Brice v. State

Decision Date21 January 1972
Docket NumberNo. 156,156
Citation286 A.2d 132,264 Md. 352
PartiesWillie Frank BRICE v. STATE of Maryland.
CourtMaryland Court of Appeals

Joseph H. Thomas, Jr., Baltimore, for appellant.

Arrie W. Davis, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., anton J. S. Keating, Asst. State's Atty., Baltimore City, and Donaldson C. Cole, Jr., State's Atty., Cecil County, Elkton, on the brief), for the State.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SMITH, and DIGGES, JJ.

BARNES, Judge.

The appellant, Willie Frank Brice, was convicted by a jury in the Circuit Court for Cecil County of murder in the first degree, rape, robbery with a deadly weapon and perverted sexual practice. The case originated in the Criminal Court of Baltimore but was removed by the defendant, Brice, to the Circuit Court for Cecil County. The lower court, J. DeWeese Carter, C. J., and Roney, J., sentenced Brice to death in the gas chamber upon the indictments for rape and also for murder, to 10 years imprisonment upon the robbery indictment and to 10 years imprisonment upon the indictment for perverted practice to run consecutively with the robbery sentence. Upon application for review of sentence before a panel of Rasin, Clark and Turner, JJ., the panel affirmed the death penalty for the murder conviction, reduced the death penalty for the rape conviction to life imprisonment, increased the sentence for robbery with a deadly weapon from 10 to 20 years imprisonment and affirmed the sentence of 10 years imprisonment for perverted practice, all sentences to run consecutively to each other. A timely appeal was taken directly to this Court, the case involving the death penalty.

The trial upon the indictments in the Circuit Court for Cecil County was the second time the case was tried. The original trial was in the Criminal Court of Baltimore before Liss, J., and a jury. Brice was convicted under all four indictments and was sentenced to death for murder and rape, to 10 years imprisonment on the robbery with a deadly weapon indictment and to 10 years imprisonment upon the perverted practice indictment, to run consecutively with the death sentences. Two motions of the defendant, Brice, had not been passed upon by Judge Kenney-then in the Criminal Court of Baltimore-and these motions were inadvertently overlooked and were not passed upon prior to Brice's convictions and sentences. Upon appeal to us, we concluded that the failure to pass upon these motions was prejudicial to the defendant, Brice. We reversed the judgments and remanded the case for a new trial. See Brice v. State, 254 Md. 655, 255 A.2d 28 (1969). After the remand, Brice, as we have indicated, removed the case to the Circuit Court for Cecil County for trial with the results above set forth.

When the case came on for trial on February 16, 1971, the lower court denied Brice's motion to dismiss the indictments alleged to have been based on inadmissible evidence. Later, Brice withdrew his pleas of not guilty by reason of insanity which he had filed on January 19, 1971. Chief Judge Carter then examined the prospective jurors on their voir dire in regard to conscientious or religious scruples relating to capital punishment as such scruples would affect their ability to render a fair and impartial verdict based upon the evidence in the case. There being four separate indictments, it was agreed between counsel for the respective parties that the defendant, Brice, was entitled to 80 peremptory challenges and the State was entitled to 40 peremptory challenges. At the conclusion of the voir dire examination by the lower court, it permitted the State to exercise 15 of its 40 peremptory challenges, thus excusing 15 prospective jurors who had indicated scruples in regard to the death penalty. This will be discussed later in this opinion. It was also agreed that the four cases should be consolidated for trial.

After counsel for the State concluded his opening statement (counsel for Brice having reserved his opening statement until after the end of the State's case, at which time he made an opening statement for the defendant), the State produced four police officers to relate the physical circumstances surrounding the events of August 2, 1964, out of which the present case arose. Certain photographs showing the physical surroundings, the body of the decedent, John Calvin Richmond, and a large kitchen knife, the murder weapon, were identified and introduced into evidence.

Thereafter, the State introduced the testimony of Dicie Mae Richmond, wife of the decedent, who was the prosecuting witness and sole eye witness. Mrs. Richmond testified that her husband and Brice had lived in the same home town in South Carolina and had been raised together. However, she had only met Brice through her husband in 1948 or 1949. Mrs. Richmond and her husband lived at 2650 West Franklin Street in Baltimore City. Their residence had two stories. On the first floor, the steps lead to the second floor from a living room. There was a kitchen behind the living room. On the second floor, there were three bedrooms and a bathroom. In the basement, there was a toilet. The Richmonds, who were married in 1942, operated a grocery store at 605 Dolphin Street. Most of the cooking for their meals was done at the grocery store, rather than at their Franklin Street home. Mr. Richmond took care of the meats at the grocery store and Mrs. Richmond took care of the sales and receipts. Brice came to the grocery store in 1964 and, against her wishes, her husband allowed Brice to rent a room on the second floor of the Franklin Street home, paying a nominal rent. Brice became a roomer some two weeks prior to August 2, 1964.

