Dove v. State

• Decision Date: 16 December 1980
• Docket Number: No. 457,457
• Citation: 423 A.2d 597,47 Md.App. 452
• Parties: Alfred DOVE, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 452

47 Md.App. 452

423 A.2d 597

Alfred DOVE, Jr. v. STATE of Maryland.

No. 457.

Court of Special Appeals of Maryland.

Dec. 16, 1980.

Clarence W. Sharp, Assigned Public Defender, Annapolis, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Andrew L. Sonner, State's Atty., for Montgomery County and Stephen Savage, Asst. State's Atty., for Montgomery County, on brief, for appellee.

Argued before GILBERT, C. J., and MELVIN and WILNER, JJ.

WILNER, Judge.

Appellant was convicted by a jury in the Circuit Court for Montgomery County of second degree murder and use of a handgun in the commission of a felony, for which he was given prison sentences totaling 45 years. In this appeal, he makes the following arguments:

"I. The evidence presented was not sufficient to support Appellant's convictions of second degree murder and use of a handgun in the commission of a felony.

II. The conclusions of the ballistics expert, William Welch, were not admissible without demonstrating the comparisons which led him to his conclusions and without conducting chemical tests for any changes in the bullet.

III. The State failed to establish a proper chain of custody of the coat allegedly worn by the victim to establish the distance of the firing based on burn marks.

IV. The trial court erred in failing to instruct the jury that (1) Appellant should be found not guilty if the State failed to sustain its burden of proof beyond a reasonable doubt, and (2) the burden was on the State to prove beyond a reasonable doubt that the circumstances were inconsistent with or such as to exclude every reasonable hypothesis or theory of innocence.

V. The verdict of the jury was unduly influenced and coerced by the trial court's advice to them at 11:00 p. m. that they would be kept overnight if a verdict was not reached within fifteen minutes and in responding to the single juror's question concerning a new trial if the jury was deadlocked.

VI. The trial court erred in compelling the Appellant to submit to having his appearance and hairstyle altered before trial."

We have examined the record carefully and find that none of these contentions have any merit. Indeed, except for the last point raised, none require extended discussion. We find, with respect to the first five issues:

(1) Although much of the evidence was of a circumstantial nature, it was clearly sufficient to permit a rational jury to conclude, beyond a reasonable doubt, that at some point between 5:30 and 6:00 p. m. on March 7, 1979, appellant unlawfully shot and killed Elizabeth Hakala with a .38 caliber revolver as she walked along Howard Chapel Road, and that the shooting, under the circumstances, constituted second degree murder. It therefore also constituted the unlawful use of a handgun in the commission of a felony.

The evidence showed that, at about 5:20 p. m., while proceeding home from a trip to Frederick, appellant accidentally drove the car he was operating off the road. Appellant abandoned the vehicle and ventured off on foot, a fair inference being that he took with him a handgun that had been in the car. This much was established from the testimony of his companion and passenger, Barbara Johnson. Shortly thereafter, a dark green 1969 Pontiac Catalina station wagon was stolen from in front of a carry-out store located a mile and a half away, at the intersection of Routes 97 and 650. A man fitting appellant's general description was seen at the store at that time.

The killing took place about 8 miles from the store directly along Route 97. Before she died, the victim told the police that a black male (appellant being a black male) pulled up in a large dark car and told her to get in, that she refused, and that he then shot her and drove away. Later that evening at about 10:37 p. m., Officer Robert Brown, of the Frederick Police Department, spotted the stolen station wagon and began to follow it. After a while, the driver of the wagon increased his speed, in an apparent attempt to escape from Brown, but he was apprehended after he collided with another vehicle. The driver turned out to be appellant, and in the car was a .38 caliber handgun with one spent casing. Ballistics tests revealed that the bullet that killed Mrs. Hakala was fired from that weapon.

That was enough to support the convictions. See Metz v. State, 9 Md.App. 15, 262 A.2d 331 (1970).

(2) The complaint made here to the testimony of Sergeant Welch-that he failed to conduct any test to determine whether the bullet recovered from the victim's body had been chemically changed as the result of its contact with her body fluids-was not raised below and we shall therefore not consider it on appeal. Maryland Rule 1085. We have, in any event, read Sergeant Welch's testimony in its entirety, and find no reversible error in its admission.

(3) The State did establish a sufficient "chain of custody" with respect to the victim's coat. Appellant's argument to the contrary is absolutely groundless.

(4) Appellant complains of two alleged errors in the jury instructions, both being errors of omission rather than commission. In neither case did he take any exception to the court's charge or request additional or clarifying instructions. In short, he failed to bring his belated complaints to the attention of the trial court, when effective relief could have been granted; and he offers no excuse for this failure. See Brown v. State, 14 Md.App. 415, 287 A.2d 62, cert. den. 265 Md. 736 (1972).

The court very clearly and adequately explained to the jury that appellant was presumed to be innocent and that it was incumbent upon the State to prove him guilty-to prove each and every element of the crime, including his criminal agency-beyond a reasonable doubt. Unlike the situation in State v. Hutchinson, 287 Md. 198, 411 A.2d 1035 (1980), upon which he relies, there was no confusion, or serious potential for confusion, in these instructions.

In Hutchinson the jury could reasonably have interpreted what the court said as not allowing for a verdict of acquittal but in effect requiring a conviction. Both this Court and the Court of Appeals concluded that such a possibility was real enough and serious enough to require that the issue be addressed, even though no exception was taken below. We do not read Hutchinson as flatly requiring an affirmative instruction that the jury must return a verdict of not guilty if the State fails to sustain its burden of proof where such a requirement is clearly implicit from other instructions given. Hutchinson merely held that instructions which implied the opposite-that the jury could not find the defendant not guilty-amounted to plain error under Maryland Rule 757h and should be addressed on appeal.

Appellant's second complaint concerning the court's instructions-that the State's burden was to prove beyond a reasonable doubt that the circumstances shown were inconsistent with or excluded every reasonable hypothesis of innocence-is answered in full by Metz, supra. We made clear there that the burden with respect to circumstantial evidence was no different than with respect to direct evidence, that "the test for sufficiency is the same whether the evidence be direct, circumstantial, or provided by rational inferences therefrom." 9 Md.App. at 23, 262 A.2d 331. Upon the doctrine which we announced and applied in Metz, it is clear that the instruction which appellant says should have been given despite his failure to request it would have been an incorrect one. It therefore would not amount even to error, much less plain error, to omit such an instruction.

(5) The record lends no support whatever to appellant's assertion that the court unduly influenced the jury's verdict. The court merely asked whether the jury desired to deliberate a little longer or retire for the evening, to which no objection was made. Nor did appellant object when the court, quite properly, declined to answer a juror's question as to what would happen if the jury deadlocked.

The sixth complaint requires some elaboration. In addition to the...