Smith v. State

• Decision Date: 30 November 1965
• Docket Number: No. 430,430
• Citation: 214 A.2d 563,240 Md. 464
• Parties: Kennard A. SMITH, v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 464

240 Md. 464

214 A.2d 563

Kennard A. SMITH, v. STATE of Maryland.

No. 430.

Court of Appeals of Maryland.

Nov. 30, 1965.

Morris Lee Kaplan and George L. Russell, Jr., Baltimore, for appellant.

Morton A. Sacks, Asst. Atty. Gen., Baltimore, for appellee.

Before PRESCOTT, C. J., and HAMMOND, HORNEY, MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

OPPENHEIMER, Judge.

The appellant, Smith, was indicted for murder by a grand jury for the City of Baltimore on November 17, 1964, prior to the decisions of this Court in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965), and State v. Madison, Md., 213 A.2d 880 (1965). He pled not guilty by reason of insanity at the time of the commission of the crime, sane now, and not guilty generally. At the time of his pleas and during all the proceedings in the trial court he was represented by experienced counsel privately employed. He was tried on October 14, 1965 three days after the Schowgurow decision in the Criminal Court of Baltimore where he elected to be tried by Judge Sklar without a jury. It has been stipulated by counsel, and the transcript of the proceedings makes clear, that, in open court, immediately before his trial, Smith intelligently and knowingly waived all possible defects in the indictment. This waiver followed clear and thorough explanations of the effect of the Schowgurow decision by Judge Sklar and by Smith's counsel. Smith's counsel had also explained the effect of Schowgurow to Smith the day before. After these explanations, Smith said that it was his own wish and desire to waive the defective indictment and to stand trial immediately; that this decision was his own free wish and without any suggestion or pressure. He was tried the same day and was found to be sane at the time of the commission of the crime and at the time of the trial. The court then proceeded with the trial on the indictment. After the State had completed its testimony, Smith's counsel moved for a verdict of acquittal as to first degree homicide and a verdict of acquittal as to the entire indictment. Both of these motions were denied. Smith, having been advised as to his rights, voluntarily took the stand to testify in his own behalf. At the conclusion of the case for the defense, Smith's counsel again made the same motions for judgments of acquittal, and the motions were again denied. The court then found Smith guilty of second degree murder. Sentence was deferred pending a motion for a new trial.

Subsequently, on October 25th, before sentence was imposed, Smith asked the court for permission, which was granted, to file a motion to dismiss the indictment on the ground he had been indicted by an illegally constituted grand jury, even though he had waived his right to challenge the indictment in open court before his trial and conviction. The court denied the motion and also denied the motion for a new trial. Smith was thereupon sentenced to 18 years in the Maryland Penitentiary. Smith notified the court of his desire to appeal and the judge appointed his trial counsel and co-counsel to represent him as an indigent defendant on the appeal to this Court.

The first ground of appeal is that the trial court erred when it denied Smith's motion to dismiss the indictment on the ground that it had been returned by an illegally constituted grand jury. Smith contends that, under Schowgurow, the grand jury which had indicted him was illegally constituted and that any and all indictments issued by such a jury are null and void. Smith contends that his waiver of his right to challenge the jury which indicted him was invalid because he cannot waive a constitutional right and can not waive an indictment that it an actual nullity. He argues that his waiver, even though made voluntarily and knowingly, had no legal effect because the indictment against him never had any legal existence and therefore can be challenged at any time. He claims the denial of his motion and his subsequent conviction constituted a deprivation of his constitutional rights to due process of law under the Fourteenth Amendment, and were in violation of the Maryland law as to the effect of an indictment by a grand jury improperly constituted.

At the argument before us, Smith's counsel frankly conceded that, under their contention, not only was the indictment of Smith null and void but that all indictments brought at any time by any grand jury which, under our decision in Schowgurow, was improperly selected, were null and void and that any convictions thereunder had no legal effect. They contend that even though our decision in Schowgurow was brought about by the reversal by the Supreme Court of the United States of this Court's decision in Torcaso v. Watkins, 223 Md. 49, 162 A.2d 438 (1960), and even though prior to Schowgurow, the grand juries operating throughout the State were selected in accordance with the Maryland law as it then existed and had existed for over a century, nevertheless, the effect of Schowgurow and Madison is to render all such proceedings a complete nullity. They concede that, if their argument prevails, our holding in Schowgurow that the principle therein announced was to be prospective only, except as to convictions which had not then became final, would be inoperative and that every convicted defendant incarcerated in the State of Maryland would have to be freed.

There is nothing in our decisions in Schowgurow and Madison, nor in their legal effect, upon which to predicate so catastrophic a conclusion. In Schowgurow, we held that the decision of the Supreme Court in Torcaso v. Watkins, 367 U.S 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), overruling the decision of this Court, made the provision of the Maryland Declaration of Rights which excluded persons from jury service because of their lack of belief in a Supreme Being, invalid under the federal Constitution. In Madison, we held that, because of the provisions of both the Maryland and federal constitutions, it would be a deprivation of due process and the equal protection of the laws if believers, as well as non-believers, were not accorded the right to be indicted and tried by grand and petit jurors from which non-believers were not unconstitutionally excluded under the Supreme Court decisions. In neither case did we hold that the grand jurors who indicted Schowgurow and Madison were not competent and qualified. Nor did we hold, in either case, that the oaths administered to the jurors were unconstitutional or illegal in any way because of their references to God. It was only the fact that all prospective jurors were required to take the oath irrespective of their individual beliefs about religion and to affirm their belief in God, that, under Torcaso, rendered the method of selection invalid. If each prospective juror had been freely permitted, according to his individual desire, to take the traditional oath or merely to affirm, absent any prior interrogation as to belief, the exclusion which Torcaso and other Supreme Court decisions rendered unconstitutional would not have existed.

Smith, like Schowgurow and Madison, was indicted by a grand jury, every member of which was competent and qualified to serve. Maryland had jurisdiction over Smith and the subject matter of the alleged offense. There is no question but that Smith had reasonable notice of the charge and opportunity to be heard. The court in which he was tried had authority, under our constitution, to try him. The grand jury which indicted him was selected in accordance with what was then and had been the law of this State until, by reason of decisions of the Supreme Court, a provision of that law was declared invalid. Under these circumstances, in a case in which there had not been a final conviction, the defect in the method of the selection of the grand jury was error, but error which did not render the indictment inoperative unless Smith validly exercised his right to attack it. It was error which gave him the right, by timely challenge, to have his indictment quashed, but error which he could knowingly and intelligently waive. This is the law under both our federal and state constitutions, as indeed it must be, if the preservation of order by government, which is the basis of any society, is to survive.

We shall first consider the federal decisions, in connection with Smith's contention of deprivation of due process of law, and then the decisions of this Court as to the effect of an indictment brought by a grand jury improperly selected.

I

In United States v. Gale, 109 U.S. 65, 3 S.Ct. 1, 27 L.Ed. 857 (1883), the defendants had been indicted for misconduct as election officers at a Florida election of a congressman. In empanelling the grand jury, four persons, otherwise competent, were excluded from the panel under a federal statute, for voluntarily taking part in the Rebellion and giving aid and comfort thereto. The defendants made no objection to the indictment until after a plea of not guilty and conviction in a United States circuit court, when objection was first taken on a motion in arrest of judgment. The judges of the circuit court certified several questions to the Supreme Court, one of which was whether the disqualifying statute was unconstitutinal, and another of which was whether judgment could be rendered against the defendants on an indictment found by a grand jury empanelled under the disqualifying section. The Supreme Court did not answer the first of these questions because it found the defendants had waived it by not entering a timely challenge to the array. It answered the other question in the affirmative. In delivering the opinion of the Court, Mr. Justice Bradley said:

'A disqualified juror placed upon the panel may be supposed injuriously to affect the whole panel; but if the individuals forming it are unobjectionable, and have all the necessary qualifications, it is of less moment to the accused what persons may have been set...