Petition — Godwin v. Maryland

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FILED

FEB 29 1979

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IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

N. 78-1289

ROLAND N. GODWIN,

Petitioner,

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

JAMES E. KENKEL, ESQ.

7100 Baltimore Avenue

College Park, Maryland 20740

Counsel for Petitioner

Of Counsel:

JOSEPH A. DE PAUL, ESQ.

WILLIAM C. BRENNAN, JR., ESQ.

7100 Baltimore Avenue

College Park, Maryland 20740

a ama

Washington, OC @ CLB PUBLISHERS ¢ LAW PRINTING CO e (202) 393 0625

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

Se ee eg Ceso@e@qes@eo1e 8 Oe.86686 6

CONSTITUTIONAL PROVISIONS INVOLVED ..... 3

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

L.

THIS COURT SHOULD DECIDE THE

PROPER SCOPE OF THE SIXTH

AMENDMENT CONFRONTATION

CLAUSE IN IMPEACHING PROSE-

CUTION WITNESSES FOR BIAS AS

DEVELOPED BUT NOT FINALIZED

IN DAVIS V. ALASRA ..ccoccosseces

THIS COURT SHOULD DECIDE THE

PROPER SCOPE OF THE HEARING

THAT IS REQUIRED TO DETER-

MINE THE ADMISSIBILITY VEL

NON OF A PRIOR. IDENTIFICATION

THE DECISION BELOW CONFLICTS

WITH THE DECISIONS OF THIS

COURT IN NEIL V. BIGGERS AND

MANSON V. BRATHWAITE .........

CONCLUSION

APPENDIX

A. OPINION AND JUDGMENT OF THE

COURT OF SPECIAL APPEALS OF

ET TLS skespbeeedecewececcecs

B. OPINION AND JUDGMENT OF

THE COURT OF APPEALS OF

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(ii)

C. OPINION AND JUDGMENT OF

THE COURT OF SPECIAL APPEALS

OF MARYLAND (ON REMAND) ....

D. OPINION AND JUDGMENT OF

THE COURT OF APPEALS OF

MARYLAND (COMPANION CASES)

(iii)

CITATIONS

Cases: ; Page

Davis v. Alaska, 415 U.S. 308 (1974) .............. 7,9

Foster v. California, 394 U.S. 440 (1969) ............ 12

Jackson v. Denno, 378 U.S. 368 (1964) ...:.......... 12

Manson v. Brathwaite, 432 U.S. 98 (1977) ........... 12

Neil v. Biggers, 409 U.S. 188 (1972) .............. 12,13

Pointer v. Texas, 380 U.S. 400 (1965) ................ 7

Truman v. Wainwright,

See ee SE, RUS) van kccbewasanbeccass 8

United States v. Crumley,

ee en ee CE, BED Shoko ks caiedcnsuscese 8

United States v: Mayer,

Se eT CEs SOTTD. ca cdcvecccscccdcunes 8

United States v. Young,

567 F.2d 799 (8th Cir. 1977)

cert. denied 434 U.S. 1079(1978) ..... ailammicnae esa 7

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978 _

No.

ROLAND N. GODWIN,

Petitioner,

V.

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

The Petitioner Roland N. Godwin respectfully prays

that a writ of certiorari issue to review the judgment

and opinion of the Court of Appeals of Maryland

entered in this proceeding on November 21, 1978.

OPINIONS BELOW

The opinion of the Court of Appeals of Maryland,

an order of court not yet reported, appears in the

Appendix. (Appx. B. infra) The first opinion of the

Court of Special Appeals of Maryland appears at 38

Md. App. 716, 382 A.2d 596 (1978), (Appx. A. infra)

and the second opinion of the Court of Special Appeals

2

of Maryland is not yet reported. (Appx. C. infra) The

opinion of the Court of Appeals of Maryland in the

companion cases of State v. Frye and Jones v. State,

Nos. 133 and 179, September Term, 1977, are not yet

reported. (Appx. D. infra)

JURISDICTION

The opinion of the Court of Special Appeals of

Maryland was entered on November 14, 1977, a timely

motion for reconsideration was granted, and a revised

opinion was entered on February 28, 1978 and the

mandate issued on the same date. A timely petition for

a writ of certiorari was granted by the Court of Appeals

of Maryland and the opinion of that court was entered

on November 21, 1978 and the mandate issued on

December 21, 1978. On remand the opinion of the

Court of Special Appeals of Maryland was entered on

January 16, 1979 and the mandate issued on February

15, 1979. This petition for a writ of certiorari was filed

within 90 days of the judgment of the Court of Appeals

of Maryland. This Court’s jurisdiction is invoked

under 28 U.S.C. §1257(3).

QUESTIONS PRESENTED

1. Does the Sixth Amendment confrontation clause

override the common law rule limiting impeachment to

cross-examination of prosecution witnesses for convic-

tions but not arrests and other bad acts?

3

2. Is a hearing constitutionaliy mandated when

requested by the defendant in order for the trial court

to rule on the admissibility of a prior identification?

3. Did the court below improperly apply the

holdings in Neil v. Biggers and Manson v. Brathwaite

concerning the impact of an impermissible extra-

judicial confrontation?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment VI

In all criminal prosecutions, the accused shall enjoy

the right. . . to be confronted with the witnesses against

a

United States Constitution, Amendment XIV

[Nor shall any State deprive any person of life, liberty

or property. without due process of law....

STATEMENT OF THE CASE

Petitioner, Roland N. Godwin was indicted in

November of 1975 in Prince George’s County, Mary-

land and charged along with co-defendants James

“Reds” Person and Willie “Junior” Jones with inter

alia three counts of murder, four counts of kidnapping,

four counts of false imprisonment, four counts of

assault and battery, four counts of use of a hand-gun,

one count of carrying a hand-gun and one count of

4

transporting a hand-gun. Also indicated on related

charges were Towanna A. Matthews and Johnnie M.

Jones.

After arraignment but well before trial and pursuant

to the Maryland Rules on March 15, 1976 petitioner

Godwin filed a Motion to Supress all identification

testimony in the case because said identification

testimony was constitutionally defective because it was

the result of imperinissibly suggestive extra judicial

confrontations. The State of Maryland filed an answer

to that motion on March 29, 1976 and hearings were

held in open court on March 30, 1976 on other pending

motions. At that time the court granted petitioner

Godwin’s Motion for Severence and he was ordered to

be tried separately from all co-defendants, and the

court deferred until the time of trial the hearing on his

Motion to Suppress identification testimony.

The case came on for trialin February of 1977 before

a judge and a jury. After the swearing of the jury but

before the first witness was called, the. State moved

orally for an Order In Limine to preclude any reference

to any arrests which were not convictions of any

prosecution witnesses. The court granted the state’s

motion over strenuous objection by petitioner God-

win’s defense counsel. (T. 10-11) The court also ruled

that the hearing on the Motion to Suppress identifica-

tion testimony would be heard during the trial of the

case.

The testimony bascially indicated that three black

males rounded up and kidnapped four other black

males, brought the four kidnapped victims to an

isolated location where a young girl pointed out two of

the four kidnap victims as perpetrators of a crime

against her. Three of the four kidnap victims were then

5

shot to death, the fourth managed to escape.

The critical issue in the case was the identity of the

three kidnapper-murderers.

Ronald Swayne testified that he was the only one of

the four kidnap victims who survived the incident.

Swayne testified that he knew two of his three

assailants. He identified one of them as “Reds” Person

and the other as “Junior” Jones. He described the third

as only a tall, slim black man. Co-defendant Johnnie

M. Jones was called as a prosecution witness and

testified that she was the young lady who made the

identification of two of the four victims and that she

also knew two of the three kidnapper-murderers. She

testified one of them was her brother, “Junior” Jones,

the other was “Reds” Person and the third was a tall,

slim black man.

The prosecution also called as a witness one Donald

McCain who testified that on the night of the shooting

he saw “Reds” Person and another individual near the

scene of the shootings. McCain could only identify the

individual with “Reds” Person asa tall, slim black man.

At the trial of the case, Johnnie M. Jones was unable

to identify in Court the tall, slim black man. She

testified however, that she saw the tall, slim black man

on one occasion subsequent to the night of the incident.

She testified that she saw the individual on March 30,

1976 when she was in court with the other defendants

on all pending motions in the case. The prosecutor who

was prosecuting that case was then called as a witness

to testify that Johnnie M. Jones was in fact in court on

March 30, 1976 and that present with her was

Petitioner, Roland N. Godwin. The prosecutor then

testified that Roland N. Godwin was present in court at

6

the trial. A hearing was never held at the trial of the case

to develop the facts and circumstances surrounding the

alleged identification by Miss Jones of Petitioner

Godwin on March 30, 1976.

Witness Swayne testified that he too saw the tall,

slim black man on an occasion subsequent to the night

of the shooting. Swayne testified that when he was in

custody ina District of Columbia Police Station he was

presented with a one-on-one show-up on the other side

of a one way mirror with the tall, slim black man.

Swayne was told by a District of Columbia detective to

“look at him good”. Swayne then identified in court the

tall, slim black man as the petitioner, Roland Godwin.

Witness McCain testified that he was handed one by

one approximately 15 to 20 pictures by a Maryland

detective. However, the detective testified that he

presented a spread of 10 photographs to McCain. In

any event McCain picked out a photograph of the tall,

slim black man and that photograph was the petitioner,

Roland N. Godwin.

The petitioner was found guilty on three counts of

first degree murder, four counts of kidnapping and

four counts of the use of a hand gun. He was sentenced

to two life terms, four thirty year terms, four fifteen

year terms, sentences to run consecutively.

Petitioner noted a timely appeal to the Court of Special

Appeals of Maryland which in a written opinion affirmed

his convictions and Petitioner then filed a timely petition for

writ of certiorari to the Court of Appeals of Maryland which

vacated the judgment of the COSA and remanded the case

to that court. On remand the Court of Special Appeals

affirmed the kidnapping convictions with respect to

victim Swayne and the four hand-gun convictions, but

7

the court vacated the three murder convictions and the

three kidnapping convictions because: of a merger

problem and remanded to the trial court for further

proceedings. (See Appx. A.B.C. & D infra)

REASONS FOR GRANTING THE WRIT

I

THIS COURT SHOULD DECIDE THE

PROPER SCOPE OF THE SIXTH

AMENDMENT CONTRONTATION

CLAUSE IN IMPEACHING PROSECU-

TION WITNESSES FOR BIAS AS DEVEL-

OPED BUT NOT FINALIZED IN DAVIS

V. ALASKA

The confrontation clause of the Sixth Amendment is

applicable to the States through the due process clause

of the Fourteei .-h Amendment. Pointer v. Texas, 380

U.S. 400 (1965). The confrontation clause encompasses

the right to impeach the credibility of prosecution

witnesses by cross-examining them for possible bias or

prejudice. Davis v. Alaska, 415 U.S. 308 (1974).

The scope of cross-examination is traditionally

vested in the sound discretion of the trial judge subject

to the constitutional safeguards of the confrontation

clause. Davis v. Alaska, supra. There is, however, a

serious conflict in the application of the confrontation

clause to the area of impeachment cross-examination.

The general rule is that a witness may not be impeached

by inquiry into specific acts of misconduct which have

not resulted in convictions. United States v. Young,

8

567 F.2d 799 (8th Cir. 1977), cert. denied 434 U.S. 1079

(1978), Truman v. Wainwright, 514 F.2d 150 (5th Cir.

1975) (Convictions but not Arrests Rule) However, a

witness may be impeached by inquiry into actual or

perceived agreements or deals with the prosecution and any

other incentives for cooperation. United States v. Crumley,

565 F.2d 945 (Sth Cir. 1978); United States v. Mayer, 556

F.2d 245 (Sth Cir. 1977) (Bias and Prejudice Rule).

This case squarely presents the question of the

application of the confrontation clause in reconciling

this tension between the Convictions but not Arrests

Rule and the Bias and Prejudice Rule. Specifically,

does the confrontation clause allow cross-examination

of a prosecution witness for bias and prejudice when

the defense proffers numerous arrests of the witness

without convictions, and a working relationship by the

witness with law enforcement authorities?

