Brown v. State

• Decision Date: 10 February 1965
• Docket Number: No. 156,156
• Citation: 237 Md. 492,207 A.2d 103
• Parties: David Columbus BROWN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 492

237 Md. 492

207 A.2d 103

David Columbus BROWN v. STATE of Maryland.

No. 156.

Court of Appeals of Maryland.

Feb. 10, 1965.

Argued and reargued by Charles P. Howard, J., Baltimore, for appellant.

Argued and reargued by Stuart H. Rome, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Charles E. Moylan, Jr., and Frank Cannizzaro, Jr., state's Atty., and Asst. State's Atty., respectively, for Baltimore City on the brief, Baltimore, for appellee.

Argued before HAMMOND, HORNEY, MARBURY, SYBERT and OPPENHEIMER, JJ.

Reargued before PRESCOTT, C. J., HAMMOND, HORNEY, MARBURY, SYBERT and OPPENHEIMER JJ., and ROBERT E. CLAPP, Jr., Special Judge.

OPPENHEIMER, Judge.

The appellant, Brown, was convicted of first degree murder in the Criminal Court of Baltimore by Judge Harris, sitting without a jury. First sentenced to life imprisonment, the sentence was 'stricken' or 'suspended' in order to enable him to file a motion for a new trial. Brown's motion for a new trial was filed but later withdrawn. He was then sentenced to death. In this appeal from that judgment, the appellant contends first, that the trial court erred in failing to grant a motion for a directed verdict of acquittal of murder in the first degree; second, that the appellant's representation by his trial counsel was so inadequate as to amount to a denial of due process of law; and, third, that the death sentence was illegally imposed. We shall consider these contentions in the order named.

I

The evidence is uncontradicted that Brown and the deceased, Geraldine Vandervall, had been living together for several years. She left him and with her three children, one of whom was Brown's, moved to her mother's home, in Baltimore City. Patricia Bell, a cousin of the deceased, testified that, about a month before the tragedy, she had heard Brown threaten to kill Geraldine if she left him. On the night of September 11, 1963, Brown came to the home of Patricia Bell, on North Avenue, west of Longwood Street, where Geraldine had been spending much of her time. Patricia Bell and her sister, Dorothea Bradley testified that Brown angrily demanded to see Geraldine; both girls told him Geraldine was not there and that they did not know where she could be found. Brown left and continued his search for Geraldine, visiting the nearby homes of several of her neighbors. In the meantime, Geraldine had arrived at her cousin's North Avenue house. Patricia Bell saw Brown return to his car, which he had parked on North Avenue, and Patricia told Geraldine of Brown's return. Geraldine, according to Patricia, said she did not want to talk with Brown but thought she should 'get it over with now.' Patricia said Geraldine stepped outside and called Brown's name. Brown said he wanted to talk with her had drove around the corner to Longwood Street with Geraldine following on foot. The two then engaged in conversation; Patricia could only see the rear of Brown's car. Patricia, concerned about her cousin, walked around the corner several times, but, on each occasion, the couple stopped speaking as Patricia came into sight. Patricia observed Brown seated in the car with the door open and his feet on the curb; Geraldine was standing before him on the sidewalk. After her second expedition, Patricia returned to her house and sat on the front steps. Shortly thereafter, she heard a man at the corner say, 'Miss, is you all right?' Patricia ran to the corner and found Geraldine in the gutter, her eye gouged and her body bloodied. Brown's car was still there, with the door open, but Brown had filed. The police were called and took Geraldine to a hospital. She was dead on arrival. She was a slight woman, five feet one inch in height and only eighty-nine pounds in weight. The autopsy report shows she died of multiple stab wounds of the face, head, neck, back, upper body and abdomen. Brown voluntarily surrendered to the police later the same night.

