Burks v. State

• Decision Date: 01 September 1992
• Docket Number: No. 18,18
• Citation: 96 Md.App. 173,624 A.2d 1257
• Parties: Ricardo BURKS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 173

96 Md.App. 173

624 A.2d 1257

Ricardo BURKS v. STATE of Maryland.

No. 18, Sept. Term, 1992.

Court of Special Appeals of Maryland.

May 26, 1993.

Nancy S. Forster, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Submitted before MOYLAN, ALPERT and BLOOM, JJ.

MOYLAN, Judge.

The appellant, Ricardo Burks, was convicted by a Baltimore City jury, presided over by Judge Ellen L. Hollander, of two counts of second-degree murder and one count of the use of a handgun in the commission of a crime of violence. On this appeal, he raises the following eight contentions:

1. The evidence was not legally sufficient to sustain the convictions.

2. Judge Hollander erroneously refused to give an instruction on the law of manslaughter.

3. The judge erroneously permitted the State to introduce evidence of kidnapping charges having been filed against the appellant in Baltimore County.

4. The judge erroneously failed to grant a mistrial due to prosecutorial misconduct.

5. The judge erroneously failed to grant the appellant's motion to suppress physical evidence.

6. The State was erroneously permitted to make an improper closing argument.

7. The judge erroneously admitted irrelevant hearsay evidence from Sergeant Spanos.

8. The docket entries improperly reflected the sentences actually imposed upon the appellant.

Legal Sufficiency of the Evidence

The appellant's first contention is that the evidence was not legally sufficient to have permitted the case to be submitted to the jury. We disagree. As we begin our analysis, we note the two fundamental flaws in the appellant's argument. The first is his mistaken belief that this was a case where the State's proof consisted of "circumstantial evidence alone," thereby invoking such cases as West v. State, 312 Md. 197, 539 A.2d 231 (1988) and Wilson v. State, 319 Md. 530, 573 A.2d 831 (1990). In this case, there were damaging admissions from the appellant himself. In this case, the appellant was found in possession of the guns that checked out ballistically to have been the murder weapons. In this case, there was the fact that the appellant led the police to where three murdered bodies had been hidden. In no sense was this case one where the evidence of guilt consisted of "circumstantial evidence alone."

We agree with the appellant that a significant part of the proof of his criminal agency came from his own statements to the police and from his own testimony. Those statements were inculpatory in part and exculpatory in part. The second fundamental flaw in the appellant's argument is his mistaken belief that the jury is required either to accept his statements in toto or to reject them entirely. That is by no means the law. The jury was fully entitled to believe those parts of the statements that were incriminating (admissions and declarations against interest have special indicia of reliability) and to disbelieve the self-serving parts of the statements that were exculpatory. There is no all-or-nothing principle involved, and the fact finder enjoys the full prerogative of being selective.

Taking that version of the evidence most favorable to the State's case, the jury could have found that the appellant went to the home of his brother-in-law, Marvin Willis, at 441 Yale Avenue during the early morning hours of Friday, April 19, 1991, in search of cocaine. The two men went to the basement to "freebase" cocaine. When they ran out of the drug, they left the home to buy more and then returned. This pattern of buying cocaine and then returning to Willis' basement and freebasing the drug occurred three times.

At some time during the early morning hours, they were joined at Yale Avenue by Derrick Newman, Joseph Austin, and Charles Jefferson, three of the ultimate four murder victims. Newman, Austin, and Jefferson were known cocaine dealers on Yale Avenue. At some time after entering Yale Avenue and going down to the basement, Newman, Austin, and Jefferson were all murdered. Austin died of multiple gunshot wounds, one of which was a contact wound to the head. Jefferson died of two gunshot wounds to the head. The autopsies revealed that both Austin and Jefferson had unusually high levels of morphine in their blood, indicating a heroin injection. There was no evidence, such as needle marks or "track marks," to indicate that either Austin or Jefferson had been regular or long-term heroin users. The Deputy Chief Medical Examiner testified that the amount of narcotics in the two individuals would have rendered them unconscious almost immediately and would likely have resulted in their deaths had they not been shot first.

