Nickerson v. State

• Decision Date: 20 September 1974
• Docket Number: No. 937,937
• Parties: Russell Jackson NICKERSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 660

22 Md.App. 660

325 A.2d 149

Russell Jackson NICKERSON v. STATE of Maryland.

No. 937.

Court of Special Appeals of Maryland.

Sept. 20, 1974.

Certiorari Denied Dec. 17, 1974.

R. Roland Brockmeyer, Assigned Public Defender, Baltimore, for appellant.

Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Richard Cooper, State's Atty., for Kent County, on the brief, for appellee.

Argued before POWERS, DAVIDSON and MOORE, JJ.

MOORE, Judge.

Appellant, Russell Jackson Nickerson, a Patrolman First Class with the Chestertown police department, was convicted of assault and battery and assault with intent to murder ¹ by a jury in the Circuit Court for Kent County and was sentenced to a term of ten years, the final five to be suspended subject to probation. On appeal he contests the sufficiency of the evidence to support his convictions and claims error when the court.

1) allowed a deputy sheriff to remain in the courtroom and testify in rebuttal after granting a motion to sequester witnesses;

2) permitted testimony with respect to the relationship between appellant and the wife of the prosecuting witness;

3) refused to grant an extension of time for the hearing on a motion for new trial filed by new counsel.

We deal first with appellant's challenge to the sufficiency of the evidence. It involves the twin contentions that appellant was acting in defense of his life, of lives entrusted to his protection, and of his property when he shot the victim, William Bramble, and that there was no evidence that he intended to shoot the victim when he fired the shot that struck him. These contentions are without merit.

Mr. Bramble, 23, an assistant dairy manager and an acquaintance of appellant for 2 1/2-3 years previously, testified that at about midnight on September 23, 1973, following a conversation with his wife, he went to the home of Carolyn Folk on Flatland Road in Kent County, with whom Mr. Nickerson had been living for about one year. His reason for going there was 'to get things straight immediately' concerning appellant's relationship with his wife. Bramble carried no gun with him but did have in the pickup truck he was driving a bow which he had used during the deer season.

As he pulled up into the driveway (some 200-300 feet in length) and stopped before the Folk residence he 'tooted' the horn and 'revved the motor up a little bit' aware that his muffler was 'rather noisy.' The headlights of the truck, on high beam, were directed at the house. He remained parked about a minute and a half and when nothing happened started to turn and leave, intending to go into town and talk to the sheriff. He then heard a shot fired and saw appellant in an upstairs window of the house. He approached the house again, shining the handlight mounted on the truck toward the window, thinking that appellant 'was just trying to scare somebody, and after he knew who it was then he would talk.' He testified that he shouted his identity to appellant and 'what the situation was' and that he wanted to talk to him. Appellant called down that he '(knew) no Buddy Bramble,' that the stranger was 'taking a terrible chance by coming up here,' and 'something to the order that he could shoot me, or finish me there if he wanted to.' The witness in turn 'told (appellant) . . . if he wouldn't talk to me that night, . . . that I would see him in court.' According to Bramble, as he turned his truck around and was leaving, appellant fired four more shots at about three second intervals. In between the shots the witness' hollered back to (appellant) twice that he had missed, (still) thinking that he was only trying to scare me.' The fifth and final shot penetrated the cab of the pickup truck and struck Mr. Bramble in the back of the neck, the bullet splitting and lodging both in his neck and below his tongue. When struck, his vehicle was near the end of the driveway, almost in the road.

Testifying in his own behalf, appellant stated that he had been living with Carolyn Folk and her three children in the Folk residence for approximately one year. His version of his conversation with Bramble differed sharply from the latter's: according to appellant, the intruder had refused to identify himself and responded to appellant's warning to leave the property with the words, 'I am going to kill you.' On cross-examination appellant conceded he had previously told a police officer only that he 'thought' the victim had made this statement and was absolutely certain only that the latter had said, 'I am going to take you to court' or words to that effect.

Appellant admitted firing several shots from his window but insisted they were meant strictly as a warning and were aimed away from the truck. He was handicapped, he testified, because he was shooting from a small space below the window screen and by the fact that he was forced to shoot with his left hand, since his right hand was bandaged from an injury; and also because Carolyn, who was frightened and clinging to his right arm, may have deflected his aim.

