Williamson v. State

374 A.2d 909, 36 Md. App. 405, 1977 Md. App. LEXIS 420

• Court: Court of Special Appeals of Maryland
• Decided: June 10, 1977
• Docket: 777, September Term, 1976
• Status: Published

Opinions

Davidson, J.,

delivered the opinion of the Court. Lowe, J., dissents and filed a dissenting opinion at page 412 infra.

In the Circuit Court for Baltimore County, a jury, presided over by Judge Kenneth C. Proctor, convicted Joyce Marcine Williamson, the appellant, of murder (count one), conspiracy to murder (count two), and solicitation of murder (count three). She was sentenced to life imprisonment for murder and to a concurrent five year term for the merged offenses of conspiracy and solicitation. On appeal, the appellant contends that: a) the evidence was insufficient to sustain her conviction for murder; b) the trial court abused its discretion in sentencing her to life imprisonment for murder; and c) the trial court committed prejudicial error by denying her motion for a bifurcated trial on the issues of sanity and guilt.

I

Maryland recognizes the common law distinction between principals and accessories before the fact.¹ One charged as a principal cannot be convicted on evidence sufficient to show that he was an accessory but insufficient to show that he was a principal.² Persons who themselves commit the crime, either by their own hand or by the hand of an innocent agent, are principals in the first degree. Persons who are present, either actually or constructively, and who aid and abet the commission of the crime but do not themselves commit it, are principals in the second degree, provided there is a guilty principal in the first degree. Persons who procure, counsel or command the perpetrator, but who are not present, actually or constructively, at such perpetration, are accessories before the fact.³ Thus, the critical difference between a principal and an accessory before the fact is presence or absence during the commission of the crime.⁴

Here, in order to sustain the appellant’s conviction, the State was required to prove that the appellant herself committed the murder or was either actually or constructively present when the crime was committed. The appellant contends that there was no evidence to show that she committed the murder or was actually or constructively present at the time it was committed. The State concedes that there was no evidence to show that the appellant committed the murder or that she was actually present during its commission. It argues, however, that the close physical proximity of the appellant to the murder scene, coupled with other evidence that the appellant, in pursuance of a common design, was so situated as to be able to aid the murderer, establishes that she was constructively present. We do not agree.

This Court has repeatedly delineated the characteristics of constructive presence.⁵ In Huff, supra,⁶ this Court said:

“A person is constructively present, hence guilty as a principal, if he is acting with the person who actually commits the deed in pursuance of a common design, and is aiding his associate, either by keeping watch or otherwise, or is so situated as to be able to aid him, with a view, known to the other, to insure success in the accomplishment of the common enterprise.”

Here, there .was evidence to show that the appellant, her husband Randolph Alexander Williamson, Jr., her brother Nelson Leroy Boone, and her sister Renee Boone lived in the same house. Beginning in January, 1975, the appellant, with the help of her brother, attempted to hire someone to kill her husband. During negotiations with someone who ultimately refused to commit the murder, the appellant’s brother, in describing a suggested mode of operation, said: “He would get the person drunk . .. and the guy would be in the car and it would be no problem.”

In July or August, 1975, the appellant, again with the help of her brother, hired Lawrence Merrick to kill her husband. On the Saturday before Labor Day, her brother drove Merrick to a club near the appellant’s home, where he left him, and then returned home. About 11:30 that night, the brother left the house to make a trip to North Carolina. He saw Merrick “sitting down in one of my [Boone’s] cars parked outside of my sister’s house.” The husband was asleep in one of his own cars which was then parked in the driveway near the same house. The brother drove off but shortly after his departure he stopped and called his sister. He asked whether she knew what she was doing and “what had gotten into her.” She told him to “have a nice trip.” He returned home and took the husband into the house. He then had another conversation with his sister in which “she told me just to mind my business, and we got into a few words.”

Subsequently, at about 12:30 a.m., on 5 October 1975, the appellant and her husband returned from a party. Her husband was intoxicated and asleep in the car. As she had frequently done in the past under similar circumstances, she parked the car in their driveway and went into their house, leaving her husband asleep in the car. At about 2:15 a.m., the appellant’s sister returned to the house and noticed that the appellant’s husband was asleep in the car. At about 2:30 a.m., the appellant’s brother returned to the house. The appellant called to him and then he went to bed. Later, he was awakened by a telephone call from Merrick who asked what he was doing. The brother said ho was “oleeping” and the conversation ended. Shortly before 4 sum», the appellant woke her brother. She told him that she had heard her husband calling her and asked him to help cany her husband inside. When she got outside, ahe found her husband lying in a pool of blood next to the car. She began to scream. The police arrived. The appellant was taken to a police station where she gave an exculpatory statement.

There was no evidence to show that on the night of the murder the appellant helped the murderer in any way. There was nothing to show that she encouraged her husband to drink so that he would fall asleep in the car. Neither was there evidence to show that she signalled the murderer to come and commit the murder, nor that the murderer ever contacted her in the house. Finally, there was nothing to show that she was awake at the time of the murder or that, if awake, she could see the murder site.

In the absence of such evidence, the fact that the appellant had contact with Merrick before the crime was committed, even when coupled with the fact that she was physically close to the murder site, does not show or support a rational inference that at the time the murder was committed the appellant helped or was so situated as to be able to help the murderer. Consequently, the evidence was insufficient to show the appellant's constructive presence at the time of the commission of the crime. Accordingly, it was insufficient to show that she was a principal in her husband’s murder and to sustain her conviction for that murder. We shall reverse.⁷

II

The appellant contends that the denial of a bifurcated trial on the issues of sanity and guilt violated her right against self-incrimination.⁸ She maintains that her insanity plea by its very nature constituted an admission of complicity in the crime. She further points out that in order to establish her insanity defense, she was required to produce psychiatric testimony containing statements she had made to her psychiatrist which tended to implicate her in the commission of the crime. She concludes that the single trial procedure is constitutionally infirm because it compels her to place such incriminatory evidence before a jury which decides not only the question of sanity, but also the question of innocence or guilt.

