James v. State

• Decision Date: 08 June 1976
• Docket Number: No. 689,689
• Citation: 31 Md.App. 666,358 A.2d 595
• Parties: Luke JAMES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 666

31 Md.App. 666

358 A.2d 595

Luke JAMES v. STATE of Maryland.

No. 689.

Court of Special Appeals of Maryland.

June 8, 1976.

Certiorari Denied Sept. 14, 1976.

Dennis M. Henderson, Asst. Public Defender, with whom were Alan H. Murrell, Public Defender, and George E. Burns, Jr., Asst. Public Defender, on the brief, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City, and Domenic Iamele, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Argued before THOMPSON, DAVIDSON and MOORE, JJ.

MOORE, Judge.

The fatal shooting of a 22 year old Baltimore City policeman on April 5, 1974 gives rise to this appeal. Appellant, who relied for his defense upon a theory of alcoholic blackout or amnesia ¹, was found guilty of first degree murder in the death of Officer Frank Whitby and of assault with intent to murder Officers William Nowakowski and Carl Grinnage. He was sentenced to life imprisonment for murder, 15 and 10 year consecutive sentences on the assault charges, to be served consecutively to the life term and two 5 year concurrent sentences for handgun convictions, to be served concurrently with the other sentences.

Appellant assails his convictions upon the grounds of alleged insufficiency of the evidence, alleged error in denying his motions for a mistrial based upon remarks by the prosecutor claimed to have been inflammatory, alleged error in the admission of evidence of a prior conviction and alleged failure of the trial court properly to consider the issue of whether his claimed amnesia precluded a fair trial.

After careful consideration of the record in this case, including some 1000 pages of transcript and numerous exhibits, we conclude that the assignments of error are not supported and that the judgments of conviction must be affirmed.

I

The senseless shooting of Officer Whitby occurred on Saturday, April 6, 1974, at approximately 1:00 p.m. Appellant, then 43 years of age, had apparently spent a substantial part of the previous day drinking. Witnesses for the defense testified that appellant and his girlfriend, Lagertha Buise, arrived at the home of her mother and stepfather on East Oliver Street at 9:30 or 10:00 p.m. The girlfriend's uncle was also present. The group began playing pinochle, imbibing beer and liquor as they played. The quantity of drinks available to them and consumed by the appellant was variously estimated by the witnesses-the girlfriend stating with apparent exaggeration that appellant consumed as much as two gallons by the time the card game terminated at 8:30 or 9:00 the following morning. At that juncture appellant and Lagertha Buise left her mother's home, destined for the home of appellant's sister. In response to a question on direct examination as to his condition at that time, appellant testified:

'I was pretty high. I was high but wasn't what you call sure enough drunk. I wobbled a little bit.'

Not finding the sister at home, they located her at the house of a friend and went with her to a local bar at the corner of Wolfe and Lanvale Streets. There, the trio consumed beers and a pint of whiskey.

At approximately 1:00 p.m., one Barnard Smith, who was having his automobile washed in the neighborhood, entered a public telephone booth on the street outside the tavern to telephone his wife. As he did so, he observed appellant walking unaccompanied down East Lanvale Street shooting a pistol at random. One of the bullets came dangerously close to the telephone booth. Mr. Smith crouched on the floor and dialed the police. When the officers arrived on the scene, Mr. Smith informed them that appellant had entered a rowhouse, 1911 East Lanvale (later established to be the residence of his sister). Policemen were deployed to the front and rear of the house and Officers Whitby, Nowakowski and Grinnage ascended the front steps. Whitby was first in line. In response to his knock, appellant's sister appeared at the door. She stated that there was no one in the house with a pistol-the only other occupant being her brother and that he had no gun. As she motioned the officers inside, Officer Whitby, armed with a shotgun, entered the vestibule and proceeded to the hallway of the house. As he did so, three shots rang out. He turned to his companions and stated, 'I have been shot,' and fell to the floor. He then crawled back toward the outside door. He was assisted from the house by Officer Grinnage and placed in an alley a few doors away, awaiting the momentary arrival of an ambulance.

