Hounshell v. State

• Decision Date: 01 September 1984
• Docket Number: No. 528,528
• Citation: 486 A.2d 789,61 Md.App. 364
• Parties: Harold Lee HOUNSHELL aka Harold Lee Houndshell v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 364

61 Md.App. 364

486 A.2d 789

Harold Lee HOUNSHELL aka Harold Lee Houndshell v. STATE of Maryland.

No. 528, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Jan. 14, 1985.

Kathleen M. Brown, Assigned Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Valerie Johnston Smith, Assistant Attorney General, Baltimore (Stephen H. Sachs, Atty. Gen. of Maryland, Kurt L. Schmoke, State's Atty. for Baltimore City and Michael Flannery, Asst. State's Atty., for Baltimore City, Baltimore, on brief), for appellee.

Argued before WILNER, BLOOM and GETTY, JJ.

GETTY, Judge.

Appellant Harold Lee Hounshell was tried before a jury in the Circuit Court for Baltimore City (Watts, J.) and convicted of first degree premeditated murder. He was sentenced to life imprisonment without the possibility of parole pursuant to Maryland's Enhanced Penalty Statute, Md.Ann.Code art. 27 § 643B. By this appeal, appellant raises the following five issues:

I Did the State fail to prove every necessary element of first degree murder?

II Did the trial court err in giving the jury the State's requested instructions on the nature of strangulation?

III Did the trial court abuse its discretion by denying appellant's request to have the jury sequestered in order to prevent exposure to prejudicial publicity?

IV Should the evidence seized from appellant's car have been suppressed as the search was conducted pursuant to an invalid search warrant?

V Was the evidence produced at trial legally insufficient to establish appellant's criminal agency in the offense with which he was charged?

Facts

On Sunday, July 25, 1982, shortly before 4:00 P.M., a body of a young woman, later identified as Laverne Duffy, was found in a wooded, debris-filled area of Druid Hill Park in Baltimore City. The body was nude except for shoes, watch and a ring. An autopsy report revealed that the victim had been strangled to death. The report also indicated the presence of semen in Laverne Duffy's mouth.

On July 28, 1982, appellant, who was under investigation for the homicide of Laverne Duffy, was observed in his automobile at the parking lot of the Sunpapers in downtown Baltimore. Appellant's car was stopped by two Baltimore City police officers who made a preliminary search of the vehicle for weapons. Appellant was arrested for various traffic offenses and his car was impounded by the Baltimore City Police Department. While appellant's automobile was in police custody, Detective James Ozazewski, the primary investigator in the Duffy murder case, prepared an affidavit for a search warrant for the vehicle. The affidavit contained five witness statements, two of which were taken by Ozazewski personally and three of which were taken by other police officers. The affidavit failed to mention the fact of the initial search of the vehicle for weapons which took place on July 28, 1982. Information about appellant's background was included in the affidavit, including appellant's psychiatric record, his acquittal by reason of insanity of two other sex-related offenses, and his connection with the murder investigations of two other women. The background information contained in the affidavit, however, did not include the dates of the various events with which appellant was connected.

A search warrant was issued for appellant's automobile on July 29, 1982. During the search, police uncovered a flowered strapless sundress of a type known to have been last worn by the victim. Also recovered from appellant's automobile were soil and glass samples, blood, hair and fibers. The soil and glass samples recovered from appellant's automobile matched samples taken from the area where the victim's body was recovered. On March 21, 22 and 28, and April 5, 1983, a hearing was held on appellant's motion to suppress the evidence obtained through the search of appellant's automobile. On April 5, the motion to suppress evidence was denied. A trial on the merits was held in the Circuit Court for Baltimore City in April and May of 1983.

At the trial, Lorenzo Lee, the victim's boyfriend and roommate, testified that on the night she died, July 24-25, the victim had been wearing a flowered sundress. Lee identified the dress found in appellant's car as the dress last worn by the victim. Another witness, Ramona Enos, testified that she had seen the deceased in a diner on a Saturday night, but could not remember the date. The deceased was murdered on a Saturday night or early Sunday morning. Enos identified the dress found in appellant's car as the dress the deceased was wearing when Enos saw her, but testified that when she saw the deceased the dress had straps. Enos further testified that appellant was in the diner on the same night as the deceased. Two other witnesses testified that they saw the deceased on the night she died and that she was wearing the dress that was found in appellant's automobile. One of those witnesses testified that the dress had straps but that the deceased wore the dress with the straps tucked away.

