Bartholomey v. State

• Decision Date: 01 September 1970
• Docket Number: No. 106,106
• Citation: 267 Md. 175,297 A.2d 696
• Parties: Joseph James BARTHOLOMEY v. STATE of Maryland. Dolphus JOYNER v. STATE of Maryland. Theodore Roosevelt ARRINGTON v. STATE of Maryland. Elisha STERLING, Jr. v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 175

267 Md. 175

297 A.2d 696

Joseph James BARTHOLOMEY v.STATE of Maryland.

Dolphus JOYNER v.STATE of Maryland.

Theodore Roosevelt ARRINGTON v.STATE of Maryland.

Elisha STERLING, Jr. v.STATE of Maryland.

No. 106, Sept. Term, 1970.

No. 386, Sept. Term, 1971.

Misc. Nos. 2, 3, Sept. Term, 1972.

Court of Appeals of Maryland.

Dec. 4, 1972.

Alan H. Murrell, Public Defender(Elsbeth Levy Bothe and Arnold M. Zerwitz, Asst. Public Defenders, Baltimore, on the brief), for Bartholomey, Arrington and Sterling.

R. Kenneth Munday, Washington, D. C.(Joseph L. Gibson, Jr.Washington, D. C., on the brief), for Joyner.

Francis B. Burch, Atty. Gen. (Edward F. Borgerding and Clarence W. Sharp, Asst. Attys.Gen., Baltimore, on the brief), for appellee in No. 106, Misc. No. 2andMisc. No. 3.

Francis B. Burch, Atty. Gen. (David B. Allen, Asst. Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty., and Robert W. King, Asst. State's Atty., for Prince George's County, Upper Marlboro, on the brief), for appellee in No. 386.

Argued before MURPHY, C. J., BARNES, McWILLIAMS, SINGLEY, SMITH and LEVINE, JJ., and CHARLES E. ORTH, Jr., Special Judge.

MURPHY, Chief Judge.

I

On December 8, 1968, in the course of escaping from lawful confinement in the Wicomico County jail, Joseph James Bartholomey shot and killed two peace officers.He was found guilty by a jury on two counts of murder in the first degree, and the court thereafter imposed sentences of death upon each conviction.We affirmed the judgments on appeal, Bartholomey v. State, 260 Md. 504, 273 A.2d 164(1971), holding, among other things, that imposition of the death sentence for first degree murder, authorized by Maryland Code(1957 Ed.)Article 27, § 413, ¹ violated neither the federal nor State constitutions.Bartholomey petitioned for a writ of certiorari in the Supreme Court of the United States, claiming that his death sentences constituted cruel and unusual punishment in violation of the Eighth Amendment to the federal constitution made applicable to the states through the Fourteenth Amendment.

On June 29, 1972, the Supreme Court of the United States, in the consolidated cases of Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas, sub nom. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346(1972), reh. den.-- U.S. --, 93 S.Ct. 89, 34 L.Ed.2d 163(1972), considered the question whether death sentences imposed under discretionary statutes upon two defendants convicted of rape and one convicted of murder in the first degree violated the Eighth and Fourteenth Amendments to the federal constitution.By a divided (5-4) per curiam decision, the Court concluded:

'. . . that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed and the cases are remanded for further proceedings.'

Each of the Justices who joined in the Court's judgment expressed his views in a separate opinion.Justices Brennan and Marshall concluded that the imposition of the death penalty constituted cruel and unusual punishment in all cases and in all circumstances and therefore violated the Eighth and Fourteenth Amendments to the federal constitution.Justice Douglas concluded that statutes like those involved in Furman which permitted discretion in the imposition vel non of the death penalty were unconstitutional in their operation, as infrequently and arbitrarily applied to unpopular groups, thereby violating the principle of equal protection implicit in the Eighth Amendment's ban on cruel and unusual punishment.Justice Stewart, while declining to rule on the constitutionality of capital punishment in the abstract, concluded that statutes permitting discretion in the imposition of the death penalty were arbitrarily applied in a wanton and freakish manner and, consequently, violated the constitutional prohibition against cruel and unusual punishment.Justice White expressed views similar to those held by Justice Stewart; he believed that because of the infrequent and unjustified use of nonmandatory death penalties for murder and rape, discretionary imposition of the death penalty for those offenses constituted cruel and unusual punishment.The Chief Justice and Justices Blackmun, Powell, and Rehnquist dissented, each by separate opinion.In his dissent, in which each of the other dissenting Justices joined, Justice Powell observed:

'Whatever uncertainties may hereafter surface, several of the consequences of today's decision are unmistakably clear. . . .The Court's judgment that removes the death sentences previously imposed on some 600 persons awaiting punishment in state and federal prisons throughout the country. . . .'408 U.S. at 416-417, 92 S.Ct. at 2817, 33 L.Ed.2d at 452.

