Johnson v. State

• Decision Date: 13 December 1977
• Docket Number: No. 263,263
• Parties: Isaac Newton JOHNSON and Charles Terrell Walters v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 306

38 Md.App. 306

381 A.2d 303

Isaac Newton JOHNSON and Charles Terrell Walters v. STATE of Maryland.

No. 263.

Court of Special Appeals of Maryland.

Dec. 13, 1977.

Bradford C. Peabody, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellants.

Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Gilbert Rosenthal, Asst. Atty. Gen., John S. Hollyday, State's Atty. for Washington County and Darrow Glaser, Asst. State's Atty. for Washington County on the brief, for appellee.

Argued before MORTON, MASON and WILNER, JJ.

MORTON, Judge.

Appellants, Isaac Newton Johnson and Charles Terrell Walters, were convicted by a jury in the Circuit Court for Garrett County (Thayer, J., presiding) of murder in the first degree (felony murder), attempted robbery with a deadly weapon, assault and use of a handgun in the commission of a felony. Both were sentenced to life imprisonment for the murder convictions and consecutive five year terms for the handgun convictions. Additionally, terms of ten and five years, respectively, were imposed on each appellant for the attempted robbery and assault convictions, to run concurrently with the life sentence.

Appellants contend in this appeal that the trial court erred (1) in denying their motions for separate trials and (2) in admitting extra-judicial statements uttered by Walters which implicated Johnson in these crimes in violation of the rule against the admission of hearsay evidence and the confrontation clause of the sixth amendment; that (3) appellants' simultaneous convictions for felony murder and the underlying felony violate the fifth amendment prohibition against double jeopardy and (4) appellants' convictions for assault should merge into their convictions for attempted robbery with a deadly weapon.

The record reveals that on March 15, 1975, at approximately 8:25 p. m., Ralph Charles Hull was shot and killed while in the grocery store which he operated in Hagerstown, Maryland. During the course of a four day trial, the State elicited the following testimony.

Claudus Barger, who was peripherally connected to the offense, testified that several days prior to the crimes he and several friends, including appellants, drove past the victim's store. According to Barger, one of his passengers "said something about it would be an easy place to knock off or something." Although not certain, Barger thought that Walters had made the remark. Barger also testified, over objection, that between 5 and 5:30 p. m. on the evening of the crimes Walters told him that "he was going to pick up Ike and make some money."

It was further revealed that Barger, upon learning that appellants had been arrested, removed a .38 caliber pistol and holster from Walters' car. Barger removed three live shells and one spent shell from the gun and flushed the shells down the toilet. The gun was eventually recovered by the Hagerstown Police Department.

Lieutenant Paul Mentzer testified that the .38 caliber bullet removed from the victim's body was discharged from a gun similar to the one that Barger had found in Walters' car, although the bullet was too mutilated to be positively identified. There was also testimony that Walters was carrying a .32 caliber revolver when he was arrested.

The State produced two witnesses, Stephen Hull and Donald Pitznogle, who identified Johnson at a lineup as being one of the participants in the robbery. Although unable to identify either appellant at the lineup, the father of Donald Pitznogle testified that he saw Johnson flee from the victim's store carrying a gun, shortly after he had heard a shot emanating from within the store.

John Kahl-Winter, when called to the witness stand by the State, testified that he had approached Walters earlier on the day of the shooting and asked him to repay a prior loan. Walters instructed Kahl-Winter to meet him at the Hat Tavern that evening as he "would be picking up a check at 8:00 p. m." At the tavern Walters showed Kahl-Winter a .32 caliber revolver and told him that "this is what I've been doing." Walters also told him that he had just finished "pulling a job" in Damascus for $400 and that he had "pulled a couple" others around town. Later that evening, after Walters had returned to the Hat Tavern, Kahl-Winter once again approached Walters for the money. Walters retorted that "(i)t didn't go down right, we had to shoot the man."