Officer Nowakowski took a position outside, to the left of the front steps, and testified that he presently found himself looking down the barrel of a revolver in appellant's hand. He fired three shots but appellant withdrew into the house, unscathed.

Thereafter the police established a barricade in the front and rear of the premises. The supervising officer, using a 'bullhorn' and having learned appellant's name, called out to him to surrender. After some 40 minutes appellant shouted that he was coming out and giving himself up. Heeding the instructions of the supervising officer, he emerged with his hands up, descended the front steps and spread his arms on the hood of an automobile. He was quickly handcuffed and searched and then transported from the scene. One of the police officers, Paul A. Ayres, testified that appellant stated at the time of his apprehension that he did not know that the man he shot was a police officer. ²

Officer Whitby was taken to Johns Hopkins Hospital where he underwent 7 or 8 major surgical procedures. He died there on May 5, 1974, the cause of death being extensive bronchial pneumonia, complicated by multiple gunshot wounds of his leg and abdomen.

The trial in this case commenced on February 10, 1975 and ended on February 20th. Appellant took the stand in his own behalf and testified that he had no recollection of events which transpired after drinking at the bar on Saturday morning until his apprehension by the police. He did remember walking from the home of his girlfriend's mother on East Oliver Street to East Lanvale and also recalled going to and being at the local bar. He also admitted the possession of two revolvers and stated that he found them in a car at a garage where he was temporarily employed and had them in his custody at the time of his arrest because he intended to sell them.

II

We address ourselves to appellant's contentions in the order in which they have been presented:

a. Sufficiency of Evidence-First Degree with Intent of Murder

In the instant appeal, the corpus delicti of homicide was amply demonstrated, as was the criminal agency of appellant, in the perpetration of the homicide. On his behalf it is contended, however, that in the absence of any confrontation between victim and assailant, there being no testimony of any exchange of words before the shots were fired, that the State did not prove, as it must, that the homicide was 'wilful, deliberate and premeditated' so as to constitute murder in the first degree. Maryland Code (1957, 1976 Repl.Vol.) Art. 27, § 407; Chisley v. State, 202 Md. 87, 95 A.2d 577 (1953); Wilson v. State, 261 Md. 551, 276 A.2d 214 (1971); Gladden v. State, 273 Md. 383, 330 A.2d 176 (1974).

As Judge O'Donnell stated for the Court in Gladden, supra:

'For a homicide to be 'wilful' there must be a specific purpose and design 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.'

Citing Chisley, supra, the Court in Gladden pointed out that to sustain a conviction of murder in the first degree, as defined in Maryland, the jury must find:

"the actual intent, the fully formed purpose to kill with so much time for deliberation and premeditation as to convince them, that this purpose is not the immediate offspring of rashness and impetuous temper and that the mind has become fully conscious of its own design.' It is not necessary that deliberation and premeditation shall have been conceived or have existed for any particular length of time before the killing. Their existence must be judged from the facts of the case. . . .' 273 Md. at 387, 330 A.2d at 178

And in Gladden, the Court also cited Wilson, supra, for the proposition that:

'If the killing stems from a 'choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder.''

And as Judge Moylan pointed out for this Court in Evans v. State, 28 Md.App. 640, 349 A.2d 300 (1975), in proving wilfulness, deliberation and premeditation beyond a reasonable doubt, the State will not have relied upon a mere presumption of malice but will of necessity have proved the element of malice, meaning 'an intentional killing absent the mitigating circumstances of a hot-blooded response to a legally adequate provocation.'

In the present case it is significant that the shooting by the appellant of Officer Whitby was in no way provoked by any action of the decedent or of his two companions. The autopsy indicated that the victim suffered gunshot wounds to the right lower abdomen, right thigh and right leg. (The bullet to the addomen perforated the major vascular structure of the lower abdomen, penetrated the diaphragm and ultimately became lodged in the left lung.)

Premeditation and deliberation, being subjective in nature, can be established from the circumstances surrounding the particular case. 40 Am.Jur. 2d Homicide § 263; 1 Wharton, Criminal Evidence § 135 (13th ed. 1972). As the trial court observed in this case when he denied appellant's motion for judgment of acquittal at the close of the case:

'The question of premeditation has to be determined by the...