Williams v. State

• Decision Date: 01 September 1995
• Docket Number: No. 1334,1334
• Citation: 110 Md.App. 1,675 A.2d 1037
• Parties: Paul Andrew WILLIAMS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 1

110 Md.App. 1

675 A.2d 1037

Paul Andrew WILLIAMS v. STATE of Maryland.

No. 1334, Sept. Term, 1995.

Court of Special Appeals of Maryland.

May 7, 1996.

Deanna L. Zakes (Stephen E. Harris, Public Defender and John L. Kopolow, Asst. Public Defender, on the brief), Baltimore, for Appellant.

Diane Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Patricia Jessamy, State's Atty. for Baltimore City, on the brief), Baltimore, for Appellee.

Argued before BLOOM, DAVIS and EYLER, JJ.

EYLER, Judge.

A jury, sitting in the Circuit Court for Baltimore City, found Paul Andrew Williams, appellant, guilty of: Count one, malicious biting with intent to mark or disfigure; Count two, malicious biting with intent to maim, disfigure, or disable; Count three, robbery; and Count four, possession of controlled paraphernalia. The circuit court sentenced appellant to twenty-nine years of incarceration as follows: four years' imprisonment for Count four; ten years' imprisonment for Count three, to run consecutively to the sentence imposed for Count four; and, for Counts one and two, two fifteen year terms of imprisonment, to run concurrently to each other and consecutive to Counts three and four respectively. Appellant noted an appeal to this Court, wherein he presents six issues for our consideration and resolution.

1. Did the trial judge err in admitting evidence of the alleged assault's mental, psychological and behavioral effects upon the victim?

2. Did the trial judge's refusal to rule on the admissibility of Appellant's prior convictions before he made his election to testify or remain silent improperly coerce his decision not to testify?

3. Was the evidence insufficient to sustain the conviction for robbery?

4. Was the evidence insufficient to sustain the convictions for malicious biting with intent to mark or disfigure and malicious biting with intent to maim[,] disfigure[,] or disable?

5. Did the trial judge err when, despite the State's discovery violation, he refused either to exclude the testimony of the State's expert witness or to grant a continuance sufficient to enable the defense to find an opposing expert?

6. Must either malicious biting with intent to mark or disfigure or malicious biting with intent to maim, disfigure, or disable be merged?

After reviewing the record, we are convinced that the circuit court committed reversible error when it improperly advised appellant that the circuit court would not review, outside of the jury's presence, the admissibility, for impeachment purposes, of appellant's prior convictions unless appellant first irrevocably "elected" to waive his Fifth Amendment right against self-incrimination by being sworn in front of the jury. Although we are reversing the circuit court's judgments as discussed in II infra, we shall address several of appellant's other contentions in order to guide the trial judge in the event of retrial and to avoid the expense and delay of another appeal. See Bedford v. State, 317 Md. 659, 668, 566 A.2d 111 (1989); Midgett v. State, 216 Md. 26, 38, 139 A.2d 209 (1958).

James Caple, the victim of appellant's attack, testified at trial. Caple, who was running an errand for his daughter on September 23, 1994, recounted to the jury what transpired on that morning.

Well, I had dropped my, taken my daughter to work, and she had asked me to stop there to pay her cable bill for her. When I stopped to pay the cable bill, I parked the car maybe three cars away from the cable company, and I walked up to the cable building, and this gentlemen [appellant] was there trying to sell a cable box. So, he asked me [if I wanted to purchase the] cable box. I told him no, and so a couple of more peoples [sic] was walking out at the time. He tried to sell it to them and they wouldn't buy it. So what he did is when I moved into the line, I got into the line to pay the bill. It was a lady in between me and him, and he came back around behind where I was, but he couldn't get behind me, so he moved to a window where I had to pay the bill at, and he stood there like he was writing something down. And as soon as I walked up to walk out to pay him [the cable company representative], I had the money, the bill in one hand and the bill in the other hand [sic], he walked up, too, but I thought it was somebody who knew one of my sons or something, because he said, give me the money, and I figured it was somebody playing with me, because peoples [sic] is always approaching me, you know, young guys, and then he grabbed me and pushed me, and when he pushed, he had to walk between some ropes, and I fell, and he put his feet on me like to kind of keep me down to get the money from me, and I got up and throwed him off of me, and got up. And when I got up, he started biting me. He bit me up side of my face and bit my finger, this finger here almost in two, and bit on this, these marks here is where he bit me. I had a mark on my face. And that's about the size of what he did.

