Williams v. State
| Decision Date | 03 January 1974 |
| Docket Number | No. 195,195 |
| Citation | 313 A.2d 700,19 Md.App. 582 |
| Parties | Hercules WILLIAMS v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Joseph H. Thomas, Jr., Baltimore, for appellant.
Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., for Baltimore City, Dominic Iamele, J. Carroll Holzer, and Howard B. Gersh, Asst. State's Attys., for Baltimore City, on the brief, for appellee.
Argued before ORTH, C. J., and THOMPSON and MENCHINE, JJ.
On July 27, 1972 Alonzo Alston 'died of a combination of shotgun and gunshot wounds to the head.' He had been shot to death in the living room of his home at 5100 Queensberry Avenue after opening his front door to admit two men. The appellant and two others, Eugene Allen and Jerome Benjamin MacArthur, jointly were indicted for the first degree murder of Alston. The appellant and three others, Eugene Allen, Jerome Benjamin MacArthur and Maurice Wilkerson, jointly were indicted for conspiracy to murder Alston.
The appellant Hercules Williams, separately tried before a jury in the Criminal Court of Baltimore, was convicted of murder in the first degree and of conspiracy to murder. Consecutive life sentences were imposed for the offenses.
Appellant suggests the following errors by the trial court that require reversal:
1. Compelling sequestration of the jury during the six day trial.
2. Permitting the witness Spencer to testify.
3. Permitting the witness MacArthur to testify.
4. Refusal to grant appellant's motion for judgment of acquittal.
5. Granting State's motion to depose the witness Mills also known as Toles.
Appellant contends we think without just cause, that sequestration of the jury during the six-day trial was in violation of his constitutional rights under the Fifth and Sixth Amendments of the Constitution of the United States. He has referred us to no case supporting such view and we have found none.
It seems clear that under the common law, sequestration of the jury was required. See Note 21 A.L.R.2d 1088, et seq. In any event Article 51, § 22 is dispositive here. That section reads as follows:
'The jurors sworn to try a criminal action may at any time before the submission of the case to the jury, in the discretion of the court, be permitted to separate or may be kept in charge of proper officers.'
No abuse of discretion has been shown here.
Prior to the commencement of trial, all witnesses were excluded from the courtroom pursuant to Rule 753. In the course of the cross-examination of the witness Spencer, it was developed that Spencer had gone over his own prior statement with one of the Assistant State's Attorneys just before he began his testimony at the trial. Immediately, defense counsel said: '* * * I am going to move to strike all of this man's testimony and the Jury be instructed to disregard his entire testimony, and my reason is that the witnesses were sequestered.'
Further proceedings before the jury were suspended and testimony was taken out of their presence as to the nature of the communication between the witness and counsel for the State. At the conclusion of that testimony the trial court said:
Upon that finding of fact that trial court denied the motion, relying upon Conway v. State, 15 Md.App. 198, 289 A.2d 862, cert. den., 266 Md. 735. We agree that Conway is controlling. There, under facts strikingly similar to the subject case, we held that Rule 753 did not prevent communications relating exclusively to prior statements of the witness himself. We pointed out at page 216, 289 A.2d at page 872:
'The primary purpose of the Rule is to prevent prejudice and to insure against, insofar as possible, one prospective witness from being taught, schooled or prompted by hearing another witness' testimony.'
Appellant sought to prohibit use of one Jerome B. MacArthur as a witness for the State. The trial judge refused to do so. For clear understanding of the motion and the ruling rejecting it, a somewhat extended explanation of the circumstances and conditions surrounding the prior taking of the deposition of another witness is required.
On October 12, 1972 the State had filed in the Criminal Court of Baltimore a document titled 'State of Maryland v. Hercules Williams, Jr., et al.' In the form of a motion to take the deposition of M's Castile Mills also known as Toles, the State alleged in substance the following: that Alonzo Austin (sic) had been murdered; that the perpetrators of the crime may have been Hercules Williams, Jr. and Eugene Allen; that Castile Mills also known as Toles had furnished information to police relating the homicide to Alonzo Austin (sic) and to the escape of Eugene Allen from a place of lawful confinement; that Mills was a necessary and material witness to those offenses who believed 'that her life and the lives of her children will be under constant threat during the time that Hercules Williams, Jr. is awaiting trial'; that two days previously, the nine year old son of the proposed deponent had been chased into the house by a man who had demanded entry, saying that 'he was there to kill somebody and wasn't going to leave until he did'; that it was the belief of the State that the life of Mills was in great danger because she had become a witness for the State; that the threat to her safety would be removed if it was known that her testimony by way of deposition could be used at a trial if she was not then available as a witness. The motion then recited that counsel for Hercules Williams and for James (sic) MacArthur had been advised and waived notice of the taking of deposition under Rule 727 c and further agreed that the 'taking of the deposition on the 12th day of October is reasonable under the circumstances.' Written stipulations to such effect were executed by Hercules Williams and Jerome MacArthur.
Attached to and incorporated within the motion by reference, was an affidavit (previously filed in another case) by Arrie W. Davis, Esquire, former Assistant State's Attorney, alleging that Hercules Williams had harmed or threatened to harm witnesses in that other case.
No indictment had been found against either Hercules Williams or Jerome B. MacArthur at the time the deposition was to be taken, although presentments as to each for murder and conspiracy to murder then had been signed by the Grand Jury foreman.
On October 12, 1972 the deposition of the witness was taken. Present were Messrs. Leslie Gladstone, Howard Gersh and Dominic Iamele for the State; Hercules Williams, with Joseph H. Thomas, Jr., Esq., as attorney in his behalf; and Jerome B. MacArthur, with William H. Murphy, Jr., Esq., as attorney in his behalf.
Prior to the commencement of the deposition counsel for Williams said:
Such was the background when the State called Jerome B. MacArthur as a witness at the substantive trial.
The appellant contends that the attendance of MacArthur during the course of the deposition of the witness was in violation of his requested sequestration of witnesses; that the testimony of MacArthur indelibly was influenced by the fact of his attendance; and that extreme prejudice to the appellant had resulted therefrom. The State's position was and is that Rule 727 b authorized, and constitutional due process compelled, the attendance of MacArthur, because he was a codefendant. Rule 727 in appropriate part reads as follows:
'b. Presence of Accused.
If a deposition is taken at the instance of the State, the accused shall have the right to be present at the taking thereof and if in custody, shall be produced at the examination and kept in the presence of the witness during the examination by the officer having the defendant in custody, * * *.'
The State points out that the deposition could not otherwise have been used against MacArthur if such use became permissible under sub-section e of the rule. (See Collins v. State, 12 Md.App. 239, 278 A.2d 311) The State consistently has maintained that when the deposition was taken it was not known that MacArthur would not be prosecuted, nor was it then known that he would be used as a State's witness in the prosecution of Williams.
In a second string to its bow, the State also contends that even if the attendance of MacArthur at the deposition was in violation of Rule 753, (relating to the exclusion of witnesses) his testimony would not be prohibited because no prejudice to the defendant resulted from failure to observe the rule.
Out of the presence of the jury, the trial judge heard arguments of counsel and took the testimony of MacArthur before ruling upon the exclusion request. The trial judge thereafter made two determinations of fact. He said:
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