Rivenbark v. State

• Decision Date: 16 April 1984
• Docket Number: No. 1076,1076
• Citation: 473 A.2d 1329,58 Md.App. 626
• Parties: Billy Clayton RIVENBARK v. STATE of Maryland. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 626

58 Md.App. 626

473 A.2d 1329

Billy Clayton RIVENBARK v. STATE of Maryland.

No. 1076 Sept. Term 1983.

Court of Special Appeals of Maryland.

April 16, 1984.

Howard L. Cardin, Baltimore, with whom were Cardin & Gitomer, P.A., Baltimore, on the brief, for appellant.

Stephanie J. Lane, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Sandra A. O'Connor, State's Atty., for Baltimore County, Stephen Montanarelli and Douglas B. Pfeiffer, Asst. State's Attys. for Baltimore County, on the brief, for appellee.

Argued before LISS, WILNER and ALPERT, JJ.

LISS, Judge.

The appellant, Billy C. Rivenbark, was charged in the Circuit Court for Baltimore County with first degree murder and burglary. He was tried before a jury, convicted and sentenced to a term of life imprisonment for the murder conviction and to 20 years imprisonment for the burglary conviction, both terms to run concurrently. It is from these judgments that this appeal was filed.

Appellant contends that the trial court erred in:

(1) permitting improper rebuttal testimony to be offered by the State;

(2) denying appellant's requested instruction to be submitted to the jury on the issue of whether Shirley Wilson, a prosecution witness, was an accomplice;

(3) admitting hearsay evidence under the "conspiracy exception" to the hearsay rule; and

(4) finding that the evidence was sufficient to support the guilty verdicts.

(1)

The evidence in this case was presented through witnesses who fell into four categories:

(1) The witnesses who described the murder scene;

(2) Shirley Wilson, who described the appellant's criminal agency;

(3) Defense witnesses, who provided an "alibi"; and

(4) Rebuttal witnesses offered by the State.

The first category included six witnesses, two civilian witnesses and four police officers. The civilian witnesses testified concerning the victim, Katherine Buress, and the home where she lived and where the murder occurred. The four police officers testified they found Mrs. Buress's home ransacked and described finding the victim's body. They also described the physical evidence found by them at the murder scene. Shirley Wilson was the final witness produced by the State. She testified she was the sister-in-law of the appellant. At the time of the victim's death Wilson was living with Ronald Leroy Johnson and had been living with him since February of 1981. She stated that on occasion the appellant, his wife (Wilson's sister) and their daughter would visit her and Johnson at their residence. It was on one of those visits that Rivenbark and Johnson met for the first time.

Shirley Wilson testified that the victim was the aunt of Ronald Johnson and that she had met her on one occasion when they stopped in to wish Mrs. Buress a happy Mother's Day. She described her as an elderly woman who apparently was very wealthy and wore large diamonds. Ms. Wilson indicated Johnson had expressed a dislike for the victim and had stated that some day the diamonds would be his. Ms. Wilson then testified to conversations between Johnson and the appellant over a period of time, consisting principally of statements on the telephone made by Johnson, overheard by Wilson, to a person she believed to be the appellant. These conversations indicated that Johnson intended to burglarize a "dope dealer's home." Later Johnson indicated the victim of the burglary was to be Katherine Buress. On the day prior to the homicide, Johnson requested Shirley Wilson to give him something to cover his head. She gave him a ski hat belonging to her son, from which he cut out two holes for eyes, and a space for his nose and mouth. Later that evening Johnson asked Ms. Wilson for a pair of gloves. Ms. Wilson gave Johnson her gloves and he tore the black leather palms off them. She stated she gave Johnson the gloves because he "was nasty with me, pushing me around and demanding them and I was frightened of him." Ms. Wilson argued with Johnson and tried to talk him out of going out and committing the burglary. She was upset, crying and worrying.

At about midnight on the night of the murder the appellant appeared at the door of Ms. Wilson's apartment and asked Johnson, "are you ready?" and Johnson replied, "as ready as I'll ever be." Johnson and the appellant then left, taking Ms. Wilson's car for transportation. They returned at 4:48 a.m. Johnson was upset and becoming sick, and stated to Wilson that "something went wrong." Wilson learned the next morning that Johnson's aunt was killed during the course of the burglary. This information was furnished to her the next day at a tavern by Johnson and the appellant. Wilson testified as follows concerning the disposition of the evidence in Johnson's possession:

Q You went back there to talk to Ron; is that correct?

