618 A.2d 272 | Md. Ct. Spec. App. | 1993
Appellant, John Garbutt, was convicted by a jury in the Circuit Court for Baltimore City of first degree murder and was sentenced to life imprisonment without the possibility of parole. Upon appeal, appellant contends that:
The trial court erred when it permitted a courtroom security bailiff to communicate to the jury and demonstrate a weapon in order to address a question it had sent to the Judge after it began deliberations.
Since we find no merit to appellant’s contention, we shall affirm the judgment of the circuit court.
On March 10, 1991, Tambra Dove was killed by multiple gunshot wounds. A neighbor had observed appellant come out of his house with a long gun and place bullets from a white cup into the gun. While going down the stairs of his house appellant yelled “I’m going to get you Vicky, I’m going to kill you____”
At trial, a firearms expert testified that he had examined a Warlin .22 caliber semi-automatic rifle obtained from appellant and had concluded that the bullets recovered from the victim’s body had been fired from that weapon. For the benefit of the jury, the expert demonstrated the three ways in which the rifle could be loaded.
After the jury had begun its deliberations, it asked to see the rifle and be shown the three ways it could be loaded.
Okay, Ladies and Gentlemen, our Sheriff, Mr. Dally, is going to show you how that rifle is loaded. Now, I don’t want Mr. Dally to be a witness in this case but on the other hand I don’t want [the firearm’s expert] to have to come back to show you as he did when he was testifying and I don’t think playing a film of his demonstration will help you that much because the film’s not that good. But he’s not a witness, he’s just — he’s just showing you.
The bailiff proceeded to demonstrate the three methods by which the rifle could be loaded, while explaining to the jury what he was doing. After the bailiff’s demonstration and explanation, appellant’s attorney objected to the explanation the bailiff had given, asserting that the explanation amounted to testimony.
After the jury found appellant guilty of first degree murder, appellant’s attorney moved for a new trial. Appellant’s attorney contended in his motion that the bailiff’s demonstration and explanation to the jury constituted additional testimony after the jury had begun its deliberations. The motion was denied and this appeal followed.
Ordinarily, reopening a case to receive additional evidence is within the sound discretion of the trial court. Hunt v. State, 321 Md. 387, 405-06, 583 A.2d 218 (1990), cert. denied, — U.S. —, 112 S.Ct. 117, 116 L.Ed.2d 86 (1991). Very recently, the Court of Appeals considered the reopening of a case to permit additional evidence after the jury had begun its deliberations. Dyson v. State, 328 Md. 490, 615 A.2d 1182 (1992). In Dyson, responding to a
In addition, State Police v. Zeigler, 85 Md.App. 272, 583 A.2d 1085 (1991), which involved the testimony of three new witnesses after the Board had begun its deliberations is also distinguishable. We based our opinion in Zeigler upon “the fear that undue influence [would] be given to the new evidence” if it were introduced. Zeigler, 85 Md.App. at 281, 583 A.2d 1085. That concern is not present here.
Even though the trial judge’s use of the court bailiff was inappropriate, if it was error, it was harmless error. In order to determine that an error is harmless, we must “be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.” Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665 (1976) (footnote omitted); see also, Rubin v. State, 325 Md. 552, 578-80, 602 A.2d 677 (1992). We are well satisfied that the jury’s verdict would have been the same even without the bailiff’s demonstration and explanation. The remaining evidence against appellant, including appellant’s admission that he had “killed the bitch,” was overwhelming. Unlike Dyson, neither the bailiff’s demonstration nor his
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
. The record indicates that appellant intended to kill Vicky Witt, with whom he had had a long feud.