On the Thursday prior to August 2, Brice had come to Mrs. Richmond's room and attempted to get in bed with her. She resisted him physically and he desisted in his efforts. Prior to August 2, Mr. Richmond and the defendant, Brice, had a dispute in regard to a gun owned by Mr. Richmond which had a broken firing pin and would not operate.

On the evening of Saturday, August 2, 1964, the Richmonds and Brice closed the grocery store at approximately 9:00 p.m. They then went to the home of Bubbles Robinson where they had some drinks. They then went to a seafood establishment at the corner of Monroe Street and Warwick Avenue, where Mrs. Richmond bought some crabs. When they arrived at the Franklin Street home, Mrs. Richmond prepared the crabs. When the crabs had been eaten, Mr. Richmond went into the living room and lay down on the sofa apparently to sleep. Mrs. Richmond also went into the living room and sat on a chair near the stairway. As she sat there reading, Brice, who had previously gone upstairs, came down the stairs, went into the kitchen and thereafter entered the living room.

The following testimony of Mrs. Richmond is rather grisly. Mrs. Richmond heard Brice mumble something, but did not look up immediately. She then heard her husband say 'whomp' and then looked up to see Brice standing over her husband-who was still on the sofa-stabbing him with her large kitchen knife. She saw blood gush from her husband's chest. She then ran to her husband and asked Brice why he was stabbing her husband. She struggled with Brice, during which Brice's hand was cut, and pleaded with him to stop stabbing her husband, but to no avail. Brice then ordered Mrs. Richmond 'to get upstairs' and 'to take off every piece (she) had on or (she) would get the same thing.' She then went upstairs. Brice followed her upstairs and placed his penis in the mouth of the nude woman. They then heard Mr. Richmond, who had managed to drag himself upstairs and who had collapsed in the bathroom, call 'dicie Mae, Dicie Mae, help me.' Brice then said to Mrs. Richmond: 'Don't cry, I cant't stand no crying.' He then said, 'Wait a minute, I am going to shut him up for good. You stay in here if you know what is good for you.' Brice then went into the bathroom, closed the door and Mrs. Richmond could hear him stabbing her husband some more. She heard her husband's death rattle but could not go to him.

Brice then returned and again forced Mrs. Richmond to take his penis in her mouth and to participate in an act of fellatio. Thereafter, he demanded that she have coitus with him. Brice then carried Mrs. Richmond to her bedroom where he continued to have sexual relations with her for approximately one hour.

Brice then forced Mrs. Richmond to accompany him to the toilet in the basement and to remain beside him while he had a bowel movement. Later he forced her to turn over to him the receipts of the grocery store for August 2-approximately $100.00-and took possession of a .22 caliber revolver which her husband had instructed her to carry for her protection. Brice then removed the automobile keys for the Richmonds' car from Mr. Richmond's body and then covered the body with a chenille bedspread.

Brice thereafter instructed Mrs. Richmond to drive him in the Richmond automobile to a house in Baltimore occupied by two or three unidentified persons. Brice instructed her to 'act natural' and 'not to forget that he had the gun.' All present drank beer for a short time when Mrs. Richmond suggested to Brice that he should take the car keys and see if the car was parked right. As he did this, Mrs. Richmond ran from the house screaming, 'Where does Teresa live?' Teresa was her husband's niece. Someone directed her to Teresa's house. Mrs. Richmond then related to Teresa what had happened after which Teresa called the police who immediately responded. Thereafter, Mrs. Richmond was taken to the police district for a physical examination. Brice was thereafter apprehended and charged as already indicated.

The lower court denied Brice's motions for judgment of acquittal and the State filed dismissals with prejudice to the State of all counts other than the first count of the respective four indictments. Brice elected not to testify in his own behalf. He...

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    ...v. State, 238 Md. 11, 21-22, 207 A.2d 456, 461-62 (1965); the position of the victim's body at the murder site, Brice v. State, 264 Md. 352, 368-69, 286 A.2d 132, 140 (1972); and the wounds of the victim, Madison v. State, 200 Md. 1, 7-8, 87 A.2d 593, 595 (1952). On certain occasions, photo......
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