Garrett v. State

• Decision Date: 09 May 1984
• Docket Number: No. 1021,1021
• Citation: 474 A.2d 931,59 Md.App. 97
• Parties: Napoleon Carlton GARRETT v. STATE of Maryland. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 97

59 Md.App. 97

474 A.2d 931

Napoleon Carlton GARRETT v. STATE of Maryland.

No. 1021 Sept. Term 1983.

Court of Special Appeals of Maryland.

May 9, 1984.

Victor L. Crawford, Rockville, for appellant.

Ann E. Singleton, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Andrew L. Sonner, State's Atty., for Montgomery County and Robert Dean, Asst. State's Atty., for Montgomery County on brief, for appellee.

Argued before WILNER, WEANT and BISHOP, JJ.

WILNER, Judge.

At about 2:30 in the morning of January 5, 1981, three men gained entry to the home shared by Samuel Hughes and his fiance Karen Hackney. While Hackney was held at gunpoint in the downstairs den, Hughes was led upstairs to his bedroom and forced to open a safe. He was then taken back downstairs, where he and Hackney had their hands bound behind their backs and were required to lie down next to each other in prone position. Their heads were covered with various bedding items--pillow, sheets, and sleeping bags. Eventually, someone shot Ms. Hackney in the head five times. It is not clear whether any of those shots were intended for Hughes. The three men then left, taking with them cash, drugs, and other valuable items.

Hughes identified both Emmit Brown, whom he knew, and appellant as two of the armed intruders. Brown, arrested within hours, also implicated appellant and a warrant was issued for his arrest.

Six weeks after this event, appellant was arrested in New Jersey in connection with an armed robbery which occurred in that State. He gave the New Jersey police a false name and address. It was not until late 1982 that the Maryland authorities discovered his whereabouts and ultimately obtained custody of him. He was brought to trial in the Circuit Court for Montgomery County, and, on May 4, 1983, was convicted of first degree murder, two counts of armed robbery, and two counts of using a handgun in a crime of violence. From the judgments entered upon those convictions, appellant brings this appeal, complaining that (1) the court erred in refusing to permit defense counsel to inspect the grand jury testimony of Detective Barry Collier after Collier's in-court testimony on direct examination, and (2) the court erred in admitting evidence and instructing the jury upon appellant's use of a false name and address in New Jersey.

Coupled with appellant's appeal is the State's cross-appeal with respect to the sentence imposed. The State moved the court to impose a mandatory twenty-five year sentence without possibility of parole, pursuant to Md.Code Ann. art. 27, § 643B(c), and complains of the court's refusal to invoke that statute.

Although we agree, and indeed the State concedes, that the court erred in rejecting counsel's request to inspect Collier's grand jury testimony, we shall nevertheless affirm.

(1) Grand Jury Testimony

The circumstances surrounding the shooting of Ms. Hackney were somewhat unusual and were by no means beyond dispute. To some extent, they suggested the possibility that Hughes may have shot his fiancee, and that, indeed, was argued to the jury.

There was considerable evidence that Hughes was involved in drug trafficking. He admitted to having two or more pounds of marijuana in his home at the time of the shooting, as well as to having dealt in that product with Emmit Brown in the past. According to Hughes, when Brown knocked on the door at 2:30 in the morning, Ms. Hackney was vacuum cleaning the living room, and he was in the process of shampooing his hair. Hughes's sister and her nine-year old daughter were asleep in one of the bedrooms; yet, despite the vacuum cleaner, the shampooing, the movement throughout the house by the three intruders, and the firing of five shots, they were not awakened. Finally, ballistics analyses established that the bullets that killed Ms. Hackney were fired from either a .38 caliber or .357 magnum pistol. Hughes admitted to owning and having in his house both a .38 caliber and a .357 magnum pistol, that he claimed the intruders took. Although he denied having fired any guns on the day in question, a neutron activation analysis revealed traces of barium and antimony on both of his hands, those materials being indicative of gunshot residue.

