Powers v. State

• Decision Date: 01 June 1979
• Docket Number: No. 99,99
• Citation: 285 Md. 269,401 A.2d 1031
• Parties: Herman Roosevelt POWERS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 269

285 Md. 269

401 A.2d 1031

Herman Roosevelt POWERS v. STATE of Maryland.

No. 99.

Court of Appeals of Maryland.

June 1, 1979.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Stephen Rosenbaum, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty. and Richard Berger, Asst. State's Atty., Baltimore, respectively, for Baltimore City, on the brief), for appellee.

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

DAVIDSON, Judge.

This case presents two questions. The first is whether the doctrine of collateral estoppel applies after a jury at a single trial acquits on one count of a multicount indictment ¹ and is unable to agree upon a verdict on a related count of the same indictment involving a common issue of ultimate fact, which if found in favor of an accused would establish his innocence on both counts. The second is whether, under the present circumstances, that doctrine, if it applies, precludes the accused from being tried a second time on the related count.

On 24 August 1977 at about 2:00 p. m., Sea Man Kim, Chond Ham Kim, and Sung Ryum Kim were working in a food market on Carrollton Avenue. Three men, one of whom wore glasses, entered. One of the men drew a gun and ordered the Kims to lie down on the floor. Glen Wallace, a 14-year-old boy, entered the store and was also ordered to lie down. Thereafter, one of the men remained standing near the door while the other two removed about $16 from the cash register, a set of keys and about $18 from Chond Ham Kim's pockets, and about $200 from Sea Man Kim's pockets, for a total amount of about $234. They also searched Sung Ryum Kim's pockets but found nothing. After one of the robbers said, "Don't move," the three robbers left.

An alarm was sounded at the store which brought a number of policemen into the area. A woman, Sandra Banks, who was leaning out of a window at a nearby apartment house at 715 Carrollton Avenue, waved to them and pointed to the rear of 717 Carrollton Avenue, where the ladder of a fire escape had been lowered to the ground. The policemen climbed the fire escape to the third floor where through a window they saw two men, Fred Barksdale and Norman Turner, coming out of apartment B-6. Barksdale and Turner were arrested.

The policemen then entered apartment B-6, where they found Edward Wells and Warren McLeod, whom they also arrested. The policemen searched apartment B-6 and found Chond Ham Kim's keys in a canister full of flour, $71 in a glass one-third full of milk, $15.79 in a pot, and $72 in a pair of black pants, for a total of about $158.79. In addition, they found a gun in a pot under the kitchen sink.

While Barksdale, Turner, McLeod, and Wells were being apprehended and arrested, another policeman, who was inside the building, saw Herman Roosevelt Powers, the appellant, come down a flight of steps to the first floor. He was wearing glasses, blue jeans and a blue jacket. Sea Man Kim, who with Sung Ryum Kim had followed the robbers, saw Powers and spoke to him in an agitated manner. Thereafter, Powers was arrested. When the policeman later searched Powers, they found $202 in his pocket. Of the five men arrested, only Powers wore glasses.

On 22 September 1977, a grand jury returned indictments charging Powers with the robbery of Chond Ham Kim, the attempted robbery of Sung Ryum Kim, and the robbery of Sea Man Kim. ² Insofar as here relevant, Indictment No. 57726524 charged Powers with robbery with a deadly and dangerous weapon of Chond Ham Kim; Indictment No. 57726529 charged Powers with attempted robbery with a deadly and dangerous weapon of Sung Ryum Kim; and Indictment No. 57726534 charged Powers with robbery with a deadly and dangerous weapon of Sea Man Kim. In the Criminal Court of Baltimore, Powers was tried by a jury presided over by Judge Milton B. Allen. ³

At trial the State presented unassailable proof that an armed robbery had been committed and that personal property had been taken from Chond Ham Kim and Sea Man Kim. The State called the four eyewitnesses to the crime, Chond Ham Kim, Sea Man Kim, Sung Ryum Kim, and Glen Wallace, to testify on these issues. Their testimony in this respect was consistent both internally and with one another, and was otherwise uncontradicted.

