Brown v. State

Decision Date26 November 1975
Docket NumberNo. 120,120
Citation349 A.2d 359,29 Md.App. 1
PartiesMary Washington BROWN v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Joseph B. Harlan, Assigned Public Defender, Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., for Baltimore City, and Philip V. Tamburrello, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before GILBERT, DAVIDSON and MELVIN, JJ.

GILBERT, Judge.

Charlotte Lessem, a sixty-eight year old resident of North Carolina, was stabbed to death in the ladies' rest room of the Greyhound Bus terminal in Baltimore City on January 19, 1974. Mary Washington Brown and Tina Louise Green were charged with the murder of Lessem and the attempted robbery of her. Tina Louise Green was tried separately from the appellant, Mary Washington Brown. She is not a party to this appeal. 1 A jury in the Criminal Court of Baltimore, presided over by Judge John R. Hargrove, found appellant to be guilty of murder in the first degree. Appellant, following her being sentenced to life imprisonment, appealed to this Court.

Appellant mounts a nine-pronged attack upon the judgment of the trial court. She urges us to hold:

'I. The Trial Court erred to the irreparable prejudice of the Appellant by failing to strike the entire jury venire for the reason that they had previously been charged with respect to the law out of the presence of the Appellant.

II. The Trial Court erred to the irreparable prejudice of the Appellant by failing to suppress the introduction of the Appellant's tennis shoe and blood stains thereon.

III. The Trial Court erred to the irreparable prejudice of the Appellant by failing to suppress the introduction of the blood seized from the person of the Appellant.

IV. The Trial Court erred to the irreparable prejudice of the Appellant by refusing to permit the Appellant to call an expert witness with respect to the photographic identification of a coat.

V. The Trial Court erred to the irreparable prejudice of the Appellant, by permitting Tina Green to testify for the State.

VI. The Trial Court erred to the irreparable prejudice of the Appellant by permitting the State to enter the State's Exhibits Nos. 3, 4, 7, 9, 10A, 10B, 14, 15 and 16.

VII. The Trial Court erred to the irreparable prejudice of the Appellant by striking the entire testimony of the character witness of the Appellant.

VIII. The Trial Court erred to the irreparable prejudice of the Appellant by erroneously placing the burden on the Defendant to overcome the presumption of second degree murder in a wrongful death case.

IX. The Trial Court erred to the irreparable prejudice of the Appellant by failing to direct a verdict in favor of the Appellant at the conclusion of the State's case in chief and at the conclusion of the entire case.'

We shall discuss each of appellant's contentions in the order in which she has advanced them.

I.

The Venire.

The practice before the Supreme Bench of Baltimore City is to assemble newly called jurors in an orientation program where the jurors are informed by a judge of the meaning of certain words. To some, the words may be part of an entirely new vocabulary. They are told the definition of such terms as 'probable cause', 'beyond a reasonable doubt', and 'preponderance of the evidence.' The judge who relates the meaning of those terms to the jurors does not advise the jurors how to apply them to particular or specific facts.

When the instant case was called to trial, appellant's counsel moved to disqualify the entire prospective jury panel on the basis that they had been 'charged' by a judge of the Supreme Bench at the orientation as to legal principles applicable in criminal trials. The appellant contended that the 'charging' of the venire was a 'critical stage' of the proceeding, thus requiring the appellant's presence. Appellant reasons that inasmuch as she was not present during the 'charge' and was not afforded an opportunity to submit requested instructions or interpose objections to the 'charge', the entire venire must be disqualified. She apparently believes that she should be tried before a jury that has not been 'tainted' by the orientation program.

Appellant's counsel argued to Judge Hargrove:

'. . . I . . . repeat again, . . . (that) she will be judged by a jury that was instructed as to the law generally, all about it, in criminal cases as well as in civil cases, that the jury that she never even heard instructions to, had no opportunity to object to the instructions to the jury that were given by a judge sitting on the bench, a judge not even presiding in this trial, nor did she have a chance to put in her own prayers.'

