Bartholomey v. State

• Decision Date: 02 February 1971
• Docket Number: No. 106,106
• Citation: 273 A.2d 164,260 Md. 504
• Parties: Joseph James BARTHOLOMEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 504

260 Md. 504

273 A.2d 164

Joseph James BARTHOLOMEY v. STATE of Maryland.

No. 106.

Court of Appeals of Maryland.

Feb. 2, 1971.

James F. Garrity, Baltimore, for appellant.

T. Joseph Touhey, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, John C. Hancock and Louis P. Jenkins, State's Atty. and Asst. State's Atty., respectively, for Charles County, LaPlata, and Alfred T. Truitt, Jr. and Richard M. Pollitt, State's Atty. and Asst. State's Atty., respectively, for Wicomico Co., Salisbury, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN and SMITH, JJ.

BARNES, Judge.

The appellant, Joseph James Bartholomey, was indicted by the Grand Jury for Wicomico County in several indictments, four of which were removed from the Circuit Court for Wicomico County to the Circuit Court for Charles County for trial. In the latter court these four indictments for the crimes indicated received the following numbers: No. 3278 charging escape from the Wicomico County Jail; No. 3282 charging assault with intent to murder Ralph Pusey; No. 3284 charging murder of Albert Kelly; and, No. 3285 charging murder of Samuel A. Graham. The jury found the appellant to have been sane on December 8, 1968, the time of the commission of the crimes charged and guilty in all four cases. The lower court (Digges, C. J.) sentenced the appellant in No. 3278 to a term of imprisonment of 10 years to begin at the conclusion of the sentences imposed in Nos. 3284 and 3285; in No. 3282 to a term of 10 years to run concurrently with the sentence imposed in No. 3278 and to begin at the conclusion of the sentences imposed in Nos. 3284 and 3285; and in each of cases Nos. 3284 and 3285, the appellant was sentenced to death by the administration of lethal gas. The appellant filed timely appeals from these judgments and sentences which, pursuant to Code (1970 Cumulative Supp.), Art. 5, § 5A, came to us rather than to the Court of Special Appeals inasmuch as they involve a death sentence.

All of the crimes charged arose out of events occurring on the evening of December 8, 1968, at the Wicomico County Jail. This jail is situated on the top floor of the Court House in Salisbury, Maryland. On that evening at approximately 10:00 P.M. the appellant, who was detained at the Wicomico County Jail on warrants charging him with assault and robbery, escaped from the jail in the course of which he shot and killed Sheriff Samuel A. Graham and Deputy Sheriff Albert Kelly. He also shot at Ralph L. Pusey, who was present at the jail to talk to Sheriff Graham about being deputized as Deputy Sheriff, but fortunately the bullet did not hit Mr. Pusey.

As its first witness at the trial, the State offered the testimony of Peter Boolukas, M.D., a qualified pathologist at the Peninsula General Hospital in Salisbury. Dr. Boolukas testified that he performed an autopsy on the bodies of Sheriff Graham and Deputy Sheriff Kelly on December 9, 1968. He testified that Albert Kelly died as a result of a gunshot wound in the skull and in addition to this wound, the victim had a gunshot wound in his left chest. He further stated that Samuel Graham died as a result of a gunshot wound in the left chest. Two bullets were recovered from the body of Albert Kelly and four bullets were recovered from the body of Sheriff Graham. All six bullets were delivered to the Maryland State Police ballistics experts for their analysis.

The State next offered evidence through John Walston, Chief Deputy Sheriff for Wicomico County, that he was in charge of the Wicomico County Jail on December 8, 1968, and that the appellant Bartholomey was being held at that jail on that date upon warrants charging the appellant with assault, receiving stolen goods, grand larceny, and breaking and entering. These warrants were duly admitted into evidence as exhibits for the State.

Donald Leon Dashiell, an inmate in the Wicomico County Jail on December 8, 1968, as a result of a 30-day sentence resulting from a conviction for assault, testified that at approximately 9:30 P.M. on that date he was sitting at a desk with Deputy Sheriff Kelly in an area adjacent to the cell block in which the appellant was confined in Cell No. 1. At that time, Deputy Sheriff Kelly approached Cell No. 1 with the intention of locking up the prisoner for the evening when Dashiell saw the appellant with a gun. Dashiell ran to the living quarters of Sheriff Graham which are located in an apartment adjacent to the jail. At the direction of Deputy Sheriff Kelly, Dashiell closed the cell block door prior to seeking assistance from the sheriff. After telling Sheriff Graham that the appellant was attempting to escape and that Deputy Sheriff Kelly was in the cell block, Sheriff Graham told Dashiell to get help, whereupon Dashiell entered the elevator adjacent to the cell block area in an effort to obtain help. As he entered the elevator, he heard shots. He then observed Deputy Sheriff Kelly fall to the floor and Sheriff Graham standing in a corner by the cell door as the door of the elevator closed. Dashiell then testified that he heard additional shots from the area of the cell block as he travelled on the elevator from the third floor to the basement of the Court House. Dashiell also stated that at the time he saw the appellant with a pistol, he was standing some seven feet from the appellant and Deputy Sheriff Kelly.