In the instant case after the jury was sworn, but

before the first witness was called, the State moved

orally for an order in limine, “to preclude any reference

to any arrests that are not convictions of any of our

witnesses either in opening statement or otherwise.” (T-

10) The order was entered over the strenuous objection

of defense counsel. (T-10-11) Nevertheless petitioner’s

counsel attempted to cross-examine the chief prosecu-

tion witness, Ronald Swayne, with respect to his

working relationship as an informer with the Metro-

politan Police Department of Washington, D. C. The

Petitioner proffered that Swayne was involved in

several robberies which were subsequently entered

nolle prosequi by the prosectution in Washington,

D. C., and that the witness had a working arrangement

with the Washington, D. C. Police Department. The

Court rejected this proffer and told petitioner’s counsel

&

9

that he could not inquire of the witness concerning any

prior bad acts or arrests which had not resulted in

convictions or any arrangements with the prosecution.

The trial court at that point threatened to put

petitioner’s counsel in jail if such cross-examination

was attempted. (T.152-154)

A similar episode took place with respect to another

key prosecution witness, Donald McCain. Petitioner's

counsel proffered that the witness was a narcotics

dealer, a prostitution procurer, involved with stolen

automobiles, and associated with other criminals.

However, the trial court refused to allow pvtitioner’s

counsel to ask any questions with respect to the prior

arrests and prior bad acts of the witness because again

there were no convictions. (T. 195-202)

In Davis v. Alaska, supra this court addressed the

issue of the proper scope of the confrontation clause in

dealing with impeachment cross-examination. This

court stated that cross-examination directed toward

revealing possible biases, prejudices or ulterior motives

of the witness was proper but the court stated in

another part of the opinion that one way of discrediting

a witness is to introduce evidence of a prior criminal

conviction of that witness. The court seemed to say that

one could explore for biases or prejudices only by using

criminal convictions of the witness:

However in the instant case the petitioner attempted

to show the bias, the prejudice and the motive for

testifying of two prosecution witnesses by demonstra-

ting that they had a working arrangement with various

police departments thus resulting in numerous arrests

and numerous nolle prosses, but few convictions.

This court should issue a writ of certiorari in this case

10

to delines*e the precise scope of the confrontation

clause in the area of impeachment cross-examination

and decide if the confrontation clause does in fact,

under the proper circumstances, over-ride the common

law rule of convictions but not arrests cross-examina-

tion.

THIS COURT SHOULD DECIDE THE

PROPER SCOPE OF THE HEARING

THAT IS REQUIRED TO DETERMINE

THE ADMISSIBILITY VEL NON OF A

PRIOR IDENTIFICATION

After arraignment, but before trial and pursuant to

the Maryland Rules, petitioner Godwin filed a Motion

to Suppress all identification testimony in the case on

the grounds that its admission at trial would deny him

due process of law because it was based upon

unnecessarily suggestive pre-trial confrontations or

extra-judicial confrontations. Subsequent to the filing

of the Motion and the State’s Answer thereto, hearings

were held on other motions in open court with

petitioner Godwin and all of his co-defendants,

including witness Johnnie M. Jones.

At the trial of the case co-defendant and witness

Jones was unable to identify, in court, the tall, slim

black man whom she observed on the night of the

shootings. She did testify, however, that she saw the

tall, slim black man on one occasion subsequent to the

night of the shootings which was in court at the

hearings on March 30, 1976. The prosecutor of the case

at that time, E. Garrison Neal was then allowed to

testify, over strenuous defense objection, that on

March 30, 1976, witness Jones was in court with the

petitioner Godwin. Neal then identified Godwin as

being present in the court at the trial of the case below.

No hearing was ever held to develop the circum-

stances surrounding the March 30, 1976 court appear-

ance of witness Jones and petitioner Godwin. Clearly,

other persons were also present, and the defense did

manage to proffer in the record that Jones and Godwin

may have been handcuffed to one another during the

hearing. It was also unclear from the prosecutor’s

testimony exactly which one of the other persons in the

court room on March 30, 1976 with witness Jones she

was identifying as the tall, slim black man. The Court

of Special Appeals of Maryland concluded that this

dual testimony was not a garden variety identification

but it did present an elementary syllogism, the

conclusion of which was that the tall, slim black man

and the petitioner Roland N. Godwin were one and the

same. (Appx A infra)

Petitioner concedes that he had a hearing concerning

the issue of whether or not witness Jones could identify

the tall, slim black man in Court. However, once it

became clear that witness Jones was unable to make an

in-court identification, the hearing with respect to the

identification terminated. Her testimony concerning

the prior confrontation which occurred at the hearing on

March 30, 1976, was never developed at trial. The defense

could only hastily proffer facts at the bench concerning

handcuffs. In short, petitioner was allowed a hearing on the

in-court identification but not allowed a hearing on the prior

confrontation.

Thus, when the courts below applied the standards

12

of Manson v. Brathwaite, 432 U.S. 98 (1977) and. Neil

v. Biggers, 409 U.S. 188 (1972), they did so on an

incomplete record. This court held in Jackson v.

Denno, 378 U.S. 368 (1964) that a defendant has a

constitutional right to have a full evidentiary hearing at

the trial court level on the issue of the admissibility of

an extra-judicial statement. The instant case squarely

presents the issue of the constitutional necessity and the

scope of a hearing concerning the reliability of a prior

identification. :

This court should issue a writ of certiorari in this case

to decide whether a hearing is constitutionally man-

dated and if it is, the scope thereof, involving prior

identifications.

ITI

THE OPINION BELOW CONFLICTS

WITH THE DECISIONS OF THIS COURT

IN NEIL V. BIGGERS AND MANSON V.

BRATHWAITE.

The testimony indicated that when witness Swayne

was in the custody of the Metropolitan Polica

Department of Washington, D. C., he saw the tall, slim

black man on the other side of a one-way mirror being

held by a District of Columbia police officer while a

second District of Columbia police officer standing

with Swayne said “look at him good”. Such a

confrontation is clearly impermissibly suggestive. See,

Foster v. California, 394 U.S. 440 (1969).

The Court of Special Appeals of Maryland refused

to apply the test of Manson v. Brathwaite, 432 U.S. 98

(1977) and Neil v. Biggers, 409 U.S. 188 (1972) because

:3

Swayne testified that his in-court identification was

based upon what he had seen on the night of the

shootings, not upon what had transpired in the District

of Columbia police station. Petitioner submits that

where there has been an impermissibly suggestive pre-

trial confrontation the trial court must apply the Neil v.

Biggers analysis despite the testimony of the person

making the identification that the confrontation had

no effect on his identification. The trial court stated:

“This man has made an identification in this court-

room. What happened two years ago has got nothing to

do with an in-court identification.” (T. 130-131) It is

clear beyond per adventure that an impermissibly

suggestive confrontation must have had some impact

upon the in-court identification. The Court of Special

Appeals of Maryland felt it unnecessary to apply that

lengthy Neil v. Biggers analysis because of witness

Swayne’s bald statement that his in-court identification

was not based upon the out of court confrontation.

Petitioner submits that the witness’s disclaimer is

merely one factor to be considered in the Neil v. Biggers

analysis and the disclaimer should not have the effect of

foreclosing that analysis altogether.

Thus this case squarely presents the issue of whether

Neil v. Biggers is to be applied when there has been a

clearly impermissibly suggestive confrontation but

when the witness makes a bald assertion that his in-

court identification is not based upon that confronta-

tion.

14

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Court of

Appeals of Maryland.

Respectfully submitted,

James E. Kenkel

7100 Baltimore Avenue

College Park, Maryland 20740

Counsel for Petitioner

Of Counsel:

Joseph A. DePaul

William C. Brennan, Jr.

la

APPENDIX A

REPORTED

| IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 200

September Term, 1977

ROLAND NEVILLE GODWIN

Vv.

STATE OF MARYLAND

Moylan,

Menchine,

Lowe,

JJ.

Opinion by Moylan, J.

Filed: November 14, 1977

4

2a

This case grows out of a macabre series of cold-

blooded executions reminiscent of the St. Valentine’s

Massacre As one of those executioners, the appellant,

Roland Neville Godwin, was convicted in the Circuit

Court for Prince George’s County by a jury, presided

over by Judge Jacob S. Levin, of three counts of first-

degree murder, four counts of kidnapping and four

counts involving the unlawful use of a handgun in the

commission of a felony. Upon this appeal, he raises

seven contentions:

1) That an extrajudicial identification of him by a

codefendant-turned-State’s-witness was unconstitu-

tionally received in evidence;

2) That a tainted in-court identification of him by

the sole survivor of the executions was unconstitution-

ally received in evidence;

3) That a tainted extrajudicial photographic identi-

fication by a witness was unconstitutionally received in

evidence;

4) That he was unduly restricted in his cross-

examination of State’s witnesses in terms of impeach-

ing their credibility;

5) That the trial court erred when it failed to declare

a mistrial because of allegedly improper argument by

the State’s Attorney;

6) That the trial court committed error when it

failed to instruct the jury on the meaning of premedita-

tion; and

7) That the kidnapping convictions should have

merged into the felony-murder convictions.

Initially, we will briefly set the factual backdrop of

the case. A codefendant and ultimate State’s witness,

Johnnie Mae Jones, was apparently the victim of a

robbery. Instead of complaining to the authorities, she

complained to her brother, codefendant Willie Lee

3a

Jones, Jr., and the two of them elected to take the law

into their own hands. They were joined in this venture

by their two ultimate codefendants, James Richard

Person and the appellant.

The four victims were Alvin Jones, Anthony

Cunningham and David Dock, all three of whom were

executed, and Ronald Swayne, who survived to testify.

There were strong intimations in the evidence that the

executioneers as a groupa and the victims as a group

were part of a narcotics-using culture and that there

were some social acquaintanceships flowing between

the two groups.

The executions occurred during the pre-dawn hours

of October 24, 1975. Ronald Swayne left his home at

between 8 and 9 p.m. on October 23 in his own car, a

red Cougar. He drove to the residence of his friend (and

one of the executed victims) Alvin Jones. He there

picked up Jones and another of the ultimate victims,

Anthony Cunningham. The threesome drove to an

apartment building on C Street in southeast Washing-

ton. Swayne blew the horn of his automobile and two

individuals came out of the apartment to join them.

They were two of the ultimate killers, but danger signs

had not as yet reared their heads. The two individuals

were codefendant James Richard “Reds” Person, an

acquaintance of Swayne, and the appellant, “tall slim

black man” whom Swayne had never seen before.

Shortly thereafter, David Dock, the remaining ulti-

mate victim, came out of the same apartment and

joined “Reds” Person and the appellant in an orange

Volkswagen. The orange Volkswagen took off first;

Alvin Jones directed Swayne to follow in his red

Cougar. Both cars, and all six persons,drove out of the

District of Columbia into Seat Pleasant in Prince

George’s County, Maryland. All six individuals went

4a

into an apartment. They there joined codefendant

Willie Lee Jones, Jr. (“Junior”). Swayne testified that

he himself was a former drug user and that Alvin Jones

was still, as of that night, a heavy drug user. Alvin

Jones was in the process of “shooting some narcotic

drugs into his arm” when Swayne heard a shot. He

looked up and saw that three of the group — “Reds”

Person, “Junior” Jones and “the tall slim black man”

(the appellant) — all had pistols and were training them

upon the other four men. Swayne, along with

Cunningham, Dock and Alvin Jones, was told to lie

down on the floor. All four of the victims were then

covered up with blankets. Swayne heard conversation

dealing with the fact that “somebody’s sister had been

robbed.” “Reds” Person and the appellant then placed

all four of the victims into a blue Cadillac. Swayne and

Cunningham were put on the floor of the back seat.

Alvin Jones and Dock were put in the trunk. “Reds”

Person and the appellant then drove the Cadillac for

between twenty minutes and half an hour to an

unknown location.

