Smith v. State

• Decision Date: 01 September 1985
• Docket Number: No. 739,739
• Citation: 505 A.2d 564,66 Md.App. 603
• Parties: William Stewart SMITH, Jr. v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 603

66 Md.App. 603

505 A.2d 564

William Stewart SMITH, Jr. v. STATE of Maryland.

No. 739, Sept. Term, 1985.

Court of Special Appeals of Maryland.

March 7, 1986.

Certiorari Denied June 4, 1986.

Clarence W. Sharp, Assigned Public Defender, Annapolis, (Alan H. Murrell, Public Defender, on brief, Baltimore), for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and John Getz, Asst. State's Atty. for Baltimore City, on brief), Baltimore, for appellee.

Argued before BISHOP, GARRITY and ADKINS, JJ.

GARRITY, Judge.

The appellant, William S. Smith, Jr. (Smith), was convicted by a jury in the Circuit Court for Baltimore City (Ward, J. presiding) of two counts of robbery with a deadly weapon, two counts of kidnapping, two counts of the use of a handgun in the commission of a crime of violence, and unauthorized use of an automobile. He was sentenced to the jurisdiction of the Division of Correction for a total period of 15 years. We are asked to review the following questions:

1. Was the evidence presented sufficient to support appellant's convictions?

2. Did the trial judge's overall conduct of the trial, including his intervention in questioning the witnesses, deny appellant a fair trial and due process of law?

3. Did the trial court err in failing to give the missing witness instruction to the jury and in adding an instruction on aiding and abetting which unfairly highlighted this aspect of the case?

4. Did the trial court improperly respond to communications from the jury?

I. Sufficiency of the Evidence

To determine whether the evidence presented at trial is sufficient to support the convictions of the appellant, the appropriate test is whether "after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (original emphasis). Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See Johnson v. State, 303 Md. 487, 510, 495 A.2d 1 (1985); State v. Rusk, 289 Md. 230, 245, 424 A.2d 720 (1981); Waddell v. State, 65 Md.App. 606, 501 A.2d 865 (1985).

On August 12, 1984, Michael Carter was having a late-night party at his home in the Wakefield Apartments in western Baltimore City. Among his guests were William Magwood and Pierre Plater. Plater had arrived at approximately 12:30 a.m. with some friends. As the party progressed in a normal fashion, the appellant and three of his companions, all of whom were uninvited, walked into the apartment and created a disturbance. Most of the twenty-five guests then began to leave.

While Magwood was in the process of turning his car around to leave the parking lot, he observed the appellant and his cohorts harassing a young lady. As Magwood alighted from his vehicle and was walking to her assistance, one member of the group stopped him at the point of a gun as the appellant hit him. Magwood managed to stumble back into his car but was pulled out by the appellant. While one member of the group held a gun on the spectators to prevent interference, two others beat and kicked Magwood. At about this time, Pierre Plater, a friend of Magwood, was leaving the party and entering the parking lot. Upon seeing Magwood "hobbling" to his car, Plater offered his assistance and helped Magwood into his car. Apparently, at this point, two of the group, identified at trial as Michael Green and Gilbert Pack, managed to get into the back seat of Magwood's car. Plater testified that, since he was not present during the fight, he had assumed the two were acquaintances of Magwood.

Upon seeing that one of the men was wielding a long-barrelled handgun, however, Plater followed their orders to take a certain route. The two men directed Plater to drive to a nearby "dark area called Dickeyville" and stop the car. He did so. The men then demanded that Plater and Magwood hand over money and any watches and jewelry they possessed. Plater and Magwood complied by giving approximately $20 to the assailants. The car remained parked for about a minute until the appellant walked up and entered the vehicle. The appellant had taken a shortcut to the area by walking along a footpath. Upon entering the vehicle, the appellant asked the assailants, according to Magwood, "How much money do we have?" One replied, "We have $20." The appellant then ordered Magwood to sit in the back seat. Although the appellant initially sat in the passenger seat before Plater was ordered to drive on, the appellant eventually decided to drive the vehicle himself. Since the car was low on fuel, Smith requested money for gasoline. Green and Pack gave Smith a portion of the money they had acquired from the victims and so informed the appellant. The appellant then drove to a gas station before continuing on for nearly four hours.