While it has been held that such a procedure does not violate due process or equal protection of the law,⁹ the issue of whether a single trial on the questions of guilt and sanity violates the right against self-incrimination has not previously been determined. Analogous situations have been considered.

In Bartholomey v. State,10 a statute authorized a jury in a first degree murder case to prevent the imposition of the death sentence by adding the words “without capital punishment” to its verdict. It was there contended that a single verdict procedure which required an accused to make an election between testifying in order to mitigate the severity of his punishment or not testifying in order to avoid establishing his own guilt had a chilling effect on the exercise of his privilege against self-incrimination. The Court of Appeals said:¹¹

“In the present case, although no plea of guilty was involved, the appellant was presented with a tactical choice of exercising his undoubted right not to testify or to testify and subject himself to cross-examination by the State. We have never understood that the constitutional right against self-incrimination permits a defendant who elects to testify in his own behalf to confine his testimony to evidence he believes to be favorable to him but precludes the jury from hearing evidence which may be unfavorable to him.”

The court then held that the single verdict procedure did not violate the accused's right against self "incrimination.

In Bremer v. State,12 the accused, having entered the defense of insanity, was ordered to submit to a mental examination by the State. It was there contended that this order violated his right against self-incrimination because the single trial procedure would cause his incriminatory statements, made to the State psychiatrists with respect to the question of sanity, to be disclosed to a jury deciding the question of innocence or guilt. This Court said:¹³

“Where [an accused] has pleaded insanity as a defense and presented evidence to meet the threshold question, the maintenance of a ‘fair state-individual balance’ requires that the State be permitted to have him examined.

“Not only was the mental examination to determine Bremer’s sanity vel non required to maintain a ‘fair state-individual balance,’ but it follows that if the State must ‘shoulder the entire load’ of establishing sanity beyond a reasonable doubt, it must have the means to do so at its disposal. The State should not have to rely on examinations made only by experts chosen by Bremer, leaving it with recourse only to cross-examination of them, or to its selected experts whose testimony would be predicated upon courtroom observations and hypothetical questions. Nor do we deem the purpose and result of the examination of Bremer by the staff at Perkins to be ‘the cruel, simple expedient of compelling [incriminating evidence] from his own mouth.’ The purpose of the examination was to determine whether Bremer possessed the requisite mental capacity, in the face of his plea that he did not, to be criminally responsible for the criminal acts charged, upon proper proof that he did do them.” (Citations omitted.)

The court concluded that the accused’s right against self-incrimination was not violated by requiring him to elect between cooperating with the State’s psychiatrist in order to preserve his voluntarily interposed insanity defense, and not cooperating with the State’s psychiatrist in order to avoid having his own statements used to establish guilt.

Applying these principles to the instant case produces a clear result. The accused here voluntarily elected to present the defense of insanity. She voluntarily elected to present psychiatric testimony which contained incriminatory statements. Unlike Bremer, she was not compelled to submit to a mental examination. The right against self-incrimination does not permit the appellant to confine her testimony to evidence which she believes to be favorable to her, or to preclude the jury from hearing evidence which may be unfavorable to her. The single trial procedure, although it requires the appellant to elect between presenting evidence to show insanity or not presenting such evidence in order to avoid establishing her own guilt, does not violate her right against self-incrimination.

Judgment as to count one reversed.

Judgments as to counts two and three affirmed.

Costs to be paid by Baltimore County.

1 . McBryde and Bland v. State, 30 Md. App. 357, 359, 352 A. 2d 324, 326 (1976); Agresti v. State, 2 Md. App. 278, 281, 234 A. 2d 284, 286 (1967).

2 . McBryde and Bland, supra, 30 Md. App. at 360, 352 A. 2d at 327; Huff v. State, 23 Md. App. 211, 214, 326 A. 2d 198, 201, cert. denied, 273 Md. 721 (1975).

3 . Agresti, supra, 2 Md. App. at 280, 234 A. 2d at 285.

4 . McBryde and Bland, supra, 30 Md. App. at 359, 352 A. 2d at 326; Huff, supra, 23 Md. App. at 214, 326 A. 2d at 201.

5 . McBryde and Bland, supra, 30 Md. App. at 360, 352 A. 2d at 326; Huff, supra, 23 Md. App. at 215, 326 A. 2d at 201; Sanders v. State, 1 Md. App. 630, 646, 232 A. 2d 555, 564 (1967).

6 . 23 Md. App. at 215, 326 A. 2d at 201.

7 . In view of this decision, the appellant’s contention with respect to her sentencing for murder need not be considered.

8 . MD. CONST. Dec. of Rights art. 22.

9 . Tull v. State, 230 Md. 596, 601, 188 A. 2d 150, 153 (1963); Avey v. State, 9 Md. App. 227, 230, 263 A. 2d 609, 611, cert. denied, 258 Md. 725 (1970); Sweeney v. State, 6 Md. App. 431, 439, 252 A. 2d 9, 14 (1969).

10 . 260 Md. 504, 273 A. 2d 164 (1971), mod., 408 U. S. 938, 92 S. Ct. 2870 (1972).

11 . Bartholomey, supra, 260 Md. at 526-27, 273 A. 2d at 176.

12 . 18 Md. App. 291, 307 A. 2d 503, cert. denied, 269 Md. 755 (1973), cert. denied, 415 U. S. 930 (1974).

13 . Bremer, supra, 18 Md. App. at 316-18, 307 A. 2d at 519-20.