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HEADNOTE: William A. Bates and Nicholas S. Beharry v. State of Maryland, No. 1429, September Term, 1998 SUFFICIENCY OF EVIDENCE - Issue of sufficiency of evidence to support convictions of felony murder, attempted armed robbery, and conspiracy to commit armed robbery not preserved for appellate review where appellants argued in circuit court only that evidence was insufficient to establish armed robbery and was therefore also insufficient to establish felony murder. INCONSISTENT VERDICTS - Inconsistent verdicts of guilty of felony murder but not guilty of only possible underlying felony will not be tolerated where inconsistency results from jury having been misled by trial court's instructions and not from mistake, compromise, or lenity. JURY INSTRUCTIONS - Appellate court will decline to recognize plain error in trial court's failure to instruct on difference between armed robbery and attempted armed robbery where no such instruction was requested, no objection was lodged to instructions as given, and evidence supports conclusion that undue prejudice was highly unlikely. ARGUMENT OF COUNSEL - Challenge to propriety of prosecutor's comment during closing argument, that state had not been permitted to elicit certain testimony from witness, waived by failure to object to comment at trial -- prosecutor's comment proper in any event as response to defense counsel's attempt in his own closing argument to mischaracterize witness's testimony. EXPERT TESTIMONY - Medical examiner accepted by court as expert in forensic pathology properly permitted to testify, based on paths bullets took through victim's body, as to where shooter could have been standing and where could have been holding gun -- even if error, admission of evidence harmless in that trajectory of bullets had no bearing on whether victim killed during course of felony.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1429 September Term, 1998

WILLIAM A. BATES and NICHOLAS S. BEHARRY

v.

STATE OF MARYLAND

Hollander, Salmon, Bishop, John J. (Ret., specially assigned), JJ. Opinion by Bishop, J. Filed: September 3, 1999

Appellants William A. Bates and Nicholas S. Beharry challenge their convictions by a jury in the Circuit Court for Baltimore City. The jury convicted Bates of felony murder, use

of a handgun in the commission of a crime of violence, attempted armed robbery, and conspiracy to commit armed robbery. It

convicted Beharry of felony murder and conspiracy to commit armed robbery. The jury found both appellants not guilty of first

degree premeditated murder, second degree intent to kill murder, and armed robbery. It also found Beharry not guilty of attempted

armed robbery and use of a handgun in the commission of a crime of violence. After merging the underlying felony into felony murder, the court sentenced Bates to life imprisonment for felony murder; 15 years, to be served consecutively, for use of a handgun; and 15 years, to be served concurrently with the life sentence, for conspiracy. The court sentenced Beharry to life imprisonment

with all but 30 years suspended for felony murder and 15 years, to be served concurrently, for conspiracy. ISSUES In this appeal, it is argued that: I. The evidence was insufficient to support (i) Bates's convictions for felony murder, attempted armed robbery, and conspiracy to commit armed robbery, and (ii) Beharry's convictions for felony murder and conspiracy to commit armed robbery; II. Beharry's felony murder conviction cannot stand since Beharry was found not

guilty of armed robbery and attempted armed robbery; III. The trial court committed plain error by failing to include, in its instructions to the jury, a definition of "attempt;" IV. The trial court erred by permitting the prosecutor to engage in improper closing argument; and V. The trial court erred by permitting an expert witness for the State to testify beyond the scope of his expertise. Because we find merit in the second argument, we shall reverse appellant Beharry's felony murder conviction. affirm the judgments of the trial court. FACTS The victim in this case, Clayton "Hank" Culbreth, owned a beauty salon on East 36th Street in Baltimore. He was also a We shall otherwise

drug dealer who was known in the neighborhood to deal in large quantities. salon. Culbreth lived in an apartment upstairs from his

At about 10:00 PM on December 27, 1997, Culbreth was shot

to death just outside the salon's front door. A witness for the State, who was sitting in a car parked just across the street from the salon when the shooting occurred, testified that she heard a loud bang, then saw the front door to the salon swing open. Culbreth appeared to fall Another man, whom the

backwards out the door and down the steps.

witness identified as Bates, stepped out the door after Culbreth

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and shot Culbreth several times as he lay on the ground. then stepped over Culbreth's body and walked away.