A Yes.

Q As a result of your going back there what did you see Ron do?

A He had originally, earlier that day took and went out to the car, and at that time I didn't know what it was, and he brought it into the house in a brown bag. He took a shovel or something, across to the woods, and he buried whatever it was in the bag, and then come back over. And I told him, I said, "Billy, make sure you get rid of the stuff." He went back over to the woods, and he got it out of the woods, and he put them in, it was still in a brown bag, and put them out in the kitchen, and it was the gloves, it had blood all over them, they were drenched in blood.

Q Go ahead. What else did he have?

A The ski cap was in the bag. He left them in the kitchen, and then asked me--I was in the living room, he asked me to get him a bag, and I got him a brown--a white shopping bag or a little garbage bag, and he took the stuff, and he went to go and put the brown bag inside the white bag, but I took the gloves and the hat, and took them out of the bag, and put them in the white bag.

Ms. Wilson admitted she had given two prior statements to law enforcement officers before she ultimately introduced appellant's name into the case. The State rested its case in chief at this point and motions for judgment of acquittal were denied by the presiding judge.

The defense then called Toni Rivenbark, the wife of the appellant, who offered alibi evidence that appellant was home with her when the homicide occurred. Two other alibi witnesses were produced by the defense.

After the close of the State's case in rebuttal, motions for judgment of acquittal were again made and denied by the trial judge. The case was then submitted to the jury after instructions and argument. Before the instructions were given to the jury, counsel requested that an instruction as to the definition of and legal significance of the law involving an accomplice be given to the jury. The trial court refused to give such an instruction and exception was duly noted. Guilty verdicts were returned and this appeal followed.

We shall consider first appellant's contention that the trial judge erred in refusing to instruct the jury on the relevant law as to corroboration of an accomplice's testimony.

The law as to accomplices is well settled in Maryland and was re-affirmed by the Court of Appeals in Brown v. State, 281 Md. 241, 378 A.2d 1104 (1977).

A conviction of a defendant may not rest upon the uncorroborated testimony of an accomplice. Brown v. State, supra; Strong v. State, 261 Md. 371, 275 A.2d 491 (1971); Veney v. State, 251 Md. 159, 246 A.2d 608 (1968); Boggs v. State, 228 Md. 168, 179 A.2d 338 (1962); Mulcahy v. State, 221 Md. 413, 158 A.2d 80 (1960) and Watson v. State, 208 Md. 210, 117 A.2d 549 (1955). In Brown v. State, supra, the Court of Appeals stated:

We granted certiorari and requested the parties to consider, ... whether the long-standing rule of our cases that a person accused of a crime may not be convicted on the uncorroborated testimony of an accomplice should be abandoned. [Id., 281 Md. at 242, 378 A.2d 1104].

The Court continued:

We see as much need today, perhaps more so in view of the escalating prosecutorial trend freely to utilize accomplices as State witnesses, to retain the requirement that a person accused of a crime not be convicted on the uncorroborated testimony of an accomplice. [Id., at 246, 378 A.2d 1104].

It is clear from a perusal of these cases that where the evidence reveals as a matter of law, that a witness is an accomplice, the testimony in order to support a conviction must be corroborated. The corroboration must be through some independent source and may be minimal so long as it tends to establish, with some degree of cogency, (1) the identity of the accused with the perpetrator of the crime or (2) the participation of the accused in the crime itself. In most of the cases decided by the Court of Appeals and this Court on the issue of corroboration, the principal question has been whether the evidence sufficiently established the necessary degree of corroboration. See Turner v. State, 294 Md. 640, 452 A.2d 416 (1982).

The factual situation in the case at bar presents a somewhat different question than that usually raised by the issue of corroboration of an accomplice's testimony. In this case, counsel for the appellant moved for a judgment of acquittal, at the conclusion of all the evidence, on the ground that Shirley Wilson as a matter of law was an accomplice and that if this conclusion was correct there was insufficient evidence to corroborate her testimony. The trial judge denied the appellant's motion for acquittal, holding that Ms. Wilson was not an accomplice as a matter of law.

It was at this point that appellant's counsel requested the trial judge to instruct the jury on the law of accomplices and the necessity for corroboration of their testimony. An accomplice is one who knowingly, voluntarily, and with common criminal intent with the principal offender, unites with him in the commission of the crime either as a principal or an accessory before the fact. Strong v. State, supra.

Burley v. State, 5...