On the other hand, depending upon the credibility of two State's witnesses, the case against appellant was a strong one. Hughes positively identified appellant as one of the three intruders, the one who accompanied Hughes upstairs to open the safe and who removed certain jewelry from Ms. Hackney before she was shot. Douglas Dawkins, an acquaintance of appellant for some four or five years, testified that he had seen appellant in New Jersey in 1981, and that appellant had admitted not only the robbery but to shooting "the female." According to Dawkins, appellant stated that he was with two other men, both named Brown, and that he shot the woman five or six times because she knew him. The story relayed by Dawkins, though brief, corroborated some of the details testified to by Hughes. In addition, photographs of the crime scene taken by the police showed the position and condition of Ms. Hackney's body as Hughes described it, i.e., her hands were tied with plastic cord and she was covered with various items of bedding.

A number of police officers testified, although they added little to the basic story related by Hughes. Essentially, they described the crime scene and identified certain items of evidence collected by them.

On March 2, 1983--two months before trial--appellant asked the court to direct the State to "transcribe the Grand Jury testimony of all witnesses who will be called to testify at the trial." No request was made, at that time, to inspect any such testimony. The State opposed the motion on the ground that the only purpose for a transcription would be to provide access to appellant and that appellant had failed to establish a "particularized need" for such access. The court (Judge Raker) granted the motion. On April 17, 1983, it ordered that all grand jury proceedings in the case be transcribed prior to May 2, 1983, and that the cost of the transcription be paid by the public defender, a condition to which the public defender had agreed. Pursuant to that order, the grand jury testimony of Detective Barry Collier was transcribed and was in the possession of the prosecutor at time of trial.

Collier was one of five police officers who investigated the shooting; he was the last of the five to testify at trial. On direct examination he: (1) confirmed that certain photographs which had already been admitted into evidence without objection accurately depicted the scene of the crime as he had observed it, (2) stated that he had assisted Detective Arnold in collecting evidence at the scene, (3) stated that he was present at the autopsy performed on Ms. Hackney, and identified certain items of clothing and bullet fragments removed from her at that time, all of which were admitted into evidence without objection, and (4) identified a .25 caliber pistol taken from Emmit Brown at the time of his arrest, the pistol having previously been placed into evidence without objection.

On cross-examination, Collier acknowledged that he was "one of the chief investigators" in the case and that his duties included the gathering of evidence and the delivery of certain items to the Federal Bureau of Alcohol, Tobacco and Firearms for analysis. He identified, from a list shown him by defense counsel, the items taken to that agency, including the victim's clothing, bullets and bullet fragments, carpet samples, a blanket and a pillow, the handgun taken from Emmit Brown, and the neutron analysis kit containing the swabbings from Hughes's hands. The items themselves had already been placed into evidence and identified by the expert witness from the Bureau of Alcohol, Tobacco and Firearms. Finally, Collier acknowledged having testified before the grand jury.

When nearly finished with cross-examination of Detective Collier, counsel, for the first time, asked to see his grand jury testimony, calling the court's attention to Judge Raker's pre-trial order. The court, however, summarily and, in our judgment, erroneously denied the request. The colloquy following counsel's request was as follows:

"THE COURT: I don't need a bench conference to deal with this. We can take a lunch recess. Have you finished cross-examining him?

MS. DUROVIC [Defense Counsel]: Well, Your Honor, I can't make that determination because I have to first request from the Court what I'd like, which is, I'd like a copy of his grand jury testimony.

THE COURT: I don't know where his grand jury testimony is. You know as well as I do that they don't get that transcribed right away.

MS. DUROVIC: Judge Raker ordered that it be transcribed.

MR. DEAN [State's Attorney]: Your Honor, could we have arguments at the bench. I think it would be more appropriate at the bench.

THE COURT: Well does the bench transcribe?

MS. DUROVIC: Your Honor, Judge Raker ordered--

THE COURT: Wait a minute. You already said that once. I don't need to hear that again.

MS. DUROVIC: I don't know, Your Honor.

THE COURT: All right. Well I don't have anything to produce because no one knows where it is. So, do you have any other questions of him?

MS. DUROVIC: Your Honor, we would ask that the Court inquire of the State as to whether, in fact, the grand jury transcripts have been transcribed in compliance with Judge Raker's order.

THE COURT: I'm not going to ask him that right now. Do you [apparently referring to the prosecutor] have any other questions of this witness?"

Throughout this colloquy, the prosecutor, who had the grand jury transcript in his possession, inexplicably remained mute, thereby permitting the court to labor under the impression that the transcript was not available. Responding to the court's invitation, the prosecutor then asked a few more questions on redirect, following which...