White v. State

• Decision Date: 01 September 1982
• Docket Number: 82,Nos. 20,s. 20
• Citation: 481 A.2d 201,300 Md. 719
• Parties: Derrick Quinton WHITE v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 719

300 Md. 719

481 A.2d 201

Derrick Quinton WHITE v. STATE of Maryland.

Nos. 20, 82, Sept. Term, 1982.

Court of Appeals of Maryland.

Sept. 13, 1984.

Gary W. Christopher and George E. Burns, Jr., Asst. Public Defenders (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen. and Deborah K. Handel, Asst. Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

RODOWSKY, Judge.

Derrick Quinton White (White) was convicted by a jury in the Circuit Court for Baltimore County of capital murder and other offenses. The jury also determined that the sentence should be death. On this consolidated appeal and sentence review pursuant to Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 414 we shall affirm both the verdict and the sentence.

On August 14, 1981 White, then age 18, shot and killed Victor Joseph Furst (Furst), age 61, during an attempt to rob Furst of the moped he was riding. The State proved the following facts, in large part through White's accomplice, Gerard Eugene Anthony (Anthony), also age 18.

White and Anthony each lived on the west side of Baltimore City. They had known one another for about two months prior to the murder. Neither was employed. They had discussed getting some money illegally. On the morning of August 14 Anthony took his father's loaded revolver from their home and met White nearby. Anthony put the gun in the glove compartment of the red 1981 Pontiac T1000 which White had been driving. With Anthony at the wheel of the car, they drove into western Baltimore County. White directed them to a tile store at Rolling Road and Route 40 West which they intended to rob. With White in possession of the gun, they entered the store; but it was too crowded and they left.

Anthony resumed driving with White in the front passenger seat giving directions to another store in the vicinity to rob. On their way they drove by Furst, who was riding a new moped in the opposite direction. White told Anthony that it was a good model moped, that an old man was riding it and that they were going to get it. Anthony said they should forget about the moped and "go to the money." White persisted and said that the moped would fit in the back of the Pontiac. Anthony turned the car around. They pursued the man on the moped and caught up to him in the 7400 block of Dogwood Road.

As Anthony drove abreast of Furst, White pointed the gun out of the window on the passenger side at Furst. About five seconds later White fired, as Furst was turning his head away from the gun. Anthony immediately accelerated leaving Furst and the moped lying alongside the road. When Anthony asked "what the hell did he do that for," White said that "[Furst] looked like he wasn't going to stop." Furst died of a single gunshot wound which entered his chest from left to right and pierced the aorta.

Within one-half hour of the shooting the murderers were arrested nearby, in the Pontiac. Occupants of a car which had been proceeding toward the scene at the time of the crime described the red car and gave partial descriptions of its driver and passenger. At the time of arrest, the handgun, with one spent cartridge in the chamber and five live rounds in the cylinder, was recovered from the floor of the front passenger seat occupied by White.

White took the stand at the guilt or innocence phase of the proceedings, although he declined to testify at the sentencing phase. He denied being with Anthony at the time of the murder. White's story was that he had met Anthony and another youth, known to White only as "Tony," in Baltimore City and had gotten a ride with them in Anthony's car to a pizza parlor in western Baltimore County where White unsuccessfully applied for a job. When Anthony returned sometime later to drive White back into the city, Tony was no longer in the car and Anthony told White that they had "popped" someone.

I

Before addressing appellant's points, we must decide whether there is a final judgment. Section 414(a) provides that "[w]henever the death penalty is imposed, and the judgment becomes final, the Court of Appeals shall review the sentence on the record." Under subsection (d) any appeal from the verdict is consolidated in this Court with the sentence review.

The State charged White, separately from Anthony, in a five-count criminal information alleging murder in the first degree, attempted robbery, use of a handgun in the commission of a crime of violence, unauthorized use of the Pontiac ¹ and possession of marijuana. ² The jury found White guilty on each count and, in response to a special interrogatory, also found that White shot and killed Furst in an attempt to rob Furst of his property. As reflected by the docket entries, the court subsequently granted a motion for judgment of acquittal on the unauthorized use count. Approximately six weeks after the jury had determined the sentence of death on count one, White's motion for a new trial was heard, and overruled. Thereupon the circuit court signed a death warrant, execution of which was immediately stayed. No sentence was imposed on the other counts.

