Poole v. State

Murphy, C. J.,

concurring in part and dissenting in part:

I agree with that part of the majority opinion which affirms Poole’s conviction for the first degree premeditated murder of Dr. MacLarty. I also agree with that part of the majority opinion which holds that under Campbell v. State, 293 Md. 438 , 444 A.2d 1034 (1982), Poole’s conviction for the felony murder of his accomplice Horad must be reversed. I do not agree, however, that the erroneous felony murder conviction of Poole for the killing of Horad requires that the sentence of death imposed on Poole for murdering Dr. MacLarty must be vacated and the case remanded for a new capital sentencing hearing.

The Court acknowledges "that the jury was properly instructed that it was to determine whether the death sentence should be imposed [upon Poole] only in regard to the *198 first degree premeditated murder of MacLarty.” The Court nevertheless speculates that even though it was Dr. MacLarty, and not Poole who shot and killed Horad, "the jury’s knowledge of the liability of Poole for Horad’s death may have been prejudicial to the appellant.” The Court builds upon this speculation with the further statement that "we cannot be sure that consideration of the now vacated conviction did not influence the jury in weighing the mitigating circumstances against the aggravating circumstance and in reaching its determination to impose the death penalty.” The majority concludes that under Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976), it could not declare that the error was harmless beyond a reasonable doubt.

Under Maryland Code (1982 Repl. Vol.), Article 27, § 414 (e), the Court is required to review the death penalty and determine:

"(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

(2) Whether the evidence supports the jury’s or court’s finding of a statutory aggravating circumstance under § 413(d);

(3) Whether the evidence supports the jury’s or court’s finding that the aggravating circumstances are not outweighed by mitigating circumstances; and

(4) ....”

A total of ten aggravating circumstances is provided under § 413 (d), one of which (subparagraph 10) is that the defendant was a guilty first degree principal in a murder committed during the course of a robbery. This was the only aggravating circumstance which the jury found, or possibly could have found, to exist in this case. Subparagraph (9) of § 413 (d) lists as an aggravating factor that the "defendant committed more than one offense of murder in the first degree arising out of the same incident.” Poole’s invalid conviction for the felony murder of Horad was a conviction for *199 murder in the first degree. However the trial judge expressly instructed the jury that it "must find as a matter of law” that this aggravating factor, as well as eight other aggravating factors listed in § 413 (d), were not present in this case. The jury answered "no” as to the existence of these nine factors. Because the jury was further properly instructed that only any aggravating factor that it found beyond a reasonable doubt to exist, i.e. number 10, was to be weighed against any mitigating factors that it found by a preponderance, jury consideration of Poole’s conviction for Horad’s killing was excluded from the weighing process under the binding instructions. Accordingly, there is no error on the part of the trial court on which to predicate a reversal of Poole’s sentence for MacLarty’s murder. By reversing, the majority violates one of the cardinal principles of appellate review which was well stated by the late Judge Jerrold V. Powers, writing for the court in Braun v. Ford Motor Co., 32 Md. App. 545, 548 , 363 A.2d 562, 564 (1976), when he said:

We know of no principle or practice under which a judgment of a trial court may be reversed or modified on appeal except for prejudicial error committed by the trial judge. It is a misuse of language to label as error any act or failure to act by a party, an attorney, a witness, a juror, or by anyone else other than the judge. In other words, error in a trial court may be committed only by a judge, and only when he rules, or, in rare instances, fails to rule, on a question raised before him in the course of a trial, or in pre-trial or post-trial proceedings. Appellate courts look only to the rulings made by a trial judge, or to his failure to act when action was required, to find reversible error.

Under § 413 (g), there are eight categories of mitigating circumstances, one of which (subparagraph 1) is that the defendant has not previously been convicted of a crime of violence, defined therein to include robbery. Poole and the State stipulated during the sentencing hearing that Poole had been convicted of two prior robbery offenses; hence, he *200 could in no event receive the benefit of the mitigating circumstance that he had not previously been convicted of committing a crime of violence. Contrary to the suggestion made in the majority opinion, neither the prosecution nor the court made any reference during the sentencing hearing to Poole’s conviction for the murder of Horad.

The jury found three mitigating circumstances to exist:

"(1) The subject was a good prisoner while incarcerated and abided by the rules and regulations of the institutions in which he was housed;

(2) The subject tried to better himself and prepare for his future by furthering his education;

(3) The subject volunteered his time to work with delinquent children in an attempt to rehabilitate them.”

Under § 413 (h) the jury in this case was required to weigh the one aggravating circumstance that Poole had committed the premeditated murder of MacLarty during the course of an armed robbery against the mitigating circumstances that Poole was a good prisoner and abided by the rules during his incarceration; that he tried to better himself and prepare for his future through education; and that he volunteered "his time” to work with delinquent children. Our function under § 414 (e) (3) is to determine whether the evidence supported the jury’s determination that the mitigating circumstances did not outweigh the aggravating circumstance. For the jury to have concluded that a cold-blooded premeditated murder was an aggravating circumstance which was not outweighed by the piddling mitigating circumstances found to exist in this case is an entirely rational jury judgment.

The majority’s concern that Poole’s erroneous conviction may have influenced the jury "in weighing the mitigating circumstances against the aggravating circumstance” is wholly unwarranted. It assumes that the jury ignored the court’s concededly proper instructions and, in disregard of the statutory formulation, either added extra weight to the one aggravating circumstance, or somehow considered the *201 erroneous conviction as a negative factor reducing the weight accorded to the mitigating circumstances. I am unwilling to engage in the drawing of such rank assumptions, even in a death penalty case, where it is so plain that the jury did not take the erroneous conviction into account in any way as a justification for imposing the death penalty upon Poole. I therefore conclude that a new capital sentencing hearing should not be granted.

Judges Smith and Rodowsky authorize me to state that they join in the views expressed herein.