Wilson v. State

• Citation: 276 A.2d 214,261 Md. 551
• Decision Date: 16 April 1971
• Docket Number: No. 254,254
• Parties: Irving Lee WILSON v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 551

261 Md. 551

276 A.2d 214

Irving Lee WILSON v. STATE of Maryland.

No. 254.

Court of Appeals of Maryland.

April 16, 1971.

Leonard S. Freedman and John D. Hackett, Baltimore, for appellant.

Clarence W. Sharp, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, Fred K. Grant and Allen N. Horvitz, Asst. State's Attys. for Baltimore City, Baltimore, and James A. Wise, State's Atty. for Caroline County, Denton, on the brief, for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

FINAN, Judge.

On August 18, 1969, the appellant, Irving Lee Wilson, shot and killed one Walter 'Kidd' Henderson. The incident occurred at approximately 12:30 P.M. in the Spot Bar in Baltimore. About 12:35 P.M., the appellant entered the Western District Police Station, announced to the desk sergeant that he had just killed a man in the Spot Bar and surrendered a .32 caliber revolver containing two live and four spent cartridges. At about 2:00 P.M. the appellant was questioned at the Western District Police Station by Detective Sergeant George Christian of the Homicide Division of the Baltimore City Police Department, who obtained an oral statement from him. A second oral statement was obtained at about 3:00 P.M. at Central District Police Headquarters by Det. Sgt. Christian in the presence of Assistance State's Attorney Fred K. Grant (who prosecuted the case below) and two other police officers.

The appellant was indicated August 19, 1969. The case was removed to the Circuit Court for Caroline County, and tried before a jury on December 17, 18, 19, 1969, with Chief Judge J. DeWeese Carter presiding. The defense twice made unsuccessful motions for judgment of acquittal during trial. Maryland Code (1971 Repl.Vol.) Art. 27, § 593; Maryland Rule 755. The jury found the appellant guilty of murder in the first degree without directing that the sentence be life imprisonment. Code (1971 Repl.Vol.) Art. 27, §§ 412, 413. New counsel entered the case on behalf of the appellant and moved for a new trial. After a hearing on March 23, 24, 1970, the motion was denied, and Judge Carter imposed a sentence of death. An order for appeal was entered the same day. New counsel again entered the case on behalf of the appellant, and the appeal was brought directly to this Court. Code (1968 Repl.Vol.) Art. 5, § 12 and Code (1970 Cum.Supp.) Art. 5, § 5A(3).

Present counsel for the appellant suggest nine reasons in support of their request for a reversal of the conviction or a new trial. We find nothing in the arguments presented or from an independent review of the entire record which would merit reversal, and we therefore affirm the decision of the trial court. However, because of the seriousness of the crime and the nature of the sentence imposed, we shall discuss the appellant's contentions in some detail. Although nine separate grounds are contained in the appellant's brief, they resolve themselves into six major areas of contention, as follows:

I. THE TESTIMONY OF BARBARA ANN LEWIS

The appellant urges that the testimony of Mrs. Barbara Ann Lewis (an eyewitness) was coerced by the State and contradictory in nature, and that to admit her testimony into evidence was reversible error.

As of August 18, 1969, Mrs. Lewis was a full time exotic dancer at the Gayety Club on Baltimore's 'Block' and was also employed on a part-time basis as a barmaid at the Spot Bar. On the day in question she was working at the Spot Bar. Shortly after the shooting, she gave the police a signed statement to the effect that she had not seen the appellant at all that day, that she had not seen the appellant shoot Henderson, and that she had dropped behind the bar to the floor of the tavern when she heard the first shot. The next day she was summoned to testify before the grand jury, and just prior to her testifying was advised by the police and the prosecutor of the penalties for perjury and told that she could be arrested and jailed if she lied to the grand jury. She changed her version of the incident before the grand jury, and testified that she had seen the appellant shoot and kill Henderson.

At the trial, although obviously reluctant to answer many of the questions put to her, Mrs. Lewis testified on direct examination by the State that she heard 'some gun shots,' saw Henderson run to the back of the bar, and saw the appellant shoot Henderson while the deceased was on the floor and after he had asked the appellant not to shoot him. She did not recall the number of shots that were fired.

