Sutton v. State, 13

• Decision Date: 04 November 1970
• Docket Number: No. 13,13
• Citation: 270 A.2d 497,10 Md.App. 353
• Parties: William R. SUTTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 353

10 Md.App. 353

270 A.2d 497

William R. SUTTON v. STATE of Maryland.

No. 13.

Court of Special Appeals of Maryland.

Nov. 4, 1970.

Benjamin L. Brown, Baltimore, for appellant.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. and Howard L. Cardin, Asst. State's Atty. for Baltimore City, respectively, on brief, for appellee.

Argued before MURPHY, C. J., and ORTH and THOMPSON, JJ.

THOMPSON, Judge.

William R. Sutton, the appellant, was convicted of first degree murder in a court trial in the Criminal Court of Baltimore. Judge Solomon Liss imposed a sentence of life imprisonment. On appeal, appellant presents two contentions: (1) Four of the witnesses against him were accomplices, whose testimony thus required corporation. (2) On motion for a new trial, a witness called by the defense was improperly allowed to remain silent by claiming his fifth amendment rights under the Federal Constitution. Both contentions are meritless.

Briefly, the State's evidence showed that on the morning of February 28, 1969, Charles Jordan, Ronnie Brown, and Anita Rainey were riding in Jordan's Buick Riviera when they were hailed by two men, identified by Brown as being one Marshall Thomas and the appellant. A discussion ensued about getting hub caps for Jordan's car. Jordan claims appellant volunteered to get the hub caps while Brown testified that Jordan solicited the appellant to get the hub caps. Brown himself, having earlier ascertained who owned the car from which the hub caps were to be stolen, was against the stealing of them and told the other parties not to participate.

Marshall Thomas, the appellant's companion, admitted accompanying the appellant and participating in the theft of the hub caps. Two trips were made from Jordan's Riviera to the parked Riviera on Baker Street. On the first trip, appellant and Thomas procured some but not all of the hub caps. On the second trip, they returned either to get the rest of the hub caps or the tools used in removing them. During the second trip, Thomas and appellant were interrupted by the victim, Edward Peters, who told them to leave the car alone. Appellant, according to Thomas, fatally shot Peters.

After the appellant and Thomas returned from Jordan's car following the shooting, someone made a statement to the effect that a person had been shot. Brown testified the appellant made the statement that he shot someone. Thomas admitted stating in the car that appellant had shot someone. No one in the car admitted seeing a gun. After the shooting, Jordan drove away and let his four passengers out at various locations. Jordan then returned home and later turned himself in to the police after he was aware they were looking for him.

In addition to the above, the State presented evidence from police officers and eyewitnesses, none of whom could identify the appellant. One Robert Lee testified he was standing with the victim when their attention was attracted by the sound of a hub cap hitting the ground. Peters, the victim, running after the two men who had taken the hub caps from the parked automobile, was shot by a man who appeared not to be carrying any hub caps. Lee could not identify either man. One James Bayton briefly saw a man running with a gun but could not identify him.

Sergeant Joseph Nixon of the Baltimore City Police, while patrolling in the area of the homicide before it had occurred, observed two men running suspiciously in the 1800 block of Baker Street. Nixon watched the men get into a Buick Riviera with Maryland license number HG-3311. Although unaware that a crime had been committed, Nixon made notes of the license number and make of the car. Shortly thereafter, he received information over the police radio concerning the shooting in the 1800 block of Baker Street. Returning to the scene of the shooting, Nixon received a suspect's description matching his observations of one of the people in the Buick Riviera he had just seen. Tracing the registration of the car, he went to Jordan's home where he found the stolen hub caps and white powder suspected to be narcotics.

Appellant, testifying in his own behalf, claimed he was in a bar drinking at the time of the shooting. His alibi was corroborated by three of his brothers and the bartender. The defense also presented witnesses to impeach Jordan's credibility by showing animosity between Jordan and the appellant over Jordan's alleged cheating on a sale of narcotics several months earlier.

I Corroboration

Appellant first contends four of the principal witnesses against him, Charles Jordan, Ronnie Brown, Anita Rainey, and Marshall Thomas, were accomplices whose testimony would be insufficient to convict without adequate corroboration. The State responds that appellant has not preserved this point for appellate review under Md.Rule 1085 and that there was sufficient corroboration even though all of these witnesses were accomplices.

Although other witnesses corroborated the details of the crime, not a single word of the other witnesses' testimony (those outside Jordan's car), identified the appellant with the crime or with the perpetrators thereof. General corroboration, not related to identity, is insufficient; otherwise a witness could be corroborated by giving his name and birth date. See Spies v. State, 8 Md.App. 160, 258 A.2d 758.

In Burley v. State, 5 Md.App. 469, 472, 248 A.2d 404, we reviewed the rules with respect to determination of who is an accomplice, i. e. one who could have been convicted of the offense as a principal or as an accessory before the fact. With respect to the procedure to determine complicity, we recited that the burden of proving a witness was an accomplice rested upon the accused asserting...