The first hurdle that appellant must clear in order to reach the substance of her assault on the Supreme Bench's orientation procedure is whether that educational program is a 'critical stage' of the criminal process.

We note that all prospective jurors in the courts of the Supreme Bench 2 are apprised at orientation of some of the terms more frequently employed by counsel and judges. The orientation seems to be a verbalizing of the content of the booklet prepared by the Circuit Administrative Judges of Maryland, entitled, 'A Handbook for Petit Jurors' and presumably in use throughout the State, with the addition of some other terms and local practices. The orientation is not intended as a substitute for the advisory instructions usually given to a jury at the close of the evidence in a criminal case. The orientation of the entire panel of jurors that is used throughout the courts of Baltimore City cannot be miscast by appellant as a 'critical stage' of a criminal prosecution.

We know of no statute, rule of court, decision of the Supreme Court, the Court of Appeals of Maryland or of this Court that requires the presence of the accused when an entire panel of prospective jurors is being advised of its duties and responsibilities. Notwithstanding appellant's laborious efforts to analogize the case now before us to '. . . a lineup identification after formal charges . . .' whereby '. . . a defendant is permitted the presence of an attorney during a pre-trial lineup even though the capacity of the attorney is limited solely to that of being an observer,' we fail to see the analogy.

Implicitly, appellant opts for a system whereby a jury which heard one criminal case would thereafter be excluded from further jury service unless all other defendants awaiting trial before the same panel of jurors were present during the first trial in order that they might interpose exceptions to the judge's advisory intructions and perhaps request additional instructions. Such a system is absolutely unworkable. Alternatively, what appellant urges upon us would ultimately lead to a juror's serving in one criminal case and thereafter be forever disqualified.

Appellant's definition of 'critical stage', requiring the presence of the accused, would, if adopted by the courts, create absolute choas in the orderly administration of justice. We think appellant's contention ingenuous and devoid of merit.

II.

Suppression of the Shoe.

The transcript of the suppression hearing reveals that Detective Walter T. Egger, then of the Homicide Division of the Baltimore City Police Department, was called to the scene of the slaying. The detective saw that there was a partial foot-print in a pool of blood on the ladies' rest room floor and what appeared to be blood smeared on a stairway wall and handrail. He also observed that there were '. . . droplets of blood (on the floor) leading across the open hallway there is a bus station to the front door area.' He tracked the blood droplets to the 600 block of Howard Street, where, at the curb, the drops ceased to appear. A short time later he was called to the emergency room of Maryland General Hospital where he observed the appellant and another young woman. 3 Detective Egger identified himself as a police officer, made a visual examination for blood stains on the clothing the two young women were wearing, and asked them to hold up their feet so that he could examine their shoe soles. The white tennis shoes worn by appellant were manufactured with 'an insert' in the sole where there was a label, and blood was seen in the insert. The detective seized the shoes and informed appellant '. . . that she was going to be taken to the Police Department Headquarters, the Homicide Squad.' Prior to the time that Detective Egger went to the hospital emergency room, he had obtained, at the scene of the crime, a description of two suspects. He testified:

'From my notes that I made on the scene I have 'Suspects: Negro female, sixteen check(ered) brown pants; Negro female, sixteen, yellow top, white jacket, fat."

Another description, slightly different, was received at the bus depot by Officer Robert L. Scott:

'Female Negro, fifteen to sixteen, five foot three, a hundred thirty pounds, brown checkered pants and white coat. The other female: Negro female, fifteen to sixteen, five foot three, a hundred and thirty pounds, had on green pants. . . .'

The description Officer Scott received was broadcast over the police radio network. Detective Egger readily admitted that appellant did not fit the height and weight portion of the broadcast description. He did state, however, that appellant '. . . fit the description that I (he) had received . . .' at the scene of the slaying. Egger said that appellant was wearing '. . . a white jacket and a yellow blouse.' The other 'suspect' was wearing checkered pants.

The thrust of appellant's argument in the trial court and here is that Detective Egger lacked probable cause to seize the blood stained tennis shoe. We do not see it that way. The Supreme Court in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) stated:

'In dealing with the probable cause, however, as the very name...

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