Brown chose not to take the stand in his own defense. The only evidence as to what took place between Brown and Geraldine immediately before her death is contained in Brown's unsigned confession. No contention was made at the trial, or is made on this appeal, that the confession was involuntary. Brown's trial counsel (who is not counsel in this appeal) stated Brown said he gave the statement voluntarily, and, at the trial, on a question from the court, Brown said this was correct. Sergeant Albert Thomas, to whom Brown gave his statement, testified Brown said, in part '[A]s he saw Geraldine come out of Patsy's house he pulled around the corner and stopped and Geraldine came down and she got in the car and we were talking. He said first she was standing on the sidewalk and I was talking to her with the right door open. Then he got out, stood on the sidewalk and she got in the car. When I asked if she was going home with me, and she said, no, so I told her to get out of the car so I could go and she said she wasn't finished talking and I told her; he said he told her he didn't have any more to say. She didn't get out of the car so he reached in, grabbed her, tried to pull her out and she pulled the door shut. She tried to get the window up and he got inside the window and he said she found a screwdriver on the seat of the car. He said he took the screwdriver away from her and he hit her with it. He said he hit her with the screwdriver. * * * 'She told me I hurt her', and he said he hit her again. He said, 'I will kill you,' and he said he kept on hitting her and she was trying to get out of the other side of the car and she was hollering, and 'The last time I hit her I saw blood on my hand.' Then he dropped the screwdriver and ran down to his brother's house at 1719 Moreland Avenue.'

The scope of our review as to the sufficiency of the evidence to sustain the conviction of murder in the first degree is not to determine whether the State has proved its case beyond a reasonable doubt, but whether there was sufficient relevant evidence properly before the trier of the facts to sustain the conviction. Sample v. State, 235 Md. 554, 201 A.2d 797 (1964); Tull v. State, 230 Md. 596, 604, 188 A.2d 150 (1963); Lee v. State, 224 Md. 260, 167 A.2d 595 (1961) and cases therein cited. In this case, there was testimony as to Brown's threat to kill his paramour, uttered several weeks before the slaying. He admitted using the screwdriver to inflict repeated blows upon his victim; he confessed that he hit her again when she said he had hurt her and told her 'I will kill you.' The fact that the screwdriver was not found and apparently had not been on Brown's person before the crime and Brown's statements that the slightly built woman he killed had tried to keep him out of the car and that it was she who had picked up the screwdriver, were for the trial judge's consideration in arriving at his verdict. It was for the judge to determine whether the State had proved first degree murder beyond a reasonable doubt. There was ample evidence to sustain the court's finding.

II

The record does not show Brown ever complained of his representation at his trial in the court below or thereafter, before this appeal. The point can not be raised for the first time here. Maryland Rule 885, Stevens v. State, 230 Md. 47, 185 A.2d 194 (1962).

In any event, however, the complaint of inadequate counsel is not supported in the transcript of the record of the trial. Some testimony was admitted without objection when objections might have been made, but the adequacy of counsel is not to be measured by the number of his objections. An attorney may deem it expedient, in his client's interests, not to risk emphasizing adverse testimony. Even though, on hindsight, a decision may seem unwise, mere error in trial tactics do not amount, per se, to inadequate representation. Greene v. State, 233 Md. 274, 196 A.2d 454 (1964); Stevens v. State, supra.

Brown's trial counsel was vigorous in cross-examination. The fact that he produced no defense witnesses does not prove inadequacy; there may have been none. Brown elected not to take the stand. Often, where the State's case is strong, experienced trial counsel direct their principal efforts to the mitigation of sentence. In this case, the sentence originally imposed was less than the maximum permitted by law.

III

Determination of the question of whether, on the facts, the increase of the life sentence originally imposed to capital punishment was illegal, requires an examination of the place of motions for new trials in criminal cases in Baltimore City and the procedure in respect thereto.

Absent State constitutional or statutory requirements, the right to file a motion for a new trial after conviction for a criminal offense is not guaranteed under the due process clause. There is no right, under that clause, even to an appeal. Griffin v. People of the State of Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Winkler v. State, 194 Md. 1, 16-17, 69 A.2d 674 (1949) and cases therein cited. In Maryland, before the adoption of the amendment to Section 5 of Article XV of our Constitution, this Court did not have the power to review the legal sufficiency of the evidence to sustain a conviction. Giles v. State, 229 Md. 370, 384, 183 A.2d 359 (1962); Slansky v. State, 192 Md. 94, 63 A.2d 599 (1949).

However, Section 33 of Article IV of the Maryland Constitution provides that the Supreme Bench of Baltimore City shall have jurisdiction to hear and determine all motions for a new trial in cases tried in any of its courts where such motions arise either on questions of fact or for instruction upon any matters of law, and that the Supreme Bench shall make all needful rules and regulations for the hearing before it of all of said matters. Code (1957) Article 27, Section 594 provides, inter alia, that all motions for new trials in criminal cases in Baltimore City shall be heard by the Supreme Bench. In Johnson v. State, 219 Md. 481, 150...