It was at this unknown location that the identifica-

tion phase of the “drumhead court-martial” was to take

place. Swayne overheard someone say, “Get Junior’s

sister.” About half an hour later, Johnnie Mae Jones

(Junior’s sister) arrived at the scene. “Reds” Person

ordered Cunningham and Swayne to lift up their heads

from the floor. Johnnie Mae Jones identified Cunning-

ham as one of the men who had robbed her, thereby

sealing his doom. She indicated, on the other hand,

that Swayne was not one of her robbers, thereby saving

his life. She subsequently was observed to identify

Alvin Jones, who lay in the trunk of the blue Cadillac,

as one of the robbers. Although Swayne did not testify

as to having observed her identify David Dock, who

i nee

ee

Sa

also lay in the trunk of the blue Cadillac, presumably he

was also somehow “deemed guilty”.

The testimony of Johnnie Mae Jones essentially

corroborated that of Ronald Swayne. She testified that

she was picked up by her brother “Junior” Jones at

between | a.m. and 3 a.m. on the morning of October

24. Her brother drove her to a location in Maryland

“on a dark road near a little white church.” She there

observed two of her brother’s friends, “Reds” Person,

whom she had known before, and a “tall slim black

man,” whom she had not known before and whom she

knew that night only as “Slim”. “Slim” and “Reds” then

ordered Cunningham and Swayne out of the back seat

of the Cadillac. She testified that she knew that there

were other unidentified individuals there because she

heard “someone banging on the trunk of the Cadillac.”

After she had exonerated Ronald Swayne, “Slim”

ordered her brother “Junior” to take Swayne and to

put him in the trunk of Swayne’s own car, the red

Cougar. “Slim” then ordered “Junior” Jones to take

Johnnie Mae Jones and Swayne home. “Junior” Jones

and Johnnie Mae Jones left in the red Cougar, with

Swayne in the trunk.

The story at that point is picked up by the testimony

of Ronald Swayne. From his position in the trunk of

his own red Cougar, he felt the car-drive off. When the

car stopped, “Junior” Jones released Swayne from the

trunk but ordered Swayne to drive at “Junior” Jones

direction. As of the moment when Swayne was released

from the trunk, Johnnie Mae Jones, presumably now

“home”, had left the automobile and the presence of

Swayne and “Junior” Jones. At Jones direction,

Swayne drove the car to an unknown location where

they rejoined “Reds” Person and the “tall slim black

man” later identified as the appellant. The appellant

6a

ordered “Junior” Jones to put Swayne back in the

trunk of Swayne’s Cougar. From the trunk, Swayne

heard a lot of shooting and then a “big boom.” He

heard people running back to the car, heard them

“jump into the car and pull off.” After the car had

stopped, Swayne struggled for about five to ten

minutes and finally “was able to pop his trunk open.”

He was the only one upon the scene and he drove his car

home.

A disinterested witness, Donald McCain, supplied

some of the missing threads. During the early morning

hours of October 24, he was staying in a house in Seat

Pleasant, Maryland. He looked outside and saw an

individual standing by his U-Haul van. Apprehensive

about his van, he kept a close lookout and then went

outside. He saw parked near his van both a blue

Cadillac and a red Cougar. When he walked outside, he

observed two individuals, one whom he already knew

as James “Reds” Person, who asked McCain for a

cigarette. The other individual, later identified photo-

graphically as the appellant, he described as “a tall slim

black man.” After returning to the house where he was

staying, he observed these two men walking up the

street and one of them appeared to be carrying an

object which looked like a gun. From the house, he

later heard “about four, five or six shots; a few of these

shots sounded like a shotgun and one sounded like a .22

caliber gun.” He looked out the window and observed

two individuals running back toward the two cars. One

of the individuals jumped into the blue Cadillac and the

ps jumped into the red Cougar and they both drove

off.

Alvin Jones was found wounded in a nearby field.

He later died at the Prince George’s County General

‘Hospital. Found wounded in a nearby creek bed was

ee ~ —

Ta

Anthony Cunningham, who also later died in the

Prince George’s County General Hospital. Also found

in the creek with a head wound was David Dock, who

was pronounced dead upon arrival at the Prince

George’s County General Hospital.

The appellant was granted a trial severance.!

Identifications, both judicial and extrajudicial, were

made of the appellant by three separate witnesses. Each

of those identifications gives rise to an appellate

contention.

1. The Extrajudicial Identification by Johnnie

Mae Jones

At issue here is the mechanics of the identification as

well as the constitutional soundness thereof. Although

mechanically the identification involved a somewhat

unusual two-step process instead of the more “garden

variety” one-step process, we see no impediment.

Involved was simply a bit of elementary logic as to

which any fact finder should have the requisite

competence. Johnnie Mae Jones had never seen the

appellant before the night of the killings. At the trial,

sixteen months after the fact, she was unable to makea

'On January 3, 1977, a jury convicted codefendant Willie Lee

“Junior” Jones, Jr., of three courts of first-degree murder, four counts

of kidnapping and four counts of using a handgun. Jones was sentenced

to three life terms, four 30-year terms and four 15-year terms, all

sentences to be served consecutively. On October 4, 1977, a Prince

George’s County jury, presided over by Judge Levin, convicted

codefendant James Richard “Reds” Person also of three counts of first-

degree murder, four counts of kidnapping and four counts of using a

handgun. Person is scheduled to be sentenced on November 7, 1977. On

October 10, 1977, the indictment against Johnnie Mae Jones was nol-

prossed, in exchange for her testimony as a State’s witness.

judicial identification of him in the courtroom. (It is

not without significance that the appellant had

radically altered in appearance during the intervening

sixteen months. Johnnie Mae Jones, however, was

unequivocal in her conclusion that the same “Slim”

who had been the only member of the three-man “firing

squad” not theretofore known to her as of the morning

of October 24, 1975, had been the same “Slim” who had

stood in the dock with her; her brother, Willie Lee

“Junior” Jones, Jr.; and James Richard “Reds” Person

at a pretrial hearing on March 30, 1976, five months

after the crimes and eleven months before her failure to

identify the appellant in the courtroom at the time of

the appellant’s trial. Her testimony established the

major premise of the ultimate identification syllogism:

The “Slim” who was at the crime scene is the “Slim”

who stood with my brother, “Reds” Person and me in

the dock on March 30, 1976. A equals B.

The minor premise was supplied by Edward Garri-

son Neal, a former Assistant State’s Attorney who had

been present at the pretrial hearing on March 30, 1976.

He stated that four prisoners stood in the dock. They

included Johnnie Mae Jones, later turned State’s

witness; her brother, Willie Lee “Junior” Jones, Jr.;

and James Richard “Reds” Person. The fourth person

was Roland Neville “Slim” Godwin. Mr. Neal identi-

fied the Roland Neville Godwin who was a codefen-

dant at the pretrial hearing on March 30, 1976, as the

same Roland Neville Godwin sitting at the trial table as

the defendant on February 7, 1977. B equals C.

With the evidentiary establishment of that minor

premise, the conclusion was ineluctable:

A equals B.

9a

B equals C.

A equals C.

To wit, the “Slim” whom Johnnie Mae Jones observed

at the crime scene is effectively identified as the

appellant in this case. We see no flaw whatsoever in this

chain of logic.

Granting that what was introduced in this case was

an extrajudicial identification of the appellant made by

Johnnie Mae Jones on March 30, 1976, the appellant

challenges that extrajudicial identification on the

grounds that it was impermissibly suggestive. We

cannot agree with the appellant that exclusion was

called for. We note initially that the police were not

guilty of any contrived circumstances for identification

purposes. The pretrial hearing of March 30, 1976, was

not contemplated as an identification procedure in any

way, shape or form. Four defendants were in court to

have hearings on motions made by them. They were

not there to identify each other. Johnnie Mae Jones

herself was still a full-fledged defendant, who had not

agreed to become a State’s witness. Self-evidently, she

was not asked to identify anyone. The recollection that

the man she knewas “Slim” at the crime scene had been

with her in the prisoner’s box at the pretrial hearing was

something that came to light only during her testimony

at the trial upon the merits. Moreover, the appellant

was represented by counsel at the pretrial hearing of

March 30, 1976. There was simply no Sixth Amend-

ment violation of the right to the assistance of counsel

such as would invoke the per se exclusionary rule of

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18

L.Ed.2d 1149 (1967), and Gilbert v. California, 388

U.S. 263, 87 S. Ct. 1951, 18 L.Ed.2d 1178 (1967).

10a

When we are looking not a deprivation of the Sixth

Amendment’s right to counsel but only at so-called

impermissive suggestiveness, it is now clear in the light

of Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34

L.Ed.2d 401 (1972); Manson v. Brathwaite, _— U.S.

—— , 97S. Ct. 2243, 53 L.Ed.2d 140 (1977); Foster v.

State, 272 Md. 273, 323 A.2d 419; and Dobson v. State,

24 Md.App. 644, 335 A.2d 124, that we exclude neither

the extrajudicial identification itself nor a judicial

identification based upon it except in those cases where

there is a “substantial likelihood of irreparable mis-

identification.” In Manson v. Brathwaite, the Supreme

Court spelled out the factors which militated against a

per se exclusionary rule even where there had been

present an element of impermissive suggestiveness. In

opting rather for the “totality of circumstances”

approach, it said, at 53 L.Ed.2d 152-153:

“The third factor is the effect on the administra-

tion of justice. Here the per se approach suffers

serious drawbacks. Since it denies the trier reliable

evidence, it may result, on occasion, in the guilty

going free. Also, because of its rigidity, the per se

approach may make error by the trial judge more

likely than the totality approach. And in those

cases in which the admission of identification

evidence is error under the per se approach but not

under the totality approach — cases in which the

identification is reliable despite an unnecessarily

suggestive identification procedure — reversal is a

draconian sanction. Certainly, inflexible rules of

exclusion, that may frustrate rather than promote

justice, have not been reviewed recently by this

Court with unlimited enthusiasm.”

ee =

lla

The Court’s conclusion in Manson v. Brathwaite was

clear, at 53 L.Ed.2d 154:

“We therefore conclude that reliability is the

linchpin in determining the admissibility of identi-

fication testimony for both pre- and post-Stovall

confrontations. The factors to be considered are

set out in Biggers .... These include the opportu-

nity of the witness to view the criminal at the time

of the crime, the witness’ degree of attention, the

accuracy of his prior description of the criminal,

the level of certainty demonstrated at the confron-

tation, and the time between the crime and the

confrontation. Against these factors is to be

weighed the corrupting effect of the suggestive

identification itself.”

Applying the factors to be considered in this regard

as spelled out in Neil v. Biggers, supra, we conclude,

upon our constitutionally mandated, independent

review, that no such likelihood was here present.

Johnnie Mae Jones was in close contact with “Slim” for

a significant period of time immediately preceding the

shootings. “Slim” addressed her at point-blank range

and asked her to identify at least several individuals.

The incident was such as to rivet serious attention to it.

The pretrial confrontation occurred within a few

months of the crime. Johnnie Mae Jones appeared

certain in her testimony that the man at the crime scene

was the same man who stood with her as a codefendant

at the pretrial hearing. Under the “totality of circum-

stances” approach mandated by the due process clause

of the Fourteenth Amendment, we perceive no error in

the admission of this pretrial identification.

12a

2. The Judicial Identification by Ronald Swayne

The surviving victim, Ronald Swayne, identified the

appellant as one of his assailants. The appellant takes

umbrage at this judicial identification, claiming it to

have been the poisoned produt of a tainted one-on-one

showup conducted by the police approximately two

days after the crimes. Although we are by no means

persuaded that even the extrajudicial identification

itself, measured against the standard set out in Neil v.

Biggers, might not pass muster, for admissibility

purposes, in terms of its substantial reliability, it is

unnecessary to undertake that lengthy analysis. If the

in-court identification is not, indeed, the product of the

earlier extrajudicial identification, the suggestiveness

vel non of that earlier confrontation is immaterial. As

we pointed out in Green v. State, 35 Md.App. 510, 523,

371 A.2d 1112:

“For an in-court identification to be suppressed,

two things must be shown:

(1) That the extrajudicial identification proce-

dure was the proximate cause of the ensuing

in-court identification. (Even if there has been

a tainted, to wit, impermissibly suggestive,

extrajudicial identification procedure, the in-

court identification may still be admissible if it

is shown to be not the product of the earlier,

tainted procedure ... ).”

