Foster v. State

• Decision Date: 25 January 1971
• Docket Number: No. 167,167
• Citation: 272 A.2d 810,11 Md.App. 40
• Parties: Andre Van Lear FOSTER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 40

11 Md.App. 40

272 A.2d 810

Andre Van Lear FOSTER v. STATE of Maryland.

No. 167.

Court of Special Appeals of Maryland.

Jan. 25, 1971.

Karl H. Goodman, Baltimore, with whom was Jack B. Rubin, Baltimore, on brief for appellant.

William E. Brannan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., Joseph B. Herlan and Peter D. Ward, Asst. State's Attys., Baltimore City, on brief for appellee.

Argued before MURPHY, C. J., and ANDERSON and MORTON, JJ.

MURPHY, Chief Judge.

Appellant Foster was jointly indicted with William Frazier, Charles Harrison, and Herbert Simms for conspiring to murder and murdering Elsie Johnson on May 28, 1969. Frazier and Harrison were additionally jointly indicted as accessories before and after the fact to the murder. The case against appellant, Harrison, and Frazier was called for trial on February 2, 1970. Frazier's motion for a severance was granted. Appellant and Harrison were then jointly tried before a jury. At the conclusion of the trial, Harrison was acquitted of all charges. Appellant was found guilty of murder in the first degree without capital punishment. On appeal, he contends that the court erred in its instructions to the jury concerning the accomplice testimony rule.

The evidence at trial showed that Miss Johnson was shot four times at close range in Leakin Park; her body was found in the brush near the side of the road in the park. The State's principal witnesses were Vernice Smoot and Herbert Simms, both of whom were present at the scene of the crime and eyewitnesses to the shooting.

Smoot testified that appellant was the godfather of her child; that on occasions, he gave her money for her child; and that he called her on May 27, 1969, telling her that he had some money for the child which he had recently stolen. Smoot went to appellant's house with Frazier and Simms, in Frazier's car, but the appellant did not have the money at that time. Smoot testified that she eventually went to sleep in Frazier's car; that she awoke at 2:30 a.m. in Leakin Park when she heard a girl scream; that appellant and Harrison were standing outside the car with the girl; and that Frazier told appellant to shoot the girl in the head, after which appellant shot her four times. Smoot testified that Frazier was in the driver's seat at the time of the shooting; that Simms was in the back seat with her, and did not participate in the crime; and that when appellant re-entered to car, she snatched the gun from him. According to Smoot's testimony, Harrison protested the shooting and had tears in his eyes; after the shooting he carried the victim into the brush alongside the road. Smoot testified that appellant and the victim had been going together; and that on the day before the murder, appellant had told her (Smoot) that the victim had told the police where he (appellant) was staying. Smoot testified that she was afraid of appellant; that after the crime he had said he would kill her if she told; but that she nevertheless called the police, and they eventually questioned her. Smoot admitted that several days after the crime, she went to an amusement park with the appellant. She also testified that appellant told her mother that she (Smoot) had shot the girl, a statement he later retracted.

Simms testified for the State, and confirmed Smoot's testimony that he and Frazier had driven her to appellant's house, in Frazier's car, on May 27. He testified that he and Frazier were good friends; that Frazier had a gun in his car under the dashboard; that on the night of the 27th he was in the car with appellant, another man, Smoot, and Frazier; that appellant asked Frazier for the gun; and that he (Simms) gave it to appellant after taking it from beneath the dashboard. Simms testified that the victim got in the car with them on the night of the murder, and they drove to the park, the conversation on the way being entirely normal; that Smoot was asleep in the car; that appellant told Frazier to stop the car, after which appellant, Harrison, and the victim got out; and that appellant yelled at the victim and shot her a number of times. Simms said that Frazier took the gun from appellant. He later testified that it was he who grabbed the gun from appellant, emptied it, and returned it to Frazier. Simms testified that he did not observe Harrison crying or attempting to aid the victim. Two weeks after the crime, Simms heard the police were looking for him and surrendered himself. He testified that he did not know the victim; that he had been drinking on the night of the offense; that he did not immediately report the crime to the police because he was afraid of the appellant; and that he had nothing whatsoever to do with the crime.

The State adduced evidence showing that the gun used to murder Miss Johnson belonged to Frazier. It was seized under search warrant from Frazier's house on June 5, 1969.

Denise Allen, a sister of the appellant, testified on his behalf that on May 27-shortly before the crime-she was with Smoot, Frazier, and Simms in Frazier's car; that Smoot saw the victim sitting on some steps, pointed to her and said 'I would kill that bitch.' Miss Allen testified that appellant and the victim had been going together that on the night the crime was committed appellant had been to a party; that the victim was also at a party with Frazier and Harrison, and left at 2:00 a.m.

Appellant's defense at trial was that both Simms and Smoot were accomplices upon whose uncorroborated testimony he could not properly be convicted. In furtherance of this defense, he sought appropriate jury instructions. In the course of instructing the jury the trial judge said:

'The defendant, Foster, as I comprehend the argument, contends that one of the witnesses, at least Mr. Simms, was an accomplice. I heard no testimony from Simms' lips or from that of the other eye witness, Vernice Smoot, to support the statement that either one was an accomplice. But, as you know, the State has indicted Mr. Simms as a co-defendant in this murder case. And if you should conclude that he was an accomplice for any reason, then let me instruct you as to the effect of his testimony, a person accused of a crime can not be convicted by the uncorroborated testimony of an accomplice. Although only slight corroboration is necessary, the corroborating testimony must tend either to show 1, the identity of the defendant in the perpetration of the crime; and, 2, the defendant's participation in the crime itself.'

Appellant specifically objected to this instruction on the ground that it was improper for the court to tell the jury that there was no evidence that either Smoot or Simms were accomplices. Appellant claimed that his entire defense was prejudiced by the court's statement, and he moved for a mistrial or a corrective instruction. Both were denied, and from the colloquy that ensued between the court and coun...