Graef v. State, 28

• Decision Date: 14 April 1967
• Docket Number: No. 28,28
• Citation: 228 A.2d 480,1 Md.App. 161
• Parties: Carl Frederick Otto GRAEF, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 161

1 Md.App. 161

228 A.2d 480

Carl Frederick Otto GRAEF, Jr. v. STATE of Maryland.

No. 28.

Court of Special Appeals of Maryland.

April 14, 1967.

Certiorari Denied June 1, 1967.

Leonard J. Kerpelman, Baltimore, for appellant.

Alfred J. O'Ferrall, Sp. Asst. Atty. Gen., Baltimore, Francis B. Burch, Atty. Gen., Julius A. Romano, Former Asst. Atty. Gen., Baltimore, Charles E. Moyland, Jr., State's Atty., for Baltimore City, Allen Lipson, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and HARRY E. DYER, Jr., Special Judge.

ANDERSON, Judge.

Appellant, Carl Frederick Otto Graef, Jr., was found guilty of murder in the second degree by a jury in the Criminal Court of Baltimore. From his judgment and sentence of ten years confinement, he has appealed.

He contends that the trial court erred: (1) in denying his motions for judgments of acquittal of second degree murder and manslaughter; (2) in allowing the voir dire question on conscientious scruples against capital punishment; (3) in refusing to sequester the jury; (4) in the light of Escobedo and Miranda, to have admitted a photograph taken of the defendant after his attorney had instructed the police in writing to 'conduct no further interviews with the defendant'; (5) in its instructions to the jury.

Since the amendment to Article 15, Section 5 of the Constitution was adopted in 1950 (See also Code (1966 Supp.) Article 27, Section 593 and Maryland Rule 755), it has been the duty of the Court of Appeals, and now this Court, when the question is properly reserved, to review the sufficiency of the evidence to sustain a conviction in a criminal case. In performing this duty, we do not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt, but determine if there be any relevant evidence adduced at the trial which would properly sustain a conviction. Clarke v. State, 238 Md. 11, 207 A.2d 456 (1965); Briley v. State, 212 Md. 445, 129 A.2d 689, and cases therein cited.

I

Applying the above test to the evidence produced below, we have reached the conclusion that it was sufficient to sustain the conviction, even though in substantial part it was circumstantial in nature rather than direct save for the appellant's statement as to how shooting occurred. It would serve no useful purpose to set out in minute detail the rather voluminous testimony. A summary thereof follows:

On May 16, 1965, Police Officer Earl E. Williams of the Southern District, at about 11:30 p. m., observed the defendant in a phone booth and overheard him talking loudly into the telephone summoning an ambulance to 1308 Light Street because a man had been shot. The officer asked the defendant what the trouble was and was told, 'I am trying to get an ambulance. I need it at 1308 Light Street. A man has been shot in my apartment. He may be dying.' The officer and the defendant went to the apartment and we victim of the shooting was found with his feet partially in the doorway and a wound in his back. The officer asked the defendant who did this, and was told, 'I did it, but it was an accident.' The shotgun used in the shooting was found on the living room floor and the defendant was placed under arrest.

There were no eye-witnesses to the shooting and the defendant elected not to testify at the trial. His version of what happened was related to Sergeant John J. McGee of the Southern District who arrived at the apartment sometime shortly after 11:30 p. m. The defendant told Sergeant McGee in substance that after drinking about six bottles of beer, he left his apartment sometime after 5:00 p. m. and went to the vicinity of City Hall Plaza looking for a homosexual contact. He met one, the deceased, who struck up a conversation with him and a proposition was made-asking the defendant if he wanted to make nine dollars. He said yes. He then accompanied the deceased to a hotel on Baltimore Street where they went to the deceased's hotel room. They drank a half pint of Vodka between them, looked at some pornographic pictures belonging to the deceased, engaged in some minor homosexual play and then went to the defendant's apartment on Light Street for the purpose of looking at some pornographic pictures which belonged to the defendant. On the way to the apartment the deceased stopped and bought six cans of beer.

The accused and the deceased arrived at the defendant's apartment, the defendant got the pictures, a radio and some fried chicken from the refrigerator and they sat down at the kitchen table. Defendant then went into the bedroom and got a record player and some records and started hooking it up in the kitchen. The deceased then got up and walked into the bathroom. While the deceased was in the bathroom the defendant picked up a shotgun which he claimed he had been working on previously and which was lying on an unused gas stove, ostensibly to take it to the bedroom. As he did so the deceased came out of the bathroom where he had been for a short time, ran by him and through the living room to the front door leading into the hall. As he reached the doorway and was 'fidgeting' with the doorknob, the defendant stepped into the living room, the gun went off and the full charge struck the deceased in the back. The deceased fell against the door and then backwards over the sofa. Defendant then opened the door and deceased fell and didn't stir, so the defendant ran outside and went to the outdoor phone booth and called for an ambulance where he was found there by Officer Williams.

On June 18, 1965, defendant appeared with his counsel at the State's Attorney's Office for Baltimore City and with police officers present was interrogated by the Assistant State's Attorney and his own counsel about the shooting. The transcription of this questioning was admitted at the trial without objection and was read to the jury. While it went into what had taken place on the evening in question in greater detail, it was substantially the same story that he had told Sergeant McGee at the time of the shooting.

The gun which was found lying on the living room floor of the defendant's apartment was a shotgun in very poor mechanical condition, in that the trigger and trigger guard and shall extractor were missing; the butt plate was missing; some screws were missing; and the shotgun was sloppy in its fit. Sergeant Charles B. Knight of the Crime Laboratory of the Baltimore City Police Department, who qualified as a gun expert, testified that 6 1/2 to 7 pounds of pull was necessary to retract the hammer off the firing pin. It was his opinion that the gun could only be discharged in one of two ways, either the hammer was pulled back and let go or the hammer was struck from the back with a malletlike object. In order to fire, the hammer must be pulled back to a three-quarter position or full cock or it would not fire. This was proved by his experiments. There was testimony that the gun could be fired by dragging the hammer against one's clothing but even this required that the hammer be pulled back to three-quarter cock. There was no evidence that the gun was dropped before it had been fired. There can be no question but that the gun was a very dangerous weapon and in addition it was fully loaded.

At the end of the entire case the trial judge granted the defendant's motion for judgment of acquittal as to murder in the first degree and denied the defendant's motion for judgment of acquittal as to murder in the second degree and manslaughter on the ground that there was enough evidence to permit the case to go to the jury as to second degree or manslaughter.

The trial court in its instructions explained to the jury that the essential distinction between murder and manslaughter was the presence or absence of malice and that malice was an essential element of second degree murder. The trial court then defined malice in this connection as the intentional doing of a wrongful act to another without legal excuse or justification. It includes any wrongful act done wilfully or purposely. In this regard the court further instructed the jury as follows:

'If the jury should find that the defendant did shoot the deceased, and did so with intent to inflict serious bodily harm upon him, and did so without any just cause or excuse for doing so or without any circumstances of mitigation, then and in that event, if you so find, the defendant would be deemed to have shot the deceased with malice aforethought. And if the jury further find that death ensued as a result of such shooting, then the defendant would be guilty of murder in the second degree.'

The evidence shows that the defendant was armed with a shotgun from the time shortly after the victim went into the bathroom and that he shot the deceased in the back from a distance of about eleven feet as he was fidgeting with the doorknob in an attempt to open the door leading into the hallway. At the time he was shot he was fleeing from the defendant, having run from the bathroom through the living room to the door. The defendant had no...