In this case, the independent source of Ronald

Swayne’s judicial identification is clear. With the jury

out of the room, the following was established

unequivocally on direct examination:

“Q. Is your identification of the tall man in this

courtroom today, Mr. Swayne, based upon your

13a

observations of him through the entire incident, or

was it based upon anything or anyone you saw that

Saturday in the District of Columbia police

station?

MR. DE PAUL: Objection.

THE COURT: Overruled.

THE WITNESS: Based upon what I seen during

that incident.”

The defense effort, on cross-examination, to cast doubt

upon the independent source of the in-court identifica-

tion was unavailing:

“Q. Of course, the help you got from the police

helped you out a little bit, didn’t it?

A. Not really.”

The in-court identification was properly permitted.

3. The Extrajudicial Photographic Identifica-

tion by Donald McCain

Evidence was introduced establishing that Donald

McCain had on approximately March 31, 1976,

identified a photograph of the appellant as one of the

men he observed on the night of the crimes. Again, the

lengthy analysis under Neil v. Biggers is unnecessary,

because of the utter failure of the appellant to establish,

as is his burden, any initial taint in the photographic

viewing. There were ten pictures in the photographic

array. Though all were not uniform, they were all of

young Negro males, some with facial hair and some

without. There was nothing to highlight the photo-

graph of the appellant as the one to be picked. There

was no suggestion that the police in any way indicated

14a

to McCain that it was the appellant’s photograph that

should be singled out. Under Smith and Samuels v.

State, 6 Md.App. 59, 250 A.2d 285, the appellant

simply did not carry his initial burden requiring the

State to go forward in any regard.

4. The Limitation Upon the Cross-Examination

of the State’s Witnesses

The appellant sought to cross-examine both Ronald

Swayne and Donald McCain as to past criminal

conduct or involvement with the police. Upon timely

motion by the State, the trial judge ruled that such

cross-examination, for purposes of impeaching credi-

bility, must be limited to the showing of actual

convictions of crime. With some few exceptions, this is

the basic law of Maryland in this regard. Niemoth v.

State, 160 Md. 544, 557, 154 A. 66; Hurley v. State, 6

Md.App. 348, 355, 251 A.2d 241; Neam v. State, 14

Md.App. 180, 188, 286 A.2d 540. The trial judge, in

these situations, is faced with a delicate balancing. If

there is a genuine suggestion or proffer that a witness’s

involvement with the police is subjecting that witness to

a strong motivation to lie, such evidence should be

permitted. On the other hand, it must be rigorously

guarded against that a witness be diminished in the eyes

of a jury simply by a showing that he is “a bad man.” It

is furthermore to be noted that our law is evenhanded

in terms of impeachment and deals equally with

witnesses in a civil setting and in a criminal setting and

without regard to whether they are witnesses for the

prosecution or witnesses for the defense. It will never be

permitted that defendants be free to slash away at will

at State’s witnesses while having the character of their

own witnesses more solicitously shielded from attack.

+

15a

In this case, no proffer indicated that the police had

subjected either State’s witness to any pressure to

testify on behalf of the State. Ronald Swayne was a

victim of this crime, not a friend of the defense who was

grudgingly turned into a State’s witness. Under the

circumstances, we see the effort of the defense to

establish that Ronald Swayne had participated in

several robberies that had been nol-prossed and that

Donald McCain was “a dope pusher” and that he was

involved with “prostitution rings” and with “stolen

cars” as primarily an effort to discredit the two

witnesses by showing that they were “bad men.” In

Johnson v. State, 30 Md.App. 512, 517, 352 A.2d 371,

Judge Lowe pointed out the cautious limitations that

should be placed upon efforts such as those advanced

by the appellant in this case:

“We do not mean to imply that any time a witness

testifies against a criminal defendant his entire

record of previous arrests becomes relevant to the

inquiry. Only where there is some present possi-

bility of coercion should such cross-examination

be allowed. If it should appear that the cross-

examination is directed simply at casting the

witness in the suspicious light that falls upon

anyone under formal accusation, the trial judge

must not allow it.”

We do not feel in this case that the trial judge abused the

discretion which is wisely vested in him.

5. Allegedly Prejudicial Remarks in Closing

Argument

The argument of the appellant to the effect that the

prosecutor made prejudicial remarks in the course of

closing argument is simply without factual predicate.

16a

The appellant claims that the prosecutor told the jury

that Johnnie Mae Jones had made a photographic

identification of the appellant, when in fact she had not

made such a photographic identification. We cannot

read into the words of the prosecutor any such

» meaning. In contrasting the ability to make an

identification shortly after the crimes with the inability

to make an in-court identification sixteen months later,

the prosecutor was referring to the changed appearance

of the appellant. He said the following:

“Now, we have two identifications, each of which

is supporting the other. Where there might be a

weakness in one, it is supported by the other, and

vice versa.

But is that all we have? Is there anything more?

Yes. She was our first witness. You heard her

testimony. She was there. Johnnie Mae Jones.

She saw Roland Godwin as we see him in this

picture.”

The prosecutor was here referring to a picture which

the jury had of the appellant as he looked sixteen

months earlier. Although the grammatical structure of

the sentence might permit of some ambiguity, we

cannot perceive a clear and false statement having been

made, and certainly not one calling for a mistrial. For

the lack of a factual predicate, the argument falls.

6. Jury Instructions: “Premeditation”

The appellant complains that the trial judge did not

give an instruction, or at least an adequate instruction,

in terms of defining the element of premeditation. We

cannot agree. Recognizing that “[t]here is no necessity

17a

for the court to use the exact language requested,”

Nelson v. State, 5 Md.App. 109, 120, 245 A.2d 606, we

think that the trial judge in this case did convey the

essential meaning of premeditation. His instruction in

this regard was as follows:

“In Maryland there are two degrees of murder:

murder in the first degree and murder in the

second. And the distinction between the two is

based on the element of premeditation and

deliberation.

All murder which shall be perpetrated by means

of poison or lying in wait or by any kind of willful,

deliberate, and premeditated killing shall be

murder in the first degree, and in that regard for a

homicide to be willful there must be a specific

purpose, and there must be a specific design to kill.

First degree murder, in essence, is killing in cold

blood after having calculated the circumstances.

The burden is on the State of Maryland, based on

all the facts that you have heard, to show circum-

stances proving willfulness, deliberation, and

premeditation, if you are to find Mr. Godwin

guilty of murder in the first degree.

After a full and fair consideration of all the facts

in this case, if you are not convinced beyond a

reasonable doubt that the State has proven murder

in the first degree to your satisfaction, you will find

him not guilty of that charge.

If, however, after a full and fair consideration of

all the facts in this case you are convinced beyond a

reasonable doubt that they have proven all the

elements necessary to convict him of murder in the

first degree, you are to find him guilty of this

charge.

18a

Murder in the second degree is the unlawful

killing of a human being with malice, but without

premeditation and without deliberation. After a

full and fair consideration of all the facts and

circumstances of this case, you are convinced

beyond a reasonable doubt that the State has

proven to your satisfaction all the elements

necessary to convict him of this offense, you will

find him guilty of this offense.

If, however, you are not convinced beyond a

reasonable doubt after a full and fair consideration

of all the facts and circumstances, you will find him

not guilty.” (Emphasis supplied)

Following the court’s instructions, the exchange that

occurred between appellant’s counsel and the trial

judge is enlightening:

“With regard to your identification of murder in

the first definition, Your Honor gave—you said it

was killing with malice. You did not use the phrase

‘with malice aforethought’ as a distinction

between—

THE COURT: I don’t know what ‘afore-

thought’ is.”

We applaud both the candor and the correctness of the

statement. As of the Twentieth Century at least, the

19a

the 19th century (when it entered the law as an

attempt to rejuvenate the earlier meaning of

‘aforethought’) and significantly more by way of’

preplanning than premeditation connotes today

(premeditation having in the meantime suffered a

semantic erosion of its own). The word ‘afore-

thought’ today is devoid not simply of an ordinary,

layman’s meaning but of any meaning at all, even

as a term of art. As is pointed out by Perkins,

Criminal Law (2d Ed. 1969), at 34-35:

‘Undoubtedly the word ‘aforethought’ was

added to ‘malice’ in the ancient cases to

indicate a design thought out well in advance

of the fatal act. But as case after case came

before the courts for determination, involving

killings under a great variety of circumstances,

there came to be less and less emphasis upon

the notion of a well-laid plan. And at the

present day the only requirement in this

regard is that it must not be an afterthought.

‘Killing with malice’ is sufficient of itself to

negative any possible notion of an after-

thought, and apart from the historical back-

ground the word ‘aforethought’ would not be

needed.’

To the same effect is Purver, The Language of

Murder, 14 U.C.L.A.L.Rev. 1306, 1309 (1967):

‘Just as the word ‘malice’ confuses and

word “aforethought” is absolutely devoid of any

meaning whatsoever. As we pointed out in Evans v.

State, 28 Md.App. 640, 693-695, 349 A.2d 300:

“A similar erosion took place with respect to the

word ‘aforethought.’ In its pristine state, it

connoted that the intention to kill had existed

some appreciable time before the actual execution

of the deed. In connoted the same thing by way of

preplanning that premeditation connoted early in

misleads, the word ‘aforethought’ likewise

muddles thinking:

‘The fact that malice aforethought means

merely that malice must exist at the same

time as the act, in effect makes ‘afore-

thought’ meaningless surplusage, since the

requirement is satisfied by the presence of

malice or ‘concurrent’ malice rather than an

20a

antecedent malice. The unimportant char-

acter of the adjective ‘aforethought’ is seen

in the fact that in many opinions ‘malice’

and ‘malice aforethought’ are used inter-

historical background of the phrase, one

probes the roots of a term which, though

withering on the vine, lives on to strangle the

penal codes of the several states.’

And, at 1309:

‘Since ‘malice’ does not mean ‘ill-will’ and

‘aforethought’ does not mean ‘beforehand,’

2la

jury instructions, though necessary, sound

ridiculous.’

The word ‘aforethought’ is today an absolutely

useless appendage on our law. It has over the

ee. at that a many, i y centuries been utterly drained of any meaning

we U is itse Nees poe ig aes whatsoever. As a word of no utility but with an

rhe ng: Wea ae 57 oceaure yy ever-present potential for confusion (some may

§243, at (Anderson Ed. )) innocently think that ‘aforethought’ means afore-

Since today ‘aforethought’ may be ‘as thought), it should be struck from the lexicon of

instantaneous as successive thoughts of the our homicide law.”

rrp ot beset! cy ee haaion ot Defense counsel then more appropriately went on to

drawing attention to the duration of the the more pertinent subject of “premeditation”:

deliberation to kill as the criterion for “With regard to the instruction on first degree

distinguishing murder from other homicides.’ murder, instruction Your Honor gave made no

The use of the now anachronistic language still mention of premeditation in the sense of defining

haunts us, however. As Purver further points out, premeditation.

at 1306: You simply said ‘premeditation’.

‘Precision in the use of legal language is THE COURT: Do you have a definition?

essential, particularly in the law of homicide. ae

In a murder trial the use of a word or turn of a MR. DE PAUL: Pre-planning, pre-conceiving.

phrase may mark the difference between THE COURT: I thought I said that.”

whether the accused leaves the courtroom We are persuaded that looking at the instruction as a

free—or sentenced to death. : ' pe

Sire : totality, the necessary notion that the killing be thought

ka Mite oe a out in advance was communicated to the jury.

,

through the dust of more than four hundred h Particularly was this communicated by the sentence:

years of history, lying in wait to clutter “First degree murder, in essence, is killing in cold

statutes and confuse juries. In examining the ‘y blood after having calculated the circumstances.”

