Raley v. State

• Decision Date: 10 September 1976
• Docket Number: No. 800,800
• Citation: 32 Md.App. 515,363 A.2d 261
• Parties: Thomas John RALEY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 515

32 Md.App. 515

363 A.2d 261

Thomas John RALEY v. STATE of Maryland.

No. 800.

Court of Special Appeals of Maryland.

Sept. 10, 1976.

Certiorari Denied Nov. 30, 1976.

Michael S. Libowitz, Baltimore, for appellant.

Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Sandra A. O'Connor, State's Atty. for Baltimore County, and Edward Seibert, Asst. State's Atty. for Baltimore County on the brief, for appellee.

Argued before MOYLAN, DAVIDSON and MELVIN, JJ.

MELVIN, Judge.

On March 24, 1975, the appellant, Thomas John Raley, was indicted by the Grand Jury of Baltimore County. The four-count indictment charged that on February 17, 1975, the appellant 1) murdered one Joeseph Stephen LeFevre; 2) assaulted his wife, Linda Agnes Raley, with intent to murder her; 3) assaulted Linda Agnes Raley; and 4) unlawfully 'used a handgun in the commission of a felony or a crime of violence as defined in Section 441, of Article 27, of the Annotated Code of Maryland, to wit: murder; . . ..'

The events leading to the indictment can be briefly stated: At about 4:15 A.M. on February 17, 1975, appellant telephoned the Baltimore County Police Department to say that two people had been shot at his home in Baltimore County. After the telephone call was received, Officer Fisher called back to the Raley residence and was told by Raley that he had shot his wife in the chest and a man in the chest. Officer Beatty was dispatched to the address given by Raley, arriving there at 4:27 A.M. Upon arrival, he saw Raley standing in the doorway with a gun in his hand. Raley told Officer Beatty, 'I am the one that called you, I shot them both'. Upon entering the house, the officer found the victims, LeFevere and Mrs. Raley, lying on the floor, both fully clothed. LeFevere was dead with a bullet hole in his chest. Mrs. Raley had a bullet wound in her throat but was alive and eventually recovered. Officer Glos arrived at the scene shortly after Officer Beatty arrived. Raley gave to Officer Glos two spent revolver casings and three unspent bullets. Officer Glos heard Raley say, 'They both came out of the kitchen' and that he 'shot them both', and, 'They didn't belong there like that'. These statements were not elicited from Raley by any questions put to him by anyone and were made in the kitchen of the home shortly after Officer Glos' arrival. A baby-sitter whom Mrs. Raley had engaged for the evening testified that Raley and his wife had been separated for about four weeks prior to February 17, 1975, but that Raley had been out with his wife and spent the night with her February 14, 1975.

Mrs. Raley was called as a witness for the state but refused to testify against her husband; Raley elected not to testify in his own defense.

On July 9, 1975, after three days of trial before a jury in the Circuit Court for Baltimore County (Judge John N. Maguire presiding), appellant was found guilty on Count III (assaulting his wife) and Count IV (using a handgun in the commission of a crime of violence), but was acquitted of Count I (murder of LeFevre) and Count II (assault with intent to murder his wife). On July 31, 1975, Judge Maguire sentenced appellant to the custody of the Division of Correction for twenty years as to Count III and for fifteen consecutive years as to Count IV.

In this appeal, appellant seeks reversal of both convictions on several grounds. We conclude there is merit in none and shall affirm both convictions.

I

The first five grounds alleged are related to the propriety of the handgun conviction under Count IV of the indictment.

(a)

In his advisory instructions to the jury concerning Count IV of the indictment, the trial judge said:

'The fourth count of the indictment charges the Defendant with the Use of a Handgun. Under our law, Article 27, section 36B, subsection d, any person who uses a handgun in the commission of any felony or crime of violence, shall be guilty of a separate misdemeanor. That is a separate crime. A handgun shall include any pistol or revolver, or any firearm capable of being concealed on the person, and a crime of violence, of course, would include Murder, Robbery, Rape, or an attempt to commit any of those offenses. The felony alleged in this Count is Murder.' (Emphasis Added).

