Strong v. State

• Decision Date: 07 April 1971
• Docket Number: No. 184,184
• Citation: 275 A.2d 491,261 Md. 371
• Parties: Cornelius Thomas STRONG v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 371

261 Md. 371

275 A.2d 491

Cornelius Thomas STRONG v. STATE of Maryland.

No. 184.

Court of Appeals of Maryland.

April 7, 1971.

Karl H. Goodman, Baltimore, Md. (Jack B. Rubin, Baltimore, Md. on the brief), for appellant.

Gilbert Rosenthal, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. and Fred Kelly Grant, Asst. State's Atty., respectively for Baltimore City on the brief), for appellee.

Argued before HAMMOND, C. J., and FINAN, SINGLEY, SMITH and DIGGES, JJ.

HAMMOND, Chief Judge.

The appellant was convicted by a jury of murder in the first degree and sentenced to death. He seeks reversal primarily on the claim that Judge Joseph Carter's failure to instruct the jury that an accused cannot be convicted solely on the uncorrobated testimony of an accomplice was reversible error, even though he did not request such an instruction or except to the charge. He contends that this Court can and should reverse under Maryland Rule 756 g which, although it imposes the requirements that an appellant may not of right assign an error in the instructions unless '(1) * * * the particular failure to instruct was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of objection were stated at that time,' goes on to provide that:

'Ordinarily no other error will be considered by the Court of Appeals * * *, but the (Court), either of its own motion or upon the suggestions of a party may take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to as provided by section f of this Rule.'

The appellant urges further that the verdict was fatally defective because the jury was improperly polled in that each juror did not say in so many words that the accused was guilty of murder in the first degree and, finally, that the death sentence is now unconstitutional.

The last contention was rejected by this Court in Bartholomey v. State, 260 Md. [275 A.2d 493] 504, 273 A.2d 164 (1971) and was not pressed at the argument in this case.

When the jury returned to the courtroom after its deliberation the clerk asked: 'Is Cornelius Thomas Strong guilty of the matters wherein he stands indicted or not guilty?' The forelady replied: 'Guilty. Guilty of first degree murder, the first degree.' Appellant's lawyer said: 'Poll the jurors' and the clerk said: 'Juror No. 2, you have heard the verdict as given by your Forelady. Is your verdict the same?' Juror No. 2 replied: 'Yes, it is.' Each of the other ten jurors was asked the identical question by the clerk and each replied 'Yes' or 'Yes, it is.' After juror No. 12 had answered yes, the clerk intoned:

'Hearken to the verdict as the Court has recorded it. You say Cornelius Thomas Strong is guilty of murder in the first degree as to Indictment 3029 of the Docket of 1969, and so say you all?'

to which, as the transcript indicates, there was a general jury response of 'yes.' Appellant relies on Ford v. State, 12 Md. 514, and Williams v. State, 60 Md. 402, in each of which the Court held that a new trial must be granted because in a murder case a verdict of guilty of the jury and of each juror must specify whether it is murder in the first degree or in the second degree, and in each of which, although the foreman said 'guilty of murder in the first degree,' each of the other eleven jurors said only 'guilty.' The Court in Williams said at page 403 of 60 Md.:

'The prisoner was entitled, as a matter of right, to a poll of the jury, and he could not be convicted, except upon the concurrence of each juror. Upon the poll, it was the duty of each juror to say for himself, whether he found the prisoner guilty of murder in the first or second degree. * * * Upon the poll in this case, there was not a single juror who, in finding the prisoner guilty, ascertained the degree of murder as required by the Code. On the contrary, the verdict was 'guilty,' and such a verdict is, as we have said, on an indictment for murder, a nullity.'

In the present case it is clear to us that the requirements of the law were met. The forelady said explicitly, with repetition, that the accused had committed first degree murder and, when each juror was asked individually whether his verdict was the same as that of the forelady, he replied in the affirmative. This was the equivalent of each juror saying: 'I find the accused guilty of murder in the first degree' and we are entirely persuaded that each juror knowingly and intentionally so stated when he answered 'yes' or 'yes, it is' to the clerk's standard question.

A synthesis of the pertinent testimony will aid in determining the answer to the appellant's primary contention. About 9:40 p. m. on October 20, 1968, a policeman found a dead cab driver slumped on the seat of his cab standing in the 4400 block of Wakefield Avenue in Baltimore. He had been shot several times in the head. On that same night the appellant, Strong, was playing cards. He lost all his money and all he could borrow from the other players who, about 9:00 p. m., became angry when the prospect of repayment seemed dim. Thereupon, Strong pulled a pistol and left, saying: 'I'll pay you your money' and 'I got to go and pick up some money.' He returned about 10:00 or 10:30 p. m. with $13.00 which, apparently, he proceeded to lose.

Douglas Johnson, Sr., a consin of Strong, testified that Strong came to his house on October 20 about 9:00 p. m. and 'asked me to carry him up on Wakefield Avenue * * * said he didn't have any gas * * *. (W)hen we got to the 4500 block, he told me to stop and park * * * (I)t was a Sun cab coming out Forest Glen Apartments. He stopped on the corner, hailed the cab, said 'Let's get in.' I looked at him. He said 'Come on.' We got into the cab.' After a short drive, Strong pulled out 'this long, black, twenty-two caliber (pistol),' 'put it in back of the cab driver's head' and said "Stop right here.' Cab driver turned around, looked, said 'take my money but please don't kill me' * * *. I (Johnson) jumped out of the cab, ran, started back to my car. Before I could get back, heard the (three) shots and when I got to my car, he (Strong) was right behind me.' When he left the cab, Johnson ran uphill through an area referred to by other witnesses as 'wooded.' Strong told Johnson in the car that 'he shot the man in back of the head three times' because 'he needed the money.' Johnson got none of the money and until the pistol appeared did not know Strong was armed or that he planned to rob the...