Relevant to his state of mind that evening, appellant recounted several past incidents of 'harassment and trouble' with his neighbors and of threats against him made directly or reported to him that had arisen out of his duties as a Chestertown policeman.

On cross-examination appellant admitted he had 'had occasion to know (Bramble's) truck . . . two or three years' prior to the shooting. He conceded also that he had had sexual relations with Bramble's wife on two occasions during the summer of 1973 within two months of the shooting. A rebuttal witness for the State, Officer Antone, testified that on being informed by him immediately after the shooting that the victim was Buddy Bramble, appellant had stated: 'I was afraid that's who it was.'

The credibility of witnesses and the weight of the evidence are matters for the trier of fact. Felder v. State, 6 Md.App. 212, 250 A.2d 666 (1969). The test of the legal sufficiency of the evidence, as repeatedly stated by this Court, is whether the evidence showed directly or supported a rational inference of the facts to be proved from which the trier of fact could fairly be convinced beyond a reasonable doubt of the defendant's guilt of the offense charged. Williams and McClelland v. State, 5 Md.App. 450, 247 A.2d 731 (1968).

'An assault predicated upon the doctrine of self-defense is justified only where the accused had reasonable grounds to believe and did believe that he was in apparent imminent peril of death or serious bodily harm from his actual or potential assailant. It is the task of the trier of facts to determine whether the accused was justified in meeting force with force. Upon finding such justification, the force used against the assailant must not have been unreasonable or excessive, that is, the defender must not have used more force than the exigency reasonably demanded.' Brown and Shepard v. State, 6 Md.App. 631, 252 A.2d 887 (1969). (Ehphasis added.)

Here, the court instructed the jury at length on the law of self-defense and counsel for appellant did not except to the instruction. The evidence, as we have reviewed it, abundantly supports a rational inference by the jury that appellant had no reasonable grounds to believe or did not in fact believe that he was in apparent imminent peril of death or serious bodily harm from Bramble when he fired at him and that his assault, therefore, was not justified. Crediting Bramble's testimony, as it was entitled to do, the jury could properly find either that Bramble never intended to do appellant harm in seeking him out on the night in question or at least that he presented no immediate threat to appellant's person and indeed was in the act of leaving the Folk property when appellant fired the shots in alleged self-defense. Equally unpersuasive is appellant's claim of necessity for the use of lethal force to repel an intruder to his-or Mrs. Folk's-habitation. ² See Law v. State, 21 Md.App. 13, 318 A.2d 859.

We find no merit, moreover, in the contention that there was insufficient evidence of an intent by appellant to injure Bramble.

'. . . the intent with which a harmful act is done is usually not expressed in words, and the trier of facts is permitted to draw such inferences of intent as are warranted under all the circumstances of a particular case.' Bryant v. State, 4 Md.App. 572, 578, 244 A.2d 446, 450 (1968).

One such circumstance, from which the malice necessary to support a charge of assault with intent to murder may be inferred, is the use of a deadly weapon, as is evidence that a deadly weapon such as a gun was pointed toward a human being and discharged in the general direction of that human being in a random fashion. Woodard and Demby v. State, 13 Md.App. 114, 282 A.2d 9 (1971); Mahoney v. State, 13 Md.App. 105, 281 A.2d 421 (1971). As stated in Clark & Marshall, Crimes (7th Ed.) § 5.03:

'If a person deliberately, and without ignorance of fact, shoots in the direction of another, it will be presumed that he intended to kill him, and he may be convicted of murder, or assault with intent to murder, according to the result.'

For assault with intent to murder, a specific intent to murder is not necessary but only an intent to commit grievous bodily harm. Lawrence v. State, 2 Md.App. 736, 237 A.2d 81 (1968).

The evidence clearly permitted a reasonable inference by the jury that appellant shot at Bramble with the intent to murder or grievously wound him. The jury was obviously not obliged to accept appellant's version of the shooting as accidental.

II

Appellant contends that the court committed prejudical error in permitting Deputy Sheriff Blizzard to testify for the State as a rebuttal witness, notwithstanding a sequestration order. When the request for exclusion of witnesses was made the State asked that the deputy sheriff be permitted to sit at counsel table during the trial. Defense counsel indicat...