The final witness called by the State was Margaret Shawyer, Johnson's girlfriend. She testified that Johnson called her on the evening of March 15, 1975, at approximately 8:35 p. m. and "sounded nervous and his voice was quivering." Johnson mentioned something to her about a "fight," although he was vague over the telephone about details. Johnson informed Shawyer that he would "have to leave town for three or four days" and wanted her to come with him. Although she told him that she would be unable to leave Hagerstown, she did comply with his request to pick him up in a taxi. She further testified that during the course of the telephone conversation Johnson had exhibited anxiety about the police. Upon rendezvousing with appellants at the Hat Tavern, Shawyer stated that Walters rhetorically asked, "Why does everybody have to be a hero?"; and that Johnson inquired of her how she would feel "if . . . (he) had shot and killed somebody?"

In his defense Walters presented several alibi witnesses and attempted to discredit Shawyer's testimony. Johnson did not put forth a defense.

Appellants first contend that the trial court ¹ erred in denying their motions for separate trials pursuant to Maryland Rule 735, ² which reads:

"If it appears that an accused or the State will be prejudiced by a joinder of offenses or of defendants in an indictment, or by joinder for trial together, the court may order an election or separate trial of counts, grant separate trials of defendants or provide such other relief justice requires."

The propriety of the trial court's refusal to grant a severance is measured by the standards we recently articulated in McCree v. State, 33 Md.App. 82, 92-93, 363 A.2d 647, 653 (1976), where we said:

"As we stated in Peterson v. State, 15 Md.App. 478, at 496, 292 A.2d 714:

'The decision as to whether to grant a severance lies within the sound discretion of the trial judge under Maryland Rule 735, and one of the factors to be considered is the saving of time and expense which unnecessary separate trials would entail. Jennings v. State, 8 Md.App. 312, 259 A.2d 543. The Assistant State's Attorney proffered and the evidence bore out such a strong probability of a common criminal effort by all defendants, including Logan, that the evidence admissible as to one would have been admissible as to all.'

"We see no abuse of discretion. We feel here as we did in Mason v. State, 18 Md.App. 130, at 141, 305 A.2d 492.

'Under the circumstances of this case, where the evidence necessary to convict one of the appellants was the same evidence required to convict all of them, to have granted a severance would have resulted in a multitude of trials and unnecessary expense.' "

As in McCree and Mason, most, if not all, of the evidence admitted below would have been admissible in each trial if Johnson and Walters had been separately tried. We do not feel that the trial court abused its discretion in refusing to grant a severance in light of the length of the trial four days and the concomitant expense thereof. McKnight v. State, 280 Md. 604, 375 A.2d 551 (1977).

McCree notwithstanding, Johnson argues that the trial court erred in refusing to grant a severance because it was apprised of possible issues arising under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which, Johnson feels, mandated the granting of his request for a separate trial. ³

In Bruton, the petitioner was convicted partially on the basis of a confession given to a law enforcement official by Evans, Bruton's co-defendant, which not only incriminated the confessor but also incriminated Bruton. Since Evans asserted his fifth amendment right not to testify, Bruton argued that the admission of Evans' confession violated his right under the sixth amendment to confront all witnesses against him because he was denied an opportunity to cross examine Evans on the witness stand. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). In reversing Bruton's conviction Justice Brennan, speaking for the Court, stated:

"This case presents the question, last considered in Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278, whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a co-defendant's confession inculpating the defendant had to be disregarded in determining his guilt or innocence.

"(T)he court (below), relying upon Delli Paoli, affirmed petitioner's conviction because the trial judge instructed the jury that although Evans' confession was competent evidence against Evans it was inadmissible hearsay against petitioner and therefore had to be disregarded in determining petitioner's guilt or innocence. . . . We have concluded, however, that Delli Paoli should be overruled. We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse." 391 U.S. at 123-26, 88 S.Ct. at 1621.

Bruton thus stands for the proposition that the introduction of a co-defendant's confession to a law enforcement official, which also inculpates his co-defendant, violates the non-confessing defendant's right to confront all witnesses against him and that...