Tharp v. State, 1

• Decision Date: 07 December 2000
• Docket Number: No. 1,1
• Citation: 763 A.2d 151,362 Md. 77
• Parties: Todd Alan THARP v. STATE of Maryland.
• Court: Maryland Court of Appeals

763 A.2d 151

362 Md. 77

Todd Alan THARP v. STATE of Maryland.

No. 1, Sept. Term, 2000.

Court of Appeals of Maryland.

December 7, 2000.

John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner/cross-respondent.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent/cross-petitioner.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY,¹ RAKER, WILNER, CATHELL and HARRELL, JJ. HARRELL, Judge.

Todd Alan Tharp, Petitioner, was convicted by a jury in the Circuit Court for Baltimore County of second degree murder and robbery with a dangerous or deadly weapon. He was sentenced to thirty years in prison for the second degree murder conviction and a consecutive twenty-year sentence for the armed robbery conviction.

At the earlier trial in the Circuit Court of Petitioner's co-defendant, Keith Sellers (Sellers), the trial judge had excluded Petitioner's trial attorney from the courtroom pursuant to the witness sequestration provisions of Maryland Rule 5-615.² Prior to jury voir dire at Petitioner's trial, Petitioner's attorney moved to dismiss the charges against Petitioner or, in the alternative, to hold depositions, based on Petitioner's attorney's earlier sequestration from Sellers's trial. The Circuit Court denied both motions. Petitioner's convictions ensued.

The Court of Special Appeals affirmed, finding ultimately that the sequestration of Tharp's trial attorney from Sellers's trial constituted harmless error under the circumstances. Tharp v. State, 129 Md.App. 319, 742 A.2d 6 (1999). We granted Tharp's petition for writ of certiorari and the State's cross-petition. Tharp v. State, 358 Md. 162, 747 A.2d 644 (2000).

Petitioner presents the following question:

Did the Court of Special Appeals err in holding that the trial judge's exclusion of Petitioner's trial attorney from a co-defendant's earlier trial was harmless error?

The State asks the following question on its conditional cross-petition:

Did the Court of Special Appeals incorrectly determine that the trial court erred in sequestering Tharp's counsel at a co-defendant's trial where counsel had been listed as a potential defense witness?

We affirm. The trial court in Sellers's trial erred in not recognizing that Petitioner's attorney effectively had been removed from the defense's witness list, and thus was no longer subject to the sequestration witness rule. Moreover, the trial judge did not err in refusing to grant Petitioner's motions to dismiss or for depositions.

I.

THE FACTS

A. The Murder

On 28 March 1997, Baltimore County Police were dispatched to a wooded area near the intersection of Route 40 and Jones Road in Baltimore County. The responding officers found a dead body, later identified as that of Michael Keller (Keller). The next day an autopsy was performed by an assistant state medical examiner, who ultimately testified at Tharp's trial that the wounds found on Keller's body included nine stab wounds to the back, any one of which would have caused death within two minutes and, in combination, killed Keller in less than one minute. This witness also testified that Keller sustained a non-fatal, one-inch deep cut to the throat while apparently still alive.

Additional testimony at Tharp's trial revealed that Tharp, Sellers, and William Minton (Minton), were involved in Keller's murder. Minton, testifying as a State's witness,³ explained that Tharp and Sellers came to Minton's house on 25 March 1997, to seek his assistance in a plot against Keller. Sellers asked Minton if he would help beat up Sellers's roommate, Keller, because Keller stole from him and had not contributed money toward rent or food. Minton understood that the three would take Keller to Delaware where they would assault him, take his money,⁴ and abandon him. The proposed site for the intended assault was changed later to Maryland.

