Evans v. State

• Decision Date: 01 September 1984
• Docket Number: 98,Nos. 66,s. 66
• Citation: 499 A.2d 1261,304 Md. 487
• Parties: Vernon Lee EVANS, Jr. v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 487

304 Md. 487

499 A.2d 1261

Vernon Lee EVANS, Jr. v. STATE of Maryland.

Nos. 66, 98, Sept. Term, 1984.

Court of Appeals of Maryland.

Nov. 12, 1985.

[499 A.2d 1264]

Page 494

Gary S. Offutt and George E. Burns, Jr., Asst. Public Defenders (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant

Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and McAULIFFE, JJ., and W. ALBERT MENCHINE, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

ELDRIDGE, Judge.

The defendant-appellant, Vernon Lee Evans, Jr., was found guilty of first degree murder and related offenses by a jury in the Circuit Court for Worcester County, with Judge Dale Cathell presiding. The same jury determined that the appropriate sentence was death. On this appeal, Evans challenges the verdict and sentence on a multitude of grounds. As we conclude that none of these grounds involve reversible error, we shall affirm.

The basic facts of the case are as follows. According to the State's evidence, [499 A.2d 1265] the defendant Evans and Anthony Grandison entered into an agreement whereby Evans would kill David Scott Piechowicz and his wife, Cheryl, because the couple were scheduled to testify against Grandison in a narcotics case pending in the United States District Court for the District of Maryland. Evans was to receive $9,000.00 from Grandison for performing the murders.

David Scott Piechowicz and Cheryl Piechowicz were employed at the Warren House Motel in Baltimore County. On April 28, 1983, Susan Kennedy, the sister of Cheryl

Page 495

Piechowicz, was working in place of Cheryl at the Warren House Motel. The evidence was sufficient to prove beyond a reasonable doubt that, on April 28th, Evans went to the motel and, not knowing the Piechowiczs, shot David Scott Piechowicz and Susan Kennedy with a MAC-11 machine pistol. Nineteen bullets were fired at the victims, who died from the multiple gunshot wounds

A two count indictment was filed against Evans and Grandison in the United States District Court. They were charged with violating the Piechowiczs' civil rights by interfering with their right to be witnesses in a judicial proceeding, in violation of 18 U.S.C. § 241, and with witness tampering, in violation of 18 U.S.C. § 1512.

Subsequently the present case began with a four count indictment in the Circuit Court for Baltimore County, charging Evans and Grandison each with two counts of first degree murder, one count of conspiracy to commit murder, and use of a handgun in the commission of a felony or crime of violence. Upon the defendants' requests for removal, Grandison's trial was transferred to the Circuit Court for Somerset County and Evans's trial was transferred to the Circuit Court for Worcester County.

Prior to the trial in the instant case, Evans was convicted on the federal charges and sentenced to life plus ten years imprisonment. He then filed a pretrial motion to dismiss the charges in this case on double jeopardy grounds. The motion was denied by the trial judge, and this Court affirmed. Evans v. State, 301 Md. 45, 481 A.2d 1135 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 1411, 84 L.Ed.2d 795 (1985).

Thereafter the trial in the present case proceeded. Among the witnesses offering significant incriminating evidence against the defendant Evans were Janet Moore, Charlene Sparrow and Calvin Harper. Moore, Grandison's girlfriend, had been contacted by Grandison, who was then in the Baltimore City Jail, to assist in making arrangements for the murder of the witnesses. Sparrow was Evans's

Page 496

girlfriend and offered the most damaging testimony about the defendant's involvement as the killer. According to Sparrow, she had accompanied the defendant and Moore to the Baltimore City Jail where the latter two visited Grandison two days before the shooting, inspected the reception desk area of the Warren House Hotel, and reported to the defendant concerning the people working there and the presence or absence of security features. Sparrow testified that, at the request of the defendant and with his funds, she obtained a room at the motel, was with the defendant in the immediate area of the lobby at the time of the shooting, and wiped down the smoking MAC-11 machine pistol handed to her by the defendant immediately after the shooting. She related that the defendant told her that he would receive $9,000.00 "if he knocked both of them off." Harper's testimony involved activities of April 26, 27 and 28, 1983, and included a description of the defendant's acquisition of the machine pistol from Rodney Kelly, as well as the defendant's statement that he liked the gun

We shall now address the defendant's arguments, essentially in the order set forth in his brief.

