Burroughs v. State

• Decision Date: 01 September 1990
• Docket Number: No. 1484,1484
• Parties: Chris Lamont BURROUGHS and Rodney Hampton v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

Page 229

88 Md.App. 229

594 A.2d 625

Chris Lamont BURROUGHS

and

Rodney Hampton v. STATE of Maryland.

No. 1484 Sept. Term, 1990.

Court of Special Appeals of Maryland.

Sept. 3, 1991.

Nancy S. Forster, Asst. Public Defender (Stephen E. Harris, Public Defender on the brief for appellant, Burroughs), Baltimore, Stanley E. Baritz (Mark W. Oakley on the brief for appellant, Hampton), Rockville, for appellants.

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

Argued before WILNER, C.J., and MOYLAN and MOTZ, JJ.

MOYLAN, Judge.

This appeal basically involves the handling of a defense claim that a key State's witness was a criminal accomplice and that his testimony should, therefore, have been subjected to the special strictures imposed upon that category of inherently suspect evidence. The appellants, Chris Lamont Burroughs and Rodney Hampton, were convicted by a Prince George's County jury, presided over by Judge Audrey E. Melbourne, of murder aggravated to the first degree by virtue of a premeditated intent to kill, of the same murder alternatively aggravated to the first degree by virtue of its having been committed during the attempted perpetration of an enumerated felony, of two counts of attempted armed robbery, and of the use of a handgun in the perpetration of a crime of violence. Upon this appeal, both appellants raise the following contention:

1. That Judge Melbourne erroneously refused to instruct the jury on the law with respect to the necessary corroboration of the testimony of an accomplice and erroneously failed to submit to the jury the issue of whether the witness John Marshall was an accomplice.

The appellant Burroughs alone raises four additional contentions:

2. That the evidence was not legally sufficient to support his convictions;

3. That Judge Melbourne improperly responded to a question from the jury;

4. That Judge Melbourne erroneously restricted the cross-examination of attorney Gary Neal; and

5. That Judge Melbourne erroneously sentenced Burroughs for both felony-murder and premeditated first-degree murder with respect to the death of a single victim.

The key issue is the joint contention raised by both appellants. Its resolution hinges upon the answer to the question of whether, on the evidence produced before the jury in this case, the witness John Marshall was either 1) a possible accomplice, as a matter of fact, or 2) a non-accomplice, as a matter of law.

The appellants timely requested "an instruction on accomplice testimony." Presumably, they were asking for the boilerplate admonition that the testimony of an accomplice should be viewed with caution and that if the jury found John Marshall to be an accomplice, they should not return a verdict of guilty unless they found adequate independent corroboration of his testimony. Judge Melbourne declined to give the instruction, ruling, as a matter of law, that the appellants had not met their burden of production and had not, therefore, generated a genuine jury issue.

By way of brief factual background, the murder victim and the second attempted robbery victim, James "Boo" Carter and Clarence Sykes, went to the vicinity of the Penn Southern apartment complex in Prince George's County at approximately 5 A.M. on Saturday morning, September 2, 1989, to purchase cocaine. After making the purchase, they were approached by two men brandishing black handguns and were ordered to lie down on the ground. Sykes complied but, "Boo kept going, he kept going and he said 'You all ain't getting nothing from me.' " While the two gunmen argued with Carter, Sykes "saw his chance" and ran. He heard a number of shots and learned the next day that Carter had been killed. Sykes was unable to make an in-court identification of either assailant. He effectively repudiated, moreover, an arguable photographic identification of the appellant Hampton attributed to him by the police.

The only witness to identify the appellants as the gunmen was John Marshall. He testified that at shortly before 4 A.M. on that morning, he and two other individuals had gone to a carry-out restaurant near the apartment complex. After getting their carry-out fare, they sat on a wall talking to the two appellants. Marshall saw Carter and Sykes approach the appellants and ask where cocaine could be purchased. He observed the appellant Hampton lead the would-be purchasers toward the apartment complex and saw the appellant Burroughs follow closely. When they all moved back up the hill a short time thereafter, Marshall heard Carter say, "Hell, no, I'm not giving you shit." He heard Hampton reply, "Oh, you're not. You're not going to give me shit," and then saw Hampton "fire two shots at the man." As he himself hid behind a railing, Marshall saw the appellant Burroughs and "a guy named Tony" in the vicinity of Sykes. When Sykes ran, Marshall saw the appellant Burroughs fire at him.

