Poole v. State

• Decision Date: 07 January 1983
• Docket Number: 11,Nos. 9,s. 9
• Parties: Timothy Clyde POOLE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 167

295 Md. 167

453 A.2d 1218

Timothy Clyde POOLE v. STATE of Maryland.

Nos. 9, 11.

Court of Appeals of Maryland.

Jan. 7, 1983.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender and Gary S. Offutt, Asst. Public Defender, Baltimore, on brief), for appellant.

Stephen B. Caplis, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., and Deborah K. Handel, Asst. Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

COUCH, Judge.

Subsequent to our reversal of the conviction of Timothy Clyde Poole ¹ of premeditated murder (of David C. MacLarty), felony murder (of Steven Scott Horad), robbery with a dangerous weapon and use of a handgun in a crime of violence, for which the death penalty was imposed by a jury in the Circuit Court for Calvert County, he was retried, on our remand, by a jury in the Circuit Court for Charles County. Again, the appellant was convicted for the same offenses and, again, the death penalty was imposed. Upon our legislatively mandated automatic review, ² we shall reverse the appellant's conviction of felony murder of Steven Horad and use of a handgun in a crime of violence. In addition, we shall affirm the remaining convictions, but vacate the sentence of death for MacLarty's murder and remand for a new sentencing proceeding consistent with the provisions of Maryland Code (1957, 1982 Repl.Vol.), Article 27, § 413.

The parties have agreed upon a statement of facts, which for purposes of this opinion, we summarize as follows:

David Creel, a student, testified that he was working at MacLarty's Pharmacy on the evening of October 22, 1979, at approximately eight o'clock, when two black men entered the store. One put a mask over his head as he approached the backroom where Dr. David MacLarty was preparing prescriptions. The second man (identified by Creel as the appellant), not wearing a mask, approached the counter where Creel was working, pointed a shotgun at him and told him to lock the front door. Two shots were fired in the backroom and Dr. MacLarty said, "Is anyone else out there?" Creel was ordered by the gunman to say no and forced to the backroom. There they found the masked man (Steven Horad) lying on the floor and Dr. MacLarty standing by the safe with a gun in his hand in a "military" stance. Creel's assailant then shot MacLarty with the shotgun and ordered Creel to get the money. The assailant picked up a gun lying beside MacLarty, held it to MacLarty's head, and pulled the trigger twice without result. He then took about $150 from Creel and left the premises. Both MacLarty and Horad later died.

During his testimony, Creel twice identified the appellant as the second participant in the robbery and the person who shot MacLarty. Creel's testimony also showed that he had made a photographic identification of the appellant the day after the incident and, subsequently, positively identified the appellant in a line-up.

When informed of the shooting incident the next day, Poole showed "no reaction whatsoever," and said he had not seen Horad since the afternoon of October 22nd. At the time of the shooting, the appellant was signed out of his residence at "Dismas House" on a six-hour pass for 3-H Neptune Court. He stated he had been at that address with his girlfriend, Jennifer Lanier, and her roommate, Tamara White. However, Tamara White testified that Poole had not been at 3-H Neptune Court the evening of October 22nd.

The appellant presented four types of evidence at the trial: evidence to weaken the State's case, alibi evidence, character evidence, and the appellant's testimony. This evidence included the testimony of Officer R.L. Tucker regarding the initial statement he took from Creel, describing both burglars as wearing masks. Yvonne Bethea testified that the appellant had been at her house on the evening of October 22nd, helping her with her studies. Her testimony was corroborated by the appellant. The appellant testified that once he realized Lanier would not be home, he went to Bethea's. He had not originally reported this for fear of being penalized for violating the rules at Dismas House. Major Thomas V. Campbell, Department of Corrections, and Shirley Morrell-Carlton, Morgan State University, testified regarding their opinions of Poole's good character.

The jury found Poole guilty of the premeditated and felony murder of MacLarty, the felony murder of Horad, armed robbery, and use of a handgun in the commission of a crime of violence.

The appellant has raised a multitude of issues, both as to the guilt or innocence stage of the trial as well as to the sentencing proceeding. We shall discuss these issues as necessary to explain the conclusion we reach in this case.

1.