Even if in some other circumstances, not here

pertinent, a more painstaking and precise dissection of

the element of premeditation were necessary, this was

not such a case. With a fully articulated and well-

planned scheme of executions taking place over the

22a

course of several hours, that element of first-degree

murder was so clearly and unequivocally established as

to leave no room for debate. Realistically, the only

question in this case concerned the criminal agency (the

identification) of the appellant and not the corpus

delicti of the crime. In commenting upon the harm-

lessness of the even arguable error, we note, moreover,

that a common sense, layman’s definition of “pre-

meditation” would redound to the benefit of a

defendant and the more formal, case-law definition of

“premeditation,” as a term of art, would work to the

benefit of the State. Significant in this regard is the law

on premeditation, as discussed in Chisley v. State, 202

Md. 87, 106-107, 95 A.2d 577:

“It is not necessary that deliberation and pre-

meditation shall have been conceived or have

existed for any particular length of time before the

killing. Their existence must be judged from the

facts of the case. Webb v. State, supra. The Court

of Appeals of New York, in Leighton v. People, 88

N.Y. 117, 120, put it in this wise: ‘If, therefore, the

killing is not the instant effect of impulse, if there is

hesitation or doubt to be overcome, a choice made

as the result of thought, however short the struggle

between the intention and the act, it is sufficient to

characterize the crime as deliberate and premedi-

tated murder.’ The same ruling is made in People

v. Majone, 91 N.Y. 211, 212: ‘Such design must

precede the killing by some appreciable space of

time. But the time need not be long. It must be

sufficient for some reflection and consideration

upon the matter, for choice to kill or not to kill,

and for the formation of a definite purpose to kill.

And when the time is sufficient for this, it matters

not how brief it is.”

23a

A layman’s understanding of “premeditation” would

be something that requires an appreciable length of

time; the more sophisticated lore of the case law is that

“premeditation,” contrary to popular understanding,

can occur in a very brief time. A failure to have told the

jury this could only have helped the appellant, not hurt

him. Error, even if such had been present, would under

the circumstances of this case have been palpably

harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct.

824, 17 L.Ed.2d 705 (1967).

7. Felony-Murder and the Question of Merger

The appellant’s final contention is that since the

conviction for murder in the first degree might have

rested upon Article 27, §410, providing, inter alia, that

all murder committed in the perpetration of a kid-

napping shall be murder in the first degree, the under-

lying felony of kidnapping must, in three of the

indictments at least, merge into the ensuing felony-

murders. The appellant relies upon Newton v. State,

280 Md. 260, 373 A.2d 262. Newton, of course, does

not stand for such a proposition at all. It rather holds

that if the only credible evidence before a fact finder

which could justify finding that the highest degree of

blameworthiness existed in a homicide case was the

fact that one of the felonies spelled out in §§408-409 or

410 was being perpetrated, or attempted, then and only

then would the undergirding felony, or its attempt,

merge of necessity into the conviction for homicide. If,

on the other hand, there was legally sufficient,

independent evidence of wilfulness, deliberation and

premeditation under Article 27, §407, then the merger

would not be compelled. Newton v. State, 280 Md. at

24a

273-274. And see Frye v. State, Md.App. __, ___A.2d

—— (No. 6, September Term, 1977, filed on October 13,

1977).

In the present case, the clear evidence establishing

premeditation could not have been more beyond

dispute. This was a classic “ambush” or “lying in wait”

case. The three murderers set out upon a well-

articulated and unequivocal scheme of luring into a

trap, kidnapping, transporting to a deserted area,

subjecting to an identification process at the hands of

Johnnie Mae Jones and then executing all of those

persons who had ostensibly robbed her. This calcu-

lated and deliberated chain of events stretched out over

many miles and several hours. There was no sudden

anger or mutual affray. The homicide victims were

helpless targets. Under the circumstances of this case, a

merger of the convictions is not remotely called for.

JUDGMENTS AFFIRMED;

COSTS TO BE PAID BY

APPELLANT.

25a

MANDATE

Court of Special Appeals of Maryland

No. 200, September Term, 1977

November 14, 1977: Opinion by

Moylan, J.

Roland Neville Judgments affirmed; costs to be paid

Godwin by appellant.

bar January 10, 1978: Appellant’s Motion

for Reconsideration of Decision

granted in part. Opinion modified.

State of Maryland

February 28, 1978: Mandated issued.

STATEMENT OF COSTS:

In Circuit Court: Prince George’s County

Record 25.00

Stenographer’s Costs 1,794.00

In Court of Special Appeals:

Filing Record on Appeal ..........+.+45- 30.00

Printing Brief for Appellant ............. 627.79

PRM EEE Seco cescvesesecesscececccens

Portion of Record Extract—Appellant ....

Printing Brief for Cross-Appellee .........

Printing Brief for Appellee .............. 47.50

Portion of Record Extract—Appellee .....

Printing Brief for Cross-Appellant ........

26a

STATE OF MARYLAND, Sct:

I do hereby certify that the foregoing is truly taken

from the records and proceedings of the said Court of

Special Appeals.

In testimony whereof, I have hereunto set my hand

as Clerk and affixed the seal of the Court of

Special Appeals, this twenty-eighth day of Feb-

ruary, A.D. 1978.

/s/

Clerk of the Court of Special

Appeals of Maryland.

Costs shown on this Mandate are to be settled between

counsel and NOT THROUGH THIS OFFICE.

27a

March I, 1978

Joseph A. DePaul, Esquire

James E. Kenkel, Esquire

William C. Brennan, Jr., Esquire

7100 Baltimore Avenue

College Park, Maryland 20740

Re: Roland Neville Godwin v. State of Maryland

No. 200, September Term, 1977

Dear Counsel:

This refers to the Motion for Reconsideration filed

in behalf of the appellant, in the captioned case, and

you are advised that the Court filed a modified opinion

by substituting page 22 and adding page 23 filed

yesterday, February 28, 1978. On the same date, a

correction notice was sent to you enclosing a substi-

tuted page 22 and an additional page 23. The mandate

was also issued at the same time, a copy of which was

mailed to you; and the appeal record was returned to

the Clerk of the lower court forthwith.

Very truly yours,

/s/

Julius A. Romano

Clerk

JAR/nze

cc: Kathleen M. Sweeney, Esquire

28a

COURT OF SPECIAL APPEALS

of Maryland

¢

CORRECTION

February 28, 1978

Please make the following correction in the

opinion in the case of

Roland Neville Godwin

VS.

State of Maryland

No. 200, September Term, 1977

Please replace pages of the opinion mailed to you on

November 14, 1977, with the attached. The old page 22

should be thrown away and the enclosed pages 22 and

23 should be substituted. si

Yours truly, /s/

Under the circumstances of this case, a merger of the

convictions is not remotely called for.

The appellant urges that Frye v. State, supra,

compels us to find a merger of the underlying felony

into the murder unless the verdict, or the evidence,

Showed unmistakably that the murder was of the

ee

29a

premeditated variety rather than of the felony-murder

variety. He reads Frye overbroadly. Frye is, of course,

predicated upon Newton v. State, supra. The holding of

Newton, at 373 A.2d 267, was, in this regard, as follows:

“If ... the murder conviction is premised upon

independent proof of wilfulness, premeditation

and deliberation under §407, or if the evidence is

sufficient for a jury to find those elements, the

offenses would not merge.” (Emphasis supplied)

Even more significant than the words of Newton

themselves is the fact that Newton cites as authority for

this proposition the case of Robinson v. State, 249 Md.

200, 238 A.2d 875. In Robinson, as in the present case,

there was ample evidence to support either a finding of

premeditated murder or a finding of felony murder.!

The defendant in that case, as the defendant here, was

urging that the conviction for the underlying felony (in

'Indeed, there will frequently be situations where a finding of murder

in the first degree is predicated not upon the premeditation theory or the

felony-murder theory as mutually exclusive alternatives but rather

upon both of them together. An over-rigidification of the decisional

process could work untold mischief. Posit a hypothetical situation. All

twelve jurors are unanimously agreed that a defendant is guilty of

murder in the first degree. In terms of how they arrive at their decision,

however, there is no such agreement. Three are adamantly convinced

that there has been premeditation but no felony. Three others are

adamantly convinced that there has been a felony-murder but no

premeditation. Three others are equally stubborn in their insistence that

the first-degree verdict is supported by both premeditation and felony-

murder. Three others are absolutely persuaded that there is guilt of

murder in the first degree but are in a state of balance as to whether it is

because of the premeditation principle or the felony-murder principle.

Is this jury hung? Is the declaration of a mistrial called for? Obviously

not! Why? Because it would be absurd!

30a

that case assault with intent to rape) must merge into

the murder conviction where there is a possibility that

the first-degree murder conviction was based upon the

felony-murder theory. The Court of Appeals rejected

that contention, saying at 249 Md. 209:

“Since there is an abundance of evidence to

support a verdict of premeditated murder under

§407 of Article 27 we must reject appellant’s

presumption that the jury found him guilty of a

felony murder under §410.

It is entirely possible, and we think it more than

likely, that the jury’s verdict reflects a finding that

the murder of Florence was premeditated.”

JUDGMENTS AFFIRMED;

COSTS TO BE PAID BY

APPELLANT.

Anan et Selanne Ls erotik!

lb

APPENDIX B

ROLAND NEVILLE IN THE

COURT OF APPEALS

OF

V. MARYLAND

Petition Docket No. 19

September Term, 1978

(No. 200—September Term, 1977

STATE OF Court of Special Appeal)

MARYLAND

ROLAND NEVILLE

GODWIN

ORDER

Upon consideration of the petition for writ of

certiorari to the Court of Special Appeals and the

answer filed thereto in the above entitled case, it is this

21st day of November, 1978,

ORDERED, by the Court of Appeals of Maryland,

that the writ of certiorari to the Court of Special

Appeals shall issue and that review shall be limited

solely to Question V concerning the merger of the

underlying felony convictions into the murder convic-

tions; and it is further

ORDERED that said case shall be transferred to the

regular docket as No. 88, September Term, 1978.

/s/ Robert C. Murphy

Chief Judge

2b

ROLAND NEVILLE IN THE

COURT OF APPEALS

OF

V. MARYLAND

Petition Docket No. 19

September Term, 1978

(No. 200—September Term, 1977

STATE OF Court of Special Appeal)

MARYLAND

ROLAND NEVILLE

GODWIN

WRIT OF CERTIORARI

TO THE HONORABLE THE JUDGES

OF THE COURT OF SPECIAL

APPEALS OF MARYLAND:

WHEREAS, Roland Neville Godwin v. State of

Maryland, No. 200, September Term, 1977 was

pending before your Court, and the Court of Appeals

of Maryland is willing that the record and proceedings

therein be certified to it.

YOU ARE HEREBY COMMANDED to cause

them to be sent without delay to the Court of Appeals

of Maryland, together with this writ, for the said Court

to proceed thereon as justice may require.

WITNESS, the Chief Judge of the Court of Appeals

of Maryland, this 21st day of November, 1978.

/s/ James H. Norris, Jr.

Clerk

Court of Appeals of Maryland

3b

IN THE

COURT OF APPEALS OF MARYLAND

No. 88

September Term, 1978

ROLAND NEVILLE GODWIN

V.

STATE OF MARYLAND

Murphy, C.J.

Smith

Digges

Eldridge

Orth

Cole,

JJ.

ORDER OF COURT

Filed: November 21, 1978

4b

ROLAND NEVILLE IN THE

GODWIN COURT OF APPEALS

OF

v. MARYLAND

No. 88

STATE OF September Term, 1978

MARYLAND

ORDER

It is this 21st day of November, 1978

ORDERED, by the Court of Appeals of Maryland,

that the judgment of the Court of Special Appeals in

the above entitled case be, and it is hereby, vacated and

the case is remanded to the Court of Special Appeals

for the entry of a new judgment consistent with the

opinion of this Court in State v. Eugene Shaw Frye and

Willie Lee Jones, Jr. v. State, Nos. 133 and 173,

September Term, 1977 decided November 16, 1978;

and it is further

ORDERED that the costs are to be paid by Prince

George’s County.

/s/ Robert C. Murphy

Chief Judge

ee eee ene eee

5b

ROLAND NEVILLE IN THE

GODWIN COURT OF APPEALS

OF

v. MARYLAND

No. 88

STATE OF September Term, 1978

MARYLAND

MANDATE

TO THE HONORABLE THE JUDGES

OF THE COURT OF SPECIAL

APPEALS OF MARYLAND:

WHEREAS the case of Roland Neville Godwin v.

