Walker v. State, 1608

Citation452 A.2d 1234,53 Md.App. 171
Decision Date06 December 1982
Docket NumberNo. 1608,1608
PartiesRicky Arvin WALKER v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

W. Michel Pierson, Assigned Public Defender, Baltimore, for appellant.

Ann E. Singleton, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and Ara Crowe, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before MOYLAN and LISS, JJ., and J. FREDERICK SHARER, Special Judge.

MOYLAN, Judge.

The review of the four convictions in this case is routinely unremarkable; the review of the four sentences, however, presents a series of intriguing problems involving the merger of offenses, the legitimacy of the open-ended common law sentence, the tangled relationship between the common law crime of attempt and the statutory aggravated assaults, and finally the impact of those statutory aggravated assaults upon common law assault. The appellant, Ricky Arvin Walker, was convicted by a Baltimore City jury, presided over by Judge Peter D. Ward, of (1) attempted first-degree rape, (2) burglary, (3) common law assault, and (4) openly carrying a dangerous and deadly weapon. Judge Ward sentenced the appellant to four consecutive terms: (1) life imprisonment for the attempted first-degree rape, (2) twenty years for the burglary, (3) twenty years for the assault, and (4) three years for carrying a deadly weapon, for a total of life plus forty-three years.

The Convictions

The three appellate contentions dealing with the legitimacy of the convictions are easily disposed of:

(1) That the testimony of two eyewitnesses was so contradictory as to warrant a dismissal of the charges;

(2) That there was no probable cause to justify the warrantless arrest of the appellant and that, as a result, all evidence seized as an incident of that arrest should have been suppressed;

(3) That the trial judge improperly responded to a question from the jury.

A. The Effect of Contradictory Testimony (If Any)

The appellant's contention with respect to the testimony of two State's witnesses being so contradictory as to render it completely unworthy of belief, is a contention raised at his express request. It is clear that he is seeking to rely upon Kucharczyk v. State, 235 Md. 334, 201 A.2d 683 (1964), although he does not mention Kucharczyk by name or cite any other case as authority for his proposition of law. The contention is clearly without merit. A brief discussion of the State's evidence, nonetheless, will serve to provide a factual setting for the other contentions (including the more significant contentions involving the sentencing) that follow.

The initial witness for the State was the victim herself, Norva Lee Burroughs. On the evening of March 14, 1981 she checked to see that her children were asleep, locked the doors of her home at 2738 Loyola Southway, and then fell asleep in her own bedroom while watching the 11 p.m. news. She was prodded awake by a man wearing a green and yellow ski mask and a dark jacket. He was standing over her with a knife in his hand. He ordered her to get out of bed and to remove her clothes. His pants were down and he was wearing green underwear. The only light available in the room was from the television set, which was still playing.

As the victim was in the act of taking off her nightgown, she grabbed for the knife and began to struggle with her assailant. He ordered her to shut up. She was beaten, kicked, and knocked to the floor. As she began to yell, he ordered her to shut up again. She was beaten in the face and cut on the leg and hand. The resistance was, however, successful, because the assailant ultimately fled from the bedroom. The victim never saw her attacker's face, since the ski mask remained on during the entire incident. She remembered finding a telephone and calling the police. She suffered a laceration of the left hand, a fractured nose, and a fractured jaw. She also testified that there were two lights in the hallway outside her bedroom and that they both were on. She had been expecting a friend, Rolley Henry, but the door to her home was locked.

The first State's witness who could make a positive identification of the appellant was Washanna Washington, the thirteen-year-old daughter of the victim. She was awakened by her mother calling her name. Initially, she tried to use the telephone but could not get a dial tone. At that moment, she heard the doorbell ring and went to answer the door. At the door was the friend whom her mother was expecting, Rolley Henry, known as "Tree." Washanna alerted "Tree" to danger and told him to hurry upstairs. She testified that a bright light was on over the stairwell. In a few moments, she observed "Tree" and the man she identified as the appellant struggling. She was standing approximately fifteen feet from the site of the struggle. She had known the appellant from earlier occasions when she had seen him in the neighborhood. He lived across the street. She saw "Tree," in the course of the struggle, pull the ski mask from the appellant's face. She also observed that the appellant was wearing a dark pea jacket and dark pants. Washanna ran from the house to a nearby pay telephone and called the police.

The other identifying witness was Rolley "Tree" Henry. He testified that he rang the doorbell and was admitted by Washanna at some time between 11 p.m. and midnight. As he rushed upstairs, he observed a man coming out of the victim's bedroom, wearing a mask, a pea coat, and dark pants. As they began to struggle, the intruder yelled, "Do you want to die?" Rolley Henry had on earlier occasions seen the appellant's brother, whom he knew, wearing the same ski mask that the intruder was wearing that night. In the course of the struggle, the ski mask came off. Rolley Henry made a positive identification of the appellant as the intruder with whom he was struggling. At one point, Mr. Henry threw the appellant down the steps. The appellant ran outside and the struggle then continued on the porch. After the appellant bit Mr. Henry's hand, the appellant was able to break loose and run. Mr. Henry chased him into an alley but ultimately lost sight of him.

