Fulton v. Warden, Md. Penitentiary

• Decision Date: 20 September 1984
• Docket Number: A,Nos. 81-6695,No. 127-943,127-943,s. 81-6695
• Citation: 744 F.2d 1026
• Parties: Samuel FULTON,ppellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee. Ronald Fitzgerald ROBINSON, # 125759, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee. (L), 82-6040.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1026

744 F.2d 1026

Samuel FULTON, No. 127-943, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.

Ronald Fitzgerald ROBINSON, # 125759, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.

Nos. 81-6695(L), 82-6040.

United States Court of Appeals Fourth Circuit.

Argued Oct. 6, 1983.

Decided Sept. 20, 1984.

Thomas Ricciuti, Baltimore, Md. (Richard S. Davis, Christopher H. Buckley, Jr., Beveridge & Diamond, P.C., Washington, D.C., on brief), for appellants.

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

Before WINTER, Chief Judge, and HALL and PHILLIPS, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

Samuel Fulton and Ronald Robinson were each convicted of first-degree murder in a Maryland court in the early 1970's. Both asserted alibi defenses. Their convictions arose from entirely separate crimes and their appeals are related only by the legal issue on which they both petitioned for habeas corpus relief.

In 1978, in unrelated actions, Fulton and Robinson each petitioned for a writ of habeas corpus in the United States District Court for the District of Maryland. Both Fulton and Robinson were found to have exhausted their state remedies, and the district court concluded that the instructions in both trials were constitutionally infirm. It is now conceded that the juries which convicted them were erroneously instructed with respect to the burden of proof concerning their defenses of alibi. In both instances, however, the district court concluded that the errors were harmless under the particular circumstances of each case. Both Fulton and Robinson appealed and their cases were consolidated for argument before us. ¹ After reviewing the records in both cases, we are convinced that the district court correctly decided both cases. Accordingly, we affirm both judgments.

I.

Samuel Fulton was sentenced to life in prison for the first-degree murder of his wife. The state's medical examiner placed the time of Mrs. Fulton's death at between 5:00 a.m. and 11:00 a.m. on February 28, 1973. The time was narrowed further by Mrs. Fulton's sister, Anrair Clay, who was staying at the Fulton residence. Ms. Clay testified that she saw and spoke with Mrs. Fulton from approximately 7:45 to 8:10 a.m. on the morning of the murder.

Edward Cates, owner of a neighborhood store three blocks from the Fulton's home, testified that he saw Mr. Fulton for approximately five minutes between 8:30 and 8:45 during the morning of Mrs. Fulton's death. Cates testified that Mr. Fulton asked for change for the streetcar and told Cates he was late for work. ² Cates found nothing unusual in Fulton's demeanor and testified that he looked "normal". Fulton now contends that this testimony constituted an alibi, which, absent an erroneous jury instruction, could have created reasonable doubt as to his guilt.

There was uncontroverted evidence at trial that Fulton arrived at his home slightly before 8:30 p.m. on February 27, 1973. Fulton had been separated from his family and residing in another state for the previous two months. Two witnesses present that evening, Anrair Clay and Fulton's sister Joyce, testified that Mr. and Mrs. Fulton had an argument. Both also testified that Fulton threatened his wife with an axe at one point. The argument subsided, however, and both Fultons later went upstairs to bed together. Anrair Clay, apparently worried about her sister, called upstairs to check on Mrs. Fulton at approximately 11:00 p.m. and later at 5:00 a.m. At both points, Mrs. Fulton indicated that her husband was with her and everything was "all right." Anrair Clay saw Mrs. Fulton again the next morning from roughly 7:45 to 8:10 a.m. when they were sending their children to school. As Ms. Clay went back upstairs to return to bed, she saw a shape in her sister's bed that she assumed to be Mr. Fulton. Ms. Clay testified that she slept until approximately 11:55 a.m. and then discovered her murdered sister in the next bedroom. Mrs. Fulton was on her back in bed and had been bludgeoned to death with a blunt instrument eventually determined to be a carpenter's maul found hidden in a china closet downstairs.

The police, on the basis of the above facts, procured a warrant for Mr. Fulton's arrest. Mr. Fulton surrendered himself at approximately 10:30 p.m. on February 28. Between 10:40 and 1:30 a.m., Mr. Fulton was examined for physical evidence and interrogated by a police detective. A benzidene test for traces of blood on Fulton's hands yielded positive results indicating the presence of human blood around the cuticle areas of three fingernails. At trial, however, there was some doubt cast on the accuracy of the test and the qualifications of the individual who administered it. Also, an oral statement voluntarily made during the interrogation was admitted at trial. The statement tended to suggest that Fulton knew the nature of the murder weapon, though the exact contents of the statement were in dispute.

