Tharp v. State

• Decision Date: 06 December 1999
• Docket Number: No. 7049,7049
• Citation: 742 A.2d 6,129 Md. App. 319
• Parties: Todd Alan THARP v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

742 A.2d 6

129 Md. App. 319

Todd Alan THARP v. STATE of Maryland.

No. 7049, Sept. Term, 1998.

Court of Special Appeals of Maryland.

December 6, 1999.

John J. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on the brief), for appellee.

Submitted before HOLLANDER, THIEME, and JAMES S. GETTY (Ret'd, Specially Assigned), JJ. THIEME, Judge.

Appellant Todd Tharp was convicted by a jury in the Circuit Court for Baltimore County of second degree murder and robbery with a dangerous or deadly weapon. Tharp appeals from his convictions and presents the following questions:

1. Did the trial judge err in refusing to give an instruction on the crime of accessory after the fact to murder?

2. Did the trial judge err in refusing to grant relief after prohibiting defense counsel from observing a co-defendant's trial as part of his preparation for Tharp's trial?

3. Did the trial judge err by preventing defense counsel from cross-examining the accomplice on the fact that his attorney was in the courtroom during his testimony?

4. Was the evidence legally insufficient to sustain the convictions for armed robbery and robbery?

We answer "no" to each of the questions.

Facts

On March 28, 1997, at approximately 6:00 p.m., Baltimore County Police were dispatched to a wooded area near a pond in the vicinity of Route 40 and Jones Road. There they found the dead body of Michael Keller. An Assistant Medical Examiner performed an autopsy the next day; she testified that Keller sustained nine stab wounds to the back. One stab wound went completely through his left lung; another went through his right lung. A stab wound to the front struck Keller's heart and cut the aorta. A fourth wound went through Keller's diaphragm and damaged his liver. Any of these wounds by itself would have caused death within two minutes; in combination they killed Keller in less than one minute. The medical examiner also testified that Keller sustained a one-inch deep cut to his throat; Keller was alive when that non-fatal wound was inflicted.

Testimony at trial revealed that three individuals were involved in Keller's killing: Tharp, Keith Sellers, and William Minton. Minton testified for the State pursuant to a plea bargain, wherein he would plead guilty to second degree murder and the State would drop the first degree murder charge and recommend a thirty-year sentence.

At trial, Minton described Tharp and himself as "really close friends." At age 25, Tharp was five years older than Minton and "like an older brother to" him. Minton met Sellers just days before the murder of Keller and had not met Keller before that day.

According to Minton's testimony, Tharp and Sellers came to Minton's house on March 25, 1997. Sellers said he wanted to inflict a severe beating on Keller, his roommate, because Keller had been stealing from him and had not been contributing money toward rent or food. Sellers asked Minton to help him. Minton's understanding was that Keller would be taken to Delaware, where Tharp, Minton, and Sellers would assault him, take his money, and then leave him. They decided to move the location of the assault closer to home when Tharp and Sellers were paid by their employer later than expected.¹ On March 27th, Tharp and Minton examined the area near Jones Road and found it suitable for their attack on Keller.

Minton further testified that later that night, after Sellers told Keller about a party at Jones Field, Tharp, Minton, and Sellers took Keller to the Jones Road area. All four individuals walked down a dirt road to a pond. According to Minton's account of the incident, Minton was knocked over by Sellers, who had Keller in a bear hug. Sellers quickly had Keller face-down on the ground and was trying to handcuff his hands behind his back. Tharp stood by watching, even though Sellers asked for help. In response to Sellers's explanation for the attack, Keller said he would pay the money he owed. Sellers said it was too late. At that point, Tharp kicked Keller in the ribs and the groin. Sellers kicked Keller in the face, head, and ribs and stomped on his back. Minton himself kicked Keller in the ribs, shoulder blade, and hip. Minton then claimed to have a sprained ankle and walked five to twenty feet away; he remained there with his back to the others. Minton heard Tharp, sounding startled and upset, say, "What the [f—] are you doing—are you crazy?" Minton turned around and saw Sellers stab Keller three times in the back.