As a result of the attack, Caple lost significant use of his ring finger; in fact, he testified that he no longer can wear a ring on that finger. He testified that he had in his hand $60 to $70, which tore in half during his struggle with appellant; Caple retained one half of the money and appellant the other when bystanders separated them. Over appellant's objection, Caple testified as to the psychological impact on his life caused by appellant's attack.

Other eyewitnesses testified at trial in substantial conformity to Caple's recitation regarding the aforementioned events. No one testified that appellant, who, in his opening statement alluded to his history of seizures, ¹ appeared to be in the throes of a seizure either before, during, or after the attack. The one expert who testified at trial, Frank Eisenberg, M.D., explained to the jury that organized action (e.g., speech and motor activity) does not take place during a seizure. ²

[I]f you remember[,] the medical definition of a seizure disorder is the disorganized firing of neurological roots in the brain. The one criteria for seizure is that the firing is disorganized. If there's any activity, if there's any motor activity or if there's any behavior, if there's any speech, if there's any sort of action directed by speech that even gives a glimmer of being organized, it is not a seizure. No question, no problem, it's been 20 years that they [the medical community] have been debating this, and there's no disputes. Not since 1973 when it was decided in this country that that will not be called a seizure.

We shall discuss additional facts as warranted.

I.

During the motions hearing prior to trial, appellant brought several issues to the circuit court's attention. One of those issues pertained to the psychological effect of the attack upon Caple. The circuit court denied appellant's motion concerning testimony to be elicited at trial from Caple and his daughter describing the effect of the attack on Caple's mental and psychological state.

At trial, Caple and his daughter testified, respectively, over appellant's objection, to the impact that appellant's attack had on Caple's psyche. The circuit court admitted the evidence based on its conclusion that Maryland Code, Article 27, §§ 386 encompassed mental as well as physical disability.

THE COURT: 86 is the intent to disable, and it says, or disable and I believe that that's broad enough to include a mental disability as well as a physical disability. I have looked at the annotations, and counsel have not brought my attention to any other annotation.

. . . . .

I think the way the statute is written it could include both ph[ys]ical and mental....

Appellant contends that the circuit court's reading of § 386 was in error and that the circuit court's ruling on this issue effectively allowed the State to introduce victim impact evidence normally admissible [if at all] only in sentencing proceedings. ³ Appellee, on the other hand, suggests that § 386 could reasonably be interpreted to include mental disability. As a fallback position, appellee submits that any error committed by the circuit court was harmless beyond a reasonable doubt because, among other things, the circuit court instructed the jury that the crime required an intent to cause physical injury; the jury was instructed not to be "swayed by sympathy, prejudice or public opinion;" and there was overwhelming evidence of appellant's guilt.

Our inquiry begins with an examination of Article 27, § 386.

If any person shall unlawfully shoot at any person, or shall in any manner unlawfully and maliciously attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut or wound any person, or shall assault or beat any person, with intent to maim, disfigure or disable such person, or with intent to prevent the lawful apprehension or detainer of any party for any offense for which said party may be legally apprehended or detained, every such offender, and every person counselling, aiding or abetting such offender shall be guilty of a felony and, upon conviction are subject to imprisonment for not more than 15 years.

Finding no explicit or implicit reference to psychic injury in § 386, we turn to cases interpreting that section.

Judge Orth, writing for the Court of Appeals in Hammond v. State, 322 Md. 451, 588 A.2d 345 (1991), concluded that the General Assembly did not change the common law requirement that the maiming, disfigurement, or disablement spoken of in § 386 be permanent. In reaching that conclusion, Judge Orth detailed the legislative and common law history of §§ 384, 385, and 386. In relevant part, he stated:

[S]ection 386 is one of a package of three statutes grouped under the subtitle "Maiming" in Article 27. The other two are now codified as §§ 384 and 385. The statutes stem from the early English common law offense of mayhem....

It is apparent on the face of § 385 that it...