). As the Court of Appeals stated in Bloodsworth:

[w]e first address that issue because if there were insufficient evidence to convict there could be no new trial.

The applicable standard is whether after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The standard is derived from Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Branch v. State, 305 Md. 177, 182-83, 502 A.2d 496, 498 (1986); State v. Rusk, 289 Md. 230, 240, 424 A.2d 720, 725 (1981); Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830, 842 (1980). (Emphasis in original.)

Id. at 167, 512 A.2d 1056.

On July 25, 1984, police discovered the partially nude body of nine year old Dawn Hamilton in a wooded area near Golden Ring Mall in eastern Baltimore County. The victim was found lying on her stomach with an eight inch stick protruding from her vagina. Near the victim's head was found a large piece of concrete with a possible blood stain. The victim's skull was "fractured" and "depressed" and her scalp had "two tears" with a "very rough edge". The victim's neck had a "patterned abrasion". The opinion of the medical examiner, Dr. Dennis Smyth was that the death was a homicide and "was a result of blunt trauma to the head and strangulation."

On the morning of the murder, ten year old Christian Shipley and seven year old Jackie Poling were fishing at a pond near the scene. Christian testified that after a few hours, a man came by and Jackie showed him a turtle he had caught. Shortly thereafter, Dawn came by and asked the two boys to help her look for her cousin Lisa. The boys refused and resumed their fishing. The man, however, agreed to help Dawn and the two walked off together.

After Dawn's body was found, Christian assisted police in the production of a composite likeness of the man. Christian also picked Bloodsworth from a photographic array as the man he saw walk off with Dawn. Christian testified that at a police line-up, held on August 13, 1984, he recognized the man in the sixth position as the man who went into the woods with Dawn, but was afraid to tell the police. He made no identification at that time. Nonetheless, one of the investigating police officers, Detective Robert Capel, testified that immediately after the lineup, Christian told him that he "knew all the time that it was number six but he didn't want the man to hear his voice because the man could tell it was him because it was a little kid's voice." Christian also made an in-court identification of Bloodsworth.

Although he could not remember the exact day or year, Jackie Poling testified that he remembered going fishing with Christian Shipley on a day when he caught a turtle and that a man stopped to talk with him about the turtle. Jackie testified that Dawn came by and asked for help in finding her cousin and that, after he and Christian refused to help her, the man told Dawn he would help her look for her cousin and the two "walked off into the woods." He was unable to make an in-court identification of the man he saw at the pond.

When Jackie attended a line-up on August 13, 1984, he identified the man in the third position, not the appellant who was in the sixth position. After the line-up, Jackie, Christian and their mothers were taken to their homes in a police car. There is conflicting testimony regarding when Jackie informed his mother that the man he saw walk off with Dawn was "number six." Jackie's mother, Denise Poling, testified that he told her it was number six after the line-up but before they left the Towson police station. She acknowledged, however, that she did not inform any of the police officers at the station that Jackie had recanted his earlier identification and was now claiming that the man who walked off with Dawn had been number six. She testified further that although on the way home from the police station she discussed with Christian's mother the fact that Jackie had told her he had been scared and had identified the wrong man in the line-up, she did not mention that fact to the police officer who was driving the patrol car. Jackie, on the other hand, testified that he did not tell his mother about his misidentification until after they had been returned home from the line-up. It is undisputed, however, that Mrs. Poling did not tell the police what Jackie had told her until September 4, 1984, almost three weeks after the line-up. Upon receiving this information from Mrs. Poling, an officer went to the Poling home that evening and took a statement from Jackie which contained the above information.

Donna Ferguson testified that she saw the victim talking with a man near the woods at approximately 10:30 a.m. on the day of the murder. At a police line-up, Ms. Ferguson identified Bloodsworth as the man she saw with the victim. Ms. Ferguson also made an in-court identification of Bloodsworth.

James Keller testified that he was driving down Fontana Lane, near the scene of the murder, at approximately 6:30 a.m. when he saw a man standing by the side of the road. From both a photo array and a police line-up, Keller identified Bloodsworth as the man he saw that day.

Soon after the murder, Bloodsworth's wife, Wanda, filed a missing person's report concerning Bloodsworth. Based on information obtained from that report, Detective Capel interviewed Bloodsworth in Cambridge on August 8, 1984, concerning his activities on the day of the murder. Detective Capel testified that Bloodsworth "had a hard time remembering his exact whereabouts," but that Bloodsworth said he had never been to the area near the murder scene. The detective testified that Bloodsworth told him that after picking up his paycheck, he left Baltimore on August 3, 1984, and took a bus to Cambridge. Prior to concluding the interview, Detective Capel took two photographs of Bloodsworth.

Detective Capel testified that he placed Bloodsworth's photograph in a photo array and showed the array to Jackie Poling and Christian Shipley. Christian Shipley identified Bloodsworth, but Jackie Poling was unable to make a positive identification. Based upon Christian's positive identification, Detective Capel obtained an arrest warrant for Bloodsworth, returned to Cambridge on August 9, 1984, arrested Bloodsworth and interviewed him a second time. The detective testified that he once again asked Bloodsworth about his activities on the day of the murder, July 25, 1984. He testified that Bloodsworth was unsure of his precise whereabouts, but that he was sure he had never been to the area where the victim was murdered. Detective Capel testified that he

asked the defendant why he was going around telling people in Cambridge about a bloody rock when only a few policemen and the killer knew about a bloody rock and he said that he didn't know why. He denied it at first and then stated he just didn't know why he did it. And at that point he said that I didn't kill that child, only somebody sick would hurt a child.

Tina Christopher testified that she had a conversation 2 with Bloodsworth in Cambridge:

He was talking about this little girl. I thought it was his daughter, so I didn't really pay too much attention to him, but he described what this little girl was supposed to have been wearing and things that went on, and he said that him and that other guy was on this beach and this girl come up to him and asked him to help her, and this other guy was supposed to took her off somewheres [sic].

Q Did he say who this other guy was?

A No, I asked him that. I know he heard me because he looked up at me a couple of times but he never did answer who he was.

Q And how many times did he talk about this little girl?

A Once, and then he left and he come back and he started talking about her again, saying th...

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