Wilson v. State
| Decision Date | 27 February 1974 |
| Docket Number | No. 401,401 |
| Citation | 20 Md.App. 318,315 A.2d 788 |
| Parties | Thomas N. WILSON, Jr. v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
William H. Murphy, Baltimore, for appellant.
Mary Elizabeth Kurz, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty. for Baltimore City, Michael Mitchell and Barbara Daly, Asst. State's Attys. for Baltimore City, on the brief, for appellee.
Argued before POWERS, DAVIDSON and MOORE, JJ.
Convicted in a jury trial of second degree murder and sentenced to a term of 15 years, appellant, Thomas N. Wilson, Jr., contends (1) that the trial court's expressions of incredulity during the testimony of appellant's mother constituted reversible error, (2) that the testimony of a defense witness that on the night of the shooting the decedent asked him for a gun was improperly excluded, (3) that the sworn affidavits given to the police by two prosecution witnesses, called as the court's witnesses, were improperly received and the court then erred in failing to instruct the jury on their limited use; and (4) that at the hearing on appellant's motion for a new trial the court erred in refusing to consider the results of polygraph examinations, made after the conclusion of the trial, of appellant and his mother, as well as the testimony of the polygraph examiner, and in refusing to permit appellant to lay a foundation for such testimony.
We conclude that the third assignment of error must be sustained, and for this reason alone the conviction must be reversed and the case remanded for a new trial. We do, however, also consider appellant's other contentions for the guidance of the trial court on remand.
Appellant, age 21, shot and killed a neighborhood acquaintance, age 20, after an argument which took place on the street in July, 1972, in the 2600 block of West Forest Park Avenue in Baltimore at about 10:30 in the evening. The weapon used was his father's single barrel hunting rifle which appellant obtained from his parents' bedroom after an exchange of angry words between him and the victim. The theory of the defense was that the deceased was in possession of a gun and that the appellant, warned by his mother as they were leaving the scene of the confrontation, wheeled and ducked and fired at his antagonist, killing in self-defense.
With respect to the third assignment of error, the record discloses that on the day of trial the State presented a written motion requesting that the court call, as its own witnesses, three young men, eyewitnesses to the shooting, on the ground that both the witnesses and their parents had been intimidated, specifying instances of such intimidation, that the witnesses were 'terrified' and the State could not vouch for their veracity. Over objection, the motion was granted. 1
The court thereafter called the three witnesses, Alfred Tuck, 24, Mark Craig, 20, and Winslow Holman, 18. After 'direct' examination by the court, the three were then cross-examined by the State and the defense, in that order. During the State's cross-examination of Tuck and Craig, the court received in evidence, over objection by appellant's trial counsel, affidavits given by them to the investigating police officers during the early morning hours of July 11, 1972, following the shooting on the evening of July 10. Holman's affidavit was not offered.
Tuck's affidavit contains the following statement in response to a police officer's question as to what he knew about the shooting:
(as in the original)
During his direct examination by the court, Tuck responded to a question as to 'what happened' when appellant returned to the street:
Then:
'Q. Did you see it or hear it?
A. I heard it.
Q. Who had the gun?
A. I think it was Tommy.'
Upon objection, the court struck the last answer, cautioning the witness and asking the further question: 'What did you see?' To this, the witness replied:
'Q. Now, prior to hearing the shot, did you hear anybody say anything?
A. No, I didn't. I didn't pay that much attention, sir.'
The State, at the outset of its cross-examination of Mr. Tuck, had him identify his affidavit, including his signature and verification. The testimony then continued in part:
'Q. But you did see this defendant with the gun did you not?
A. Yes, at the time he returned.
Q. Well, at that time, that was the only gun you saw?
A. Right. That was, at the time.
Q. Those were the only two arguing in the street at that time, were they not?
A. Right. Right.
Q. Didn't you also tell the police officer that the deceased, Mr. Harris, told the defendant to go ahead and said, 'If you're going to shoot me, you had better kill me'?'
After a somewhat evasive response, the State pressed the witness:
'Q. Well, what exactly did he say?
A. He said something about, 'If you're going to shoot, shoot.' I didn't say that part about killing. I don't know. 'Shoot, if you're going to shoot."
On cross-examination by defense counsel:
'Q. If (the decedent had a gun in his possession), you didn't see it, is that it?
A. Right, sir.'
And on further cross-examination by the State:
'Q. You saw the shots fired by the defendant that hit Joe Harris, did you not?
A. What I was saying, what I'm saying, is that I was in conference with Eugene Banks, and my back was turned. I heard the shot fired, and we turned around, and we seen the defendant (decedent) laying on the ground.
'Q. But at that time, that morning after what happened, you had a fresher recollection of what, in fact, did happen, did you not?
A. I was still puzzled about certain things about what happened.
Q. It's also been some time, has it not?
A. Yes it has.
Q. Since this happened?
A. Yes, it is.
MR. MITCHELL: No further questions.'
The State thereupon offered the witness' affidavit in evidence. In response to vigorous opposition by the defense, the court stated in part:
When the witness Mark Craig testified, he was also interrogated by the court in the first instance and was thereafter cross-examined by the State and by defense counsel. He told the court that he had observed the two men arguing and appellant leave and return with a gun. He continued:
'A. . . . Well, next thing I know, the gun just went off somehow.
Q. Did you hear it?
A. Yes.
Q. And were you looking in the direction of where it went off?
A. I wasn't looking in the direction, but I saw where it went off.
Q. I see. Then you looked in that direction. What did you see?
A. Then, like I said, I heard a shot, and I turned around, and Arthur was laying on the ground. . . . Then the defendant went back down the street.'
Questioned by the State, Craig verified his signature on the affidavit given to the police. He was asked if it accurately described what had happened that evening and he replied, 'As far as I can remember, right.' The testimony continued in pertinent part 'Q. They started arguing as if they were going to fight or something? Do you remember saying that?
A. Well, yes.
Q. . . . Do you remember saying that Tommy walked away from Bunky, and said, 'I'll be right back . . . (and) came back with either a rifle or shotgun?
A. Yes.
Q. Do you remember also saying . . . to the police officers at the time that Arthur Harris said, 'Tommy, if you shoot me, you had better kill me?
A. Yes.
Q. Then you remember saying that then Tommy shot Bunky and ran down the street, and jumped into his car, and drove off in it?
A. Yes. There was a shot, and Tommy was the only one that I could see with a gun, was Tommy, and there was a shot.'
On cross-examination by the defense Craig was pressed as to whether the words imputed to the decedent were not suggested by the detective, but answered, after initial hesitation: 'Those words were mine.'
At the conclusion of Craig's testimony, the State offered his affidavit and it too was received, over objection, the court overruling the objection for the 'same reason' as earlier stated.
The pertinent passage in Craig's affidavit was as follows:
(as in the original)
It is apparent from the trial court's explanation for overruling the...
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