In light of its decision in Furman, the Court summarily vacated death sentences imposed in 120 other cases then pending on its docket; it entered orders in the language of Furman, vacating the judgment in each of these cases'insofar as it leaves undisturbed the death penalty imposed' and remanded all the cases'for further proceedings.'Bartholomey was one of the cases so remanded to us for further proceedings.Bartholomey v. Maryland, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759(1972).In obedience to the Supreme Court's remand order, we heard argument on the question whether, in view of the particular facts and circumstances involved in Bartholomey's case, the imposition and carrying out of the death penalty would constitute cruel and unusual punishment in violation of the constitutional principles enunciated in Furman.The Public Defender, representing Bartholomey, maintained that it would; he argued that Furman 'will not permit the death sentence under any statutory scheme which is discretionary with the trier of fact and, in fact, makes impermissible any discretionary sentencing statute which may be arbitrarily applied'; that the imposition of the death penalty in Bartholomey's case is unconstitutional under the Maryland statutory scheme because not mandatory; and that Furman's holding applied without regard to the nature of the offense or the particular circumstances under which the crime was committed.The Attorney General, representing the State of Maryland, argued that Furman did not flatly prohibit the death sentence as a permissible form of punishment even where the statute authorizing its imposition was not mandatory.Noting differences between the Maryland statute(Section 413) under which Bartholomey was sentenced to death, and the Georgia and Texas statutes involved in Furman, the Attorney General maintained that 'each case, and the procedures of each state should be examined on a case-by-case basis to determine if, in fact, the death penalty as there imposed had been meted out in such a random and infrequent manner as to constitute in that case or in that class of cases a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the Constitution of the United States.'Although acknowledging that the Maryland statutes vest discretion in both the jury and the judge in the imposition of the death penalty, the Attorney General suggested that under Furman it must be shown that such discretion was 'arbitrarily, capriciously or discriminatorily applied before the Court can find that the death penalty constitutes a 'cruel and unusual' punishment in the constitutional sense.'

We entertain not the slightest doubt that the imposition of the death sentence under any of the presently existing discretionary statutes of Maryland which authorize, but do not require, that penalty is unconstitutional under Furman as violative of the Eighth and Fourteenth Amendments to the federal constitution.² In other words, we think the net result of the holding in Furman is that the death penalty is unconstitutional when its imposition is not mandatory.See, e. g., State v. Martineau, N.H., 293 A.2d 766(1972);State v. Leigh, 31 Ohio St.2d 97, 285 N.E.2d 333(1972);Commonwealth v. Bradley, Pa., 295 A.2d 842(1972);Adams v. State, Ind., 284 N.E.2d 757(1972); State v. Dickerson, Del. (1972); Adderly v. Wainwright, F.R.D. (M.D.Fla.1972);Johnson v. Warden, Md.App., 295 A.2d 820(Post Conviction) September Term, 1972(filed October 24, 1972).That Furman invalidates all death penalties imposed pursuant to discretionary statutes is so, without regard to the nature of the offense, the particular circumstances under which the crime was committed, or the particular procedure followed in imposing the death sentence.Indeed, included among the 120 cases which the Supreme Court remanded for further proceedings in light of Furman were cases involving murders of law enforcement officers (as in Bartholomey), mass killings, and aggravated rapes.³ The invalidity of Bartholomey's death sentences does not, of course, affect the legality of either of his underlying murder convictions.⁴SeeMoore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706(1972);Brady v. State, 226 Md. 422, 174 A.2d 167(1961), aff'd, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963);Bird v. State, 231 Md. 432, 190 A.2d 804(1963);State v. Martineau, supra.The 'further proceedings' required to be taken under Furman are limited to those involved in imposing valid sentences upon Bartholomey.The only lawful sentence that can be imposed for murder in the first degree under the controlling statute(§ 413) is life imprisonment; no discretion is lodged in the sentencing judge and the imposition of any other sentence would plainly be illegal.In so concluding, we are not unmindful of Article 27, § 643 which provides that 'where the law prescribing a punishment for crime fixes a maximum and a minimum penalty therefor, . . . (the sentencing judge) may, in lieu of the minimum penalty so...