The charge of attempted robbery merged into the murder conviction. See State v. Frye, 283 Md. 709, 393 A.2d 1372 (1978); Newton v. State, 280 Md. 260, 373 A.2d 262 (1977). The handgun charge, however, did not merge. See Art. 27, § 36B(d) and Whack v. State, 288 Md. 137, 416 A.2d 265 (1980), appeal dismissed, 450 U.S. 990, 101 S.Ct. 1688, 68 L.Ed.2d 189 (1981). Nor did the marijuana charge. As to the offenses other than murder the docket entry in relevant part reads: "No Sentence imposed as to Balance of Counts. Court costs waived. Commit sent." We interpret this docket entry to mean that sentence was suspended generally on the handgun and C.D.S. possession counts.

Under these circumstances, Md.Code (1974, 1984 Repl.Vol.), § 12-301 of the Courts and Judicial Proceedings Article (Courts Article) applies. Its last sentence specifies that "[i]n a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended." And see Lipscomb v. State, 223 Md. 599, 601, 165 A.2d 918, 920 (1960). We hold that the judgment in this case has become final, within the meaning of Art. 27, § 414(a) as well as under § 12-301 of the Courts Article so that this Court has jurisdiction to proceed.

II

A

The first of appellant's challenges to the guilty verdict attacks the denial of his challenge for cause to a prospective juror, John J. Cardarelli (Cardarelli). After a voir dire in open court, in which the relatively standard questions in any criminal case had been asked, the prospective jurors were individually questioned in chambers concerning their attitudes toward the death penalty. During his individual voir dire Cardarelli volunteered that he thought police officers could persuade him over someone who had been accused of a crime. His answers to further questioning by the State convinced the trial judge that Cardarelli was not disqualified for bias, so that White's motion to strike Cardarelli for cause was denied.

After the better part of two days a pool of fifty eligible jurors had been assembled. As the court called individual talesmen to the box the parties exercised their peremptory challenges, ten for the State and twenty for White. See Maryland Rule 753 a 1. ³ When twelve talesmen had cleared the first round of peremptory challenges, the State had utilized five of its strikes and White ten of his. Two alternate jurors were then selected, a process for which additional peremptory challenges are allowed, see MD.R. 753 a 3, and with which we are not concerned here.

The parties then, per Rule 753 b 4, began the exercise of their remaining peremptory challenges against the prospective jurors who were in the box and against those called forward from the general body of veniremen as substitutes. During this process Cardarelli was called forward and White used his thirteenth peremptory challenge to exclude Cardarelli. When the State had exercised eight peremptories and White nineteen, the following colloquy took place:

THE COURT [addressing White's counsel]: And then you have one more peremptory challenge that you may exercise at this time as to the twelve jurors.

[WHITE'S COUNSEL]: I'll not exercise, Your Honor.

THE COURT: All right.

[WHITE'S COUNSEL]: Jury panel[']s acceptable as constituted. I still have one challenge to the alternate.

The State then struck the talesman in seat No. 6, White exercised his last peremptory to exclude the first substitute called and the No. 6 seat was filled by the next person from the list. The State used its last peremptory against prospective juror No. 3 and another person was seated there. Counsel for White gave no indication that he would have used a peremptory challenge against either of the last two jurors seated if the defense still had a strike to exercise.

Just before the jury was sworn the court addressed defense counsel.

[D]o you have any objection you wish to register, you have made an objection when the Court has excused or failed to excuse a juror for cause. That's already on the record. Do you have any objection to the proceeding by which this jury was empaneled. I tried to honor everybody's wishes.

[WHITE'S COUNSEL]: No, I have no objection to any of that. My only objection would be that I felt Harris should have been called, if you insist she be struck for cause. [Emphasis added.]

THE COURT: The record clearly indicates that Vanessea Harris was challenged for cause. It was done over your objection.

[WHITE'S COUNSEL]: Yes, Your Honor.

Clearly the claimed bias of Cardarelli did not influence the verdict because Cardarelli did not serve on the jury; but White used a peremptory challenge to keep Cardarelli off the jury and White exhausted all of his strikes before...