Jeter v. State

• Decision Date: 24 June 1970
• Docket Number: No. 423,423
• Citation: 9 Md.App. 575,267 A.2d 319
• Parties: Clarence Arthur JETER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 575

9 Md.App. 575

267 A.2d 319

Clarence Arthur JETER v. STATE of Maryland.

No. 423.

Court of Special Appeals of Maryland.

June 24, 1970.

Certiorari Granted Sept. 21, 1970.

Seymour R. Goldstein and Louis J. Glick, Baltimore, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., and Robert C. Ozer, Asst. State's Atty., for Baltimore City, respectively, on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

THOMPSON, Judge.

Clarence Arthur Jeter, the appellant, was convicted in the Criminal Court of Baltimore of first degree murder and storehouse breaking. Judge Solomon Liss presided without a jury. On appeal Jeter questions the first degree murder verdict and its accompanying life sentence. He maintains that he may not be convicted of first degree murder either under the felony-murder rule nor otherwise as a participant in the crime of storehouse breaking. He did not appeal his conviction for storehouse breaking.

On January 25, 1968, at approximately 3:15 a. m., Robert Thompson, the deceased, night watchman for L. Greif and Brothers warehouse in Baltimore City, discovered someone had broken into the upper floor of the warehouse. Thompson, after calling the police, went to the office section of the warehouse and notified William Wilkerson, James Paul and Otis Warren, all employees of the company, who then went with Thompson to the warehouse to locate the intruder.

The three surviving employees testified at trial. All of them saw a head bobbing in and out of an open or broken window as if someone were trying to get inside the building; however, only James Paul identified the man in the window as the appellant. The employees also saw another man with a gun behind a rack of clothes in the warehouse. The night watchman, Thompson, approached the gunman with an order to drop his weapon. Thompson, going in back of the clothes rack and thus out of view of the other employees, scuffled with the gunman. By watching the feet of the watchman and the gunman, the employees determined that after the scuffle the gunman walked five or ten feet away from Thompson, turned and fired his gun at the night watchman. Thompson then came back into the view of the employees, clutching his chest and moaning. He died as a result of the wound. The gunman then fired a second shot at the other employees. The time lapse between when these witnesses were notified by Thompson of the intruder's presence and the shooting was estimated to be between five and ten minutes.

Officer William Wossowski, in response to a call of a breaking in progress, drove to the back of the L. Grief and Brothers warehouse, arriving approximately two minutes after receiving the call. At the warehouse, Wossowski saw appellant standing by a broken window and immediately placed him under arrest. There were men's clothes on the ground near appellant. After the arrest Wossowski was joined by Officer Lester Boring. Boring and Wossowski observed another man inside the warehouse attempting to leave, and followed his movements through a wall of windows. Boring fired one shot at this man, but did not prevent his escape. The man was later found on the rafters of the building by police dogs.

After appropriate constitutional warnings, appellant gave a statement to the police in which he admitted his participation in the storehouse breaking, and admitted that he knew that the gunman was armed with a pistol before entering the warehouse.

Both at trial and on appeal, appellant mounts a two pronged attack to his first degree murder conviction. First, he contends that the felony-murder statute in Maryland by its wording does not apply to a storehouse breaking. Second, he contends that he was not otherwise responsible for the homicide because (1) it was not a natural and probable consequence of his agreement to participate in the storehouse breaking and (2) he was under arrest and in police custody at the moment of the homicide. The State disputes appellant's reliance on the time lapse between when the police were called, when they responded, and when the homicide occurred by indicating that the shot heard after appellant's arrest was the one fired by Officer Boring, and not the shot fired by the gunman. The trial court, in a memorandum read into the record, stated that even assuming that appellant was in custody when the fatal shot was filed, had not been in the building, and did not himself fire the shot, the appellant was equally as guilty as the gunman. The trial court determined the degree of murder to be first degree since the delay between the scuffle and the shot established the deliberation, premeditation, and wilfulness beyond a reasonable doubt. We cannot say he was clearly erroneous in so finding. Maryland Rule 1086. In its memorandum, the trial court assumed that the felony-murder rule did not apply.

Firstly, this Court also assumes the present case is outside the felony-murder rule; however, this does not end our inquiry. The felony-murder rule in Maryland is recorded in Md.Code, Art. 27, §§ 408, 409 and 410, wherein it is indicated that any murder in the perpetration of, or attempt to perpetrate, certain enumerated crimes will be murder in the first degree; storehouse breaking is not among the enumerated crimes. It is obvious a murder during a storehouse breaking may be a first degree murder if the required wilfulness, deliberation and premeditation of Art. 27, § 407 are proven, as they were here. Thus, merely because storehouse breaking is not one of the enumerated crimes in the felony-murder statute does not preclude the possibility of a first degree murder during the perpetration of a storehouse breaking if the required elements of first degree murder are proven. The effect of the felony-murder statute is to remove the necessity of proving premeditation, wilfulness and deliberation in a murder prosecution if the murder occurs during one of the enumerated crimes.

There is no doubt that appellant was a principal in the second degree in the storehouse breaking. See Butina v. State, 4 Md.App. 312, 242 A.2d 819; Thomas v. State, 2 Md.App. 502, 235 A.2d 777; and Radcliffe v. State, 6 Md.App. 285, 251 A.2d 11.

Appellant does not seriously contend that a criminal participating in a felony is not responsible for the natural and probable consequences of his criminal activity; rather he contends that the killing during the storehouse breaking by one of his co-defendants was not a natural and probable consequence of the storehouse breaking. See Veney v. State, 251 Md. 159, 246 A.2d 608.

In the facts here it is important to note that appellant knew that his co-defendant had a gun before either party entered the building. While it is possible to imagine hypothetical crimes in which guns are used for purposes other than shooting, specifically shooting at people, it would be to fly in the face of reality to ignore that guns in a criminal situation are usually used to effect the crime desired or to prevent interference. Thus as the Court said in Romero v. State, 101 Neb. 650, 164 N.W. 554, 555:

'In the instant case the (appellant) by his own testimony knew that his companion had a gun. He was bound to know that...