Brown v. State

• Decision Date: 14 April 1960
• Docket Number: No. 180,180
• Citation: 159 A.2d 844,222 Md. 290
• Parties: Johnnie BROWN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 290

222 Md. 290

159 A.2d 844

Johnnie BROWN v. STATE of Maryland.

No. 180.

Court of Appeals of Maryland.

April 14, 1960.

Richard M. Pollitt, Salisbury (Vaughn E. Richardson, Salisbury, and Charles E. Edmondson, Cambridge, on the brief), for appellant.

Clayton A. Dietrich, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., C. Burnam Mace, State's Atty. for Dorchester County, Cambridge, Alfred T. Truitt, Jr., State's Atty. for Wicomico County and Hamilton P. Fox, Jr., Sp. Asst. State's Atty. for Wicomico County, Salisbury, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

The appellant, Johnnie Brown, was indicted by the Grand Jury for Wicomico County on September 9, 1958, on a charge of murder. After various preliminary motions, the case was removed to Dorchester County for trial, the defendant was convicted of murder in the first degree and sentenced to death, but, on appeal, this Court reversed and remanded the case for a new trial (220 Md. 29, 150 A.2d 895).

The evidence produced by the State at the second trial showed that on September 6, 1958, Johnnie Brown went to the Acme Market and to Ralph & Gaskill, a men's clothing store, in Salisbury and attempted to pass forged checks. The managers of the respective stores checked with the purported makers of the checks, and, upon discovery that they were forged, refused to cash them. The Salisbury Police were notified of these attempts and after being given a description of Brown, they started to look for him.

After his apprehension that same evening, Brown was taken at around 9:00 p. m. into Ralph & Gaskill's store by Officer Stephens of the Salisbury Police Department, where he was identified as the man the police were seeking. Brown and the officer then started to walk toward Police Headquarters about two blocks from the store. Several witnesses saw them walking together; Brown was not handcuffed nor under any form of physical restraint.

The entrance to the police department is through an alley leading from Division Street to the rear of City Hall. This alley is wide enough for one car and has a sidewalk on one side. It is the regular entrance used by the police to and from their station. The testimony was that Brown and the officer had entered the alley and proceeded about two-thirds of its length.

Two teen-aged girls, Beula and Judy Hastings, who were on their way to a dance, had seen the officer and the defendant on the street, and had followed them and watched them as they proceeded down the alley. The girls testified that after the two men had proceeded part of the way through the alley they heard Brown shout, 'Hey, you,' and saw him draw a gun from inside his coat. They said the officer then turned around to face Brown and reached for the gun. It appeared to the girls that there was going to be a struggle and they jumped behind a building. A moment after they had reached this position of safety, the girls heard a single shot fired. They testified that they thought the officer had shot Brown and they started back into the alley to look, when Brown ran from the alley with the gun in his right hand. They looked into the alley but did not see the officer. They and other witnesses told another officer, Officer Kenney, the route Brown had taken, and he apprehended Brown shortly thereafter about two blocks from the scene, where he had hidden in some bushes.

When Brown was arrested, the gun was still in his possession. A bullet and shell later found in the alley were indentified as coming from his gun by a ballistics expert from the F.B.I. The bullet showed no signs of bloodstains. The expert also stated that the gun could not be accidentally discharged without a pull on the trigger.

After the shooting, Officer Stephens ran into the Police Headquarters bleeding profusely from a wound in his neck. He was taken to a hospital nearby, where he died a short time later. An autopsy showed a bullet wound which, in the opinion of the medical examiner, entered the back at about the level of the third rib and came out the front of the neck.

After Brown's arrest several checks were found in his pockets which were identified as the same or similar to the ones he had attempted to cash at the two stores. Also found in his possession were several bullets of the same calibre as that found in the alley, and various other articles.

The case was tried before two judges and a jury, and resulted in a verdict that the defendant was guilty of murder in the first degree, and he was given a death sentence.