The next witness for the State, Ralph A. Harmon, who was confined in the juvenile section of the jail on December 8, 1968, testified that there was some firing and that Kelly fell across the doorsill and Graham fell back up against the wall after which he saw the appellant emerge from Cell No. 1 with a pistol in his hand. Harmon testified that he saw no other prisoners in the hallway adjacent to Cell No. 1 at the time of the shooting.

Ralph L. Pusey next testified for the State. He was in Sheriff Graham's living quarters on December 8, 1968, discussing with the sheriff about being deputized as Deputy Sheriff. After drinking some coffee, he talked with Deputy Sheriff Kelly and then went down to the trusty's cell. He heard a gunshot, then another shot. When he stepped out into the hallway, he saw Deputy Sheriff Kelly lying on the floor and Sheriff Graham lying against the door. He started to run whereupon the appellant stepped from around the corner and fired an errant shot at Pusey which hit the elevator door. Pusey then ran into the elevator and closed the door to prevent the appellant's escape. Pusey stated that the weapon he observed in the appellant's possession was a .22 caliber pistol.

Vincent D. Horsey was an inmate on December 8, 1968, in the same juvenile cell as that occupied by Ralph Harmon. Horsey testified that he heard the appellant tell Deputy Sheriff Kelly to 'Open the door' and threaten to kill him. Horsey subsequently saw the appellant reach around the door and fire his gun; he heard approximately six shots fired from a .22 caliber pistol which he had observed in the appellant's possession.

Detective Sergeant Robert D. Weir of the Maryland State Police testified that based on information obtained from David Hudson, a friend of Batholomey, he notified the Delaware State Police that the appellant was an occupant of a motel on Route 13, Dover, Delaware. He notified the Delaware State Police on December 9, 1968, that the appellant was at the motel under the assumed name of John Davis.

Officer Irving Little of the Delaware State Police testified for the State that he was a member of the team of police officers who surrounded the Capital City Motel in Dover, Delaware and apprehended the appellant there on December 9, 1968. A .22 caliber pistol was recovered from the room occupied by the appellant, the pistol having been placed in an air conditioner in the room.

The six bullets removed from the bodies of the victims had been taken to the Maryland State Police Headquarters at Pikesville, Maryland for analysis by the ballistics expert, Russell M. Wilhelm. Mr. Wilhelm testified that the .22 caliber pistol recovered from the motel room in Dover was the gun which fired the bullets which killed Sheriff Graham and Deputy Sheriff Kelly.

At the conclusion of the State's case, the appellant moved for a judgment of acquittal which was denied by the trial court.

The appellant then produced nine witnesses, three medical experts, and six lay witnesses. The six lay witnesses, his mother, his father's second wife, his sister, a former girl friend, his aunt and a guard at the Maryland Penitentiary testified in regard to the appellant's erratic behavior during his early youth and his attempts to commit suicide.

The three medical experts testified in regard to their opinion relative to the appellant's mental condition on December 8, 1968. Dr. Norman H. Bradford was of the opinion that on that date the appellant was a paranoid psychotic; Dr. Stephen H. Kaufman was of the opinion that the appellant was suffering from a mental disease on that date which he characterized as paranoid schizophrenia which resulted in the appellant's lack of capacity to appreciate the criminality of his act and to conform his conduct to the requirements of the law; Dr. Stanislav Groff also was of the opinion that on that date the appellant was a paranoid schizophrenic who lacked substantial capacity either to appreciate the criminality of his acts or to conform his conduct to the requirements of the law. All three medical experts testified to the extent of their examination of the appellant and the criteria they used in reaching their respective opinions.

The appellant, himself, testified on his own behalf. He stated that he believed that all police officers, judges and people working for the State were Communists who were conspiring to kill him. He testified that the Communists and Chinese were plotting to take over the world and that he had heard voices directing him to resist the plot and, in...