Throughout this entire travail Magwood was in the back seat between the two men, who were beating him. At one point, two others got into the back seat and aided Park and Green in this endeavor. The appellant eventually drove the car to downtown Baltimore and then out the Jones Falls Expressway to Pikesville. As the sun began to rise, the men returned to Baltimore and stopped at a 7-Eleven store. At this point, Plater and Magwood managed to escape and call the police.

The appellant contends that, since he was not present at the time of the robbery or the commencement of the kidnapping, he cannot be convicted of either of these offenses. He argues that his actions took place after the crimes had been committed; therefore, his conduct could constitute no more than participation as an accessory after the fact. The State, on the other hand, argues that the fact Smith was not present at the moment of the commission of the robbery does not absolve him of guilt as a principal in the second degree.

A principal in the second degree is one who is actually or constructively present when a felony is committed, and who aids or abets in its commission. Pope v. State, 284 Md. 309, 396 A.2d 1054 (1979).

As to the robbery offense, we believe it clear that any rational trier of fact could have concluded beyond a reasonable doubt that the appellant had been a principal in the robbery of Magwood and Plater. He had been with Green and Pack prior to the robbery and had acted in direct concert with their disruptive, obnoxious, and assaultive conduct. After the appellant assaulted Magwood, Green and Pack abducted both Magwood and his companion Plater. They then instructed Plater to drive to a particular nearby location where they ordered Plater to stop the car. Shortly after the victims had been robbed at gunpoint, the appellant appeared on the scene via a footpath and asked how much money the assailants had.

As to the offense of kidnapping, the appellant avers that the evidence was insufficient to show that he had "assaulted" either Magwood or Plater, which he contends is a "necessary ingredient" of kidnapping. However, "[t]he gist of the offense of kidnapping in Maryland is unlawful confinement coupled with transportation of the victim.... The initial assaultive taking of the person and the carrying out of the State required at common law are not part of the Section 337 offense." Tate v. State, 32 Md.App. 613, 615-17, 363 A.2d 622, cert. denied, 278 Md. 736 (1976); see Watkins v. State, 59 Md.App. 705, 723-25, 478 A.2d 326 (1984). Indeed, the appellant was charged and convicted under Article 27, Section 337 of the Maryland Code. Therefore, assault is not a necessary element to support the appellant's conviction. We hold that the direct evidence of Smith's conduct in the on-going crime was sufficient to support his conviction on the kidnapping charge.

II. Conduct of the Trial Judge

The appellant next contends that the trial judge "abandoned his role as an impartial arbiter early on, repeatedly took over the questioning of the prosecution witnesses, often at the critical points of their testimony, sometimes summarized their testimony with leading questions and took on an inquisitorial role."

We have but few guidelines to aid our determination of the point at which a trial judge no longer is an impartial arbiter attempting to aid the jury in its quest for the truth. As we stated in Bell v. State, 48 Md.App. 669, 678, 429 A.2d 300 (1981), "[w]e are blessed in Maryland by the fact that no judge's conduct has ever compelled reversal because he has by the form, manner or extent of his questioning, indicated to the jury his opinion as to the defendant's guilt."

The appellant points to eight specific instances which he characterizes as abuses of the trial judge's role. In preface of our review, it must be understood that although the two victims in this case were very alert and bright young men, they had not known the assailants beforehand and had difficulty in describing which particular assailant was responsible for specific acts throughout the four-hour ordeal. ¹ As an example of such testimony, the following colloquy took place between the trial judge and Mr. Plater after the witness had testified that:

I thought we were going up towards the hill, up towards the top of the hill, which was where I had to go anyway. And they said they wanted to go and I didn't know if he knew them at this time. After he got in, I saw the gun and I saw that he was obviously incompetent to answer or something.

THE COURT: Who is he?

THE WITNESS: Mr. Magwood.

THE COURT: Mr. Getz, all this he, they, he, they. I don't know who he is talking about. You've got to start--

After the trial judge most appropriately cautioned the witness and the prosecutor to be more specific as to their references, the trial judge took over questioning Witness Plater in the following manner: ²

BY MR. GETZ (Assistant State's Attorney):

Q You remember driving to Dickeyville to what--

THE COURT: Let me see if I can start. You got in the...