On cross-examination she admitted that she had given a contradictory statement to the police on the day of the shooting and that the representatives of the State had discussed perjury with her before her testimony to the grand jury. However, she maintained that the policy did not suggest any testimony to her, nor did they promise her anything in order to make her testify. She also maintained that she had told the truth to the grand jury and was telling the truth at trial. She admitted to having had an argument with the appellant two years prior to the shooting, in which the appellant accused her of being a lesbian, but she felt that they had been on good terms since that time.

Mrs. Lewis was recalled as a defense witness later in the trial and testified that she was fixing a drink for one of three unknown seamen in the bar at the time and that Harry Cole, the owner of the Spot Bar, and a girl known to her only as Margaret were also present. She heard what she thought were two or three gunshots coming from the front of the bar which was about 40 or 50 feet long. She turned around, was 'shocked' at what she saw, 'dropped to the floor and started crawling' about 'half way down the bar,' continued crawling 'to the back' and 'tried to get to the cellar.' She stated that after the first series of shots, Henderson was running toward the rest rooms in the back of the bar. Henderson fell 'at the end of the bar' and the appellant 'was behind him.' Henderson asked the appellant 'not to shoot him-not to kill him.' Mrs. Lewis also stated that '(w)hen he (Henderson) fell to his knees, that's when he asked Irving Lee (Wilson) not to kill him, and he (the appellant) shot Kidd in the head.' There then followed this colloquy among the appellant's attorney, the trial judge, and Mrs. Lewis:

'Q. You observed this entire affair,-

'A. Yes, I did.

'Q. Is that correct?

THE COURT: What do you mean by, 'he shot Kidd?'

THE WITNESS: Irving Lee.

BY MR. RUBENSTEIN:

'Q. How many times did he shoot him?

'A. I don't know.

'Q. Is it then that you dropped behind the bar?

'A. After he shot Kidd?

'Q. Yes.

'A. Yes.'

Whether or not the statement which Mrs. Lewis gave to the grand jury and repeated throughout the course of her examination at trial in recounting her version of the event was coerced, and therefore presumably untrue, was a question for the jury, and goes to the weight of evidence and the essential credibility of the witness involved. The appellant contends that the first statement Mrs. Lewis gave to the police 'is more to be believed than the statement given later while under undue pressure' and states that it is 'as logical, if not more logical, that a barmaid in a rough tavern, on hearing shooting, would instinctively drop to the floor and attempt to crawl away from a 'shoot out'.' It appears equally probable that, as Mrs. Lewis testified, her first statement was false and that she lied to the police because she 'just wanted to get out of the mess and go about my business.' This seems especially likely in view of her obvious displeasure at being involved in the entire matter even while testifying at trial. In any event, questions such as this are peculiarly within the province of the jury. It is apparent in this case that the jury chose to believe Mrs. Lewis' second version. She repeatedly stated that there was no inducement by the police to get her to testify as she did. She admitted that she was warned of the possibility of perjury prosecution if she lied to the grand jury, but maintained throughout that she told the grand jury the truth and was telling the truth at the trial. There is nothing in the record which supports the appellant's allegation of coercion, and there was no error in admitting the testimony into evidence and allowing the jury to evaluate it.

In a related argument, the appellant contends that the trial court erred by allowing the jury to choose between contradictory statements of Mrs. Lewis, and cites Kucharczyk v. State, 235 Md. 334, 201 A.2d 683 (1964) as principal support for his position. The problem with such an argument is that Kucharczyk related to contradictory statements at trial, and stated that in that case the evidence was so unreliable on its face as to be without any probative value. The contradiction in the case at bar exists between the statement given by the witness prior to her testimony to the grand jury, and the later testimony before the grand jury and during the course of the trial. There was no contradiction in her testimony during trial or before the grand jury. Mrs. Lewis gave only one version of the events in question at the trial and that version was the same one she had given to the grand jury. See Brooks v. Daley, 242 Md. 185, 192, 218 A.2d 184 (1966). The jury was well aware of the prior inconsistent statement of the witness, originally given to the police, and was faced with judging her credibility in the light of such inconsistency. That, of course, is a task for the jury rather than the appellate tribunal.

II. SUFFICIENCY OF THE EVIDENCE AND SELF DEFENSE

The appellant next argues that the evidence presented was insufficient as a matter of law to sustain a conviction of first degree murder, and that the lower court's denial of his motions for judgment of acquittal made both at the close of the State's case, and again at the close of all...