Minton testified that he turned away and refused to look again, though he "heard the stabbing continue ... [a]bout six or seven more times." When Sellers asked Tharp to help him roll Keller over, Tharp refused and said, "Can't you just leave him alone? Haven't you done enough?" Minton heard stomping and kicking noises. Tharp then walked up to Minton and whispered, "Let's go." They tried to leave before Sellers noticed, but Sellers caught up with them. When the three were in the car, Minton noticed Sellers with Keller's necklace. The next day, Sellers said he had taken Keller's identification and left a crack vial and heroin or a similar substance on Keller's person so that the murder would appear drug-related.

Christina Torres, Tharp's girlfriend in March of 1997, also testified at the trial. She testified that on March 26th Tharp told her that after they got paid the next day, Tharp was going to drive Sellers and Keller into Delaware, where Sellers would kill Keller. Because they did not get paid the next day, however, the plan was changed to eliminate the drive to Delaware. According to Ms. Torres's testimony, Tharp said Keller was taken to a secluded spot in Maryland where Tharp "double-punched" him in the chest and slit his throat, Minton kicked him, and Sellers handcuffed, beat, and stabbed him.

Detective Jay Landsman took a statement from Tharp on the evening of March 29, 1997. According to that statement, as related by the detective, Tharp drove down Route 40 on the previous night with Sellers and Keller in his car. Sellers asked Tharp to pull over. When Tharp pulled over, Sellers and Keller got out of the car. Sellers told Tharp to "swing back." Sellers and Keller then ran across Route 40, and "[a]ppellant drove to White Marsh Mall." He returned about an hour later. Seeing Sellers alone, Tharp asked, "[W]here is Mike?" Sellers said he was still in the woods and then entered Tharp's car. Tharp said he first learned of Keller's death from a Channel 13 news story he heard on the night of the murder.

On the afternoon of March 31st, Landsman and two other officers arrested Tharp at his place of employment, the European Bus Company.² After Landsman read Tharp the Miranda warnings, Tharp asked if he needed a lawyer. Landsman responded that that was up to Tharp. During the ride to the station house, Tharp said to the officer that he would "tell [him] everything." Eventually, Tharp offered to show the officers where the knives were. He directed them to some woods behind a K-Mart store, where he had disposed of the knives and various other items the day after the incident. Among the items Tharp located for the officers were two knives and handcuffs used in the assault. Later, at police headquarters, Tharp was re-advised of his rights and waived them. He then gave a statement in which he explained that Sellers induced Keller to accompany himself (Sellers), Minton, and Tharp to a party. In the lengthy statement, Tharp described the attack in detail, stating, "I just wanted to put [Keller] out of his misery, so I cut his throat." Tharp said that the day after the attack, when he vacuumed his car, he found Keller's necklace and gave it to Sellers.

Throughout the trial, Tharp maintained that he believed Sellers only intended to fight Keller, not to kill him. Tharp testified that Sellers did not begin to stab Keller until after Tharp had walked about twelve feet away, and that eventually he screamed at Sellers to cease the stabbing. Moreover, Tharp said that he did not stab Keller's neck to "put him out of his misery," but because he was yielding to Sellers's commands to "do something." Tharp testified that he believed Keller was already dead when he stabbed his neck because Keller was not moving and had been stabbed many times.

Discussion

I. Jury Instruction on Accessory After the Fact to Murder

The Court of Appeals has held that "the standard of review for jury instructions is that so long as the law is fairly covered by the jury instructions, reviewing courts should not disturb them." Farley v. Allstate, 355 Md. 34, 46, 733 A.2d 1014 (1999) (citing Jacobson v. Julian, 246 Md. 549, 561, 229 A.2d 108 (1967)). Accordingly, Md. Rule 2-520, "Instructions to the jury," states in pertinent part:

(c) How given. The Court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instructions on its own, or by combining any of these methods. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.

See also Myers v. Estate of Alessi, 80 Md.App. 124, 132, 560 A.2d 59,

cert. denied, 317 Md. 640, 566 A.2d 101 (1989) ("It is firmly established that under Md. Rule 2-520(c) a trial judge is not obligated to give a requested instruction if the matter is fairly covered in the instructions actually given.").

In reviewing the propriety of the court's refusal to give a requested jury instruction, we must examine "whether the requested instruction was a correct exposition of the law, whether that law was applicable in light of the evidence before the jury, and finally whether the substance of the requested instruction was fairly covered by the instruction actually given." Farley, 355 Md. at 47, 733 A.2d 1014 (citing Wegad v. Howard...