No exceptions were taken to this instruction. After deliberating for nearly three hours, the jury sent out a question to the court concerning a 'description of a charges to be considered.' After conferring with counsel, the jury was brought back to the courtroom and the judge 're-read' to the jury 'all the charges with respect to this case of Thomas Raley', including a word-for-word repetition of his advisory instruction concerning Count IV. When the judge completed the re-instruction, appellant's counsel said to the judge:

'. . . They asked for charges, and the Court defined as the fourth count Use of the Handgun. The law specifically says Involuntary Manslaughter is an exception as well as Common Law Assault. It was covered in argument. I would ask that the Court indicate that Involuntary Manslaughter and Assault are specifically excepted from the crime of Handgun Violation.'

The judge declined to supplement the advisory instruction as requested.

Appellant contends the judge's refusal constituted reversible error. We disagree. Section 36B(d) of Article 27 of the Code provides:

'(d) Unlawful use of handgun in commission of crime.-Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.'

Section 441(e) of Article 27 provides:

'The term 'crime of violence' means abduction; arson; burglary, including common-law and all statutory and storehouse forms of burglary offenses; escape; housebreaking; kidnapping; manslaughter, excepting involuntary manslaughter; mayhem; murder; rape; mayhem; murder; rape; robbery; and sodomy; or an attempt to commit any of the aforesaid offenses; or assault with intent to commit any other offense punishable by imprisonment for more than one year.'

Appellant argues, correctly of course, that 'common law assault is a misdemeanor and since it is not listed as a crime of violence, it cannot serve as the basis for a conviction under the handgun violation charged in the indictment.' It does not follow, however, that it was error not to give the requested advisory instruction. Although it is well settled that under Maryland Rule 756 a trial judge, when requested in a criminal case, must give advisory instructions on every point of law essential to the crime charged and supported by the evidence, Christensen v. State, 274 Md. 133, 333 A.2d 45 (1975); Mumford v. State, 19 Md.App. 640, 313 A.2d 563 (1974); Byrd v. State, 16 Md.App. 391, 297 A.2d 312 (1972); Peterson v. State, 15 Md.App. 478, 292 A.2d 714 (1972); Hardison v. State, 226 Md. 53, 172 A.2d 407 (1961), it is equally settled that a trial judge is not obliged to give a requested instruction that is fairly covered in the instructions actually given, and the jury was not misled upon the subject. Bartholomey v. State, 260 Md. 504, 273 A.2d 164 (1971); Brown v. State, 222 Md. 290, 159 A.2d 844 (1960); England v. State, 21 Md.App. 412, 320 A.2d 66 (1974).

In the present case, under Count IV of the indictment the appellant was charged with the 'commission of a felony or a crime of violence . . . to wit: murder'. Thus charged a prerequisite to conviction thereon was proof beyond a reasonable doubt that the appellant used a handgun during the commission of a murder or the lesser included felony or 'crime of violence' of voluntary manslaughter. We think this element of the handgun crime charged was fairly covered by the trial judge's advisory instruction actually given and that the jury was not misled into believing that common law assault could serve as a basis for conviction under that count of the indictment. Having advised the jury of the essential elements of the handgun crime charged, if was not necessary to advise it of elements not included in the charge. ¹

(b)

The appellant contends that the jury verdicts of guilty as to Count IV and not guilty as to Count I (murder in the first or second degree, or manslaughter) and Count II (assault with intent to murder) are fraught with such inconsistency as to amount to a denial of due process of law and equal protection of the law. The verdict as to Count IV, he argues, should therefore be stricken. While we recognize the logic of appellant's argument, we think the decision of the Court of Appeals in Ford v. State, 274 Md. 546, 337 A.2d 81 (1975) is dispositive of the contention. In that case the jury returned not guilty verdicts as to counts in an indictment charging robbery with a dangerous and deadly weapon, robbery, and assault, but guilty of a count charging unlawful use of 'a handgun in the commission of a crime of violence'. Answering Ford's argument that the conviction was illegal because of the allegedly inconsistent verdicts, the Court said, 274 Md. at pp. 550-551, 337 A.2d at pp. 84-85;

'We agree with the petitioner that section 36B(d) requires the trier of fact to determine beyond a reasonable doubt, from the evidence, that the accused used a handgun during the commission of either a felony or a crime of violence as a prerequisite to being convicted of unlawfully using a handgun in the commission of either. Nevertheless, in answering the petitioner's first contention, we think it to be plain from the language of section 36B(d) that the offense delineated in that statute is separate and distinct from the felony or...