On the other hand, the State's proof that Powers had been one of the robbers was not as strong. One of the eyewitnesses, Chond Ham Kim, testified that there had been three robbers but did not identify Powers or either of his codefendants. The remaining three eyewitnesses identified Powers as one of the robbers. They each stated that at the time of the robbery the robber had been wearing jeans, a blue or black jacket and glasses. This description of the robber's identifying characteristics at the time of the robbery was so lacking in detail and was so generalized that it could have fit any number of men. None of these eyewitnesses was able to describe or identify either of the other two robbers. Finally, the testimony of these three eyewitnesses was in certain respects inconsistent both internally and with one another.

The only other evidence tending to identify Powers as one of the robbers was the testimony of Sandra Banks who said that she had seen four or five men, one of whom was wearing a dark jacket and glasses, running up the fire escape of 717 Carrollton Avenue. This evidence was contradicted by the testimony of two State's witnesses who said Ms. Banks had told them she had not seen and could not describe any of the people running up the fire escape.

Powers did not testify. In closing argument, the State's Attorney said: "(T) he only matter I believe that you will have to consider will be the agency or the identification (of the robbers)." He pointed out that Powers had been identified by four eyewitnesses and that this evidence, combined with the additional circumstantial evidence, showed beyond a reasonable doubt that Powers had been one of the robbers.

Defense counsel agreed that the only issue was identification. He pointed out that although there had been only three robbers, five persons were arrested. He argued that the only reason Powers had been identified as one of the robbers was because he had been the only one arrested who wore glasses. He asserted that the direct evidence presented by the three identifying eyewitnesses, based on their observations at the time of the commission of the crime, did not show beyond a reasonable doubt that Powers had been one of the robbers because it was too generalized and contained certain inconsistencies. He pointed out that each of the identifying eyewitnesses noted that at the time of the robbery one of the robbers had been wearing glasses. He stated that at or shortly after the time that the policemen had arrested the five men, both Sea Man Kim and Sung Ryum Kim had seen that Powers was the only one of the five arrested who was wearing glasses. He concluded that at trial they both identified Powers as the robber, solely because of their previous observations at the time of the robbery and at the time of the arrest. He argued that this conclusion was supported by the fact that Chond Ham Kim, who had not noted that one of the robbers was wearing glasses at the time of the robbery and had not seen Powers at the time of the arrest, could not identify him at trial.

With respect to the circumstantial evidence, defense counsel maintained that the only evidence linking Powers to his alleged accomplices or to the apartment in which the incriminating evidence was recovered was Ms. Banks's testimony that one of the four or five men on the fire escape had been wearing glasses. He pointed out that her testimony was contradicted by two State's witnesses. He asserted that there was no identifying evidence to prove that the gun found in the apartment was the weapon used in the commission of the crime, or that the money found in Powers's pocket was the money stolen at the market, and that in any event, the total amount of money found in the apartment and in Powers's pocket exceeded the total amount stolen. He concluded that the direct eyewitness testimony, even when bolstered by the circumstantial evidence, was insufficient to show beyond a reasonable doubt that Powers had been one of the robbers. In sum, defense counsel said:

"This case for the State hangs on a pair of glasses. That's the basis for the identification. . . . Nothing, nothing in front of you and yet the State has the burden to prove its case beyond a reasonable doubt. What is proven is that a robber had glasses, that a man there arrested had glasses. Remember they arrested five people."

The trial court instructed the jury, among other things, that if Powers had participated in the armed robbery, he would have been guilty of robbing each of the three victims. It said:

"A person who aids or abets the principal Defendant may be guilty of the principal offense even though he did not personally commit each of the acts constituting the offense and was not personally present at its commission."

Thereafter, it submitted the case to the jury.

The jury found Powers not guilty under Indictment No. 57726524, which alleged the robbery of Chond Ham Kim, and not guilty under Indictment No. 57726529, which alleged the attempted robbery of Sung Ryum Kim. The jury was unable to agree upon a verdict in Indictment No. 57726534, which alleged the robbery of Sea Man Kim. Accordingly, the trial court declared a mistrial on that indictment. ⁴ Thus, in a single trial, the same jury which determined by its verdicts of acquittal on two counts of a multicount indictment that Powers had not been the person who had robbed two victims of a robbery was unable to determine a common issue of ultimate fact essential to conviction on a related count whether Powers had been the person who had robbed the...