Turner v. State

• Decision Date: 09 April 1981
• Docket Number: No. 765,765
• Citation: 48 Md.App. 370,428 A.2d 88
• Parties: Howard TURNER and Mark Tyrone Willis v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 370

48 Md.App. 370

428 A.2d 88

Howard TURNER and Mark Tyrone Willis v. STATE of Maryland.

No. 765.

Court of Special Appeals of Maryland.

April 9, 1981.

Morris Lee Kaplan, Baltimore, for appellant Willis.

William A. Beale, Assigned Public Defender, for appellant Turner.

Thomas P. Barbera, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland, William A. Swisher, State's Atty. and Ara Crowe, Asst. State's Atty., Baltimore City, on brief, for appellee.

Argued before MORTON, WILNER and WEANT, JJ.

WEANT, Judge.

In this matter we have the appeals of Howard Turner and Mark Tyrone Willis, Mr. Turner's appeal being from convictions in the Criminal Court of Baltimore for murder in the first degree; unlawful use of a handgun in the commission of a crime of violence; unlawfully wearing, carrying, and transporting a handgun upon his person; and robbery with a dangerous and deadly weapon; and Mr. Willis's appeal being from a conviction of murder in the second degree.

On or about 15 September 1979, at around 6:00 a. m., one Vernon Hoshall was shot and killed and his watch and wallet were stolen. At the same time John Morris, one of the assailants, was shot in the left shoulder by his fellow accomplice Howard Turner. Thereafter, the wounded Mr. Morris ran from the scene of the shootings to a nearby apartment where he was met by Thelma Williams and Dennis Atkinson. At the appellants' trial John Morris testified that upon his arrival at the Williams-Atkinson apartment he told Thelma Williams that he had been shot by Howard Turner when "we was robbing this man." He also testified that he gave her a watch that he had taken from Mr. Hoshall, along with the instruction that she hold it for him. At that time he asked someone to call an ambulance for him. This was done and he was taken to Provident Hospital. At the trial Ms. Williams and Mr. Atkinson confirmed what John Morris purportedly said while he was at their apartment.

Shortly after Mr. Morris arrived at the aforementioned apartment, Mark T. Willis "and some other dude" arrived. Thelma Williams testified that "(t) hey (Mr. Willis and the other person) was talking to the boy (John Morris) and told him for to come on (with them) but he said no, he had a bullet in his back and he was waiting for the ambulance. Then Mark and the other two went in the bathroom and went out the window and went off the roof." Later, the victim's wallet was found on the roof. Other facts will be forthcoming as we entertain the individual appeals.

Howard Turner

This appeal presents the following questions:

I. Whether the Trial Court erred in refusing to grant Motions for Judgment of Acquittal or for New Trial because the State's case against Appellant consisted entirely of uncorroborated statements and testimony of an accomplice.

II. Whether the Trial Court committed reversible error in refusing to disqualify a juror who indicated during the course of the trial that he recognized the prosecution's witness to be a former employee of his.

III. Whether the Trial Court erred in refusing to grant a Motion for Mistrial when the State elicited testimony concerning previous incarceration of Appellant.

IV. Whether the Trial Court erred in refusing to grant a Motion for New Trial after allowing a juror to impeach her verdict.

I.

This complaint relies upon the Maryland law that holds that the testimony of an accomplice must be corroborated by independent testimony or evidence, however slight. Brown v. State, 281 Md. 241, 378 A.2d 1104 (1977). In the instant case the testimony of the accomplice John Morris was also presented through that of two witnesses, under an exception or exceptions to the hearsay rule, in order to bolster the charges against Howard Turner.

It is argued by the appellant Turner that even though the statements relied upon were also presented by way of the testimony of persons other than the accomplice, this "does not convert th(ose) statement(s) into something other than the words of an accomplice under the facts of the case at bar." Nevertheless, it is argued by the State that the trial court's admission of these statements under the exception to the hearsay rule, that is, an admission against penal interest made as an excited utterance, not only did no injustice to the rationale of the corroboration rule, but satisfied it as well. While at first blush the State's argument appears to be a sort of bootstrapping proposition, we perceive the merit in this thesis. We confine our discussion, however, to the excited utterance exception and the hearsay rule.