The appellant's first assignment of error is the trial court's refusal to grant his prayer relating to circumstantial evidence. This prayer was in the following form:

'The Court instructs the jury that any material fact, including the corpus delicti and the identity of the accused, may be proved by circumstantial evidence; but, in order to justify the inference of guilt from such evidence, the existence of the inculpatory facts must be absolutely incompatible with the innocence of the accused and insusceptible of explanation upon any other hypothesis than that of his guilt. If there is reasonable doubt as to any one circumstance forming part of a combination of circumstances on which guilt is dependent, the accused must be acquitted. In particular, circumstantial evidence to establish the corpus delicti must be of the most cogent and convincing character. Circumstantial evidence is intrinsically liable to error and abuse in its application. It has often led to the conviction and punishment of persons whose innocence has afterwards become manifest. If the evidence consists of a multiplicity of proofs, or 'chain of circumstances,' or if the presumptive proof of guilt is dependent in part upon theories advanced by scientific experts, liability of error is greatly increased. These considerations emphasize the necessity of extreme caution in convicting on this kind of evidence, more particularly under the circumstances referred to.'

It requires no more than a casual reading of the proposed prayed to see that it is not based upon any previous decision of this Court, and we doubt that any Court has adopted such a drastic rule as that suggested in the prayer. We recently stated the rule to be that in every criminal case, evidence, to meet the test of legal sufficiency, must show directly, or support a rational inference of, the facts required to be proved; and the facts must be established, or the inference supported, beyond a reasonable doubt or to a moral certainty, or a reasonable doubt of an opposite fact must be created. And, when guilt is based solely upon circumstantial evidence, the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence. Vincent v. State, 220 Md. 232, 237, 151 A.2d 898. The Maryland rule is, we think, correctly stated in Vincent, but it is a far cry from the postulates contained in the requested prayer. The prayer would permit an inference of guilt upon circumstantial evidence only when the existence of the inculpatory facts are absolutely incompatible with the innocence of the accused and insusceptible of explanation upon any other hypothesis than that of his guilt. This would just about require proof of guilt in criminal cases to the degree of mathematical precision; a degree of proof that has never been deemed essential in Maryland, nor, insofar as it has come to our attention, elsewhere. Moreover, it is evident that the State did not rely upon circumstantial evidence alone to establish guilt: much of the evidence was direct. After pointing out these fatal fallacies in the first part of the prayer, we do not consider it necessary to discuss its other provisions. The trial court committed no error in refusing this instruction.

During the course of the trial, the appellant's counsel requested the court to instruct the jury that '[i]f there is any reasonable doubt in which of several degrees a defendant is guilty he can be convicted of the lowest only of those degrees.' In Maryland, culpable homicides are divided into murder in the first and second degrees and manslaughter. ¹ The State concedes that the requested instruction contains a correct statement of the law upon the subject, but contends that the court's instructions, when viewed as a whole, fairly covered the subject. In Maryland, our Rule specifically provides that the court need not grant any requested prayer if the matter be 'fairly covered by the instructions actually given.' Rule 739b. The trial court not only instructed the jury that the defendant was presumed to be innocent until he was proved guilty beyond a reasonable doubt and to a moral certainty, but also set forth in detail the facts that the jury was required to find in order to convict the defendant of murder in the first degree, and then informed the jury that these facts must be found 'from the evidence beyond a reasonable doubt * * * and to a moral certainty * * *.' Moreover, the jury was instructed that 'the burden is upon the State of establishing by proof every fact material to the guilt of the defendant, including every circumstance that enters into the grade or degree of the crime charged beyond a reasonable doubt and to a moral certainty * * *.' While there seems to be some split in the authorities elsewhere concerning the necessity of granting such a prayer as is here being considered, McAffee v. United States, 70 App.D.C. 142, 105 F.2d 21, 31, we think that in accordance with Rule 739b, the subject matter contained in the requested instruction was 'fairly covered' in the instructions actually given, and the jury was not misled upon the subject.

We turn now to the most troublesome question raised by the appellant. In his opening statement to the jury, defense counsel referred to the fact that the case had been tried before, an appeal to this Court had been...