Another witness, Tanya Fisher, testified that at approximately 4:00 A.M. on July 25, she saw the deceased talking to appellant and later getting into his automobile. Joyce Young, who was with Fisher that night, corroborated Fisher's testimony and identified appellant as the person seen with Laverne Duffy on the last night of her life. Young testified that appellant was the only occupant of the vehicle Laverne Duffy entered that night. Young testified that she was familiar with appellant's vehicle because she, Young, had been in the same vehicle on other occasions. Previously, however, Young had refused to cooperate with police and had stated that she was home all day on July 25. Young was unable to identify the dress the deceased was wearing on July 25.

Marvin Mullen, the laboratory technician who supervised the search of appellant's automobile, testified that the victim's dress was found under the spare tire in the rear compartment of appellant's automobile. Robert Hursley, a forensic scientist, testified that soil and glass samples taken from appellant's automobile matched samples taken from the area where Laverne Duffy's body was found.

Lawrence Watson, appellant's neighbor, testified, and another neighbor corroborated, that appellant attended a party given by Watson on July 25, but left the party at 3:00 or 4:00 A.M. Appellant did not testify.

The trial was concluded on May 20, 1983, when a jury found appellant not guilty of first degree felony murder but guilty of first degree premeditated murder. Appellant was sentenced to life imprisonment without possibility of parole. This appeal follows.

I

Appellant asserts that his conviction for first degree murder must be reversed because the evidence presented at trial failed to establish the necessary elements of a wilful, deliberate and premeditated murder. We disagree.

First degree murder is the actual intent coupled with the fully-formed malicious purpose to kill, with enough time for deliberation and premeditation to lapse so as to convince a fact finder that the slaying was not the offshoot of some intemperate conduct, rashness, or temper, but an act done under the direction of a mind that is fully conscious of its own design. Hyde v. State, 228 Md. 209, 179 A.2d 421 (1962), cert. denied, 372 U.S. 945, 83 S.Ct. 938, 9 L.Ed.2d 970 (1963); R. Gilbert & C. Moyland, Maryland Criminal Law: Practice and Procedure, § 1.4-1 (1983). For a killing to be "wilful" there must be a specific purpose and intent to kill, to be "deliberate" there must be a full and conscious knowledge of the purpose to kill, and to be "premeditated" the design to kill must have preceded the killing by an appreciable length of time, that is, time enough to be deliberate. Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830 (1980).

Appellant argues that the circumstances surrounding the murder of Laverne Duffy provide no basis for the conclusion that the murder was committed with premeditation. Appellant takes issue with the State's failure to introduce any evidence, medical or otherwise, of the nature and duration of the act which caused the death of Laverne Duffy. Specifically, appellant argues that a jury could not find appellant guilty of first degree premeditated murder without some evidence of the amount of time and type of force which appellant must have utilized to strangle Laverne Duffy to death. We reject appellant's argument.

Admittedly, death by strangulation does not in and of itself establish first degree murder. Webster's New World Dictionary defines "strangle" as: "to kill by squeezing the throat so as to shut off the breath, as with the hands, a noose, etc.; throttle; choke. To suffocate or choke in any manner." A jury, therefore, may consider that some time element is necessarily involved between the onset of squeezing the throat and death resulting therefrom. This is particularly true where, as in this case, the autopsy report does not reflect that death resulted from a fracture or sudden blow to the throat. Whether the time required to produce death by strangulation is sufficient for the assailant to reflect upon his actions before death ensues is a matter for the jury to determine.

We see no merit to appellant's contention that evidence of the amount of time required for strangulation to cause death must be presented to establish premeditation in a strangulation murder case. Appellant misconstrues what is required for premeditation to exist and underestimates what is common knowledge about strangulation.

Premeditation is a term of art used in the law of homicide. It is commonly defined as the design which must have preceded a killing by an appreciable length of time to make that killing deliberate. See Chisley v. State, 202 Md. 87, 106-07, 95 A.2d 577 (1953). When there is deliberation, there has been of necessity time for deliberation, to-wit, premeditation. Smith v....