Wagner v. State

• Decision Date: 03 January 2005
• Docket Number: No. 2034,2034
• Citation: 864 A.2d 1037,160 Md. App. 531
• Parties: Russell Wayne WAGNER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

864 A.2d 1037

160 Md. App. 531

Russell Wayne WAGNER v. STATE of Maryland.

No. 2034, September Term, 2002.

Court of Special Appeals of Maryland.

January 3, 2005.

Stacy W. McCormack (Stephen E. Harris, Public Defender on the brief), Baltimore, for Appellant.

Shannon E. Avery (J. Joseph Curran, Jr., Atty. Gen. on the brief), Baltimore, for Appellees.

Panel: MURPHY, C.J., THEODORE G. BLOOM, (Retired, specially assigned), STEPHEN P. JOHNSON, (Specially assigned), JJ.

MURPHY, Chief Judge.

In the Circuit Court for Washington County, a jury (Hon. Fred C. Wright, presiding) convicted Russell Wayne Wagner, appellant, of two counts of first degree premeditated murder, two counts of first degree felony murder, and one count of burglary.¹ Appellant now presents four questions for our review:

I. DID THE TRIAL COURT ERR IN ADMITTING MITOCHONDRIAL DNA EVIDENCE LINKING APPELLANT TO A GLOVE FOUND NEAR THE CRIME SCENE?

II. DID THE TRIAL COURT ERR WHEN, IN RESPONSE TO A QUESTION FROM THE JURY, IT ENGAGED IN A DISCUSSION WITH DEFENSE COUNSEL IN FRONT OF THE JURY, REGARDING THE COURT'S WILLINGNESS TO ALLOW MEMBERS OF THE JURY TO COME TO COURT EARLY TO LOOK AT THE EXHIBITS?

III. WAS THE EVIDENCE LEGALLY INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTIONS?

IV. DID THE TRIAL COURT ERR IN IMPOSING A LIFE SENTENCE FOR APPELLANT'S CONVICTION OF FIRST DEGREE FELONY MURDER OF WILDA DAVIS GIVEN THAT APPELLANT WAS ALSO SENTENCED TO A LIFE SENTENCE FOR THE PREMEDITATED MURDER OF WILDA DAVIS?

We answer "no" to questions I, II and III, and "yes" to question IV. We shall therefore vacate the sentences imposed on the felony murder convictions, but otherwise affirm the judgments of the circuit court.

Background

On February 15, 1994, Daniel and Wilda Davis were found dead in their home on West Wilson Boulevard in Hagerstown. The victims had been bound at their wrists and ankles and had been stabbed multiple times in the chest and back.²

On February 16, 1994, the victim's neighbor, Phyllis Carpenter, informed the police that during the morning of February 15, 1994, she discovered a work glove along the curb on a street near her home and had placed it on her back porch, intending to throw it away. Upon learning of the murders, however, she contacted the police.³ The glove was recovered from Carpenter's porch on the afternoon of February 16, 1994. That same day, investigating officers recovered a knife from a snowbank after another concerned citizen, Bobby Burnett, informed them that he saw what appeared to be a bloody knife in a snowbank near the front of his house.⁴

Detective William Rourke recovered the knife, and noticed blood on the blade. He also recovered the glove from Ms. Carpenter's back porch. Both the glove and the knife were sent to the FBI laboratory for processing. A single strand of hair was discovered on the glove, along with stains of blood that matched Mr. Davis' blood type. In 1996, appellant was charged with the murders of Mr. and Mrs. Davis. Appellant's first trial ended in a mistrial when the jury was unable to reach a verdict. During that trial, there was no physical or scientific evidence linking appellant to the scene of the crime. After the conclusion of that trial, however, mitochondrial DNA (mtDNA) testing was performed on a single strand of hair recovered from the glove found by Ms. Carpenter. During the retrial that resulted in the verdicts at issue in this appeal, the jury was entitled to accept all, part, or none of the State's evidence, which included the following testimony.

Dr. John Stewart, an expert in forensics, testified as to the scientific probability that appellant was the contributor of that genetic material, i.e. the hair. The victims' son, Vernon Davis, testified as follows. His parents kept a very clean house, ate supper early, and prepared for bed around 7:00 p.m. every night. They owned two rental properties for which they received rent payments in cash. They kept the cash in their home, and used their bank account to deposit their Social Security checks. After his parents were murdered, he and his two sisters, Vivian Monger and Virginia Davis, each inherited between $50,000.00 and $60,000.00.

