Barber v. State, 92

• Citation: 16 Md.App. 235,295 A.2d 814
• Decision Date: 24 October 1972
• Docket Number: No. 92,92
• Parties: Kevin Joseph BARBER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 235

16 Md.App. 235

295 A.2d 814

Kevin Joseph BARBER v. STATE of Maryland.

No. 92.

Court of Special Appeals of Maryland.

Oct. 24, 1972.

Francis X. Gaegler, Jr., Lanham, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Warren F. Sengstack, State's Atty., for Calvert County, Arthur A. Marshall, Jr., State's Atty., for Prince George's County and Raymond F. Ciarrocchi, Asst. State's Atty., for Prince George's County on the brief, for appellee.

Argued before ORTH, THOMPSON and CARTER, JJ.

THOMPSON, Judge.

Kevin Joseph Barber and others were jointly indicted by the Grand Jurors of Prince George's County, for crimes which occurred during his alleged participation in the armed robbery of a small liquor store. The case against Barber was severed, removed and tried by a jury in the Circuit Court for Calvert County, Judge Perry G. Bowen presiding. The foreman of the jury announced the verdict 'guilty of armed robbery with a dangerous weapon, and guilty of first degree murder with a request for clemency.' For the homicide Barber was sentenced to serve the rest of his natural life, and for the other conviction, 20 years to run concurrently with the life sentence. Barber appeals alleging the trial judge committed reversible error by denying his motion for mistrial due to newspaper publicity which appeared during trial, in that the judge failed to examine the newspaper articles as to whether or not they were 'prejudicial or inflammatory per se.' Secondly, he alleges error was committed by the failure 'to examine the jurors individually rather than en mass in respect' to their knowledge of the newspaper articles. Lastly, he alleges that the jurors' finding of 'guilty of armed robbery with a dangerous weapon,' makes this conviction a nullity as he was not indicted for armed robbery but rather 'attempted robbery with a deadly weapon.'

The evidence presented by the prosecution was uncontroverted. Appellant was identified by Mrs. Ethel Kidwell as one of the 'boys' who entered the package liquor store operated by her and her husband and drew a pistol while announcing 'this is a holdup.' In an ensuing gun battle the would-be robbers shot and killed Warner Giles Kidwell, but fled without taking anything.

Publicity

The second morning of the two-day trial, appellant's counsel moved for a mistrial based on two newspaper articles that had appeared 'in the metropolitan Washington newspapers' the previous day. The actual articles are not in the record apparently because they have been lost. It has been stipulated that defense counsel's summary of the articles to the trial court was a fair statement of their context. On appeal counsel referred to three pre-trial newspaper stories, but under the rules only what he presented to the trial judge is before us. One front page article was entitled 'Probation for a Youth in Robbery Stirs Debate'; it reported the disposition of the case against one of those jointly indicted with appellant. The article indicated that there were co-defendants involved, but it does not appear from the record that appellant was mentioned by name. An evening newspaper carried an article entitled 'Youth Given Probation in Fatal P. G. Robbery.' This article reported about the crimes and the disposition of the cases against two of the defendants. The article was apparently embellished with some comments by the State's Attorney for Prince George's County on the propriety of the probationary sentencing in view of the seriousness of the offenses. Appellant's counsel alleged this article mentioned that 'two other eighteen year olds who are charged with the actual attempted holdup and shooting are scheduled to go on trial today in Calvert County.' Relating the facts of one article, appellant's counsel asserted 'that article went on to say . . . Kevin Joseph Barber, has a murder charge pending against him, and is scheduled to be tried Monday in Calvert County. Then it goes on with a further lengthy explanation, also involving the State's Attorney for Prince George's County, on whether or not the sentence (of a co-defendant) was proper in view of the seriousness of the offense . . ..'

Prior to allowing the jury to separate for luncheon recess the first day of the trial, the judge admonished them to neither engage in nor overhear conversations concerning the case. At the end of the first day and prior to their evening separation, this admonition was reiterated and supplemented with a direction not to 'read any possible account of the trial today in any newspapers or any other form of printed material, nor are you to listen to anything over the radio about it. Any time you hear anything that leads you to believe that it might be connected with this case, have nothing to do with it.' Court was then adjourned for the day. The first order of business the next morning was appellant's motion for mistrial.

The trial judge posed to the jury as a body this question: 'Mr. Foreman, ladies and gentlemen of the jury, before this case commenced yesterday, you ladies and gentlemen were sworn on the voir dire. I want to ask you now, on the basis of that oath, and I want you to answer me frankly and honestly without any worry of reprisals, whether any of you ladies and gentlemen read any newspaper articles reported about this case, or heard any reports or comments about this case over last night's recess.' Immediately afterward the court reporter has inserted '(The jury indicated a negative response.)' The trial judge then denied the motion for mistrial.

The general rule concerning prejudicial publicity as stated by the Court of Appeals of Maryland is 'the burden is upon the party alleging prejudice to show: (1) that the newspaper article is prejudicial, (2) that a juror has read the prejudicial newspaper article, and (3) that the jurors' decision at the trial was influenced by that newspaper article.' Presley v. State, 224 Md. 550, 555, 168 A.2d 510, 512, cert. den. 368 U.S. 957, 82 S.Ct. 399, 7 L.Ed.2d 389. See also Graef v. State, 1 Md.App. 161, 228 A.2d 480 and Sizemore v. State, 5 Md.App. 507, 248 A.2d 417. If we assume the articles were prejudicial it is obvious the appellant failed to satisfy requirements (2) and (3) and the trial judge committed no error in denying the motion for mistrial.

Appellant argues the trial judge was required under Basiliko v. State,212 Md. 248, 129 A.2d 375, to read the articles and determine whether or not the articles were prejudicial per se. Appellant misreads Basiliko. The convictions in that case were reversed because during a criminal trial, the publishing and broadcasting media gave massive coverage to a civil suit brought by the well-known Chief Judge of the same circuit in which the criminal trial was being held; the civil suit was based upon the assumption of the truth of the allegations which constituted the ultimate issue in the criminal trial. In Basiliko there was no showing that any juror had been exposed to those announcements; however, based upon its peculiar facts, the Court inferred that the jurors had been exposed.

Appellant also makes reference to Sheppard v. Maxwell, 384 U.S. 333, 86...