Bates

Moments later

a second man, whom the witness identified as Beharry, came out of the salon. Beharry also stepped over the victim's body, then The two left the

walked up the street and caught up with Bates. scene together.

Beharry's nephew, Andre Davis, who occasionally stayed at Beharry's house, testified that Beharry sometimes bought drugs from Culbreth. One night before the shooting, Davis overheard a

conversation at Beharry's house between Beharry and two men whom Davis knew as Damien and Shawn. The men left, but returned the At

next night around 10:00 with a third man, appellant Bates. that time, Davis's girlfriend was visiting him at Beharry's house. Davis testified that, because he had overheard the

conversation the night before, and because he was on parole, he did not want to be present with Bates, Shawn, Damien, and Beharry. to prison. He explained: "I'm not part of that anymore. I've been

I did my time and I'm trying to better myself."

Davis therefore left the room with his girlfriend. Davis testified that a few minutes later, when his girlfriend decided to go home, he walked her to the door. At

that time, Bates, Beharry, Shawn, and Damien were leaving the house as well. Beharry returned 10 to 15 minutes later.

According to Davis, Beharry was "real frantic and panicky." Beharry was "crying, sweating, and real jittery." -3Within five

minutes, Bates returned to Beharry's house. "nonchalant."

Bates, however, was

Davis testified that Bates pulled out a black,

semi-automatic handgun and tried to put a magazine of ammunition in it. Cynthia Horton, the girlfriend of the victim, Culbreth, testified that at 9:00 PM on December 27, 1997, about one hour before the shooting, Culbreth had stopped by the store where she worked. The two had made plans to go out that evening when she When Culbreth

got off work, and Culbreth had given her $100.00.

gave Horton the money, she saw that he had two rolls of cash on his person. Horton testified that one of the rolls consisted of

$1.00 bills, and the other roll consisted of $100.00, $20.00, and $10.00 bills. that roll. She estimated that Culbreth had about $1,200.00 in

Horton called Culbreth at his home at 9:30 PM, then When she

again at 10:00 to tell him she was on her way over.

arrived, however, the police were on the scene and Culbreth was dead. A medical examiner testified that Culbreth had been shot

once in the left shoulder and once in the upper right area of his chest. Detective Homer Pennington, the primary investigator in the case, testified that $4.75 and a small amount of suspected crack cocaine was recovered from Culbreth's person. Police went

through Culbreth's beauty salon and apartment and found nothing in disarray. They did not recover the cash that Horton saw in Pennington acknowledged, however, that -4-

Culbreth's possession.

the officers did not go through drawers and closets in the salon and apartment, nor did they look in the salon's cash register. According to Pennington, the officers were simply looking for "anything that would jump out at us." DISCUSSION I Sufficiency of the Evidence Appellant Bates challenges the sufficiency of the evidence to support his convictions for felony murder, attempted armed robbery, and conspiracy to commit armed robbery. He does

not specifically challenge his conviction for use of a handgun. Appellant Beharry challenges the sufficiency of the evidence to support his convictions for felony murder and conspiracy to commit armed robbery. Neither appellant has preserved his

sufficiency challenge for this Court's review. Appellants posit that their felony murder convictions were based on attempted armed robbery, of which Bates but not Beharry was convicted. For purposes of this argument only,

Beharry tacitly concedes that, under ordinary circumstances, he could be found guilty of felony murder so long as the evidence was legally sufficient to establish each element of that crime, even though the jury returned an inconsistent not guilty verdict on the underlying felony that constituted one essential element of felony murder. See our discussion in Part II, infra,

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regarding inconsistent verdicts.

Each appellant argues that the

evidence was legally insufficient to establish that he committed attempted armed robbery. They conclude that the felony murder

convictions, as well as Bates's conviction for attempted armed robbery, cannot stand. Appellants further argue that the

evidence did not establish that they conspired to commit armed robbery. Armed robbery "requires the taking of property of any value, by force, with a dangerous or deadly weapon." Bellamy v.

State, 119 Md. App. 296, 306, cert. denied, 349 Md. 494 (1998). "<The crime, however, is not committed unless there is an intention to deprive the owner permanently of his property or the property of another lawfully in his possession.'" State v. Gover, 267 Md. 602, 606 (1973) (citation omitted). See generally Md. Code (1951, 1996 Repl. Vol.),

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