Poe v. State

• Decision Date: 01 September 1994
• Docket Number: No. 408,408
• Parties: James Allen POE v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 136

103 Md.App. 136

652 A.2d 1164

James Allen POE v. STATE of Maryland.

No. 408, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Feb. 2, 1995.

M. Gordon Tayback, Baltimore, for appellant

Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and John L. Scarborough, State's Atty. for Cecil County of Elkton, on the brief), for appellee.

Submitted before HARRELL, HOLLANDER and SALMON, JJ.

HARRELL, Judge.

On 27 January 1994, appellant, James Allen Poe, was convicted by a jury in the Circuit Court for Cecil County (Cole, J., presiding) of first degree murder of Kimberly Rice and attempted first degree murder of Karen F. Poe. Appellant was sentenced on 18 March 1994 to life imprisonment without parole on the first degree murder count, and thirty years consecutive for the attempted first degree murder count. Appellant filed a timely notice of appeal to this Court.

ISSUES

I. Did the court properly deny appellant's motions for judgment of acquittal?

II. Did the court properly instruct the jury as to the doctrine of transferred intent?

III. Did the court properly instruct the jury as to murder and attempted murder?

IV. Did the court properly instruct the jury as to reasonable doubt?

V. Did the court properly instruct the jury as to the substantive evidence value of prior inconsistent statements?

VI. Did the court properly sentence appellant?

FACTS

Appellant and Karen F. Poe were married for eleven years and had four children. In the spring of 1993, they separated and appellant moved out of their residence at 270 Hopewell Road, Rising Sun, Maryland, leaving Ms. Poe with the four children. After initiating divorce proceedings, Ms. Poe began The next day, 10 August 1993, appellant arrived at 270 Hopewell Road sometime between noon and 1:00 p.m. to take his four children fishing or swimming. ¹ After the children got into appellant's car, appellant and Ms. Poe began to argue. Ms. Poe testified that she did not want him to take the children because she "heard he was going to Florida" and "didn't like his girlfriend." She explained that she "wasn't going to share [her] kids with no other woman." As the argument progressed, Ms. Poe threatened to call the police to "get him off the property."

co-habitating with her boyfriend, Duane Rice, at 270 Hopewell Road. Mr. Rice's two children, Jason and Kimberly, visited him there every other weekend and every other Wednesday. On 9 August 1993, Donna Biggs, Ms. Poe's half-sister, and her boyfriend, Michael Sponseller, visited Ms. Poe at 270 Hopewell Road and spent the night. At that time, there were six children in the house, Ms. Poe's four children and Jason and Kimberly Rice.

Ms. Biggs testified that, at this time, she was sweeping the children's living room on the ground level in the front of the house when Ms. Poe came inside the house to make a 911 call. ² Ms. Poe then went back outside and continued arguing with appellant. After a short time, she returned to make another call to the police. Ms. Biggs testified that she looked out the front window and saw appellant "going in the trunk." She asked Ms. Poe "what was he getting," to which she responded, "he carries a gun." Appellant returned to the front of the house with a shotgun. Ms. Biggs explained that "next thing [she knew she looked] up in front of the screen door and [appellant] has got the gun pointed in the house." Appellant Ms. Biggs immediately sought cover behind a chair in the adults' living room. She testified next that she "peeked out the door" and saw appellant reload the gun. She immediately retreated, crouched behind a nearby couch, and began praying. She then heard another shot and something hit the floor. ³ The four Poe children ran into the house. Mr. Sponseller went upstairs to get a towel for Ms. Poe, as he "was close enough to see the damage they had done to her." Ms. Poe met Mr. Sponseller on the stairs and they proceeded to wrap her arm with a towel. As they got to the bottom of the stairs, Mr. Sponseller explained that he heard Ms. Poe state that "Kimberly was shot." Noticing the extensive injuries to Kimberly, ⁴ who was lying in the kitchen, Mr. Sponseller called 911. While on the telephone, he witnessed appellant get into his vehicle and drive away.

then exclaimed "take this, bitch," and shot Ms. Poe, who was standing in the center hallway leading to the front door.

Maryland State Trooper Thomas Beman was one of the officers responding to the scene. He testified that he observed three holes in the front screen door of the house and exit holes in the back door of the house. Additionally, an empty shell casing was recovered next to the front door. Beman also explained that he found a shotgun in an embankment approximately 450 feet from the front door of the house.