At trial, Mr. Fulton attempted to create reasonable doubt as to his guilt by suggesting that Mrs. Fulton was actually killed by her paramour, Louis Rosado. Some circumstantial evidence seemed to support this possibility. Approximately ten days prior to her death, Mrs. Fulton resumed a relationship with Rosado, to whom she had previously been engaged. Rosado testified at trial that he was in love with Mrs. Fulton and believed that she intended to divorce her husband and marry him. Rosado had visited Mrs. Fulton every night during the week prior to her death, and he testified that he had spent the night with her on February 26. Furthermore, he had visited Mrs. Fulton at her home at approximately 6:30 or 7:00 on the evening of February 27, shortly before Mr. Fulton arrived. Fulton suggests a possible motive for Rosado might have been jealousy at an apparent reapproachment between the Fultons. ³

A second piece of circumstantial evidence suggesting Rosado's involvement was a Pabst beer can with his fingerprints on it found in the bedroom. Anrair Clay testified that she bought a six-pack of Pabst sometime after 8:30 p.m. on February 27, as there was no beer in the refrigerator at that time. The record is silent as to whether there were other beer cans around the house. The police found both a can of Pabst and a soft drink can on a table in the bedroom. Mr. Fulton's fingerprints were on the soft drink can. Mr. Rosado's prints were later identified on the beer can. Rosado testified at trial, however, that he worked from 5:00 a.m. or 5:30 a.m. until around 11:30 a.m. on February 28. At the time, Rosado was employed by the Baltimore City Sanitation Department. No evidence contradicting Rosado's story was introduced at trial.

II.

Ronald Robinson was convicted of: first-degree murder, assault with intent to murder, attempted robbery with a deadly weapon, and the unlawful use of a handgun. Robinson was sentenced to two life terms and an additional term of years.

The crime Robinson was charged with took place in the Lenox Furniture Store in Price George's County on November 8, 1972, between 2:00 and 3:00 p.m. Two of the store's employees were shot to death. A third, Robert Loewy, was shot twice but lived. Mr. Loewy testified at trial that on the day of the crimes, shortly before noon, an individual fitting Robinson's description entered the store looking for a lamp. At that time, Loewy helped the customer who eventually did decide on a particular lamp. Loewy's possible in-court identification of Robinson was suppressed. He did, however, identify a sales slip for the lamp which he had written for the customer under the name of "Jeffrey Robinson." The ticket was signed, however, in the name of "Ronald Robinson." An FBI handwriting expert later testified that the signature on the sales slip for the lamp had been written by the defendant.

Loewy testified that the same man came back to the store later in the afternoon to return the lamp. Loewy filled out a sales slip for the return of the lamp and the purchase of a reclining chair. With the exchange apparently over, Loewy returned to other matters. After a few moments, the customer returned asking whether the chair could be obtained in a different color. The customer then brandished a revolver and demanded the money in the cash register. He then opened fire, shot three employees, emptied the cash drawer, and fled.

Two other witnesses placed Robinson on the scene. Richard Marcus, a student and part-time employee, began work immediately before the shooting. Marcus, who was not injured, observed the assailant for approximately fifteen minutes and identified Robinson. Staff Sergeant Claude Jefferson, a neuropsychiatric supervisor at Walter Reed Hospital, was also in the store when the assailant entered in the afternoon. Jefferson left before the shooting but identified Robinson as being in the store.

Other circumstantial evidence implicated Robinson. First, the police recovered clothing from Robinson's home which matched Loewy's description of the gunman's clothing. Second, when Robinson was arrested, the police seized a loaded long-barreled .22 caliber revolver from his car, which Robinson then claimed as his own. At trial, a ballistics expert testified that the bullets which hit the victims could have been fired by that gun, but that the bullets were too mutilated, and the rifling too common, to permit positive identification.

Perhaps the most incriminating evidence against Robinson was the positive identification of two of his fingerprints on the scene. One of those prints was taken from the lamp and the other from the store counter.

Immediately after his arrest, Robinson denied ever having been in the Lenox Furniture Store, and also claimed to have been shooting basketball at an indoor recreation center at the time of the killings. However, the manager of the recreation center testified that no one had used...