The alleged inconsistency, relied upon by the appellant, was between Washanna Washington and Rolley Henry. Washanna Washington had testified that the lights in the hallway were on as Mr. Henry rushed upstairs. Initially, Mr. Henry testified that the lights were not on as he rushed upstairs. On cross-examination, however, he remembered that they were, in fact, on. Under the circumstances, we do not even see a contradiction between the two State's witnesses. In no event, would a contradiction on such a peripheral matter be fatal, even if it were there.

With respect to an arguable contradiction between Washanna Washington and Rolley Henry as to whether the light over the stairwell was on, Bailey v. State, 16 Md.App. 83, 96, 294 A.2d 123 (1972), is controlling:

"Nor does Kucharczyk apply where a State's witness is contradicted by other State's witnesses. Scott v. State, 2 Md.App. 709, 713-715 ; Tillery v State, 3 Md.App. 142, 148 ; Gunther v. State [4 Md.App. 181, 241 A.2d 907], supra; Hunt v. State [12 Md.App. 286, 278 A.2d 637], supra."

As to an arguable contradiction between Rolley Henry's testimony on direct examination and his amended testimony on cross-examination as to whether the light was initially on, Bailey v. State, supra, at 16 Md.App. 96, 294 A.2d 123, is again controlling:

"Nor does Kucharczyk apply where a witness's trial testimony contradicts itself as to minor or peripheral details but not as to the core issues of the very occurrence of the corpus delicti or of the criminal agency of the defendant.... Nor does Kucharczyk apply where a witness appears initially to have contradicted himself but later explains or resolves the apparent contradiction."

There is an additional answer to the appellant's Kucharczyk-based claim. The appellant was arrested by the police at approximately midnight, minutes after the crime occurred, as he stood in a basement doorway of a house in the 2700 block of Loyola Southway. This was the very block where the victim resided and where the crime occurred. A hovering police helicopter had alerted the arresting officer to the presence of the suspect at that location. When the police arrested the appellant, he was wearing a dark-colored pea coat and dark pants. There were grass stains and sand on his clothing and a cut on his hand. Following his arrest, his clothes, including his underclothes, were seized. The victim identified the clothing taken from the appellant as the clothing her assailant was wearing, right down to the green underwear. Once again, Bailey v. State, supra, at 16 Md.App. 96-97, 294 A.2d 123, is controlling:

"Nor does Kucharczyk apply where a witness does contradict himself upon a critical issue but where there is independent corroboration of the inculpatory version."

The final response to the appellant's claim is that even a classic Kucharczyk situation does not deal with the exclusion of testimony but only with the ultimate legal sufficiency of the State's entire case. The conclusion to our discussion of Kucharczyk in Bailey v. State, supra, at 16 Md.App. 97, 294 A.2d 123, is apposite here:

"In each of those situations, our system of jurisprudence places reliance in the fact finder to take contradictions or equivocations properly into account and then to make informed judgment in assessing a witness's credibility and in weighing that witness's testimony. Even in a pure Kucharczyk situation, the ultimate resolution is solely in terms of measuring the legal sufficiency of the State's total case and not in terms of the exclusion of the contradictory witness's testimony."

It is clear that there was ample evidence in the case to permit a jury to be fairly convinced beyond a reasonable doubt of the appellant's guilt....

To continue reading

Request your trial
107 cases
  • State v. Ruiz-Pacheco
    • United States
    • Supreme Court of Connecticut
    • July 9, 2020
    ...a single transaction into multiple offenses"), cert. denied, 444 U.S. 827, 100 S. Ct. 51, 62 L. Ed. 2d 34 (1979) ; Walker v. State , 53 Md. App. 171, 201, 452 A.2d 1234 (1982) ("If the [l]egislature intended two crimes arising out of a single act to be punished separately, we defer to that ......
  • Morgan v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 8, 2021
    ...Lenity," by which we give the defendant the benefit of the doubt. Quansah , 207 Md. App. at 645, 53 A.3d 492 (citing Walker v. State , 53 Md. App. 171, 201, 452 A.2d 1234 (1982) (other citations omitted)). In Quansah's case, it was unclear whether the jury convicted him of violating the pea......
  • Stebbing v. State, s. 35
    • United States
    • Court of Appeals of Maryland
    • April 16, 1984
    ...law misdemeanor in Maryland. See Lightfoot v. State, 278 Md. 231, 237 n. 4, 360 A.2d 426, 429 n. 4 (1976); Walker v. State, 53 Md.App. 171, 185-86, 452 A.2d 1234, 1242 (1982), cert. denied, 296 Md. 63 (1983); Gray v. State, 43 Md.App. 238, 239, 403 A.2d 853, 854-55, cert. denied, 286 Md. 74......
  • Dillsworth v. State, 36
    • United States
    • Court of Appeals of Maryland
    • September 1, 1986
    ...50 Md.App. 717, 439 A.2d 1121 (1982) ], where one offense is necessarily the overt act of a statutory offense ( Walker [v. State, 53 Md.App. 171, 452 A.2d 1234 (1982) ], and where one statute, by its very nature, affects other offenses because it is designed to effect multiple punishment (W......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT