Jane Tyson was 49 years old, married with three children and six
grandchildren. She worked as a teacher's aide at a local elementary
She went to the Westview Mall near Baltimore with her two
grandchildren, six-year-old Adam and four-year-old Carly.
were entering their car in the parking lot to leave, Tyson was
approached by Baker, who put a gun to her head and fired once,
killing her. Baker then jumped into a blue truck which fled the
A witness followed the Blazer out of the lot and recorded the
license plate number, then returned to the mall, informing police.
Police spotted the vehicle and gave chase.
The Blazer stopped
abruptly and a passenger, later identified by the witness as Baker,
fled on foot. The driver, Gregory Lawrence, was arrested.
Baker was arrested a short time later, found to have blood on his
shoe, sock, and leg. Subsequent testing revealed that the blood was
Tyson's. Officers also found Tyson's purse and wallet in the path of
The firearm used in the shooting was recovered from
the Blazer, and fingerprints from Baker's right hand were found on
the driver's side of Tyson's vehicle.
Lawrence was also convicted of murder and sentenced to life without
Baker v. State, 332 Md. 542, 632 A.2d 783 (Md. 1993) (Direct
Baker v. State, 367 Md. 648, 790 A.2d 629 (Md. 2002) (PCR).
Baker v. State, 389 Md. 127, 883 A.2d 916 (Md. 2005) (PCR).
Baker v. Corcoran, 220 F.3d 276 (4th Cir. 2000) (Habeas).
Breaded fish, pasta marinara, green beans, orange fruit punch, bread
Maryland executes killer of teacher's aide
By Bryan Sears - Reuters News
Dec 5, 2005
Baltimore (Reuters) - Convicted murderer Wesley
Eugene Baker was executed on Monday in Maryland for fatally shooting
a teacher's aide in front of two of her grandchildren. Baker, 47,
died by lethal injection at 9:18 p.m. EST (0218 GMT) at the Maryland
Diagnostic and Classification Center in Baltimore.
Baker shot Jane Tyson, a 49-year-old teacher's
aide, in the head and stole her purse in 1991 outside a shopping
mall as two of her grandchildren watched.
Last week, a federal judge rejected arguments on
Baker's behalf that the death penalty constitutes cruel and unusual
punishment. Death penalty opponents also argued that capital
punishment is racist in cases such as Baker's, in which the victim
was white and the convicted murderer black. Baker's case attracted
the attention of Roman Catholic Cardinal William Keeler, the
archbishop of Baltimore, who met with Baker and said he would appeal
to Republican Gov. Robert Ehrlich Jr. to commute the sentence to
life without parole.
Also in hopes of having Baker's sentence
overturned or commuted, his attorneys had argued that the sentencing
judge did not hear what they said could have been mitigating
circumstances that could have led to a sentence of life without
parole instead of death. Baker's attorneys wanted to introduce
details of his life -- his mother became pregnant with him when she
was raped at age 12 or 13, he suffered physical and sexual abuse as
a child and a drug overdose at age 12 -- but Baker refused to allow
them to reveal the information in court. He told his attorneys he
did not want his mother humiliated publicly.
Last Friday, in North Carolina, double murderer
Kenneth Lee Boyd became the 1,000th prisoner executed in the United
States since the reinstatement of capital punishment. The U.S.
Supreme Court allowed the death penalty to be brought back in 1976
after a nine-year unofficial moratorium.
Baker's execution was the fifth in Maryland since
Witness describes final moments of Baker's life
Lawyers, victim's family, media watch man die
By Jennifer McMenamin -
December 6, 2005
Editor's note: Jennifer McMenamin was one of five
media witnesses to Baker's execution Monday night.
His arms were extended from his sides. His hands
were balled in loose fists. His eyes were closed. In the moments
before the chemicals that would kill Wesley Eugene Baker began
flowing, the death row inmate lay still.
All day long, Baker had visited with friends and
family. He had spoken to others by telephone. According to his
lawyers, he talked about movies and memories. They said he again
expressed remorse for the shooting that left a 49-year-old
grandmother dying on a mall parking lot in front of her
grandchildren. He joked that he still needed to lose 40 pounds. But
when a corrections officer yanked open the curtains to the death
chamber Monday night to begin the execution, Baker was among
strangers, strapped to a 300-pound steel table, with intravenous
lines trailing from both arms.
The room was dimly lit. With a white sheet draped
over him and pulled nearly to his chin, only Baker's bare arms, a
snatch of fabric from his gray prison shirt and his head were
visible. A prison chaplain hovered nearby and three men, including
Randall L. Watson, the assistant commissioner of the Division of
Correction and the man serving as the evening's "execution
commander," stood in one corner.
On three sides of the square chamber were windows
with reflective, one-way glass that prevented Baker and the others
in the chamber from seeing out. Looking in from one of the windows
were the prison warden, an assistant warden, a physician and the "injection
On the opposite side, behind another window, were four
relatives of Jane Tyson, the elementary school teacher's aide Baker
was convicted of shooting outside Westview Mall on June 6, 1991. The
family members asked prison officials not to identify them. A
curtain along the back wall of the execution room obscured the
state's old gas chamber, just a few feet behind the execution table,
on the second floor of the Metropolitan Transition Center, a former
state penitentiary now used as a regional prison hospital.
Behind the third window -- separated by a wall
from the victim's family -- sat the official witnesses to the
execution: five news reporters and Baltimore County police Chief
Terrence B. Sheridan. They were joined by three public defenders who
assisted Baker through years of court proceedings and appeals, all
of which came to an end late Monday when the U.S. Supreme Court
declined to review three new legal challenges and Gov. Robert L.
Ehrlich Jr. chose not to intervene and commute Baker's sentence.
Gary W. Christopher, a bearded and graying federal public defender
who represented Baker for a decade, had never witnessed an
execution. He was there, he said, because Baker had asked him to be.
Baker also requested the attendance of Franklin
W. Draper, who worked on Baker's case for the past several years. In
1991, Draper watched another client, a confessed killer of 14, put
to death in South Carolina's electric chair. The third lawyer, Katy
O'Donnell, chief of the state public defender's capital defense
division, had watched the 1997 execution of her client, Flint
Gregory Hunt, convicted of gunning down a Baltimore police officer
in an alley. "Just don't write that it was peaceful," she said
Monday night as the witnesses were gathered in a waiting room of the
old castle-like Baltimore prison where the state's death chamber is
located. "Really. Think about it. It's not peaceful. It's hard to
At 9:05 p.m., word came to the group waiting
downstairs from the execution room: "We're ready," a prison official
announced. The group walked up a narrow flight of stairs to the
second floor. They filed into the witness room. They took seats on a
small set of bleachers.
At 9:07 p.m., the lights went out. A prison
official cleared his throat. A shadow appeared at the window behind
the curtains. At 9:08 p.m., they opened. There were no last words.
No one asked Baker whether he wished to say something. At a signal
from the execution commander, lethal doses of three chemicals were
added to the saline drip flowing into Baker's veins.
Charles Canterna -- a priest known as "Father Chuck" who ministers
to parishioners at St. Vincent DePaul Roman Catholic Church and to
inmates at the Supermax prison, including those on death row --
stood beside Baker. He touched the condemned man's forehead and his
chest, nodding his head in prayer. He stepped back near the back
At 9:09 p.m., Baker's chest heaved. The priest
returned to his side, again touching Baker's forehead. About 40
seconds later, the inmate's breathing became rapid and loud, his
chest rising and falling in rapid succession. A gasping, suction-like
noise could be heard through the glass. Baker's hands remained
balled in loose fists.
And then, there was nothing. The priest stood,
eyes closed, occasionally nodding and shaking his head. The
execution commander and the two men with him looked on from the
corner. On the other side of the glass, the police chief sat very
still. O'Donnell wiped her eyes. Christopher and Draper hung their
heads, arms draped around each other's shoulders. The reporters
scribbled in their notebooks.
Just before 9:16 p.m., the corrections officer
yanked closed the curtains. Baker's time of death was 9:18 p.m. The
manner of death provided by the medical examiner: homicide. Minutes
later, with snow falling softly, the five witnesses and three
lawyers left the prison.
Baker executed for '91 killing
After flurry of
failed appeals, Md. inmate dies by injection for murder of woman
By Jennifer McMenamin and Arthur Hirsch -
December 6, 2005
Thirteen years after he was convicted of shooting
a woman to death at a Baltimore County mall while two of her
grandchildren looked on, Wesley Eugene Baker was executed Monday
night by lethal injection. Baker, 47, was pronounced dead at 9:18
p.m., making him the fifth person put to death in Maryland since the
Supreme Court reinstated capital punishment in 1976.
Five reporters and four members of the victim's
family, along with three lawyers and Baltimore County police chief
Terrence B. Sheridan, witnessed Baker's last breaths. Baker's chest
heaved as the chemicals were being administered through two tubes in
his left arm and one in this right. As he died, his breathing became
rapid and so loud that it could be heard through the glass window.
About 50 death penalty opponents protested the
execution outside under light snow. Minutes before 9 p.m. they began
to sing "Amazing Grace," and at the appointed execution time of 9
p.m., they broke into "This Little Light of Mine all around death
row, I'm going to let it shine."
In the hours before the execution, Baker was
visited at the Metropolitan Transition Center, the Baltimore prison
that houses the state's death chamber, by his lawyer, Gary W.
Christopher, his mother, Delores Williams, and a social worker.
"He's made his peace," said Christopher. "We just talked quietly.
There was some joking, laughing, trying to inject a little bit of
levity into the situation. But it didn't last long."
About 8 p.m. Gary W. Proctor, an attorney for
Baker, shared with protesters word that Baker would be executed. He
told them Baker had been with his mother, sister, brother and a
childhood friend. They talked about movies, chatted. And when they
were told they had to leave, Baker cried. Baker's last meal
consisted of breaded fish, pasta marinara, green beans, orange fruit
punch, bread and milk, a corrections spokesman said.
Martin E. Andree, the brother of Baker's victim,
Jane Tyson, said Monday night by phone from his home in Florida,
"It's over for us and it's over for him. The wound will heal. Now,
there won't be any more picking the scab. Every time there was an
appeal, it was like peeling the scab off of the wound." The last
obstacles to the execution began to fall late Monday afternoon, when
the Maryland Court of Appeals rejected an emergency stay and the
U.S. Supreme Court declined requests to review three unfavorable
lower court rulings. Gov. Robert L. Ehrlich Jr. denied a clemency
In a statement released just prior to the
execution, Ehrlich said, "After a thorough review of the request for
clemency, the facts pertinent to this petition, and the judicial
opinions regarding this case, I decline to intervene." "My
sympathies tonight lie with the families of all those involved in
this heinous and brutal crime," Ehrlich said. It is the second
execution during his administration.
In the past few weeks, Baker's lawyers had
stepped up the pace of more than 10 years of appeals, arguing that
Maryland's death penalty is skewed by race and geography and that
evidence of Baker's abusive and chaotic childhood in East Baltimore
should have been introduced at the sentencing phase of his trial in
1992. Cardinal William H. Keeler took the unusual step of visiting
Baker on death row last week, appealing for mercy to Ehrlich, who
signed Baker's death warrant a month ago. Keeler and other Roman
Catholic and Protestant leaders Monday joined to call for
commutation of the death sentence.
Baker, who grew up in the Waverly area of
Baltimore, was convicted in the murder and robbery of Tyson, a 49-year-old
teacher's aide at a Baltimore County elementary school. She was shot
once in the head in the parking lot of the Westview Mall on the
evening of June 6, 1991.
After shopping for shoes with two of her
grandchildren that evening, Tyson helped the 6-year-old boy and 4-year-old
girl into her Buick LeSabre, then settled in behind the wheel about
8:30 p.m. The gunman appeared at her window, and police said the boy
later recalled hearing his grandmother scream "No" before she was
shot. The gunman grabbed her purse, which police said contained $10
in cash, and fled with another man in a blue Chevrolet Blazer.
Baker's lawyers continued to argue through their
last appeals and a commutation sent to the governor that evidence
did not conclusively show Baker fired the shot that night. They
argued during the trial that no witnesses identified him and no
fingerprints were left on the handgun found in the Blazer.
In her closing arguments at the trial, Baltimore
County State's Attorney Sandra A. O'Connor told the jury: "Don't
forget that that Mr. Baker's fingerprints were the only ones found
on the window of Mrs. Tyson's car." Under Maryland law, only a
defendant convicted as the killer -- in this case, the shooter -- is
eligible for the death penalty.
In October 1992, Baker was convicted of
first-degree murder, robbery and weapons charges. Several days later
he was sentenced to death and two 20-year prison terms. The trial
was held in Harford County Circuit Court because Baker asked that
the proceedings be moved from Baltimore County. Gregory Lawrence --
who, like Baker, had served prison time for armed robbery
convictions -- was convicted of murder, robbery and handgun charges
for acting as lookout and driver in the Tyson killing. He was
sentenced in 1992 to life in prison plus 33 years.
Baker was the son of a girl who was raped when
she was 12 or 13. By accounts of his mother, lawyers and 200 pages
of official reports and affidavits, the boy was left to run the
streets, turning to alcohol and drugs before he was a teenager.
After years in the juvenile justice system, he was convicted as an
adult for stealing a car when he was 16 and was sentenced to three
years in prison. He spent most of the next 16 years in prison on
convictions for car theft and armed robbery.
Baker's lawyers had hoped that their case would
be supported by a 2003 state-funded University of Maryland study
that found that the death penalty is more likely to be applied in
cases with a black defendant and a white victim, and that Baltimore
County prosecutors are more likely than their peers elsewhere to
seek the death penalty. Lawyers for Baker cited the study in
arguments before the Court of Appeals earlier this year, but the
court did not rule on the legal merits of that appeal. Baker became
the first African-American to be executed since the release of the
Tyson was married with three children and, at the
time of her death, six grandchildren. She was remembered for her
generous spirit and fondness for the children in her family and the
students at Riverview Elementary School in southwest Baltimore
County, where she had worked for 10 years. Tyson was active in her
church, which was then St. Lawrence Church in Woodlawn, and was
taking a class to become a Catholic. At the time of her death, her
husband, John Tyson, was principal at Johnnycake Elementary School.
"People still remember this case," said S. Ann
Brobst, a prosecutor in the case. "It especially rocked people
because it was so cold that you could murder someone in front of
their grandchildren. When you talk about a completely innocent
victim, it could have been you, it could have been me, it could have
Maryland Executes Woman's Killer
Found Racial Disparities
By Eric Rich and Daniel de Vise -
Tuesday, December 6, 2005
BALTIMORE, Dec. 5 -- Death row inmate Wesley E.
Baker died by lethal injection Monday night, becoming the first
black man executed in Maryland since a state-sponsored study found
disparities, by race and geography, in how the death penalty law is
used. Baker, 47, was condemned to death for fatally shooting Jane
Tyson, in front of her two grandchildren, in a robbery in a
Catonsville mall parking lot more than a decade ago.
The execution began at 9:08 p.m. at the old
Maryland State Penitentiary in Baltimore. The curtain behind the
window into the execution chamber opened, and Baker could be seen
lying on a gurney, covered to his chest with a white sheet. His
outstretched arms were bound by leather straps, and intravenous
lines came from a hole in the wall into both of his arms. Prison
chaplain Charles Canterna touched his face and right hand, then
About 9:10, Baker's mouth moved, as he appeared to
speak or swallow. The chaplain approached him, said a few words and
touched his face. Baker took six or seven deep breaths. Each was a
rasping sound audible to the witnesses, who included media
representatives, three of Baker's attorneys, and Baltimore County
Police Chief Terrence B. Sheridan.
Four members of Tyson's family, who were not
identified, watched from an area separate from the other witnesses.
The curtain into the chamber was closed at 9:16 p.m. One of seven
men sentenced to die in Maryland, Baker was pronounced dead at 9:18
p.m. Baker's last meal was breaded fish, pasta with marinara sauce,
green beans, an orange, bread, fruit punch and milk.
He was executed only hours after the state's
highest court and the U.S. Supreme Court declined to intervene in
the case and less than an hour after Gov. Robert L. Ehrlich Jr. (R)
announced that he would not grant clemency. Baker was the first
execution in the state since June 2004 and the fifth since the U.S.
Supreme Court reinstated the death penalty in 1976.
"I'm glad it's over," Tyson's brother Martin
Andree said in a phone interview Monday night from his home in
Florida. "Anytime somebody's life is taken, it is a sad thing. But
we have a justice system, and as long as that's the law, we need to
follow through with it." He added that the delays caused by appeals
and a death penalty moratorium made it feel "like prying the scab
off a wound. . . . I think that wound will heal now."
In the gentle snow outside the former
penitentiary, about 50 protesters chanted and carried signs. One
said: "Stop the Execution of Wesley Baker." Another: "Maryland's
Death Penalty: Proven Arbitrary, Proven Racist." At one point,
inmates inside the facility started a chant of their own -- "Don't
kill him! Don't kill him!" -- that was audible on the street below.
The silhouettes of their fists pumping in the air could be seen
through a window in the building's upper reaches.
"He was moved beyond measure by all the support
you have given him over the years," Baker's lead attorney, Gary
Christopher, told the assembled throng Monday night. On his last
day, Baker "hoped that some good comes of this," he added. "And that
is that the death penalty will wither away, and that his passing
will play some role in that."
Earlier in the day, Baker met with Bonnita
Spikes, a death penalty opponent who visited him regularly. "His
faith is strong," said Spikes, an organizer with Maryland Citizens
Against State Executions. "He was calm. I think he's in a good
place, actually. Mentally, he's in a good place." Baker's mother,
Delores Williams, brother, sister and friends also met with him
Monday. Baker's social worker, Marie Lori James-Monroe, was with him
until 6 p.m. She said Baker spent the day "on the phone a lot with
his family. There was just so much commotion today and so many
visitors in and out." When she asked him about funeral arrangements,
he told her he wanted "whatever would be least troublesome to his
mother," she said.
Baker was convicted in 1992 of murdering Tyson in
a robbery that netted only about $10. Tyson, a 49-year-old teacher's
aide, was shot in the head in the parking lot of a Catonsville mall,
less than a mile from her home in Baltimore County.
Baker's case has intensified debate about the
state's use of the death penalty, in part because he is precisely
the person that the state-sponsored study found is most likely to be
condemned to die: a black man who kills a white person in Baltimore
County. Five of the remaining six men on Maryland's death row are
black, and the victims of all but one were white. Two of the
condemned were convicted for killings in Baltimore County.
Since Ehrlich signed Baker's death warrant last
month, Baker's attorneys had filed a barrage of petitions and
appeals. They had also asked Ehrlich to commute Baker's sentence to
life without the possibility of parole, detailing circumstances of
Baker's childhood that they say mitigate his crime.
Born of rape to a woman not yet 14 years old, he
was "unwanted and resented by his mother, who beat him with electric
cords and belts," the petition states. Baker was sexually abused by
age 5, "left to fend for himself in the streets from age eight;
sleeping in abandoned cars and hotel bathrooms," it says.
Debate over the death penalty has risen across
the country. Last week, Kenneth Boyd became the 1,000th person
executed since the death penalty was reinstated. In Virginia, Gov.
Mark R. Warner (D) commuted the death sentence of Robin M. Lovitt
last week because the state had thrown out evidence. In California,
Gov. Arnold Schwarzenegger (R) has said he is considering whether to
commute the death sentence of Stanley "Tookie" Williams, a co-founder
of the Crips, the Los Angeles street gang, scheduled to be executed
by injection Dec. 13.
A Hush Falls, and A Man Is Executed
View Death of Md. Killer
By Eric Rich - Washington Post
Wednesday, December 7, 2005
The witnesses were escorted into the viewing area
shortly after 9 p.m. Monday. A hush fell as the reporters and
lawyers found seats on benches bolted to three risers. They faced a
window of one-way glass that, for the moment, appeared as a mirror.
The room went dark, and the reflected image vanished. A curtain drew
open. There, on a gurney, lay Wesley E. Baker, motionless, his
outstretched arms bound by thick leather straps. Fourteen years
after he shot a woman to death in a robbery that netted $10, his
execution was about to take place.
In Maryland, as in other states, reporters are
permitted to witness executions along with relatives of the
condemned inmate's victims. Eleven applied to witness Baker's death,
and this reporter was one of five selected by random drawing. The
reporters signed an agreement Nov. 29. It described the terms: The
viewing area would be warm, at 75 degrees; tape recorders and
cameras would not be allowed; people with "any physical or mental
condition that may be affected" by witnessing an execution were not
Baker's death warrant ordered that he be executed
this week, but prison officials said they could not reveal the
precise time in advance. The media witnesses were given pagers and
were told to carry them at all times starting at midnight Sunday.
The pagers sounded just after 6 p.m. Monday, signaling that the
execution was three hours away. As instructed, the witnesses
reported to the Maryland State Police barracks in Glen Burnie. They
soon left in a van accompanied by police cars, at times six or more,
their lights flashing as a light snow fell.
At the prison complex in Baltimore, they were
escorted through a maze of concrete walls and chain-link fences
topped with razor wire. They were ushered into the old Maryland
State Penitentiary, parts of which date to 1804, and into a
conference room. There, they waited with three of Baker's defense
attorneys and Terrence Sheridan, the police chief of Baltimore
County, where Baker shot and killed Jane Tyson in a mall parking lot
in front of her two young grandchildren. A plate of cookies on the
table was left untouched. "He is not who he was on the worst day of
his life," said attorney Gary Christopher, who represented Baker for
many years and was with him until two hours earlier.
A short while later, the door to the conference
room opened. The witnesses, including Sheridan and the three lawyers,
were ushered up a stairway and into the viewing area. Four of
Tyson's relatives were watching from another viewing area, a prison
spokesman said. Baker's mother, in keeping with the custom of the
state, was not invited. She stood on the street outside, joined by
supporters and death penalty opponents.
The curtain opened to reveal a stark room, with
the padded blue gurney on which Baker lay bolted to the floor in the
center. Other one-way windows were visible on two walls --
executioners behind one, Tyson's family behind the other. Beyond
Baker, behind a curtain, was the state's old gas chamber, which has
not been in use since 1961.
Baker, 47, was covered to his chest in a white
sheet. His bare arms were visible, as was his chin. His eyes were
not. The intravenous lines through which three chemicals would soon
flow -- one that would cause him to lose consciousness, a second
that would paralyze him and a third that would stop his heart --
were already in place.
In a corner of the small room stood Randall L.
Watson, the state's execution commander; Carroll Parrish, a security
chief; and a third man who served as a deputy execution commander. A
prison chaplain, the Rev. Charles Canterna, stood over Baker,
speaking softly, touching his face and the fingers of his right
hand, then stepped back.
Several moments later, Baker's mouth moved as he
appeared to swallow or speak, though no sound was audible.
Christopher and another of Baker's lawyers, Franklin W. Draper, rose
from the bench in the top riser. Baker's chest heaved for several
moments, his breathing becoming audible through the glass partition
before he exhaled a final time. He did not appear to move again. The
witnesses remained for several minutes, and the reporters stood.
Draper and Christopher returned to their seats, and each draped an
arm over the other man's shoulder.
With the curtain closed and the lights on, the
witnesses filed out in silence. Baker was pronounced dead at 9:18
p.m. He was the first death row inmate to be executed in Maryland in
more than a year and the fifth since the Supreme Court reinstated
the death penalty in 1976.
Maryland inmate executed despite cardinal's
pleas for mercy
By George P. Matysek Jr. -
December 6, 2005
BALTIMORE (CNS) -- Maryland Gov. Robert L.
Ehrlich Jr. rejected a high-profile plea from Baltimore Cardinal
William H. Keeler and other religious leaders to spare the life of
convicted murderer Wesley E. Baker. Baker was put to death by lethal
injection Dec. 5 at the Metropolitan Transition Center prison in
Baltimore. He became the 1,002nd person to be executed in the United
States in the past 30 years and the fifth in Maryland.
Cardinal Keeler had visited Baker on death row
exactly one week before his execution, using the dramatic gesture to
ask Ehrlich for mercy. The cardinal had also joined Cardinal
Theodore E. McCarrick of Washington and Bishop Michael A. Saltarelli
of Wilmington, Del. -- whose dioceses include parts of Maryland --
in signing a letter petitioning the governor to commute Baker's
sentence to life without parole. "I appreciate the sincerity and
thoughtfulness of the arguments presented to me on Mr. Baker's
behalf," said Ehrlich in a statement. "After a thorough review of
the request for clemency, the facts pertinent to this petition and
the judicial opinions regarding this case, I decline to intervene."
On the night of Baker's execution, Ehrlich said
his sympathies were with "the families of all those involved in this
heinous and brutal crime." Richard J. Dowling, executive director of
the Maryland Catholic Conference, said he deeply regretted the
governor's decision. "We'll just have to keep working toward the day
when death is not viewed as the antidote to death -- when mercy is
the more appropriate, more Christian response to violent crime,"
said Dowling, who represents Maryland's Catholic bishops in the
state capital, Annapolis.
Baker was sentenced to death for the 1991 murder
of Jane Tyson in front of two of her grandchildren at a Baltimore
County mall. At the time of her death, Tyson was preparing to enter
fully into the Catholic Church.
Many members of the religious community used the
days leading up to the execution to pray for mercy and for an end to
the death penalty. More than 20 people gathered at St. Vincent de
Paul Church in Baltimore for an interfaith prayer vigil Dec. 1 and
about 50 people prayed outside the prison where Baker was executed
At St. Vincent, Deacon Bill Pearson told The
Catholic Review, Baltimore archdiocesan newspaper, that he prayed
the governor would spare Baker's life because Jesus preached a
message of mercy and forgiveness. "Violence begets violence," said
Deacon Pearson. "It's true that when you follow the Gospel you must
C. William Michaels, coordinator of Pax Christi
Baltimore, said all victims of violence, including Jane Tyson, were
in his prayers. But he called those who are executed by the state
the "victims of another form of violence." During the prayer vigil,
the Rev. C.W. Harris of Newborn Community Church in Baltimore called
the death penalty a "law to murder." "Jesus didn't die for the
righteous man," Rev. Harris said. "He died for sinners."
During the vigil, participants observed a moment
of silence for all victims of violence and joined together to pray
for an end to the death penalty. "God of compassion," they prayed. "You
let your rain fall on the just and unjust. Expand and deepen our
hearts so that we may love as you love even those among us who have
caused great pain."
Maryland executes murderer
December 6, 2005
BALTIMORE (AP) -- Wesley Eugene Baker was
executed last night for the 1991 murder of a woman at a Baltimore
County shopping center during a robbery, a crime witnessed by the
woman's two young grandchildren. Baker, 47, died of an injection
given to him at the Metropolitan Transition Center in Baltimore. He
was pronounced dead at 9:18 p.m., according to a statement released
by prison officials.
Baker was executed after a flurry of rejected
appeals, including to Maryland's highest court and the U.S. Supreme
Court. His execution was carried out despite the efforts of death
penalty foes, who said the state has yet to fully review a 2003
study of capital punishment in Maryland that concluded race and
geography play roles in how death sentences are meted out in the
state. The case of Baker, a black man convicted of killing a white
victim in Baltimore County, fit many of the purported disparities
revealed by the study.
However, Gov. Robert L. Ehrlich Jr., a
Republican, chose not to commute the sentence, saying he would not
intervene in the execution after what he called an "exhaustive and
objective review" of Baker's case. "My sympathies tonight lie with
the families of all those involved in this heinous and brutal crime,"
Mr. Ehrlich said before Baker was executed.
About 60 people gathered outside of the prison,
some holding candles as a light snow fell. Many ducked into a nearby
doughnut shop to get warm. The protesters carried signs that read, "Don't
Kill for Me;" "Stop the Execution of Wesley Baker;" "Abolish the
Death Penalty" and "Not in My Name." Some of the inmates at the
neighboring Central Booking and Intake Center shouted to
demonstrators through a small, broken window, "We love all of you."
Protesters and inmates began chanting, "Don't kill him!"
Baker was convicted of killing Jane Tyson, 49,
during a June 6, 1991, robbery at the Westview Mall in Catonsville,
a crime that netted only $10. Two of Mrs. Tyson's grandchildren were
in her car when Baker approached, pressed a gun to her head and
pulled the trigger.
Governor Ehrlich quietly signs death warrant
Renewed outcry about racially biased system
By Jane Henderson
Maryland Citizens Against State
Yesterday, Governor Robert Ehrlich signed a death
warrant for death row prisoner Wesley Baker, setting Baker’s
execution for the earliest possible date: the week of December 5.
Wesley Baker’s execution was stayed in 2002 by former governor
Parris Glendening, pending completion of a study by the University
of Maryland/College Park on racial bias in death sentencing. Lt.
Governor Michael Steele had promised to conduct a review of death
sentencing when the disturbing results of this race study were
released in 2003. No such review was ever conducted.
“Once again, this administration has buried its
head in the sand, disregarding stark racism and other disparities in
our state’s death penalty system,” said Jane Henderson, Executive
Director of Maryland Citizens Against State Executions (MD CASE).
“Governor Ehrlich actions yesterday place him outside the mainstream
of Marylanders who know the death penalty is flawed.”
Though they knew a warrant was imminent, Baker’s
lawyers only learned today that the warrant was requested and signed
yesterday. It appears that the Governor’s Office did not inform the
media of his action.
Baker used the University of Maryland study to
challenge the state’s death penalty in the Maryland Court of
Appeals. The study found that black-on-white killings in Maryland
are much more likely to result in a death sentence than any other
racial combination. It also found that murders in Baltimore County
are much more likely to evoke the death penalty than in any other
jurisdiction, while only about 7% of Maryland murders annually occur
there. Baker was prosecuted by Baltimore County and is a black man
convicted of killing a white Marylander.
“Lt. Governor Steele promised to address these
problems almost three years ago,” noted Jane Henderson. “This
execution fits the exact pattern of racism found by the University
of Maryland study. Where is Steele’s review?”
Baker’s appeal using the UMD study was summarily
denied in the Circuit Court for Hartford County (the venue for
Baker’s trial). Two similar appeals raising racial bias and
originating in Baltimore City and Prince George’s County – those of
John Booth and Heath Burch, respectively – are still pending in each
Circuit Court, where full evidentiary hearings may still be held.
After the Circuit Court denial in Baker’s case,
the appeal went before the state’s highest Court of Appeals, which
turned it down on October 3 exclusively on procedural grounds. The
Court said his motion to correct illegal sentence was not the proper
vehicle to raise his challenge.
In response, Baker’s lawyers filed a motion last
month seeking to challenge discrimination in death sentencing under
“Maryland has not dealt with proven racism in its
death penalty system – not the Ehrlich Administration, not the
courts, and not the legislature, “ said Henderson. “Instead of
wishing it away and proceeding with business as usual, the governor
should stay the execution, the legislature should get rid of the
death penalty, and our state should focus its energy and resources
on criminal justice policies that actually accomplish something.”
In the evening on June 6, 1991, Wesley Eugene
Baker walked up to Jane Frances Tyson, who had just gotten in her
car after shopping with her grandchildren in the Westview Mall.
Baker stuck his gun in Jane's ear, demanded her purse and then,
right in front of her grandchildren, a 6-year-old boy and a 4-year-old
girl, pulled the trigger and shot Jane in the head. Baker ran to a
nearby Chevy Blazer driven by his accomplice, Gregory Lawrence.
Police caught the pair minutes later as they fled from the getaway
Lawrence was later convicted of felony murder and
a handgun violation and sentenced to life in prison, plus 20 years.
Baker was scheduled to be executed in May 2002 when then-governor
Parris Glendening imposed a moratorium on the death penalty.
Karen Sulewski is Jane Tyson's daughter. Her two
children, now in their twenties, were with their grandmother when
Baker shot Tyson in the head. In 2001, Karen Sulewski accused
Glendening of caving in to political pressure to help the lieutenant
governor's bid to succeed him. "I think that Kathleen Kennedy
Townsend had to put her 2 cents in, and I think that had a lot do
with it," said Sulewski. "I honestly think if this event had
happened to someone the governor knew or someone on his staff or
someone he was close to, the execution would be going through," she
continued. "No one knows what it is like to have it drag on and on
and on." Karen Sulewski said race had no role in Baker's death
sentence and asked Glendening to explain his decision. "I would like
him to sit down and explain it to my two children," she said. But
Glendening spokespeople said the governor had a long-standing policy
of not speaking to the families of death-row inmates or their
The current governor, Robert Erlich, has been
under intense pressure from anti-death penalty activists to commute
Baker's sentence. Roman Catholic Cardinal William Keeler, the
archbishop of Baltimore, met with Wesley Baker at the prison on
Monday to tell him that Roman Catholic leaders are seeking clemency
for him. To date there is no report of Keeler asking to meet with
the victim's family.
National Coalition to Abolish
the Death Penalty
Do Not Execute Wesley Baker! Wesley Eugene Baker
- Dec. 5-9, 2005
Wesley Eugene Baker, a black man, is scheduled to
be executed the week of Dec. 5 for the 1992 murder of Jane Frances
Tyson, a white woman, in Baltimore County, Maryland. Tyson was shot
during a parking lot robbery yielding $10.
The Court of Appeals of Maryland denied Baker's
request for a hearing to show that his sentence was unconstitutional.
Baker claims that a recent statistical study, commissioned by Gov.
Glendening in Sept. 2002 and conducted by Professor Raymond
Paternoster of the University of Maryland, shows that the death
penalty in Maryland is imposed in a racially biased and
unconstitutional way. Baker also argues that the arbitrary
application of the death penalty in Maryland violates his Eighth
According to the study, released in January 2003,
the death penalty is 2.5 times more likely to be sought against
those who commit black-on-white murders than against those who
commit white-on-white murders. Furthermore, the death penalty is 3.5
times more likely to be sought against those who commit black-on-white
murders than against those who commit black-on-black murders.
In addition, the study also found that Baltimore
County is 13 times more likely than Baltimore City to seek the death
penalty, 5 times more likely than Montgomery County, and 3 times
more likely than Anne Arundel County. Clearly Baker's case faced
possible bias because of his race, his victim's race, and the county
in which he was tried. This is not how the system is meant to work.
Executions should not be on the basis of race and geography.
Furthermore, although Baker admits to taking part
in the robbery, he maintains that he did not shoot Tyson. An
eyewitness at the scene reported that the shooter ran to the driver
side of the get away car. When apprehended, Baker was sitting on the
passenger side and his co-defendant was sitting in the driver seat.
Blood splatters on Bakers coat led to his capital prosecution while
his co-defendants clothes were never tested. His co-defendant did
not face the death penalty and was instead sentenced to life in
prison without parole.
It is also important to look at Baker's childhood
and history. Baker was driven to live on the streets at the age of
nine because of his abusive, alcoholic stepfather. Clearly a
different childhood could have altered Baker's unfortunate fate.
Although he was certainly involved in a terrible crime, Baker was
also the victim of his childhood circumstances and a racially biased
system. Baker should not be executed. A life sentence without the
possibility of parole is more appropriate in this case.
Please write to Governor Ehrlich on behalf of
Baker v. State,
332 Md. 542, 632 A.2d 783 (Md. 1993) (Direct Appeal).
Following jury trial before the Circuit Court,
Harford County, Cypert O. Whitfill, J., defendant was found guilty
of first-degree murder and a death sentence was imposed by trial
court after death-penalty sentencing phase. Defendant appealed.
The Court of Appeals, Chasanow, J., held that:
(1) trial court did not err in failing to call two individuals as
court's witnesses at sentencing hearing; (2) significant portions of
hearsay admitted in victim's husband's testimony during sentencing
phase of capital murder trial were properly admitted under state-of-mind
exception; (3) even if admitting some portions of hearsay testimony
represented error, error was harmless; (4) jury instructions on
first-degree murder were adequate; and (5) evidence was sufficient
to support determination that defendant was principal in murder of
We are called upon to decide the propriety of decisions made by the
judge (Whitfill, J.) during the guilt and death-penalty sentencing
phases of Wesley Eugene Baker's first degree murder trial in the
Circuit Court for Harford County. The first question before this
Court is whether the trial judge abused his discretion by not
calling two individuals as the court's witnesses at the sentencing
hearing. The second is whether the judge abused his discretion by
admitting “victim impact” testimony that included hearsay statements
made by the victim's family members. The third issue is whether the
trial judge's jury instructions, regarding first degree murder, were
adequate in light of our recent holding in Willey v. State, 328 Md.
126, 613 A.2d 956 (1992). The fourth and final issue is whether
there was sufficient evidence to permit a finding that the Defendant
was a principal in the first degree in the murder of Jane Tyson. For
the reasons stated below, we affirm the jury's verdict and the death
sentence imposed by the trial judge.
On the evening of June 6, 1991, the victim, Jane
Tyson, went to Westview Mall with her four-year-old granddaughter,
Carly, and her six-year-old grandson, Adam. At approximately 9:00
p.m. that evening, the victim's husband, John Tyson, was notified
that his wife had been shot.
Wesley Eugene Baker was indicted for the murder
and the State filed a notice of its intent to seek the death penalty
pursuant to Maryland Code (1957, 1992 Repl.Vol.), Article 27, §
412(b)(1)(i). At Baker's trial, a stipulation of Adam's testimony
was admitted into evidence. The stipulation stated that as Carly,
the victim, and Adam were getting into their automobile, a man ran
up to them. Adam heard Ms. Tyson scream “No,” the man shot her in
the head, and Adam saw blood coming out of her mouth. The man then
ran to a blue Chevrolet S-10 Blazer, entered it, and the truck
pulled away from the scene.
Chief Deputy Medical Examiner, Dr. Ann M. Dixon,
testified that the gunshot wound that killed Jane Tyson was a
“contact wound, meaning that the end of the gun was up against the
deceased's ear at the time it was discharged····” Dr. Dixon also
testified that Tyson died from the single wound to the left side of
her head. Carolyn Davis, another patron of the mall, testified that
she was in the parking lot when she heard the gunshot and saw Adam
running toward her. Adam told Ms. Davis that his grandmother was
dead. Davis then went to Tyson's car where she saw the victim on the
ground with blood coming from her head.
Another witness for the State, Scott Faust,
testified that he was driving by the mall when he saw the blue
Blazer parked in the lot. Faust saw a man enter the driver's side of
the Blazer, followed by another man who ran from a nearby car and
jumped into the passenger side of the truck before it sped out of
the parking lot. Faust followed the Blazer, wrote down the license
tag number, and observed the occupants through the truck's rolled-down
windows. Faust returned to the mall parking lot and gave a
description of the men to the police who had arrived at the scene.
Faust positively identified the Appellant, Wesley Eugene Baker, at a
police “show-up” later that evening. Faust also made a positive in-court
identification of Baker during trial.
Baltimore County Police Officer Frank Barile
testified that he and Officer Nick McGowan were on duty in an
unmarked police cruiser on Security Boulevard when the suspect
vehicle drove past them.
The officers activated their emergency
lights and pursued the vehicle at a high rate of speed until it
turned onto Old Frederick Road and pulled to the right side of the
roadway, where the passenger fled from the truck. Officers Barile
and McGowan stopped the vehicle and placed the driver, Gregory
Lawrence, under arrest.
Following his flight from the vehicle,
Wesley Eugene Baker was also arrested by Officer James Conaboy. One
of the arresting officers at the scene, Officer William Harmon,
noticed what appeared to be blood splattered on Baker's sock and
shoe. Officer Conaboy then lifted Baker's pants' leg and the
officers discovered blood on his shoe, sock, and leg. Upon a visual
inspection of Gregory Lawrence, no blood was observed on any of his
clothing. The blood found on Baker was later identified, by a
serology comparison and positive DNA test, as that of Jane Tyson.
Officer Barile and a fellow officer searched the
area where Baker exited the Blazer and found a white purse and an
empty plastic card holder on the ground. Tyson's wallet was also
found in the area by another officer. Both the purse and the wallet
were identified at trial as belonging to Jane Tyson. Incident to the
arrest, Officer Barile searched the Blazer and found Tyson's “MOST”
bank card on the passenger-side floorboard.
Finally, there was
testimony at trial that Baker's fingerprints were found on the
driver's side door and window of Jane Tyson's car.e Circuit Court
for Harford County, a jury found Baker guilty of first degree
premeditated murder, felony murder, robbery with a deadly weapon,
and the use of a handgun during the commission of a felony. By a
special verdict, the jury also found Baker was a principal in the
first degree. Baker then elected to be sentenced by Judge Cypert O.
Upon defense counsel's request at the sentencing
hearing, Judge Whitfill made his own independent determination as to
whether Baker was a principal in the first degree. This issue was
properly determined at the sentencing hearing. SeeMaryland Rule
At the subsequent sentencing hearing, the State
incorporated all of the evidence from the trial and also introduced
Baker's prior criminal record. The record revealed prior criminal
convictions for unauthorized use in 1975 and 1978, two 1979
convictions for robbery with a deadly weapon, and a 1989 conviction
for unlawful possession of a pistol and a controlled dangerous
substance. At the time of the murder, Baker had been on parole for
less than nine months. The State also presented testimony from John
Tyson as to the impact the victim's death had on him and on other
members of their family.
Appellant presented testimony from Paul Davis,
Chairman of the Maryland Parole Commission, and Dr. Robert Johnson,
an expert in criminal justice and prison adjustment. Defense counsel
then informed the court that, pursuant to their client's
instructions, they did not intend to call Baker's mother or Lori
James, a social worker who prepared a history of Baker's family, to
testify on Baker's behalf.
Defense counsel offered the following
reason for this decision: “Mr. Baker has, as I have said, directed
us to not call either of those two witnesses, and I think it's fair
to say that I understand, in a sense, why, because there were going
to be very painful kinds of things testified about. But we have to
respect ··· Mr. Baker's very clear, unequivocal and express
directions to us, and therefore, we will not be calling those two
The judge responded, “I certainly have a concern,
from my standpoint, of not hearing anything about Mr. Baker's social
background.” At which point, the judge stated his inclination to
call the individuals as court's witnesses and he invited both State
and defense counsels' comments.
Defense counsel offered the
following response: “Your Honor, two comments. One, in our judgment,
as an officer of the Court, we have to recognize that the Court has
the common law power to call any witness the Court desires on making
a determination on anything. The second comment is, if asked, Mr.
Baker will indicate in person, before Your Honor, now that he does
not wish you to call those two individuals as Court's witnesses.”
The record also indicates the judge was initially
informed that Baker refused to offer the testimony because it would
prove embarrassing to his family. The judge recognized, however,
that “[i]f it's a tactical decision ··· I think that decision should
and must rest with the Defendant. As I understand it, that's not
what's coming forward.” After further discussion, the following
colloquy took place between the judge and Mr. Baker:
“THE COURT: Mr. Baker, my inclination, at this
moment, is to ask those witnesses to testify, recognizing that
information may come out which could be painful to you or painful to
other members of your family, but also looking at the reality of the
decision that I have to make, literally, whether or not you live or
die, and that whatever pain that your family is suffering from the
information coming out, in my judgment, is not apt to be more
painful than it would be if I imposed a sentence of death and did
not have the information, and the feeling that had they overridden
your choices, that at least that would have been considered. So, I
am at a loss as to believe that any more pain can be inflicted on
your family than a sentence of death without their having had the
opportunity to speak. Do you wish to comment?
THE DEFENDANT: Yes. I
feel like the information will be more damaging than helpful to me.
THE COURT: Say that again.
THE DEFENDANT: I feel as though the
information would be more damaging than helpful towards me and my
THE COURT: Is that your reason for asking [that] I not do this?
Because you believe it is more damaging?
THE DEFENDANT: That reason
and personal reasons.” (Emphasis added).
The judge thereafter
decided he would not call either individual to testify. Baker also
knowingly and intelligently waived his right of allocution.
Following closing arguments, and after weighing all the factors and
giving the case careful consideration, the judge imposed a sentence
* * *
Appellant's final argument is that the evidence
was insufficient to sustain a finding that he was a principal in the
first degree. Under Maryland law, except in murder-for-hire cases,
only those individuals found guilty of first degree murder as a
principal in the first degree may be sentenced to death. See Md.Code
(1957, 1992 Repl.Vol., 1993 Cum.Supp.), Art. 27, § 413(e)(1); Booth
v. State, 327 Md. 142, 186, 608 A.2d 162, 183, cert. denied,506 U.S.
988, 113 S.Ct. 500, 121 L.Ed.2d 437 (1992).
As we previously stated, unless the factual
findings of a trial court are clearly erroneous, they will not be
disturbed by an appellate court. Likewise, an appellate court is not
at liberty to substitute its own factual findings for those of a
trial court where “ ‘ any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’ ”
Raines, 326 Md. at 589, 606 A.2d at 268 (quoting Jackson, 443 U.S.
at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573 (emphasis in original)).
See also Barnhard v. State, 325 Md. 602, 614-15, 602 A.2d 701, 707
(1992) (relying on Jackson as proper standard for reviewing
sufficiency of evidence in a jury trial); Wiggins v. State, 324 Md.
551, 566-67, 597 A.2d 1359, 1366-67 (1991) (explaining that, in a
non-jury, capital case, this Court will defer to the factual
findings of the trial court, unless clearly erroneous, even if
conviction is based on circumstantial evidence), cert. denied,503
U.S. 1007, 112 S.Ct. 1765, 118 L.Ed.2d 427 (1992).
A rational trier of fact could have found beyond
a reasonable doubt that Baker was a principal in the first degree
based on the circumstantial evidence offered at trial. Baker's
fingerprints were lifted from the driver's side window of Jane
Tyson's car, and his fingerprints and a palm print were also found
on the passenger side window of the blue Blazer.
observed Baker in the passenger seat of the blue Blazer, just after
he saw it drive away from the scene of the murder. Neither Gregory
Lawrence's nor anyone else's fingerprints were identified on Jane
Tyson's car. It was also determined that Tyson's blood was
discovered by the arresting officers on Baker's leg, sock, and shoe
at the time of his arrest. Upon an inspection of Lawrence's clothing
immediately after the shooting, no blood was found.
the testimony of Scott Faust and the stipulated, eyewitness
testimony of Tyson's grandson, Adam, the evidence was sufficient to
support a finding by a “rational trier of fact” that Baker was a
principal in the first degree.
VI. Appropriateness of the Death Sentence
Finally, the evidence supports the trial court's
finding that the aggravating circumstances outweighed any mitigating
circumstances. We also conclude that Baker's death sentence was not
imposed under the influence of passion, prejudice, or any other
arbitrary factor. Md.Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.),
Art. 27, § 414(e). For these reasons, the trial court's imposition
of the death sentence was appropriate under the law. JUDGMENT OF THE
CIRCUIT COURT FOR HARFORD COUNTY AFFIRMED.
Baker v. State,
367 Md. 648, 790 A.2d 629 (Md. 2002) (PCR).
Following the affirmance of his conviction for
first-degree murder and death sentence, 332 Md. 542, 632 A.2d 783,
petitioner sought postconviction relief. The Circuit Court, Harford
County, Cypert O. Whitfill, J., denied the petition and denied
petitioner's motion for new sentencing based on newly discovered
evidence. Petitioner appealed. The Court of Appeals, Cathell, J.,
held that: (1) finding that aggravating circumstances outweighed
mitigating circumstances, at sentencing, could be made by
preponderance of the evidence; (2) Supreme Court's Apprendi decision
was inapplicable to capital sentencing; (3) indictment gave
sufficient notice that State was seeking death penalty; (4)
defendant's waiver of jury trial at sentencing phase was knowing and
voluntary; and (5) no newly-discovered evidence warranted a new
trial as to sentencing. Affirmed. Raker, J., filed a concurring
opinion in which Bell, C.J., and Eldridge, J., joined.
On June 6, 1991, Jane Tyson took two of her grandchildren, four year
old Carly and six year old Adam, shopping for sneakers at the
Westview Mall in Baltimore County. After completing their shopping,
Mrs. Tyson and her grandchildren left the mall and entered the
parking lot where Mrs. Tyson had parked her red Buick.
arrived at the car, Carly sat in the rear seat and, as Adam was
preparing to enter the front passenger seat and Mrs. Tyson was
preparing to enter the driver's seat, a man ran up to Mrs. Tyson and
shot her in the head. Adam heard his grandmother scream and he saw
the man shoot her. Adam then saw the man run to a blue truck and
enter on the left side.FN1 Mrs. Tyson died at the scene from the
FN1. Adam did not testify at trial but a
stipulation between the State and Wesley Baker was agreed upon. The
stipulation was read into the record. It stated: “It is hereby
stipulated and agreed by and between the State of Maryland and
Wesley Eugene Baker, the Defendant on trial under Case Number
92-C-0088, that if Adam Michael Sulewski, age seven, were called to
the stand, he would testify that on June 6, 1991 he was six years
old and the grandson of Mrs. Tyson, the victim in this offense.
would state that he was present with his grandmother when she was
shot and that he, along with his grandmother and his four year old
sister, Carly, were shopping at the Westview Mall. Adam would state
that when they arrived at their grandmother's car, his sister got
into the rear seat. He was standing on the passenger side, preparing
to enter the right front passenger seat and his grandmother was
getting in the vehicle through the driver's door when he observed a
‘black man’ run up to his grandmother.
The next thing he remembered
was hearing his grandmother screaming ‘NO’. Adam would state, ‘He
shot her. I saw blood coming out of her mouth’. Adam would continue
to state that after the shooting, he saw who he thinks were ‘two
good guys' chasing after the man who did the shooting. He would
state that the ‘black man’ ran to his truck, which he described as
being blue in color with black windows. He would further state that
once the subject entered his truck on the left side, he ‘took off’
as fast as he could. The only other description Adam would give
about the black male would be that he had short hair.”
On the evening of June 6, 1991, at approximately
8:30 p.m., Scott Faust was traveling behind the Westview Mall on the
way to visit his father who lived directly behind the mall. As Mr.
Faust was driving, he noticed a blue Chevrolet Blazer truck and a
red Buick parked side by side in the mall parking lot. Mr. Faust
watched as two men jumped into the Blazer and sped away.
Mr. Faust then noticed that a person was lying on
the ground next to the open driver's side door of the Buick. Mr.
Faust drove closer to the Buick at which time he saw that the person
laying on the ground was a woman and that she was bloody. He watched
as a little girl ran around the front of the Buick from the
passenger's side and screamed, “Mom Mom's shot.”
Mr. Faust saw a woman run over and take care of
the children, therefore, Mr. Faust decided to pursue the Blazer. Mr.
Faust caught up to the Blazer after several blocks and as he was
sitting behind the Blazer at a stop light, he wrote down the license
plate number of the Blazer on a tissue box.
Mr. Faust then headed back to the crime scene at
which time he gave the police the tissue box with the license plate
number on it.
The information provided by Mr. Faust was relayed
to the Baltimore County Police Department. Two officers of the
Baltimore County Police Department then saw the Blazer pass them at
which time the officers pursued the vehicle. When the Blazer's path
was blocked, the two passengers of the Blazer fled on foot. The
officers immediately apprehended Gregory Lawrence, the driver of the
Blazer, who gave them the description of the passenger in the
A Baltimore County Police Officer then
apprehended Wesley Baker nearby. When Baker was apprehended, the
police officer observed blood on Baker's right leg, including his
pant leg, sock, and shoe. After a visual inspection, no blood was
seen on Lawrence's clothing. Baker was identified as the passenger
in the Blazer by the police officer who saw him flee the Blazer and
by Mr. Faust, who had witnessed him riding in the passenger seat of
Mrs. Tyson's MOST card was found on the floor of
the passenger's side of the Blazer. The handgun that shot and killed
Mrs. Tyson was found between the front seats of the Blazer. Mrs.
Tyson's purse and wallet were found on the same path as that used by
Baker when he fled. Baker's palm print and fingerprints were found
on the exterior of the Blazer's passenger side and Baker's
fingerprints were found on the driver's side door and window of the
Baker was charged by indictment that was filed in
the Circuit Court for Baltimore County on June 24, 1991. The
indictment, in compliance with Maryland Code (1957, 1987 Repl.Vol.),
Article 27 section 616,FN2, FN3 stated, in relevant part:
FN3. Maryland Code (1957, 1987 Repl.Vol.),
Article 27 section 616 stated: “§ 616. Indictment for murder or
manslaughter. In any indictment for murder or manslaughter, or for
being an accessory thereto, it shall not be necessary to set forth
the manner or means of death. It shall be sufficient to use a
formula substantially to the following effect: ‘That A.B., on the
····· day of ····· nineteen hundred and ·····, at the county
aforesaid, feloniously (wilfully and of deliberately premeditated
malice aforethought) did kill (and murder) C.D. against the peace,
government and dignity of the State’. ”
“STATE OF MARYLAND, BALTIMORE COUNTY, TO WIT: The
Jurors of the State of Maryland, for the body of Baltimore County,
do on their oath present that WESLEY EUGENE BAKER AND GREGORY
LAWRENCE late of Baltimore County aforesaid, on the 6th day of June,
in the year of our Lord nineteen hundred and ninety-one at Baltimore
County, aforesaid, feloniously, willfully and of deliberately
premeditated malice aforethought did kill and murder one Jane
Frances Tyson; contrary to the form of the Act of Assembly in such
case made and provided, and against the peace, government and
dignity of the State.”
Baker and Lawrence were also charged in the
indictment with robbery with a dangerous and deadly weapon, two
handgun violations, and possession of a revolver by persons
convicted of a crime of violence. On August 8, 1991, in compliance
with Maryland Code (1957, 1987 Repl.Vol., 1991 Cum.Supp.), Article
27 section 412(b),FN4 the State notified Baker of its intention to
seek the death penalty and of the aggravating circumstance upon
which the State intended to rely. The notice sent to Baker stated:
FN4. Maryland Code (1957, 1987 Repl.Vol., 1991
Cum.Supp.), Article 27 section 412(b) stated: “§ 412. Punishment for
murder. ··· (b) Penalty for first degree murder.-Except as provided
under subsection (f) of this section, a person found guilty of
murder in the first degree shall be sentenced to death, imprisonment
for life, or imprisonment for life without the possibility of parole.
The sentence shall be imprisonment for life unless: (1)(i) the State
notified the person in writing at least 30 days prior to trial that
it intended to seek a sentence of death, and advised the person of
each aggravating circumstance upon which it intended to rely, and (ii)
a sentence of death is imposed in accordance with § 413; or (2) the
State notified the person in writing at least 30 days prior to trial
that it intended to seek a sentence of imprisonment for life without
the possibility of parole under § 412 or § 413 of this article.”
NOTICE OF INTENTION TO SEEK SENTENCE OF DEATH
Now comes the State of Maryland by and through
Sandra A. O'Connor, State's Attorney for Baltimore County, and S.
Ann Brobst, Assistant State's Attorney for Baltimore County, and
says: Pursuant to Maryland Annotated Code, Article 27, Section
412(b)(1), the State of Maryland is hereby notifying you the
Defendant in the above Indictment which charges you with the Murder
of Jane Frances Tyson, Robbery with a Dangerous and Deadly Weapon of
Jane Frances Tyson and other lesser offenses under Indictment Number
91CR2536, of its intention to seek the sentence of death. Pursuant
to Maryland Annotated Code, Article 27, Section 412(b)(1), the State
of Maryland also notifies you that it intends to rely on the
following Aggravating Circumstance under Maryland Annotated Code,
Article 27, Section 413(d)(10).[FN5]
FN5. Maryland Code (1957, 1987 Repl.Vol.),
Article 27 section 413(d)(10) states: “§ 413. Sentencing procedure
upon finding of guilty of first degree murder. ··· (d) Consideration
of aggravating circumstances.-In determining the sentence, the court
or jury, as the case may be, shall first consider whether, beyond a
reasonable doubt, any of the following aggravating circumstances
exist: ··· (10) The defendant committed the murder while committing
or attempting to commit a robbery, arson, rape or sexual offense in
the first degree.”
1. The Defendant committed the Murder of Jane
Frances Tyson in the First Degree while committing or attempting to
commit a robbery of Jane Frances Tyson on June 6, 1991, as charged
in Indictment Number 91CR2536.” On his motion, pursuant to Maryland
Rule 4-254,FN6 Baker's trial was moved from Baltimore County to
Harford County. On October 26, 1992, after a jury trial in the
Circuit Court for Harford County, Baker was found guilty of the
first degree murder of Mrs. Tyson, the robbery of Mrs. Tyson with a
deadly weapon, and the use of a handgun in the commission of a
felony. Based on a request by Baker, the jury considered whether
Baker was a principal in the first degree and found that he was.
FN6. Maryland Rule 4-254 states, in relevant part,
that: “Rule 4-254. Reassignment and removal. ··· (b) Removal in
circuit courts. (1) Capital cases. When a defendant is charged with
an offense for which the maximum penalty is death and either party
files a suggestion under oath that the party cannot have a fair and
impartial trial in the court in which the action is pending, the
court shall order that the action be transferred for trial to
another court having jurisdiction. A suggestion by a defendant shall
be under the defendant's personal oath. A suggestion filed by the
State shall be under the oath of the State's Attorney.”
On October 27, 1992, the sentencing hearing
commenced, at which time Baker had to make a determination as to
whether he wanted to be sentenced by the Circuit Court or by a jury.
The following exchange occurred prior to the sentencing hearing.
“THE COURT: Okay. We would propose at this point to advise Mr. Baker
of his right to be sentenced by either a Court or a jury, and get
that election made. Defendant ready to proceed on that point? MR.
GALVIN: [FN7] We are, Your Honor.
FN7. Roger W. Galvin and Rodney C. Warren were
the attorneys representing Baker. THE COURT: Had adequate time to
review this question with the Defendant? MR. GALVIN: I believe we
have. THE COURT: Mr. Baker, do you feel you have had adequate time
to review with counsel the issue of the election of either Court or
jury to impose the sentence? THE DEFENDANT: Yes. THE COURT: We have
now concluded the guilt phase of the trial, and you have been
convicted, Mr. Baker, of Murder in the First Degree both as to
Premeditated Murder and as to Felony Murder. In addition, the jury
has found beyond a reasonable doubt and to a moral certainty that
you were a principal in the first degree. That is, that you
committed the murder with your own hands.
That second part normally can be left to the
sentencing phase. Here it was your request that that be included as
a part of the guilt/innocence phase. The State did not object to
that. So we submitted that question to the jury, that a jury has
made that determination, and that is now a binding determination.
So, that issue is behind us.
The next phase of the trial is the
actual sentencing phase. It will be decided whether the sentence to
be imposed on the Murder conviction should be death, life without
parole, or life imprisonment. Your trial was conducted above before
a jury. You are not obligated to maintain that same election for
However, because you were tried by a jury, if you elect
to be sentenced by a jury, you will be sentenced by the same jury to
consider guilt or innocence. So, if you have a jury, the same twelve
people will be that unless we have had to excuse one, in which case
one of the alternates would be used. A jury is comprised of twelve
citizens selected from the voter rolls of this jurisdiction. You and
your attorneys have participated in the voir dire process where the
potential jurors were examined and we selected the twelve jurors and
If any juror held a belief or any potential juror
held a belief either for or against capital punishment, which would
prevent or substantially impair that juror from being impartial,
that juror has not been allowed to serve as a juror in this case. In
order to secure a death sentence, it is the obligation of the State
to prove beyond a reasonable doubt that you were a principal in the
first degree to the murder. So, that's been submitted and that's
been determined, and that determination is binding at this point.
The State also has the burden of proof beyond a
reasonable doubt that the aggravated circumstances listed in the
Notice of Intent to Seek a Death Penalty exist. The same burden of
proof standard will prove beyond a reasonable doubt exists
regardless of whether you elect to be sentenced by the Court or by a
jury. If you elect to be sentenced by a jury, each of these
threshold determinations must be unanimous, and I am telling you
that you have had the unanimous determination and that you were a
principal in the first degree.
So, the next determination is whether or not the
aggravated circumstances exist and that must be unanimous, and it
must be beyond a reasonable doubt. If the sentencer, whether it be
the court or jury, finds the State has satisfied its burden, the
sentencer will go on to consider whether any mitigating
Mitigating circumstances are any circumstances
relating either to yourself or this trial that would tend to make
the sentence of death less appropriate. The statute lists seven
circumstances that are considered to be mitigating. To be considered,
there must be proof of the existence of any of these circumstances
by preponderance of the evidence. This burden exists whether the
sentencer is the Court or the jury.
In addition to the seven listed
mitigating circumstances, the sentencer may write down any other
fact or circumstance it finds to be mitigating. That is, anything
about you or the crime that would make death less appropriate. Again,
mitigating circumstances must exist by a preponderance of the
evidence. Further, it is necessary to convince the sentencer that
both the fact and the circumstance exists, and that it is mitigating.
As with the listed mitigating circumstances, this is the same
whether the sentencer is the Court or jury.
Unlike the matters on which the State bears the
burden of proof, if you elect to be sentenced by a jury, the jury
need not be unanimous with respect to whether a particular
mitigating circumstance exists. This is true as to both the
statutory or the mitigating circumstances, and the non-statutory
mitigating circumstances. That's the non-statutory, whether or not,
is mitigating in the mind of the jury.
If, after a period of
deliberation, the sentencing jury cannot unanimously agree on the
existence of a particular mitigating circumstance, those jurors
finding the mitigating circumstance will be instructed to consider
it in determining the appropriate sentence. Those jurors finding
that the mitigating circumstances do not exist will not consider it.
Only if the jury unanimously finds that no
mitigating circumstance exists, the sentence of death [can] be
entered without a balancing process. If at least one juror finds at
least one mitigating circumstance, a balancing process will result.
Similarly, if the Court is the sentencer, a sentence of death will
be imposed without a balancing process only if no mitigating
circumstance is found. So, as long as at least one mitigating
circumstance is found, a balancing process will result.
If the Court,
sitting as the sentencer, finds both that an aggravating
circumstance has been proven and that a mitigating circumstance
exists, the Court will balance the mitigating circumstance or
circumstances found to exist against the aggravating circumstance or
circumstances proven beyond a reasonable doubt to determine whether
the sentence would be death or not death.
The same balancing process is undertaken by a
jury sitting as the sentencer where the jury unanimously concludes
that an aggravating circumstance has been proven, and at least one
juror concludes that a mitigating circumstance exists. Whether the
sentencer is the Court or a jury, the State bears the ultimate
burden to establish the propriety of a death sentence.
sentencer, whether Court or jury, concludes that the mitigating
circumstances outweigh the aggravating circumstances, the sentence
shall not be death. If the mitigating circumstances and the
aggravating circumstances are in even balance, the sentence shall
not be death. Only if the aggravating circumstances outweigh the
mitigating circumstances is a sentence of death to be imposed. Where
the sentencer is the jury, the outcome of the balance must be a
unanimous conclusion of the jury. That is, all twelve must agree.
The need for jury unanimity has been noted on
several occasions. If, after a reason[able] period of deliberation,
the jury is unable to reach agreement unanimously on any matter for
which unanimity is required, including whether a sentence of death
should be imposed, a sentence of death shall not be imposed. If the
sentencer determines that the sentence shall not be death, then the
same sentencer shall proceed to determine whether the sentence
should be life or life without parole.
If the sentencer is a jury
and they are unable to reach a verdict on the issue of death within
a reasonable time, the same jury shall, nevertheless, proceed to
consider the question of life or life without parole. If the
sentencer is a jury, a sentence of life without parole must be a
unanimous decision. If the jury cannot achieve unaniminity on the
issue of life without possibility of parole after a reasonable
period of deliberation, a sentence of life must be imposed. If you
choose the Court as the sentencer, then I must consider whether life
or life without parole is appropriate, if I determine that death is
not the proper sentence. First, did I cover adequately-did I make
any mistakes in reading it? MISS BROBST: [FN8] The State is
satisfied, Your Honor. Thank you very much.
FN8. The State of Maryland was represented by
Sandra A. O'Connor, the State's Attorney for Baltimore County, and
S. Ann Brobst, an Assistant State's Attorney for Baltimore County.
THE COURT: Mr. Galvin, Mr. Warren, do you feel I
have adequately covered the instructions? MR. GALVIN: We do, Your
Honor. THE COURT: Mr. Baker, do you have any questions concerning
what I have said to you here? THE DEFENDANT: No. THE COURT: Have you
had an opportunity to discuss this election with your attorneys? THE
DEFENDANT: Yes, sir. THE COURT: Have you had sufficient opportunity?
THE DEFENDANT: Yes. THE COURT: Are there any questions that you have
of them that they have been either unwilling or unable to answer?
THE DEFENDANT: No. THE COURT: What is your age? THE DEFENDANT: 34.
THE COURT: How far did you go in school? THE DEFENDANT: G.E.D. THE
COURT: How many years did you actually attend? THE DEFENDANT: To the
seventh. THE COURT: And G.E.D. after that? THE DEFENDANT: Uh huh.
THE COURT: Prior to coming here today, have you had any medication,
or drugs, or alcohol that would affect your ability to understand my
instructions, hear my questions, and answer my questions? THE
DEFENDANT: No, Your Honor. THE COURT: Are you prepared to make an
election to whether you wish to proceed with the sentencing by Court
or jury? THE DEFENDANT: Yes, I have. THE COURT: What is your
election? THE DEFENDANT: Sentenced by the Court. THE COURT:
Sentenced by the Court? THE DEFENDANT: Yes. THE COURT: You
understand the jury will be discharged and have no further
participation in the matter? THE DEFENDANT: Yes. THE COURT: Do you
feel you have had adequate time on this? Are you satisfied to make
this election now since it is final? Once you make it, and that jury
is discharged, you can't change your mind. Do you understand that?
THE DEFENDANT: Yes, Your Honor. THE COURT: Do you wish to have
further time to discuss this in any way with your attorneys? THE
DEFENDANT: No, sir. THE COURT: Then I will accept the election for
the sentencing process to be with the Court. We will discharge the
On October 30, 1992, after the sentencing hearing,
the Circuit Court sentenced Baker to death for his conviction for
murder. The Circuit Court also sentenced Baker to twenty years
incarceration for robbery with a deadly weapon and to a consecutive
twenty years incarceration for the use of a handgun in the
commission of a felony.
On January 28, 1993, Baker filed a Motion for
Reconsideration of Sentence which was denied by the Circuit Court.
After receiving his death sentence, Baker filed an appeal. The
appeal and an automatic review of his sentence by this Court in
accordance with Maryland Code (1957, 1987 Repl.Vol.), Article 27
section 414, were consolidated. Baker's sentence and his conviction
were affirmed by this Court. Baker v. State, 332 Md. 542, 632 A.2d
On December 23, 1994, Baker filed a Petition for
Post Conviction Relief in the Circuit Court for Harford County. In
his petition, Baker alleged that he had: (1) been denied his
constitutional right to a fair and impartial jury as the voir dire
process resulted in a prosecution-prone jury; (2) he was denied his
constitutional right to a trial by a jury selected from a fair
cross-section of the community by the discriminating selection of
the petit jury; and (3) he was denied the effective assistance of
trial counsel in violation of the sixth, eighth, and fourteenth
amendments of the United States Constitution and the Maryland
Declaration of Rights.
After a hearing was held on July 6 and July
7, 1995, the Circuit Court for Harford County issued a Memorandum
Opinion that denied Baker's Petition for Post Conviction Relief. On
October 21, 1996, Baker, pursuant to Maryland Code (1957, 1996
Repl.Vol.), Article 27 section 645A(a)(2)(iii),FN9 filed a Motion to
Reopen the Post Conviction Proceeding. This motion was denied by the
Circuit Court for Harford County on December 19, 1996.
FN9. Maryland Code (1957, 1996 Repl.Vol.),
Article 27 section 645A(a)(2)(iii) states that “[t]he court may in
its discretion reopen a postconviction proceeding that was
previously concluded if the court determines that such action is in
the interests of justice.”
Baker then filed a Petition for Writ of Habeas
Corpus in the United States District Court for the District of
Maryland pursuant to 28 U.S.C. § 2254. This petition was denied and
the United States Court of Appeals for the Fourth Circuit affirmed
the District Court's decision. On March 9, 2001, Baker filed a
Motion for New Sentencing in the Circuit Court for Harford County
based on newly discovered evidence.
On March 22, 2001, Baker filed a
Motion to Correct Illegal Sentence and/or for New Sentencing Based
Upon Mistake and Irregularity in the Circuit Court for Harford
County. Both motions were denied by the Circuit Court on April 2,
2001. Baker filed a Notice of Appeal to this Court after the
judgments of the Circuit Court.
Baker has presented six questions for our review.
1. Whether Mr. Baker made an unknowing and unintelligent waiver of
his right to sentencing by jury when the trial court improperly
advised him of what he was waiving? 2. Whether Maryland's death
penalty statute is now unconstitutional on its face because it
allows a sentence of death to be imposed if the State proves only
that the aggravating circumstances outweigh any mitigating
circumstances by a preponderance of the evidence? 3. Whether the
court was without jurisdiction to impose a sentence of death because
the indictment failed to allege all of the elements of capital
murder? 4. Whether the rights identified by the Supreme Court's
Decision in Apprendi apply to Mr. Baker? 5. Whether, as a matter of
fundamental fairness, and pursuant to Article 24 of the Maryland
Declaration of Rights, this Court should now hold that no sentence
of death in Maryland is permissible unless the finder of fact
unanimously finds beyond a reasonable doubt that the aggravating
circumstances outweigh the mitigating circumstances? 6. Whether the
Circuit Court erred and abused its discretion in denying the motion
for new sentencing based on newly discovered evidence?
* * *
We affirm the judgment of the trial court.
JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANT.
Baker v. State,
389 Md. 127, 883 A.2d 916 (Md. 2005) (PCR).
Background: Following affirmance on direct appeal
of defendant's convictions for first-degree murder, robbery with a
deadly weapon, and use of handgun in commission of a felony, as well
as his death sentence, 332 Md. 542, 632 A.2d 783, defendant filed
motion to correct illegal sentence, motion to re-open post-conviction
proceeding, and petition for post-conviction relief. The Circuit
Court, Hartford County, Emory A. Plitt, Jr., J., denied motions and
petition. Defendant filed application for leave to appeal.
Holdings: Upon grant of defendant's application
with respect to denial of motion to correct illegal sentence, the
Court of Appeals, Harrell, J., held that:
(1) defendant's motion to correct illegal sentence was not
appropriate vehicle for defendant to challenge his death sentence,
(2) defendant's motion to correct illegal sentence did not fall
within constitutional exception permitting defendant to seek relief
via such a motion if he argued novel constitutional arguments that
arose from decisions of United States Supreme Court or Court of
Appeals in unrelated case or cases decided after imposition of death
sentence on defendant.
Baker v. Corcoran,
220 F.3d 276 (4th Cir. 2000) (Habeas).
After his murder conviction and death sentence
were affirmed on direct appeal, 332 Md. 542, 632 A.2d 783,
petitioner sought federal habeas corpus relief. The United States
District Court for the District of Maryland, William M. Nickerson,
J., denied petition. Petitioner appealed and state cross-appealed.
The Court of Appeals, Wilkins, Circuit Judge, held that: (1)
Maryland's mechanism for appointment and compensation of post-conviction
counsel did not satisfy requirements for expedited federal habeas
review in capital cases; (2) petitioner's due process challenge to
premeditation instruction was not fairly presented to state's
highest court; (3) claims raised in petitioner's motion to reopen
state postconviction proceedings were exhausted; (4) instruction
correctly conveyed concept of reasonable doubt; (5) petitioner was
not prejudiced by alleged inadequacy of counsel's investigation of
case; (6) counsel's decision to concede involvement in robbery and
murder was reasonable tactical retreat; and (7) counsel's failure to
present certain mitigating evidence over petitioner's objection did
not prejudice petitioner. Affirmed.
WILKINS, Circuit Judge:
Wesley Eugene Baker appeals an order of the district court denying
his petition for a writ of habeas corpus, [FN1] in which he
challenged his convictions and death sentence for the murder of Jane
Tyson. See 28 U.S.C.A. § 2254 (West 1994 & Supp.2000). [FN2] The
State cross-appeals an order of the district court denying its
motion to dismiss Baker's petition as untimely under 28 U.S.C.A. §
2263 (West Supp.2000), maintaining that the district court
incorrectly ruled that Maryland has not satisfied the "opt-in"
requirements of 28 U.S.C.A. § 2261(b), (c) (West Supp.2000). We
conclude that Maryland has not satisfied the opt-in requirements and
that Baker is not entitled to habeas relief. Accordingly, we affirm.
FN1. Baker named Eugene Nuth, Warden of the
Maryland Correctional Adjustment Center where Baker is incarcerated,
and Attorney General J. Joseph Curran, Jr. as Respondents. Nuth has
since been replaced by Thomas R. Corcoran. For ease of reference, we
refer to Respondents as "the State" throughout this opinion.
FN2. Because Baker's petition for a writ of
habeas corpus was filed after the April 24, 1996 enactment of the
Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996,
Pub.L. No. 104-132, 110 Stat. 1214, the amendments to 28 U.S.C.A. §
2254 effected by § 104 of the AEDPA govern the resolution of this
appeal. See Slack v. McDaniel, 529U.S. 473, ----, 120 S.Ct. 1595,
1602, 146 L.Ed.2d 542 (2000).
On the evening of June 6, 1991, Tyson went to the
Westview Mall near Baltimore, Maryland with her grandchildren, six-year-old
Adam and four-year-old Carly. Tyson was shot as the three were
entering Tyson's maroon Buick to return home. At the time of the
shooting, Carly had entered the back seat, Adam was preparing to
enter the front passenger seat, and Tyson was preparing to enter the
driver's seat. Adam saw a man run up to Tyson, heard her scream, and
saw the man shoot her in the head. The man then entered "the left
side" of a blue "truck" and drove away. J.A. 30 (internal quotation
marks omitted). [FN3]
FN3. A subsequent autopsy revealed that Tyson was
killed by a single gun-shot wound to the head; forensic evidence
indicated that the weapon was in contact with Tyson's temple at the
time of the shooting.
Scott Faust happened upon the scene within
seconds of the shooting. He observed a blue Chevy Blazer facing west
and a maroon Buick facing east. The two vehicles were parallel to
each other and separated by a distance of approximately ten feet.
Faust observed two men run from the vicinity of the Buick and enter
The passenger, whom Faust subsequently identified as
Baker, was wearing a dark t-shirt and a baseball hat; the driver,
subsequently identified as Gregory Lawrence, was wearing a bright
orange t-shirt. Faust then saw Tyson lying near the driver's side
door of the Buick. Faust followed the Blazer out of the mall parking
lot, eventually getting close enough to record the license plate
number and to observe Lawrence and Baker. He then returned to the
mall and provided this information to the police.
Shortly thereafter, Baltimore County police
officers spotted the Blazer and gave chase. The Blazer stopped
abruptly and a passenger, who was dressed in dark clothing, fled on
foot. The officers stopped the *282 Blazer a short distance away and
arrested the driver, Gregory Lawrence. Baker was arrested a short
time later, and at that time officers observed what appeared to be
blood on his shoe, sock, and leg. Subsequent testing revealed that
the blood was Tyson's.
Officers found Tyson's purse, wallet, and
photograph holder on the path of Baker's flight. Other items
belonging to Tyson were found in the Blazer, as was the firearm that
had been used to shoot her. Additionally, fingerprints from Baker's
right hand were found on the driver's side door and window of the
Buick. Baker was charged with first degree premeditated murder,
first degree felony murder, robbery with a deadly weapon, and use of
a handgun during the commission of a felony.
Trial counsel elected
to concede Baker's involvement in the offenses in favor of arguing
that Baker was not a principal in the first degree, i.e., he did not
shoot Tyson. At counsel's request, the jury was instructed to return
a special verdict indicating whether the State had proven beyond a
reasonable doubt that Baker was a principal in the first degree; a
"no" response would have rendered Baker ineligible for the death
penalty. See Md. Ann.Code art. 27, § 413(e)(1)(i) (Supp.1999); Gary
v. State, 341 Md. 513, 671 A.2d 495, 498 (1996). The jury
subsequently convicted Baker of the charged offenses and found that
he was a principal in the first degree.
Baker chose to be sentenced by the court rather
than by the jury. During his case in mitigation, Baker presented the
testimony of Dr. Robert Johnson, who stated that Baker was unlikely
to be a danger to other inmates if sentenced to life imprisonment.
Defense counsel then informed the court that they had intended to
call two additional witnesses--Baker's mother, Dolores Williams, and
social worker Lori James--to testify regarding Baker's family
history, but that Baker had directed counsel not to call those
witnesses "because there were going to be very painful kinds of
things testified about." J.A. 199. Counsel further stated that "we
have to respect--man to man--Mr. Baker's very clear, unequivocable
[sic] and express directions to us." Id. A lengthy discussion
followed, during which the court considered calling Williams and
James as court witnesses but decided not to do so after Baker
informed the court that he did not want the evidence introduced
because he thought it would be damaging and for "personal reasons."
Id. at 209.
After hearing argument from the parties, the
court sentenced Baker to death. The court first independently
determined that the State had proven beyond a reasonable doubt that
Baker was a principal in the first degree. The court then found that
the State had established one aggravating circumstance--that the
murder was committed in the course of a robbery, see Md. Ann.Code
art. 27, § 413(d)(10) (Supp.1999).
The court found no mitigating
circumstances, explicitly rejecting Dr. Johnson's testimony that
Baker was unlikely to pose a danger to others if sentenced to life
imprisonment. Additionally, the court noted that even if it had
considered Dr. Johnson's testimony as establishing a mitigating
circumstance, it would have found that the mitigating circumstance
was outweighed by the aggravating circumstance.
Shortly thereafter, Baker moved for
reconsideration of his sentence, stating that he had "reflected upon
his decision not to call [Williams and James] on his behalf and
realize[d] that he made a serious error in judgment." J.A. 245.
Baker also requested that the court consider testimony from his
brother and son.
The court granted the motion, and defense counsel
presented testimony from James. [FN4] James testified that Baker was
raised in a dysfunctional family that consisted of Baker's mother,
his stepfather, and his siblings. James testified that Baker was the
product of the rape of his mother, a fact of which he was *283
unaware until the sentencing phase of his trial. [FN5] She further
stated that although Baker was never physically abused, [FN6] he
observed his stepfather beating his mother. James also found that
Baker's family had poor communication patterns and that several
family members abused drugs. The court considered this information
and found that it was not mitigating, and therefore elected not to
reduce Baker's sentence.
FN4. Baker's mother was not present for the
proceeding due to a miscommunication; the record does not reveal why
Baker's brother and son did not testify. FN5. Counsel did not assert
that Baker's origins constituted a mitigating circumstance; rather,
the information was offered as an explanation of why Baker refused
to present James' and Williams' testimony at the initial sentencing
hearing. Additionally, James asserted that Baker's lack of knowledge
about the rape of his mother was indicative of a pattern of keeping
secrets that was part of the dysfunctionality of the family. FN6.
James uncovered one instance of sexual abuse, in which Baker was
molested by two teenage girls when he was less than five years old.
Baker then appealed his convictions and sentence
to the Maryland Court of Appeals. Among other things, Baker argued
that the trial court had improperly instructed the jury that
premeditation could be inferred from the "intensity and effect" of a
wound, asserting that such an instruction had "no basis in Maryland
law." Id. at 310-11 (internal quotation marks omitted). The Maryland
Court of Appeals affirmed, and the United States Supreme Court
denied certiorari. See Baker v. State, 332 Md. 542, 632 A.2d 783
(1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380
Baker filed a petition for post-conviction relief
(PCR) in December 1994. As is relevant here, Baker maintained that
trial counsel were constitutionally ineffective for failing to
conduct any independent investigation of the case; for conceding
Baker's principalship during closing argument; and for failing to
present testimony from Williams and James at the initial sentencing
hearing. Following a hearing, the PCR court denied relief. The
Maryland Court of Appeals denied Baker's application for leave to
appeal, and the United States Supreme Court denied certiorari, see
Baker v. Maryland, 517 U.S. 1169, 116 S.Ct. 1572, 134 L.Ed.2d 670
The United States District Court for the District
of Maryland subsequently appointed federal habeas counsel for Baker.
In October 1996, Baker moved through counsel to reopen the state PCR
proceedings, asserting that certain claims had not been presented in
his initial PCR proceeding due to post-conviction counsel's
The motion to reopen and a subsequent addendum
included the following claims: that the trial court issued an
unconstitutional instruction regarding the meaning of "reasonable
doubt"; that trial and appellate counsel were constitutionally
ineffective for failing to object to the reasonable doubt
instruction and to challenge it on appeal; that trial counsel's
failure to conduct an investigation resulted in the failure to
discover evidence indicating the existence of a third participant in
the crime; that trial counsel were ineffective for failing to obtain
an expert examination of the murder weapon; and that trial counsel
failed to investigate Gregory Lawrence.
Following a non-evidentiary
hearing, the state court denied the motion to reopen in a letter
ruling. The Maryland Court of Appeals subsequently denied Baker's
application for leave to appeal. See Baker v. State, 345 Md. 39, 690
A.2d 1008 (1997). On March 21, 1997, Baker filed his federal
petition for a writ of habeas corpus.
* * *
Baker challenges counsel's tactical decision to
focus exclusively on the question of whether Baker was the
triggerman, maintaining that a decision to concede guilt can never
be objectively reasonable. [FN16] Cf. Osborn v. Shillinger, 861 F.2d
612, 625 (10th Cir.1988) (stating that "an attorney who adopts and
acts upon a belief that his client should be convicted 'fail[s] to
function in any meaningful sense as the Government's adversary' " (quoting
United States v. Cronic, 466 U.S. 648, 666, 104 S.Ct. 2039, 80 L.Ed.2d
657 (1984)) (alteration in original)).
Baker further claims that
damage done by conceding guilt was aggravated by counsel's statement
that "[w]hen you don't have a case, you do what you can." Baker
claims that in making this comment counsel "disparage[d] his own
candor and paint[ed] himself as a gamesman willing to' do what [he]
can' in a hopeless and desperate situation."
* * *
In sum, we conclude that Maryland has not
satisfied the "opt-in" requirements of *298 28 U.S.C.A. § 2261, and
accordingly that Baker's habeas petition was timely filed. We also
determine, however, that Baker is not entitled to relief on any of
his claims. [FN20] Therefore, we affirm the district court in all
respects. FN20. Additionally, we conclude that the district court
properly denied Baker's request for an evidentiary hearing.
Jane Tyson was 49 years old, married with three children and six
grandchildren. She worked as a teacher's aide at a local elementary