I.

The defendant's first two arguments relate to Calvin Harper's trial testimony. [499 A.2d 1266] Harper testified that he was with a friend, Rodney Kelly, during April 26, 27 and 28, 1983, and that on April 26th Kelly showed him a machine pistol like the MAC-11 machine pistol shown to him at trial. Harper further testified that on April 27th, Kelly introduced him to the defendant Evans, calling Evans by the name "Shorty." Harper went on to testify concerning Shorty's approval and acquisition of the machine pistol.

Following Harper's testimony, the defendant's attorneys were furnished a transcript of Harper's earlier testimony before a state grand jury, and upon reading the transcript the attorneys discovered that Harper had earlier identified the defendant Evans during that grand jury proceeding,

Page 497

when shown a single photograph of Evans. ¹ Defense counsel promptly contended that, as a result of the circumstances surrounding the earlier identification, the in-court identification should not have been permitted, and counsel moved for a mistrial. The trial judge declined to grant a mistrial, but he allowed a motion to suppress the in-court identification and promptly held a hearing on that motion out of the presence of the jury

In connection with the suppression hearing, the State stipulated to the introduction of the grand jury transcript, made available to defense counsel for interview the Assistant State's Attorney who had questioned Harper before the grand jury, and arranged for the return of Harper from Princess Anne, where he had been taken to testify against Grandison in the latter's trial. The record discloses that the identification before the grand jury occurred in the following manner:

"Q. PROSECUTING ATTORNEY: As you were playing games with Rodney in the bar, a fellow by the name of Shorty comes in, calls Rodney, and Rodney and Shorty go outside, is that right?

"A. HARPER: Right.

"Q. PROSECUTING ATTORNEY: Now, I show you a Baltimore County Police photograph No. 126237. It is a mug shot, and next to that number are the numbers 6/08/83, indicating the date. Is this the Shorty that you saw?

"A. HARPER: That is him.

Page 498

"PROSECUTING ATTORNEY: For the record, that is a photograph of Vernon Evans, Junior."

At the suppression hearing, Harper testified concerning the time he was with Evans on April 27th, and he stated that he did not recall making the photographic identification before the grand jury. The trial court, at the conclusion of the hearing, denied the motion to suppress.

(a)

The defendant's initial contention is that due process required the suppression of Harper's in-court identification on the ground that it was tainted by the allegedly suggestive and unreliable pre-trial identification procedure.

The criteria for determining such a due process claim were developed in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The principles set forth in these cases were recently reviewed and analyzed by Judge Orth for this Court in Webster v. State, 299 Md. 581, 599-602, 474 A.2d 1305 (1984).

[499 A.2d 1267] The initial determination to be made is whether the identification procedure was impermissibly suggestive. It is clear in this case that it was. The showing of a single photograph, under the circumstances shown by this record, was suggestive, and the State does not seriously argue to the contrary. There were no exigent circumstances justifying the presentation of a single photograph rather than an appropriate array.

Therefore, we next consider whether, under the totality of the circumstances, the identification was reliable. The pertinent factors were listed in Manson v. Braithwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253 as follows:

"We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony....

Page 499

* The factors to be considered ... include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself."

In the case at bar, Harper was in the immediate presence of the person known to him as "Shorty" for four daylight hours, and viewed him face to face on more than one occasion. His opportunity to view this person was therefore excellent and protracted. It is a fair inference that the degree of attention paid by Harper to "Shorty" was more than casual. They were specifically introduced to one another; they were together for a substantial period of time in a group of only three persons; and the fact that "Shorty" inspected and expressed approval of a machine...