Marshall observed the two appellants drive away and the individual named "Tony" run toward the apartment complex with a gun in his hand. Marshall picked out both appellants from a photographic array and, moreover, identified both at trial. Although the testimony of Clarence Sykes established the corpora delicti, John Marshall was essentially the State's entire case as to criminal agency.

Accomplice Status:

The Allocation of the Burden

The burden of proving that John Marshall was an accomplice was indisputably upon the appellants. That burden of proof in its larger sense comprehends the initial and lesser burden of going forward (of producing a prima facie case), lest the trial judge, as here, rule as a matter of law that no genuine issue of fact had been generated. "We believe it to be fundamental that a party who seeks to attack the credibility of a witness has the burden of going forward." Bennett v. State, 283 Md. 619, 627, 392 A.2d 76 (1978). Even when a defendant successfully meets this initial burden of production, however, he then, albeit entitled to have a jury consider the matter, assumes the further burden of persuading that jury by the preponderance of the evidence standard that the witness is, indeed, an accomplice. "The trial courts and the Court of Special Appeals have consistently recognized as the rule that the burden of proving by a preponderance of the evidence that a witness is an accomplice is on the defendant asserting it. They have applied it, and we have not repudiated it ... We deem it to be the rule in this State." Bennett v. State, 283 Md. at 623, 392 A.2d 76. That secondary burden of persuasion, of course, is not before us in this case because the appellants did not meet their threshold burden of production.

The first Maryland case to consider the allocation of the burden of proof was Lusby v. State, 217 Md. 191, 141 A.2d 893 (1958). Adopting the position espoused by 7 Wigmore, Evidence (3d ed. 1940), § 2060(e), Lusby held, at 217 Md. 201, 141 A.2d 893, "And, of course, 'the burden of proving the witness to be an accomplice is ... upon the party alleging it [the defendant] for the purpose of invoking the rule.' " (brackets in original). Maryland has adhered undeviatingly to that position. Campbell v. State, 221 Md. 80, 84-85, 156 A.2d 217 (1959) ("It is clear that the burden of proving a witness is an accomplice is on the defendant who asserts it."); Strong v. State, 261 Md. 371, 376, 275 A.2d 491 (1971) ("The burden of showing that a witness is an accomplice is on the accused."); Bennett v. State, 283 Md. 619, 622-623, 392 A.2d 76 (1978).

This Court has consistently adhered to the position that the burden is on the defendant to prove the fact of accompliceship by competent evidence just as any other fact would have to be proved. As Judge Orth pointed out for us in Burley v. State, 5 Md.App. 469, 473, 248 A.2d 404 (1968):

"The fact that a witness is an accomplice must be shown by proof, like any other fact, but the burden of proving that a witness is an accomplice is on the defendant who asserts it." (emphasis supplied).

In Sutton v. State, 10 Md.App. 353, 357, 270 A.2d 497 (1970), Chief Judge Murphy not only reconfirmed that allocation of the burden to the defendant but pointed out that our job of determining, on appellate review, the establishment vel non of a prima facie case is that of analyzing the legal sufficiency of the evidence:

"With respect to the procedure to determine complicity, we recited that the burden of proving a witness was an accomplice rested upon the accused asserting it, although the proof need only be by the preponderance of the evidence to the satisfaction of the trier of the facts. The function of the Court of Special Appeals on appeal is a matter of the sufficiency of the evidence." (emphasis supplied).

See also Gardner and Maple v. State, 6 Md.App. 483, 494-495, 251 A.2d 901 (1969); Gaskins v. State, 7 Md.App. 99, 103, 253 A.2d 759 (1969); Early v. State, 13 Md.App. 182, 187, 282 A.2d 154 (1971); Rivenbark v. State, 58 Md.App. 626, 634, 473 A.2d 1329 (1984) ("The burden of showing that a witness is an accomplice is on the accused.").

In Bennett v. State, 283 Md. 619, 624-627, 392 A.2d 76 (1978), the Court of Appeals went further and held that the Maryland practice of placing both the initial burden of production and the ultimate burden of persuasion on the defendant as to this issue in no way offends the due process clause of the Fourteenth Amendment as interpreted by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Judge Orth observed, at 283 Md. 626-627, 392 A.2d 76:

"Proof by a defendant that a State's witness is an accomplice involves no shifting of the burden to him to disprove any fact essential to the offenses charged...