On 27 March 1997, Tharp and Minton reconnoitered the area near Jones Road and determined that it was suitable for the planned attack on Keller. Under the guise of going to a party, they then picked up Sellers and Keller at their residence. The four men went to the Jones Road area and proceeded to walk down a dirt road to a pond. According to Minton's testimony, Sellers suddenly grabbed Keller in a bear hug and fell to the ground, knocking down Minton with them. Sellers got Keller face down on the ground and tried to handcuff his hands behind his back. Keller offered to pay Sellers the money that he owed him, but Sellers responded that it was too late. Tharp, Sellers, and Minton then began kicking Keller. At some point, Minton feigned a sprained ankle to avoid having to continue to kick Keller. He walked a short distance away from the others and remained there with his back to the action, but nonetheless overheard Tharp become startled and upset, asking Sellers what he was doing. Minton turned around and saw Sellers stab Keller three times in the back. Minton again turned his back on the scene, but he "heard the stabbing continue ... [a]bout six or seven more times" and heard Tharp refuse to aid Sellers. Tharp walked over to Minton and suggested that the two of them leave without Sellers. As they started to leave, Sellers caught up with them and the trio walked back to the car. They got into the car, at which point Minton noticed that Sellers had Keller's necklace. The next day, Sellers stated that the night before he had taken Keller's identification and left a vial of drugs on Keller's body so that the murder would appear drug-related.

Detective Jay Landsman took a statement from Tharp on the evening of 29 March 1997. Tharp acknowledged that he had gone to the Jones Road area with Sellers and Keller on the 27th of March, but claimed that he had dropped them off and returned later to pick up Sellers who was alone. Sellers reportedly told him that Keller had remained in the woods. In his statement, Tharp also claimed that he only learned of Keller's death from a TV Channel 13 news story.

On 31 March 1997, Landsman and two other officers arrested Tharp. During the ride to the station house, Tharp volunteered to relate to Landsman "everything" and directed the officers to where the men had placed the knives, handcuffs, and various other items used during the attack. Later, at police headquarters, Tharp gave the police a statement explaining how he, Sellers, and Minton had induced Keller to accompany them to the woods. He further explained the details of the attack, and particularly that he had cut Keller's throat, and found Keller's necklace in his car, but gave it to Sellers.

Throughout his trial, Tharp maintained that he believed that Sellers only intended to fight Keller, not to kill him. He testified that Sellers only began stabbing Keller after he, Tharp, had walked away from the affray. Tharp claimed that he hesitated to intervene because the stabbing went beyond what was supposed to be only a fight. He stated that he screamed at Sellers to stop the stabbing. Additionally, Tharp testified that he did not stab Keller in the neck to "put him out of misery," as he had maintained in his second statement to the police, but because Sellers ordered him to "do something." Tharp believed that Keller was dead by the time he stabbed him because he was not moving and had been stabbed several times previously.

B. The Sequestration

Sellers was tried before Tharp. At Sellers's trial on 29 October 1997, after the selection of the jury and immediately before opening statements, one of the attorneys representing Sellers and one of the prosecutors⁵ made a joint motion to sequester witnesses, which the trial judge granted.⁶ The judge ordered that "[a]ny persons who testify during the trial should be removed to the hallway at this time, not to discuss the case either before or after they testify until the case is completely concluded." The prosecution reminded the court that the sequestration applied to Tharp's trial attorney, who was present in the courtroom, because he was on Sellers's submitted witness list.⁷ The court then specifically requested Tharp's trial attorney to leave the courtroom. Sellers's attorney rose in objection: "We'll waive [Tharp's trial attorney]—he's our witness lift [sic]. We'll waive." (Second alteration in original). The prosecution, upon implied inquiry by the judge, refused to "waive." The court, on the asserted ground that Tharp's attorney lacked standing to do so, answered in the negative to Tharp's attorney's query regarding whether he could object. Advising the court that he would be at his office, Tharp's attorney left the courtroom saying "[i]f I can't watch I'm gonna leave." We fast forward approximately eleven months to Tharp's trial because the record of Sellers's trial falls silent at this point as to any further matters of consequence to the issues at hand in the present case.

On 28 September 1998, immediately before Tharp's trial was to begin, his attorney made a motion to dismiss the charges for prosecutorial misconduct or, in the alternative, a motion to postpone Tharp's trial and permit him instead to depose all of the State's intended witnesses in Tharp's trial who also had testified at Sellers's trial. During argument on his motion to dismiss, Tharp's attorney reminded the Circuit Court of his sequestration from Seller's trial approximately a year earlier. He stated that he was present at Sellers's trial to act as Tharp's attorney in the event that Tharp was called to testify and otherwise "to observe the witnesses and listen to the testimony." According to Tharp's attorney, "[i]t was known by everyone concerned that I had absolutely no knowledge, no firsthand knowledge, no factual knowledge about the case."

Tharp's attorney recounted his recollection of what took place at various points during Sellers's trial, including an unrecorded chambers conference, in the presence of the judge,...