State of Maryland came before you and wherein the

judgment of the said Court of Special Appeals of

Maryland was duly entered on the fourteenth day of

November, 1977 as appears from the transcript of the

record of the said Court of Special Appeals of

Maryland which was brought into the Court of

Appeals of Maryland by virtue of a writ of certiorari

dated November 21, 1978; and

WHEREAS in the September Term, 1978 the said

cause was submitted to the Court of Appeals of

Maryland;

ON CONSIDERATION WHEREOF, it was or-

dered and adjudged on November 21, 1978 by this

Court that the judgment of the Court of Special

Appeals be vacated and case remanded to your Court

for entry of a new judgment consistent with the opinion

of this Court in State v. Eugene Shaw Frye and Willie

6b

Lee Jones, Jr. v. State, Nos. 133 and 173, September

Term, 1977, decided November 16, 1978; costs to be

paid by Prince George’s County.

NOW, THEREFORE, THIS CAUSE IS RE-

MANDED to you in order that such proceedings may

be had in the said cause in conformity with the

judgment of this Court above stated as accord with

right and justice, and the Constitution and laws of

Maryland, the said writ notwithstanding.

WITNESS the Honorable Robert C. Murphy, Chief

Judge of the Court of Appeals of Maryland this

twenty-first day of November, 1978.

/s/ [s/

Clerk

Court of Appeals of Maryland

Costs:

Petition filing fee ............ $20.00

Rr rere 25.00

Ic

APPENDIX C

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 200

(ON REMAND)

September Term, 1977

ROLAND NEVILLE GODWIN

V.

STATE OF MARYLAND

*Gilbert, C.J.

Moylan,

Lowe,

JJ.

Opinion by Moylan, J.

Filed: January 16, 1979

*Judge W. Albert Menchine who

participated in the original opinion

retired on December 31, 1977.

2c

The appellant, Roland Neville Godwin, was con-

victed by a Prince George’s County jury, presided over

by Judge Jacob S. Levin, of three counts of first-degree

murder, four counts of kidnapping and four counts

involving the unlawful use of a handgun in the

commission of a crime of violence. He appealed

initially to this Court, raising seven separate conten-

tions. We rejected all of those contentions and affirmed

the convictions in Godwin v. State, 38 Md.App. 716.

The Court of Appeals granted certiorari to consider

one of those contentions—that three of the kidnapping

convictions should have merged into the three convic-

tions of first degree murder. On November 21, 1978,

the Court of Appeals passed an order vacating our

judgment in this case and remanding it to us “for the

entry of a new judgment consistent with the opinion of

[that] Court in State v. Eugene Shaw Frye and Willie

Lee Jones, Jr. v. State, Nos. 133 and 173, September

Term, 1977, decided November 16, 1978.” It will reduce

the clutter to clear away the convictions which are not

affected by the order of the Court of Appeals.

The appellant, along with two codefendants, was

convicted of gangland-style kidnappings and execu-

tions directed initially at four victims and fully

consummated with respect to three of those victims.

With respect to each of the three victims who was

ultimately executed—Alvin Jones, Anthony Cunning-

ham and David Dock—convictions were obtained for

murder in the first degree, kidnapping and the use of a

handgun in the commission of a crime of violence.

With respect to the intended victim who was ultimately

permitted to go free by his captors—Ronald Swayne—

convictions were obtained simply for kidnapping and

3c

the use of a handgun in the commission of a crime of

violence. Those two convictions, wherein the victim

was Ronald Swayne, are unaffected by anything in the

Court of Appeals’ order and as to them, the judgments

below remain affirmed.

As in the Jones case, supra, a remand is in order with

the State having the option of 10 retrying the

aappellant on the three murders and related kidnap-

pings in an effort to obtain consecutive sentences or 2)

allowing the kidnapping convictions to be vacated and

deemed merged into the respective murder convic-

tions. If the State should decide that it is content with

“a bird in hand,” our direction to the court below is to

vacate the convictions and sentences on those three

kidnapping charges. The convictions and the sentences

for both the murders and the handgun uses will remain

unaffected by the remand.

A word is in order about leaving the convictions and

sentences for the handgun offenses undisturbed. In the

first place, the legal sufficiency of the evidence to

support the handgun convictions is not disputed. The

Court of Appeals’ order does not disturb one whit the

findings upon the merits that three murders (crimes of

violence) were committed with handguns and that

three kidnappings (also crimes of violence) were also

committed with handguns. The undisturbed convictions for

murder alone serve as ample predicates for the

handgun convictions!—regardless of the fate of the

kidnapping convictions. In the second place, the crime

'A conviction for the use of a handgun in the commission of a crime

of violence may stand upon its own legs, of course, even in the face of an

acquittal on the merits for the actual “crime of violence” itself. Ford v.

State, 274 Md. 546.

4c

of using a handgun in the commission of a crime of

violence contains an element—the use of a handgun—

which is not a required element of either murder or

kidnapping. They, in turn, each require obvious

elements not required for the handgun convictions.

The handgun convictions are not, therefore, lesser

included offenses for purposes of mandatory merger.

Couplin v. State, 37 Md. App. 567; Cates v. State, 21

Md. App. 363; Bremer v. State, 18 Md. App. 291; cf.

Dillon v. State, 277 Md. 571. They do not merge

directly into the murder convictions. Neither do they

merge into the kidnapping convictions so as to link

their destinies inexorably together.’

2Even if the handgun charges were tied exclusively to the kidnappings

as their predicates and even if Ford v. State, infra, did not permit the

handgun charges to stand independent of the fate of the kidnapping

charges, sound reasoning still would not dictate vacating them ina case

such as this. In a merger situation such as that mandated by Newton v.

State, supra, the convictions for the underlying felonies are vacated not

because, upon the merits, those felonies did not occur but for the very

opposite reason that those felonies did occur and are, as lesser included

offenses, subsumed into the greater offenses so as to avoid double

punishment. Even if consistency between verdicts were demanded,

therefore, the factual predicate for the handgun offense is not wiped out

where the crime of violence is merged into a greater offense, in contrast

to the very different situation where the crime of violence has been

found, upon the merits, not to have occurred. We look to the substance

of what happens and not the mere form. Every vacating of a kidnapping

conviction is not the same as every other in terms of its significance and

impact. To prove a kidnapping upon the merits but to have it merged

into a greater inclusive offense so as to avoid multiple punishment is a

far cry from failing to prove the kidnapping upon the merits. The only

reason the underlying felony merges into the felony-murder is because it

has no element not contained in that particular form of murder. The use

of the handgun in the commission of the merged felony, by way of

contrast, does have an independent element and does not so merge.

Sc

We now turn to the possibilities that may occur in the

event the State exercises its retrial opt'on to push for

consecutive sentences.’ Even in this event, the vacating

of convictions and the ensuing retrial would be with

respect to the three murder charges and the three

related kidnapping charges. For all of the reasons

discussed above, there is no necessity for a retrial as to

the three handgun charges and these convictions may

stand undisturbed, whatever course the State elects to

take with regard to the murders and the kidnappings. It

is clear, under Ford v. State, supra, that the crime of

using a handgun in the commission of a crime of

violence is not a “lesser included offense” within nor the

“same offense” as the related crime of violence and a

conviction for the one may stand unaffected by the fate

of the other. There is no multiple punishment problem

and no former jeopardy problem (autrefois convict

variety) because the handgun offense and the “crime of

violence” in which the handgun is used are not “the

same offense” within the contemplation of double

jeopardy law. Newton v. State, 280 Md. 260, 373 A.2d

262 (1977); Blockburger v. United States, 284 U.S. 299,

52 S.Ct. 180, 76 L.Ed. 306 (1932).

With respect to the three murder charges and the

three related kidnapping charges, we remand them to

the Circuit Court for Prince George’s County for

3In view of the stark realities of parole consideration, wherein

ostensibly lengthy sentences rapidly pass a point of diminishing returns,

the strategic wisdom of opting for some nominal victory in terms of

sentence at the risk of Pyrrhic victory in terms of mind-boggling

confusion and opportunity for error as illustrated by this case and Jones

and Frye would appear highly questionable. The decision, however, is

in the unfettered discretion of the State’s Attorney's Office.

6c

further proceedings. The State may, if it is so inclined,

elect to retry the appellant for both the murders and the

underlying kidnappings. In such event, the jury should

be instructed in accordance with State v. Frye and

Jones v. State, __ Md. —_, 393 A.2d 1372 (1978) and

as fully explained in Frye v. State, 37 Md.App. 476, 378

A.2d 155 (1977). If, after a reasonable time, the State

fails to elect a new trial, the judgments on the three

underlying kidnapping counts should be vacated and

the judgments of guilty on the three murder counts

should be enrolled.

JUDGMENTS AS TO COUNTS 22 AND

25 (CHARGING KIDNAPPING AND

THE USE OF A HANDGUN WITH

RESPECT TO THE VICTIM SWAYNE)

AFFIRMED; JUDGMENTS AS TO

COUNTS 7, 14 AND 21 (THE HAND-

GUN COUNTS WITH RESPECT TO

THE OTHER THREE VICTIMS) AF-

FFIRMED; JUDGMENTS AS TO

COUNTS 4, 11 AND 18 (CHARGING

THE THREE RELATED KIDNAP-

PINGS) VACATED AND REMANDED

FOR FURTHER PROCEEDINGS;

COSTS TO BE PAID BY PRINCE

GEORGE’S COUNTY.

ld

APPENDIX D

IN THE

COURT OF APPEALS OF MARYLAND

No. 133 and No. 173

September Term, 1977

No. 133

STATE OF MARYLAND

Vv

EUGENE SHAW FRYE

* * *

No. 173

WILLIE LEE JONES, JR.

V.

STATE OF MARYLAND

Murphy, C.J. Eldridge

Smith Orth

Digges Cole,

*Levine JJ.

Opinion by Eldridge, J.

Murphy, C.J., concurs

in the judgments.

Filed: November 16, 1978

*Levine, J., participated in the hearing

of the cases and in the conference in

regard to the decisions but died prior

to the adoption of the opinion by the

Court.

2d

This Court in Newton v. State, 280 Md. 260, 373

A.2d 262 (1977), held that when a defendant is charged

with both murder and a felony arising from the same

transaction, and is convicted of murder based upon the

felony murder doctrine, the underlying felony merges

into the murder conviction. The two cases now before

us involve the application of the Newton holding under

circumstances where we do not know whether the jury’s

finding or murder was premised upon the felony

murder doctrine.

Before turning to the facts of the instant case, it

would be useful to briefly review the applicable legal

background. It is provided in Maryland Code (1957,

1976 Repl. Vol.), Art. 27, §§407-410, that certain types

of murder shall be murder in the first degree. Under

Art. 27, §411, all murder not provided for in §§407-410

is murder in the second degree. Section 407 states that

“{ajll murder which shall be perpetrated ... by any

kind of wilful, deliberate and premeditated killing shall

be murder in the first degree.” To establish first degree

murder under this section it must be proven that the

homicide was wilful, deliberate and premeditated,

which also establishes the element of malice. Newton v.

State, supra, 280 Md. at 268; Dorsey v. State, 278 Md.

221, 362 A.2d 642 (1976); Gladden v. State, 273 Md.

383, 330 A.2d 176 (1974). Under §410, however,

murder committed in the perpetration of certain

enumerated felonies, including robbery and kidnap-

ping, is first degree murde. To prove first degree

murder under §410, there is no need to prove

wilfulness, deliberation and premeditation as would be

3d

required by §407. Instead, to secure a first degree

murder conviction under §410, the State must prove

only the elements of the underlying felony and the

death occurring in the perpetration of the felony.

Newton v. State, supra, 280 Md. at 269; Veney v. State,

251 Md. 159, 174, 246 A.2d 608 (1968), cert. denied, 394

U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482 (1969);

Stansbury v. State, 218 Md. 255, 260, 146 A.2d 17

(1958).

In Newton v. State, supra, the defendant was

charged with murder of a taxicab driver and attempted

armed robbery of the driver, both charges growing out

of the same transaction. The evidence established that

the defendant Newton and a companion, after borrow-

ing a revolver, hailed a taxicab. After proceeding one

block, the companion told the driver that it was a

“stick-up” and that he should stop the cab. The driver

complied and raised his hands; nevertheless he was shot

and killed. The testimony was in sharp conflict as to

which one did the shooting. Newton testified that it was

the companion who shot the driver, and the companion

testified that it was Newton. Newton had elected a non-

jury trial, and at the end of the trial, the court found

him guilty of first degree murder expressly on the basis

that the killing was “in the course of the perpetration of

an attempted robbery.” In addition, the court found

Newton guilty on the attempted armed robbery charge,

and sentences were imposed on both convictions. After

the Court of Special Appeals upheld both convictions

and sentences, we granted a writ of certiorari to

consider Newton’s contention that separate sentences

for both felony murder and the underlying felony

constituted double punishment in violation of the

Double Jeopardy Clause of the Fifth Amendment to

the United States Constitution.