Pennsylvania State Trooper John A. Litchko testified that, on 10 August 1993, he stopped appellant in Chester, Pennsylvania. According to Trooper Litchko, appellant immediately stated that "he didn't mean to do it, that he loved kids." While he was being searched, appellant also stated that "he In a subsequent statement to Pennsylvania police, appellant explained:

                threw the gun out the window close to the scene."   Appellant was then placed in the police vehicle, whereupon he stated that "[i]t was an accident, [he] didn't mean to do it.  [He] was holding the gun in the air and the gun went off."
                

I did not mean to hurt anyone. I love them all down there. What happened was that I went to see my wife and kids, who I am separated from at this time. I wanted to visit the kids and she told me to get out of there or she was going to call the police. I went to my car and got out my 12-gauge shotgun and I accidentally fired it into the house. I don't know what I hit. I just heard them start yelling and I was scared so I jumped into my vehicle and took off....

Two hours later, appellant made a second statement concerning the incident. He explained that after Ms. Poe threatened to call the police, he retrieved the gun from his vehicle to dispose of it so that "he [would not] be caught with a shotgun." He changed his mind, however, and was about to return the gun to the vehicle when he "tripped over his feet and the shotgun [discharged]." When questioned by police about the discrepancies between his first and second statements, appellant responded: "Whatever. She wasn't going to let me see the kids and what's the use of living if you can't see your kids."

DISCUSSION

Although appellant presents issues I and II as one argument in his brief, we shall consider each issue separately to facilitate our discussion.

I.

Appellant contends that the circuit court improperly denied his motions for judgment of acquittal. He argues that "[n]o substantive evidence was adduced that the appellant saw Kimberly Rice, or that he had any intention to harm." In his brief, however, appellant concedes that "the evidence, in the light most favorable to the State, would be that the appellant intentionally fired at his wife." Consequently, appellant has waived his sufficiency claim as to attempted murder of Ms. Poe. Therefore, we discuss only appellant's argument challenging the sufficiency of the evidence to convict him of murder in the first degree of Kimberly Rice.

The State, however, argues that appellant failed to preserve this issue for appeal. Specifically, the State contends that appellant, at the close of the State's case, made a motion for judgment of acquittal only as to the attempted first degree murder charge, and not the first degree murder charge. Moreover, argues the State, at the close of all the evidence, appellant renewed his motion for judgment of acquittal, but again only as to the attempted first degree murder charge. Therefore, the State contends that "any issue regarding [appellant's] motion for judgment of acquittal as to the charges related to Kimberly Rice is not properly before [this] Court." We agree.

At the close of the State's case, counsel for appellant argued insufficiency of the evidence only as to the attempted first degree murder charge, but made no argument on the first degree murder charge. Counsel for appellant stated:

[COUNSEL FOR APPELLANT]: I want to make a motion and argue on the point of first degree attempted murder of Karen Poe. I don't believe there is any evidence produced that I heard that would support all the elements of premeditation, intention to kill, premeditation.

....

[COUNSEL FOR APPELLANT]: I wanted to make that argument on that. I think that is the only one I really have a point on.

One other point, I wanted to bring up the fact, if going on transferred intent for attempted murder to murder--

As explained in Fraidin v. State, 85 Md.App. 231, 244, 583 A.2d 1065, cert. denied, 322 Md. 614, 589 A.2d 57 (1991), "[i]n a jury trial, the only way to raise and to preserve for appellate review the issue of the legal sufficiency of the evidence is to move for a judgment of acquittal on that ground." As appellant failed to make any motion for judgment of acquittal on the murder count, he has waived his sufficiency argument on appeal. ⁵

II.

Appellant next argues that the circuit court improperly instructed the jury as to the doctrine of transferred intent. Appellant contends that "[t]he commission of the elements of the crime on [Karen Poe] does not allow for the multiplication of that intent to [Kimberly Rice] through the doctrine of transferred intent." The State suggests, however, that appellant's failure to object to the circuit court's reinstruction on transferred intent "indicated that the instruction eventually met with his approval." Therefore, argues the State, appellant failed to preserve his challenge to the transferred intent instruction.

We shall first discuss the State's preservation argument, and then, as necessary, address the merits of appellant's claim.

Failure to Preserve

At the close of all the evidence, the trial judge indicated that...