In considering the excited utterance exception as an adjunct to the corroboration of an accomplice's testimony, we look to the statement of this Court in Reckard v. State, 2 Md.App. 312, 316-17, 234 A.2d 630, 632-33 (1967), cert. denied, 248 Md. 734 (1968):

To constitute res gestae an utterance need not in all strictness be contemporaneous, in the sense of simultaneous, with the principal act; it may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and be dissipated by meditation.

The point is not so much the lapse of time or change of place as the continuance of the situation which insures that what is said is, in fact, a spontaneous reaction to the occurrence, rather than an independent, preconceived action of the speaker's will. (Citation omitted).

Similarly, this Court said in the case of Honick v. Walden, 10 Md.App. 714, 272 A.2d 406 (1971) at page 717, 272 A.2d at 408, that "(s)uch declarations (res gestae ) are deemed trustworthy, since they are the product of nervous excitement rather than deliberation and represent the facts talking through the party rather than the party talking about the facts." (Citation and footnote omitted). In 6 J. Wigmore, Evidence § 1747 (Chadbourn rev. 1976), the author said of the exception of excited utterance:

This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him, and may therefore be received as testimony to those facts. (Footnote omitted).

Somewhat analagous to our situation here is the holding in this and other states that testimonial incompetence is no bar to an excited utterance. In Moore v. State, 26 Md.App. 556, 338 A.2d 344, cert. denied, 276 Md. 747 (1975), this Court considered with approval the admission of the testimony of a three and one-half year old child under the res gestae or excited utterance principle. In so doing, Judge Moylan, in speaking for the Court, quoted with approval, at pages 561-62, 338 A.2d at 347, McCormick, Law of Evidence, 582 (1st ed. 1954):

"Must the declarant be shown to have met the tests of competency for a witness? In general, it seems not. The declarant is not usually before the court to be examined as to his competency, and the declarations furthermore come in only under special safeguards here, the requirement of excited utterance which diminish the need for further caution. Consequently, it is held that evidence of spontaneous declarations of infants is admissible despite the incompetency of the child as a witness. Such is also the rule in the case of an insane declarant, or one incompetent by reason of conviction of a felony, or where the declaration was made by the husband or wife of the accused in a criminal case." (Original emphasis).

At page 566, 338 A.2d at 349, Judge Moylan continued:

In the case at bar, this three and one-half year old child was in acute distress and suffering significant pain in a hospital emergency room within hours after the inflicting of massive injuries. It is stating the obvious to hold that the trial judge did not abuse his discretion in concluding that the declaration in issue was surrounded by substantial guarantees of trustworthiness and was not uttered designedly with a view to making evidence. Under those circumstances, it was clearly admissible.

Immediately after he was shot in the shoulder, the declarant ran directly from the scene of the robbery in which he had participated to the apartment of the witnesses. He arrived there within minutes of the shooting; bleeding, in pain, and seeking an ambulance. It was then that he uttered the incriminating statements. It is clear that John Morris was under the immediate and uncontrolled domination of his senses at the time his out-of-court statements were made to Thelma Williams and Dennis Atkinson. At that moment it would have gone beyond the bounds of reason that he could have been able to fabricate a statement of accusation " 'either to gratify his malice or shield himself from punishment, or in the hope of receiving clemency by turning State's evidence.' " Brown, supra, 281 Md. at 244, 378 A.2d at 1107 (quoting Watson, supra, 208 Md. at 217, 117 A.2d at 552). This is a fine example of "the facts talking through the party rather than the party talking about the facts." Honick, supra, 10 Md.App. at 717, 272 A.2d at 408.

Consequently, we hold that the witnesses' testimony as to Mr. Morris's excited utterance wherein he implicated Howard Turner in the participation in the crime against Vernon Hoshall, is sufficient corroboration of Mr. Morris's in-court testimony that the appellant shot the victim. Hence, the trial...