Burgess v. State, 94

Decision Date01 September 1991
Docket NumberNo. 94,94
Citation598 A.2d 830,89 Md.App. 522
PartiesJohn Lavon BURGESS v. STATE of Maryland. ,
CourtCourt of Special Appeals of Maryland

Veronice A. Holt (Ronald Goodbread, on the brief), Washington, D.C., for appellant.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Alexander Williams, Jr., State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Argued before WILNER, C.J., and GARRITY and ALPERT, JJ.

ALPERT, Judge.

The State of Maryland, in a 90 count indictment, charged John Lavon Burgess, appellant, with numerous violations of the criminal laws including Assault with Intent to Murder, Assault with Intent to Maim, Assault with Intent to Disable, Assault and Battery, and Malicious Destruction of Property. All of the charges stemmed from a rock throwing barrage along Interstate 95 (I-95) 1 in Prince George's County, Maryland. The lower court severed Burgess's trial from that of his co-defendants, Maurice Edward Ford and Donnell Petite. Burgess elected a bench trial. After a short trial, the court reached the following verdicts. The lower court sentenced Burgess on December 17, 1990. He appeals to this court, raising the twelve assignments of error that follow.

I.

Whether the identification evidence with respect to each of the separate incidents was insufficient to find defendant guilty beyond a reasonable doubt.

Appellant Burgess structures his first issue around two main arguments. One, the lower court failed to distinguish between a confession and an admission. Two, the lower court did not have sufficient identification evidence to find Burgess guilty as to each count. We address his concerns.

A.

On June 2, 1989, troopers White and Wooters went to Burgess's house to interview him "about a rock throwing incident that occurred on the Beltway." After speaking to Burgess for a short time, the troopers asked him to accompany them to the Maryland State Police Barracks in Forestville, Maryland, to continue the interview. Burgess agreed, and went to tell his parents where he was going. Once inside his house, however, Burgess clung to his mother and refused to accompany the troopers. At this time, Burgess's stepfather requested that the troopers vacate the premises and return only if they had a warrant. Troopers White and Wooters and Detective Philbin returned with a warrant around 8:00 p.m. and took Burgess to the Criminal Investigations Division (CID) Headquarters.

At the CID Headquarters in Landover, Maryland, Detective Philbin advised Burgess of his rights. Burgess waived his rights and made a written statement. The crux of that statement is as follows:

Me, Donnell, and Man was [sic] drinking. We went to the movies in Rivertowne. After the movies we start[ed] playing around and we all were saying ["]let's go to the bridge. ["] Then we went and start[ed] throwing rocks on the bridge. Then Donnell got in the street and started throwing rocks at cars. After a little while we all were in the street. Then Man saw 2 people running so we left.

Appellant argues that his statements to the police were "admissions and not a confession" because he did not make a direct acknowledgement of guilt with respect to the harm done to any particular person or piece of property. Although he is correct to suggest that there is a distinction between an admission and a confession, he fails to show the harm that flowed from any lack of distinction and he overlooks State v. Kidd, 281 Md. 32, 375 A.2d 1105,cert. denied, 434 U.S. 1002, 98 S.Ct. 646, 54 L.Ed.2d 498 (1977). "[I]t is firmly established that the test for the receipt in evidence against an accused is the same for a confession and an admission." Id. 281 Md. at 34 n. 1, 375 A.2d 1105. We now turn to his second contention.

B.

Burgess suggests that the lower court did not have sufficient identification evidence before it to convict him on the 38 counts. Because the test for admissibility is the same for an admission as it is for a confession, we can look to Birchead v. State, 317 Md. 691, 566 A.2d 488 (1989), for the evidentiary guidelines that apply when a confession is involved.

In Woods v. State, supra, 315 Md. at 615-16, 556 A.2d 236 [ (1989) ], we observed that evidence to support an extrajudicial confession must be independent of it and relate to and tend to establish the corpus delicti, i.e., the facts necessary to show that a crime has been committed. But the independent evidence, we said, need not be full and complete or establish the truth of the corpus delicti beyond a reasonable doubt or by a preponderance of proof. Id. at 616, 556 A.2d 236. It "may be small in amount and is sufficient to establish the corpus delicti 'if when considered in connection with the confession or admission, it satisfies the trier of facts beyond a reasonable doubt that the offense charged was committed and that the accused committed it.' " Id., quoting from Bradbury v. State, 233 Md. 421, 424-25, 197 A.2d 126 (1964). And we recognized that the corpus delicti may be proved by circumstantial evidence, and that the accused's identity or criminal agency is not a necessary element of the corroboration required to make the confession admissible. Id.