4d

We initially stated in Newton that whether a separate

sentence for attempted robbery violated the Double

Jeopardy Clause depended upon “whether felony

murder and the underlying felony upon which the

murder conviction is founded are to be deemed the

same offense under federal double jeopardy princi-

ples.” 280 Md. at 265. We then pointed out, id. at 265-

266, as we have on several other occasions recently,!

that the federal standard for determining whether two

offenses arising from the same transaction are to be

deemed the same offense for double jeopardy purposes

is the so-called “required evidence” test as set forth in

Blockburger v. United States, 284 U.S. 299, 304, 52

S.Ct. 180, 76 L.Ed. 306 (1932), and Gavieres v. United

States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911),

and originally adopted from Morey v. Common-

wealth, 108 Mass. 433 (1871). This was recently

reiterated by the Supreme Court in Brown v. Ohio, 432

U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977):

“The established test for determining whether

two offenses are sufficiently distinguishable to

permit the imposition of cumulative punishment

was stated in Blockburger v. United States, 284

U.S. 299, 304 (1932):

‘The applicable rule is that where the same act

or transaction constitutes a violation of two

distinct statutory provisions, the test to be

applied to determine whether there are two

‘Johnson v. State, 283 Md. 196, 388 A.2d 926(1978); Bynum v. State,

277 Md. 703, 706, 357 A.2d 339, cert. denied, 429 U.S. 899,97 S.Ct. 264,

50 L.Ed.2d 183 (1976); Cousins v. State, 277 Md. 383, 388-389, 354 A.2d

825, cert. denied, 429 U.S. 1027, 97 S.Ct. 652, 50 L.Ed.2d 631 (1976);

Thomas v. State, 277 Md. 257, 267, 353 A.2d 240 (1976).

Sd

offenses or only one, is whether each provision

requires proof of a fact which the other does

Ms.

This test emphasizes the elements of the two

crimes. ‘If each requires proof of a fact that the

other does not, the Blockburger test is satisfied,

notwithstanding a substantial overlap in the proof

offered to establish the crimes... .’ Jannelli v.

United States, 420 U.S. 770, 785 n. 17 (1975).”

And, as explained in Thomas v. State, 277 Md. 257,

267, 353 A.2d 240 (1976):

“The required evidence is that which is mini-

mally necessary to secure a conviction for each

statutory offense. If each offense requires proof of

a fact which the other does not, or in other words,

if each offense contains an element which the other

does not, the offenses are not the same for double

jeopardy purposes even though arising from the

same conduct or episode. But, where only one

offense requires proof of an additional fact, so that

all elements of one offense are present in the other,

the offenses are deemed to be the same for double

jeopardy purposes.”

Appiying the required evidence test in Newton, we

held that felony murder and the underlying felony must

be treated as one offense for double jeopardy purposes.

After discussing the requirements for proving first

degree murder under the felony murder doctrine (Art.

27, §410), we reasoned in Newton (280 Md. at 269):

“Therefore, to secure a conviction for first

degree murder under the felony murder doctrine,

the State is required to prove the underlying felony

and the death occurring in the perpetration of the

felony. The felony is an essential ingredient of the

murder conviction. The only additional fact

6d

necessary to secure the first degree murder

conviction, which is not necessary to secure a

conviction for the underlying felony, is proof of

the death. The evidence required to secure a first

degree murder conviction is, absent the proof of

death, the same evidence required to establish the

underlying felony. Therefore, as only one offense

requires proof of a fact which the other does not,

under the required evidence test the underlying

felony and the murder [constitute the same offense

for double jeopardy purposes and] merge.”

Two months after our decision in Newton, the

Supreme Court reached the same conclusion in Harris

v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d

1054 (1977), namely that felony murder and the

underlying felony are to be deemed the same offense

under the Double Jeopardy Clause of the Fifth

Amendment. In Harris, the defendant and an ac-

complice were engaged in the robbery ofa grocery store

when the accomplice shot and killed a store clerk. The

defendant Harris was convicted of murder, based upon

the felony murder doctrine, in an Oklahoma court.

Harris was then convicted and sentenced ona charge of

robbery with firearms, and the Oklahoma appellate

court affirmed. Harris v. State, 555 P.2d 76 (Okla.

Crim.App. 1976). The United States Supreme Court

reversed the robbery conviction, saying (433 U.S. at

682):

“When, as here, conviction of a greater crime,

murder, cannot be had without conviction of the

lesser crime, robbery with firearms, the Double

Jeopardy Clause bars prosecution for the lesser

7d

crime after conviction of the greater one.”?

See also Brown v. Ohio, supra, 432 U.S. at 168.

Although we held in New‘ron that felony murder and

the underlying felony are to be considered one offense

for purposes of multiple punishment, and therefore the

underlying felony would merge into the felony murder

conviction, we also emphasized that if a first degree

murder conviction is premised upon independent proof

of wilfulness, premeditation and deliberation under

Art. 27, §407, then the murder, even though committed

in the course of a felony, would not be deemed the same

offense as the felony, and there would be no merger.

“Each offense would then require proof of facts which

the other did not, and convictions on both would be

proper.” Newton vy. State, supra, 280 Md. at 269. The

two cases at bar, to which we now turn, involve this

reservation.

The defendant in one of the instant cases, Eugene

Shaw Frye, was charged in two separate indictments

with four violations of the criminal law which are here

2At the time this Court decided Newton v. State, 280 Md. 373 A.2d

262 (1977), there was a split in decisions among state and lower federal

courts as to whether felony murder and the underlying felony were to be

treated as the same offense for double jeopardy purposes. Interestingly,

the decision of the Oklahoma Court of Criminal Appeals in Harris v.

State, 555 P.2d 76 (Okla.Crim.App. 1976), was cited by both

themajority and dissenting opinions in Newson as representative of a

liné of cases permitting conviction and sentencing of a defendant on

both felony murder and the underlying felony. Newton v. State, supra,

280 Md. at 270, 275 n. 1. The Harris decision, as discussed in the text,

was subsequently reversed by the Supreme Court.

8d

relevant. In one indictment, he was charged in the first

count with murder and in the second count with using a

handgun in the commission of a crime of violence (i.e.,

the murder). In the other indictment, he was accused in

one count of robbery with a dangerous and deadly

weapon and in another count of using a handgun in the

commission of a crime of violence (i.e., the robbery).

He was brought to trial, before a jury, in the Criminal

Court of Baltimore. With respect to the murder count,

the State proceeded both on the theory of wilful,

deliberate and premeditated murder and on the theory

of felony murder. The evidence presented by the State

tended to establish that on November 29, 1975, Frye

entered a grocery store and ordered some luncheon

meat. As the proprietor was slicing the meat, Frye went

behind the counter and drewa handgun on him. After a

brief affray, Frye shot the shopkeeper, removed money

from the cash register, and proceeded to flee. This

account of the shooting was directly contradicted by

Frye, who claimed that the gun fell out of his pocket

and accidentally discharged.

At the conclusion of Frye’s trial, the jury was

instructed on felony murder, on wilful, deliberate and

premediated murder, and on robbery with a dangerous

and deadly weapon. No instruction was given or

requested telling the jury that if it decided that Frye was

guilty of murder, it should then state whether such

verdict rested upon the theory of felony murder or

upon a finding a wilful, deliberate and premeditated

murder. Moreover, no alternative instruction was

given or requested such as advising the jury that, if it

based a murder verdict upon the felony murder

doctrine, it should not then consider the underlying

9d

robbery charge or the handgun charge associated with

the robbery charge. The jury found the defendant

guilty of first degree murder and robbery with a

dangerous and deadly weapon. Due to the general

verdict of first degree and the lack of direction in the

instructions, there is basis to determine whether the

jury’s finding of murder was grounded upon wilful,

deliberate and premeditated murder, or upon a felony

murder. Frye was also found guilty of both counts of

unlawful use of a handgun in the commission of a

felony. On the murder conviction, Frye was sentenced

to life imprisonment, and he was given a concurrent

five year term on the associated handgun count. With

regard to the robbery and its related handgun convic-

tion, he received sentences of 20 years and 5 years,

respectively, to run concurrently with the sentences on

the murder conviction.?

Frye took an appeal to the Court of Special Appeals,

arguing that Newton v. State, supra, required merger

of the underlying felony into the murder conviction.

Although the issue was not raised at the trial level, the

Court of Special Appeals invoked its discretionary

authority under Maryland Rule 1085 to consider the

matter. The Court of Special Appeals then vacated the

judgments on the felony count and the associated

handgun count, stating (Frye v. State, 37 Md.App. 476,

480, 378 A.2d 155 (1977)):

“The trial judge, when confronted with a murder

case involving a ‘felony murder,’ Md. Ann. Code

art. 27, §410, should instruct the jury that they are

3As to the Maryland rule concerning the reviewability of concurrent

sentences, see the discussion in Newton v. State, supra, 280 Md. at 265.

10d

to indicate by their verdict whether, from all the

evidence, they have found the accused guilty of a

felony murder under §410, or they have found the

requisite intent of ‘wilfulness, premeditation and

deliberation’ independent of the underlying felony

so that the accused is guilty of a §407 murder. The

jury should also be instructed that they are to

render a verdict on each of the other counts of the

indictment be the murder a violation of §407 or

§410. When the jury finds the accused guilty of a

§410 murder, the underlying felony should be

deemed to be merged into the murder and a

separate sentence should not be imposed for the

underlying felony violation. On the other hand, if

the jury returns a verdict of guilty of murder under

$407 and the underlying felony, the trial judge is at

liberty to impose sentences on both the murder

and the underlying felony.

_ “As we have indicated, in the absence of such

jury instructions and in light of the resultant

verdicts, we are unable to state which of the

ermissible inferences the jury drew in arriving at

its verdict in the case sub judice. We resolve the

doubt in favor of the appellant, and we vacate the

judgments entered on the robbery with a deadly

weapon and the related handgun charge.”

We granted the State’s petition for a writ of certiorari,

limited to the question whether the Court of Special

Appeals had misapplied our decision in Newton v.

State, supra.‘

*A second matter presented by the State’s petition was that we should

reconsider our holding in Newton. However, and particularly in light of

the Supreme Court's decision in Harris v. Oklahoma, supra, our order

granting certiorari excluded this issue.

lld

The defendant in the other case now before us, Willie

Lee Jones, Jr., was charged by the State with three

counts of murder, four counts of kidnapping, and four

counts of unlawful use of a handgun in the com-

mission of a felony. The evidence presented by the

prosecution at Jones’ jury trial showed that he, along

with two other men, kidnapped four individuals at

gunpoint and took them to a wooded area in Prince

George’s County. The reason for the abductions was

that the four victims were suspected of having stolen

cocaine belonging to Jones’s sister. After purporting to

ascertain that three of the kidnapped victims were

involved in the theft, these three were shot and killed.

At the close of Jones’s trial, the jury was instructed

on felony murder, on wilful, deliberate and premedi-

tated murder, on kidnapping, and on the unlawful use

of a handgun in the commission of a felony. As in Frye,

the court was not asked to and did not of its own accord

give the jury any instructions designed to reveal the

basis of a murder verdict. The State expressly argued to

the jury that Jones was guilty of wilful, deliberate and

premeditated murder, and, alternatively, that even if he

did not participate in wilful, deliberate and premedi-

tated killings, he would be guilty under the felony

murder theory. The jury found Jones guilty on three

counts of first degree murder, four counts of kidnap-

ping, and all four handgun counts. Again, as in the

Frye case, the jury’s first degree murder verdict affords

no foundation for this Court to determine whether the

conviction was based on felony murder or on wilful,

deliberate and premeditated murder. Jones was sen-

tenced to life imprisonment on each of the murder

convictions, 30 years on each of the four kidnapping

12d

convictions and 15 years on each of the four handgun

convictions. All sentences were imposed to run

concurrently.