As indicated above, the appellant was convicted, inter alia, of felony murder involving his co-felon, Horad, and the use of a handgun in a crime of violence. In our prior decision in this case, we left open the question of whether the appellant could be found guilty of felony murder of Horad, who was actually killed by the victim here, MacLarty. The appellant argues that on the basis of our holding in Campbell v. State, 293 Md. 438, 444 A.2d 1034 (1982), these convictions may not stand. The State agrees, as do we. What the effect of this conclusion is, however, has created a controversy between the parties. Relying on Sherman v. State, 288 Md. 636, 421 A.2d 80 (1980), Poole argues that his conviction for the murder of MacLarty must also be reversed. We disagree with this contention. The appellant's reliance on Sherman is misplaced as this case is distinguishable on its facts. In Sherman, the jury was allowed to have an entire indictment during their deliberations despite the fact that the trial judge had granted the defendant's motions for judgment of acquittal as to two counts. We agreed with Sherman that this constituted a violation of Maryland Rule 758 a which provided that "[u]pon retiring for deliberation, the jury may ... take into the jury room all ... charging documents which reflect only the charges upon which the jury is to deliberate...." ³ 288 Md. at 638-39, 421 A.2d at 81. Because we could not be sure beyond a reasonable doubt that the "dead" counts were not taken into consideration or influenced the jury's ultimate finding of guilt, we concluded that the error could not be deemed "harmless" and reversal was mandated. Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976).

In the instant case, which was decided prior to Campbell, although the jury was allowed to take the indictment into the jury room during deliberation, there were no "dead" counts in the indictment. Poole had not been acquitted on any of the counts. The indictment against him charged him with, inter alia, the murder of Horad and use of a handgun in the commission of a felony. Accordingly, these counts were properly submitted to the jury.

In Campbell, this Court, for the first time, held:

"[O]rdinarily, under the felony-murder doctrine, criminal culpability shall continue to be imposed for all lethal acts committed by a felon or an accomplice acting in furtherance of a common design. However, criminal culpability ordinarily shall not be imposed for lethal acts of nonfelons that are not committed in furtherance of a common design." 293 Md. at 451-52, 444 A.2d at 1042. (Footnote omitted).

We must now determine the impact of our ruling in Campbell on the case at bar. Clearly, Poole's conviction for the murder of Horad cannot stand. Notwithstanding reversal of that conviction, we find that submission of that count to the jury does not require a new trial with respect to the appellant's conviction for the MacLarty murder. The responsibility of the jury was to consider each count and make a determination as to guilt or innocence thereon without consideration of any other count. It is well established that "[e]ach count in an indictment is regarded as if it were a separate indictment." State v. Moulden, 292 Md. 666, 681, 441 A.2d 699, 707 (1982), citing numerous cases. See also Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 358-59 (1932); Ford v. State, 274 Md. 546, 552, 337 A.2d 81, 85 (1975); Ledbetter v. State, 224 Md. 271, 274, 167 A.2d 596, 598 (1961); Williams v. State, 204 Md. 55, 64, 102 A.2d 714, 718 (1954). Under the circumstances here present, there was no reason for the jury to consider its conclusion on other counts when deliberating on the count charging the appellant with MacLarty's murder. As a matter of fact, the jury likely considered that count first as it was count one in the indictment and appeared first on the verdict sheet. Most importantly, it is obvious that the appellant's conviction for the murder of MacLarty rested on the credibility of Creel. If the jury believed Creel's testimony, they had to find Poole guilty. The submission of count two (Horad's murder), as well as the submission of the count regarding "use of a handgun in crime of violence murder" (count four on the verdict sheet and counts eight and nine in the indictment), did not add to or subtract from Creel's credibility.

Furthermore, the trial judge properly instructed the jury in pertinent part:

"Now the Defendant is charged in the indictment that is pending against him with committing four different crimes. You will have to consider each of these crimes and you will have to consider them separately because they are separate and distinct crimes."

We believe the court's instructions were clear and we assume that the jury followed them. See, e.g., Moulden, supra, 292 Md. at 678, 441 A.2d at 705, and cases cited therein at note 8. See also Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476, 484 (1968). Accordingly, the appellant is not entitled to a new trial to determine guilt or innocence.

However, we do agree with the appellant's...