Id. 317 Md. at 706, 566 A.2d 488.

Furthermore, we examine the principles of aiding and abetting because Burgess participated with two of his friends in the rock throwing spree.

The legal definition of the word 'aider' is not different from its meaning in common parlance. It means one who assists, supports or supplements the efforts of another. The word 'abettor' means in law one who instigates, advises or encourages the commission of a crime. Thus the word 'abet' may import that one is present at the commission of a crime without giving active assistance. To be an aider or abettor it is not essential that there be a prearranged concert of action, although, in the absence of such action, it is essential that one should in some way advocate or encourage the commission of the crime.

Coleman v. State, 209 Md. 379, 384-85, 121 A.2d 254 (1955), aff'd, 221 Md. 30, 155 A.2d 649 (1959) (citations omitted).

In Wilson v. State, 319 Md. 530, 573 A.2d 831 (1990), the Court of Appeals delineated the test for sufficiency of the evidence at the trial court level.

The test used in determining the sufficiency of the evidence for either court or jury trial is whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged.

Id. at 535-36, 573 A.2d 831. Our standard of review 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." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), quoted in State v. Rusk, 289 Md. 230, 240, 424 A.2d 720 (1981).

With the Jackson test in mind, we now determine whether there was sufficient identification evidence before the lower court on the 38 counts on which it found Burgess guilty.

1. Burgess's admission/confession

On June 2, 1990, Burgess gave the police a signed statement regarding the rock throwing incident. That admission/confession establishes the following facts. Burgess and his two friends, Petite and Ford (Man), were "hanging out" on Saturday night, May 26, 1989. The appellant wore blue shorts, a white tee-shirt, and a gray Reebok jacket; Petite wore blue jeans, a white tee-shirt, and a waist length, red wool coat; Ford wore dark blue shorts and a white long-sleeve shirt. The youths drank some Cisco 4 and watched a movie at Rivertowne. After the movie, the trio went to Livingston Road where it passes under I-95. The three young men picked up rocks from under the bridge and hurled those rocks at passing motorists. Some of the rocks hit windshields, some hit doors and other parts of the cars, and others presumably missed their intended targets. The youths eventually entered the roadway to launch their projectiles with greater accuracy. For an unspecified time, the trio continued throwing rocks at the unsuspecting motorists who passed by. The gang only abandoned their pursuits when Petite saw two people chasing them. Burgess says he arrived home between 1:30 and 2:00 a.m.

2. Morrison's (Mad Ball's) Testimony

To corroborate Burgess's statements and to provide additional information, the State called Calvin Morrison (Mad Ball) to the witness stand. Much of what Mad Ball told the court substantiated Burgess's statements. Morrison stated that he saw Burgess and Man around 10:00 to 11:00 p.m. on Saturday. Burgess wore a gray Reebok jacket and some light colored blue jean shorts. Man wore blue, baggy shorts and a red jacket. Mad Ball testified that when he saw them that evening, Burgess and Petite were not drunk. 5 Additionally, Morrison told the court that while walking by Livingston Road where it passes underneath the Beltway, on Friday night/Saturday morning, Ford "had picked up a rock and was tossing it in his hand and said, [']let's introduce my Man Mad Ball to the bridge. [']" In response, everyone giggled--including Burgess. 6

3. Witness identification 7

In addition to Burgess's admission/confession and Morrison's testimony, the State produced numerous witnesses who provided the court with sufficient identification of Burgess and his colleagues. The witnesses testified that they saw three black males 8 standing on the side of the road or on the roadway. Many witnesses saw one rock thrower wearing a gray jacket or sweatshirt and another wearing a red jacket. The youths wore blue jeans or dark trousers. Two of the rock throwers were about the same height; the other remaining one was slightly taller. The trio's modus operandi varied. Sometimes they would launch rocks from the side of the...

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