Jones took an appeal to the Court of Special

Appeals, arguing, among other things, that under

Newton v. State, supra, the kidnapping and murder

convictions merged. The Court of Special Appeals, as

it did in its Frye decision two months earlier,

considered the question on its merits despite the

defendant’s failure to raise the issue at trial. On the

merits, however, the Court of Special Appeals reached

a conclusion exactly opposite from its earlier conclu-

sion in Frye, and it affirmed the felony and associated

handgun convictions, saying (Jones v. State, 38

Md.App. 288, 304, 380 A.2d 659 (1977)):

*“The appellant’s final contention is that since

the conviction for murder in the first degree might

have rested upon Article 27, §410, providing, inter

alia, that all murder committed in the perpetration

of a kidnapping shall be murder in the first degree,

the underlying felony of kidnapping must, in three

of the indictments at least, merge into the ensuing

felony-murders. The appellant relies upon Newton

v. State, 280 Md. 260, 373 A.2d 262. Newton, of

course, does not stand for sucha proposition at all.

It rather holds that if the only credible evidence

before a fact finder which could justify finding that

the highest degree of blameworthiness existed in a

homicide case was the fact that one of the felonies

spelled out in §§408-409 or 410 was being per-

petrated, or attempted, then and only then would

the undergirding felony, or its attempt, merge of

necessity into the conviction for homicide. If, on

the other hand, there was legally sufficient inde-

13d

pendent evidence of wilfulness, deliberation and

premeditation under Article 27, §407, then the

merger would not be compelled.’ ”5

The defendant Jones then petitioned this Court for a

writ of certiorari, raising solely the matter of the proper

application of Newton to the underlying felony and

associated handgun convictions. We granted the

petition and heard the case along with Frye.

The State’s argument in these two cases is the same as

the position adopted by the Court of Special Appeals in

Jones. The State contends that under the Newton

holding, an underlying felony would merge into a

murder conviction only if the sole evidentiary basis for

the murder verdict is the felony murder doctrine, but

that if there is any legally sufficient evidence of

wilfulness, deliberation and premeditation, there

would be no merger. This interpretation of our decision

in Newton is patently incorrect. The facts of Newton

itself show the State and the Court of Special Appeals

in Jones to be in error. Newton was not a case where the

only credible evidence justifying a murder finding was

5The Court of Special Appeals in Jones was actually quoting from its

opinion in Godwin v. State, 38 Md.App. 716, 736, 382 A.2d 596 (1977).

A petition for a writ of certior: ri was filed in Godwin on March 15,

1978, and is presently pending. Godwin was decided one month after

Frye and one month prior to Jones. The Godwin case arose out of the

same transaction as the Jones case, Godwin being an accomplice of

Jones in the alleged kidnapping and murder. It was the opinion in the

Godwin case which initially created the conflict within the Court of

Special Appeals.

14d

evidence establishing felony murder. The testimony of

Newton’s companion, contradicting Newton’s version

of the shooting and stating that Newton himself

intentionally and deliberately shot the taxicab driver,

was clearly legally sufficient evidence of wilfulness,

premeditation and deliberation.*®

The reason for our deciding in Newton that the

underlying felony merged into the murder conviction

was, therefore, not a lack of evidence showing

wilfulness, premeditation and deliberation. It was

because the trier of facts based the verdict on felony

murder instead of finding wilful, deliberate and

premeditated murder under Art. 27, §407. Where the

same transaction gives rise to both murder and felony

charges, and where the murder charge is submitted to

the trier of facts both on the theory of felony murder

and on the theory of wilful, deliberate and premedi-

tated murder, Newton teaches that it is the basis for the

murder verdict which controls the merger issue.

The effect of the position taken by the State and by

the Court of Special Appeals in Jones, is to assume that

the jury rested its verdict on a finding of wilful,

deliberate and premeditated killing instead of on the

felony murder theory in every case where there is any

evidence of wilfulness, deliberation and premedita-

tion. But in cases like Newton, Frye and Jones, there

would be no justification for such an assumption. If

Newton had been a jury trial, and if the jury had

believed the testimony of the defendant Newton that

‘This testimony was adequately corroborated, and thus the Mary-

land rule requiring corroboration of an accomplice’s testimony was

satisfied.

15d

the killing of the taxicab driver was solely the work of

his companion, the basis of the jury’s murder verdict

would have been felony murder. In the Frye case, if the

jury believed the defendant’s account that the gun fell

out of his pocket and accidentally discharged, the

murder verdict would not rest on the evidence of

wilfulness, deliberation and premeditation. The prose-

cuting attorney in Jones extensively argued the felony

murder theory to the jury as an alternative basis of

conviction if the jury found an absence of wilfulness,

deliberation and premeditation. To infer in these cases

that the basis for the first degree murder verdict was a

finding of wilfulness, deliberation and premeditation,

would be sheer speculation.

The convictions and sentences for the underlying

felonies in the present cases are supportable if the juries

found wilful, deliberate and premeditated killings but

are not supportable if the murder verdicts rested upon

the felony murder theory, and it is impossible to tell

which basis was chosen by the juries in rendering the

verdicts on the murder counts. The Supreme Court, in

Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064,

1 L.Ed.2d 1356 (1957), made it clear that the doubtful

verdict in such a situation cannot stand:

“In these circumstances we think the proper rule to

be applied is that which requires a verdict to be set

aside in cases where the vedict is supportable on

one ground, but not on another, and it is

impossible to tell which ground the jury selected.

Stromberg v. California, 283 U.S. 359, 367-368;

Williams v. North Carolina, 317 U.S. 287, 291-

292; Cramer v. United States, 325 U.S. 1, 36,n 45.”

See also Leary v. United States, 395 U.S. 6, 31-32, 89

S.Ct. 1532, 23 L.Ed.2d 57 (1969).

16d

Where there is more than one ground for a verdict on

a criminal charge, but where the ramifications of a

guilty verdict on that charge will be different depend-

ing upon the ground chosen by the jury, the obvious

way to deal with the situation is, as indicated by the

court below in Frye, to give the jury adequate advisory

instructions. See United States v. Quicksey, 525 F.2d

337 (4th Cir. 1975), cert. denied, 423 U.S. 1087, 96 S.Ct.

878, 47 L.Ed.2d 97 (1976); Brown v. United States, 299

F.2d 438 (D.C. Cir. 1962). In cases like the present

ones, the court should, in advising the jurors as to the

form of their verdict, give them appropriate instruc-

tions so that the basis of a first degree murder verdict

will be revealed.’

In the normal situation where a defendant is charged

both with a greater crime and with a lesser included

offense, and where a guilty verdict with regard to the

greater crime will result ina merger, the proper method

of instructing the jurors is to advise them that if the

verdict on the count charging the greater crime is

guilty, then they should not consider the count

charging the lesser crime. However, the Court of

7In the present cases, the State relies upon Robinson v. State, 249 Md.

200, 238 A.2d 875, cert. denied, 393 U.S. 928, 89 S.Ct. 259, 21 L.Ed.2d

265 (1968). However, no question concerning jury instructions to

determine whether a murder verdict is grounded on felony murder or

wilful, deliberate and premeditated murder, was raised or discussed in

Robinson. Moreover, Robinson was decided before the Supreme Court

in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707

(1969), held that the Fifth Amendment’s Double Jeopardy Clause was,

by virtue of the Fourteenth Amendment, applicable to state proceed-

ings. Thus, to the extent that there may be anything in the Robinson

opinion inconsistent with our opinion in Newson or our opinion in the

instant case, the latter two opinions obviously control.

17d

Special Appeals in Frye suggested a somewhat dif-

ferent type of instruction. It said that the trial judge

should por the jury to indicate whether the basis

for a rder verdict is felony murder or is wilful,

deliberate and premeditated murder, but that the judge

should tell the jury to render a verdict on the felony

count in any event. Then, if the basis of the murder

verdict is felony murder, the Court of Special Appeals

stated that the trial judge should not impose a sentence

on the felony count. Because of the peculiar nature of

the problem presented in cases like Frye and Jones,

where one basis for a guilty verdict on the murder count

will preclude a sentence on the felony count, but

another basis for a guilty verdict on the same murder

count will not have this effect, we agree with the type of

instruction suggested by the Court of Special Appeals.

The Court of Special Appeals in Frye, because of the

ambiguity in the jury’s verdict due to the absence of

adequate instructions, “resolve[d] the doubt in favor of

the appellant, and. . . vacate[d] the judgments entered

on the robbery with a deadly weapon and the related

handgun charge.” 37 Md.App. at 480. Although we

agree with this result in Frye because of an unusual

aspect of the appeal in that case, we believe that the

relief to be granted in Jones should be somewhat

different.

If there had been appropriate jury instructions in

Jones, the jury might have based its murder verdicts on

a finding of wilful, deliberate and premeditated

homicide. It would have considered the underlying

felony charges and the associated handgun charges,

and guilty verdicts on those felony counts could

properly have resulted in sentences. It was not in any

18d

manner the State’s fault that such instructions were not

given. Under these circumstances, we believe that the

State may, if it is so inclined, elect to re-try Jones on the

murder, underlying felony and associated handgun

charges. In such event, the jury should be instructed as

indicated in this opinion. But if, after a reasonable

period of time, the State fails to elect a new trial in the

Jones case, the judgments on the three underlying

felony and related handgun counts should be vacated.

However, the State may not have such an election in

the Frye case because the defendant Frye, unlike Jones,

did not take an appeal from the murder conviction. For

the State to try him again for murder would violate the

prohibition against double jeopardy. Benton v.

Maryland, 395 U.S. 784, 796-797, 89 S.Ct. 2056, 23

L.Ed.2d 707 (1969); Green v. United States, 355 U.S.

184, 188-194, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

JUDGMENT IN NO. 133 AFFIRMED.

COSTS TO BE PAID BY THE MAYOR

AND CITY COUNCIL OF BALTI-

MORE.

JUDGMENT IN NO. 173 REVERSED,

AND CASE REMANDED TO THE

COURT OF SPECIAL APPEALS FOR

THE ENTRY OF A NEW JUDGMENT

NOT INCONSISTENT WITH THIS

OPINION. COSTS TO BE PAID BY

PRINCE GEORGE’S COUNTY.

i cat

19d

IN THE

COURT OF APPEALS OF MARYLAND

No. 133 and No. 173

September Term, 1977

No. 133

STATE OF MARYLAND

Vv

EUGENE SHAW FRYE

* * *

No. 173

WILLIE LEE JONES, JR.

V.

STATE OF MARYLAND

Murphy, C.J. Eldridge

Smith Orth

Digges Cole,

*Levine JJ.

Opinion by Eldridge, J.

Murphy, C.J., concurs

in the judgments.

Filed: November 16, 1978

*Levine, J., participated in the hearing

of the cases and in the conference in

regard to the decisions but died prior

to the adoption of the opinion by the

Court.

20d

I dissented in Newton v. State, 280 Md. 260, 373

A.2d 262 (1977), on the ground that convictions and

the imposition of separate punishments thereon at a

sigle trial of the distinct offenses of murder in the

perpetration of an attempted robbery (felony murder)

and the attempted robbery itself did not, under the

applicable required evidence test, violate the double

jeopardy clause of the federal constitution. I expressed

the belief in Newton that the weight of authority

supported that view. The subsequently decided Su-

preme Court cases of Brown v. Ohio, 432 U.S. 1161, 97

S. Ct. 2221, 53 L. Ed. 2d 187 (1977), and Harris v.

Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d

1054 (1977), which the majority cites in support of the

contrary view which it took in Newton deal with

successive prosecutions and not, as here, with a single

prosecution for multiple offenses. While undoubtedly

the same double jeopardy principles are applicable to

cumulative punishments for the same offense as well as

to successive prosecutions for what in law amounts to

the same offense, I will abide by my dissent in Newton

until the Supreme Court makes it crystal clear that the

double jeopardy clause bars separate punishments at

the same trial upon conviction of felony murder as well

as the underlying felony. Whether Newton was

wrongly decided was not an issue encompassed by our

certiorari grant in this case. I therefore concur in the

judgments in these cases.