Vivian Monger, the victim's daughter, testified as follows. She talked to her mother on the phone every day and saw her once a week. On February 14, 1994, when talking to her mother on the phone, she mentioned that her husband, Ted Monger, would come by to pick up some potato salad that evening. At 7:10 p.m., Ted arrived home without the potato salad. Vivian called her mother back to let her know that he had forgotten to stop by, but there was no answer.

Virginia Davis, the last of the victims' children to speak to their mother, testified as follows. She called her parents a little after 7:00 p.m. to ask how their Valentine's Day had been. While she was on the phone with her mother, someone arrived at her parents' door. Mrs. Davis said, "Someone's at the door," at which time she put the telephone down. Virginia heard some talking, but could not make out what was said, except that she could hear her father's voice, which was sometimes loud because he had hearing problems. Virginia heard her father say, "I know what you want. You want gas." Mrs. Davis then came back to the telephone and told her daughter she would "talk to her later." During this conversation, Virginia did not detect concern or alarm in her mother's voice.

Lisa Smith, Virginia's granddaughter and the papergirl in the Davises' neighborhood, stopped at her great grandparents' house every day around 3:00 p.m. to deliver the newspaper. When she came by on February 15, 1994, she discovered their bodies and observed that their house was a mess.

Tina Robinette, who rented a small house from the Davises directly behind their house, testified that the Davises were like parents to her, that she paid her rent in cash, that Ted Monger occasionally did repairs for the Davises and that, on one occasion prior to the murder, appellant accompanied Ted when he came to fix her sink. She also testified that on another occasion, she saw Ted and appellant coming out of the Davises' backdoor.

Dr. Jeffrey Kercheval, a forensic scientist for the Hagerstown Police Department, testified as follows. When he arrived at the crime scene on February 15, 1994, the house was in disarray and the drawers were pulled out of the dressers. Pillowcases were missing from the pillows in the upstairs bedrooms. Mrs. Davis' empty wallet was sitting out on the kitchen table. There was also an empty bank envelope on the table. There was no paper currency found anywhere in the house. His investigation revealed that it would take approximately eight minutes to walk from the victims' house at 109 West Wilson Boulevard to 610 Chestnut Avenue, appellant's residence at the time of the murders. He later collected hair and blood samples from appellant and from everyone else who came in contact with the crime scene or with the evidence recovered from the scene.

On February 18, 1994, Detective Rourke went to the Big Lots store at the South End Shopping Center in Hagerstown, and purchased gloves that matched the glove recovered from Ms. Carpenter. From the store receipts provided by Big Lots, he determined that a pair of the same type of gloves had been purchased at 5:05 p.m. on February 14, 1994. Wayne Albright, a friend and coworker of appellant's, testified as follows. On February 14, 1994, he drove appellant to Big Lots after they got off from work. Appellant told Albright that he wanted to buy gloves for work. Prior to the murders, the knife recovered from Ms. Carpenter's porch had been in appellant's apartment. Appellant told him that Ted Monger, appellant's landlord at 610 Chestnut Avenue, and another man, had asked appellant to do "something," but appellant did not specify what they had asked him to do. Prior to the murders, appellant never seemed to have any money.

Albright's wife, Dawn, testified as follows. She had become friendly with appellant through her husband. She cashed appellant's checks for him because he did not have a bank account. In 2001, when appellant was incarcerated, she had a telephone conversation with him, during which (1) she asked him why he was taking the fall for others who committed the Davis murders, and (2) appellant told her that Billy Hassenbuhler, another of Monger's tenants, committed the murders while appellant was upstairs looking for money.

Karen Powell Minnich, a friend of appellant's in 1994, who also knew Ted Monger, Billy Hassenbuhler, and Chuck Harmon (an employee of Monger), testified as follows. She was "down and out" during that period of her life, and she "hung out" with the people who rented apartments from Monger at 610 Chestnut Avenue. On several occasions prior to the murders, appellant told her that Monger and Harmon wanted him to do something for them, but appellant did not specify what. She recalled that, in an earlier statement to the police, she stated that appellant told her that Monger was going to pay him to rob some older people.

On February 14, 1994, Minnich and her friend, Cathy, met appellant at the Off Square Lounge in Hagerstown. On this occasion, appellant appeared to be "stressed out." Although he usually bought beer using change, that night he had cash and bought beer for the three of them over the course of two hours. During the evening, appellant told Minnich "everything was taken care of ... I don't have to worry about money anymore....[,] I don't have to worry about rent anymore ... and Ted's taking care of it." A few days later, appellant told Minnich that he expected that they would try to pin the murders on him.

Robert Keedy testified as follows. He met appellant in a tavern in Hagerstown in 1997, and that on one occasion, appellant told Keedy that he had nothing to do with the murders, but that he had been upstairs "ransacking" and looking for money. Michael Crouse testified that he shared a jail...