The third victim, Newman, showed no narcotics in his body. He suffered forty-six stab wounds, and several blunt-force injuries and died of a contact gunshot wound to the head. The weapon that inflicted all three execution-style gunshot wounds to the head was a 9 mm. handgun. According to the appellant, the 9 mm. handgun belonged to Willis. When the appellant was arrested in Howard County several days later, however, the 9 mm. handgun was in his possession.

By his own admission, the appellant was present when Newman, Austin, and Jefferson were murdered. According to his version of the events, he was merely a terrified spectator to the murders. The jury, however, was fully entitled to accept his admission that he was present in the basement at the time of the killings but to reject utterly his explanation of his role. The appellant was acquitted of having murdered Austin and Jefferson. He was convicted of the second-degree murder of Newman.

It was apparently during the early morning hours of Saturday that the appellant and Willis decided that they would have to dispose of the three bodies in the basement. They borrowed a truck belonging to a cousin of Willis, wrapped the three dead bodies in some carpeting, and dumped the bodies in an isolated area in the vicinity of the Baltimore-Washington International Airport. The appellant subsequently led the police to the spot where the bodies were hidden.

Returning to Yale Avenue, the appellant and Willis began to argue with each other. In the last analysis, Willis died of multiple gunshot wounds. Although the appellant claimed that he had to wrestle a gun away from Willis and kill in self-defense, one of the lethal shots was to the back of Willis' head at close range. Willis suffered a total of five gunshot wounds. In addition to the bullet to the back of the head, Willis received one gunshot wound in the upper front chest. The remaining wounds, on the other hand, indicated that Willis was in flight from the appellant. One was to the back of the left chest, another was to the back left shoulder, and yet another was to the left buttock. The appellant was not wounded at all.

After having killed Willis, moreover, the appellant did not summon the police to report a necessary killing in self-defense. Indeed, he lied to his own wife, Cynthia Burks, and to Willis's girlfriend, Jackie Parran, telling them that Willis was still in the Yale Avenue house and passing on messages to them from Willis at a time when Willis was already dead.

By Saturday night, the appellant determined to flee. He took the 9 mm. handgun, which he claimed had belonged to Willis, and a .38, which he claimed had belonged to one of the first three murder victims, and took them with him. He also stole Willis's car. Later that night, he abandoned the car but he kept the two guns. They were with him the following morning when he kidnapped Eric Cada and Kimberly Goldscher and commandeered their car.

The evidence was ample to support the convictions. With respect to the killing of Willis, the appellant was admittedly the homicidal agent. He directed a dangerous and deadly weapon not once but five times at vital parts of Willis's anatomy. That, five-fold, is an adequate predicate from which the jury may infer the intent to kill. The jury was entitled to disbelieve utterly his story of self-defense. Having done so, the jury's verdict of guilty of murder followed naturally.

With respect to the murder of Derrick Newman, the evidence clearly permitted the rational inference that the appellant was, at the very least, one of the two participants in that murder. His participation in the hiding of the bodies was itself a significant indication that he was a guilty participant and not a terrified spectator. We see no error. The Defense Burden of Production: Generating a Genuine

Issue As To Mitigation

The appellant's second contention is that Judge Hollander erroneously failed to instruct the jury on the crime of manslaughter with respect to the homicide of Derrick Newman. The contention will not prevail for two reasons. In the first place, it has not been preserved for appellate review. Even if it had been preserved, however, there is utterly no merit to it.

We must keep in mind the clear distinction between the killing of Derrick Newman during the early morning hours of Friday, April 19 and the killing of Marvin Willis approximately thirty-six hours later on Saturday, April 20. With respect to the Saturday killing of Marvin Willis, the appellant testified that he killed in self-defense. Accordingly, he was entitled to a jury instruction on the subject of manslaughter. The subvariety of mitigation that might arguably have been available was, of course, that of imperfect self-defense. The judge fully instructed the jury on manslaughter of the imperfect self-defense variety with respect to the killing of Marvin Willis. There is no challenge to the jury instructions in that regard.

Judge Hollander, however, gave no manslaughter instruction with respect to the killings of Newman, Austin, or Jefferson because the evidence had generated no genuine jury...