Brice v. State
| Decision Date | 10 July 1969 |
| Docket Number | No. 345,345 |
| Citation | 254 Md. 655,255 A.2d 28 |
| Parties | Willie Frank BRICE v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Joseph H. Thomas, Jr., Baltimore, for appellant.
Thomas M. Downs, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr. and John Henry Lewis, Jr., State's Atty. and Asst. State's Atty., respectively, for Baltimore City on the brief), Baltimore, for appellee.
Before HAMMOND, C. J., and MARBURY, BARNES, FINAN and SMITH, JJ.
The appellant, Willie Frank Brice, was charged in four separate indictments with robbery with a deadly weapon (No. 2204), perverted practice (No. 2205), rape (No. 2206), and murder (No. 2207). He was arraigned on June 20, 1967, before Judge Thomas J. Kenney of the Criminal Court of Baltimore at which time the following written 'pleas' were entered on his behalf:
1. That he is not guilty by reason of insanity at the time of the commission of the crimes alleged.
2. That he is not guilty by reason of insanity at the present time.
3. That he pleads double jeopardy. 1
On June 21, 1967, appellant entered 'additional pleas' as follows:
1. That Indictments Nos. 2204, 2205, 2206, 2207 were returned by the grand jury without admissible, credible or direct evidence having first been heard and presented to the grand jury.
2. The suppression of any and all written statements and oral statements attributed to him concerning alleged facts leading to the return by the grand jury of the four (4) indictments with respect to such statements being put at the disposal of the Clifton T. Perkins Hospital or any other hospital in determination of defendant's sanity.
On July 11, 1967, Judge Kenney filed a memorandum in answer to appellant's pleas and motions. The motion to suppress the written and oral statements attributed to the appellant with reference to providing those statements to Clifton T. Perkins State Hospital as an aid in their psychiatric evaluation was denied. However, this was without prejudice to the right of the appellant to raise the issue later in the proceedings after he had been declared competent to stand trial and would be able to assist in his defense, since in all probability his testimony would be required at the hearing on such a motion.
The double jeopardy plea of June 20, 1967, and plea No. 1 of June 21, 1967, were treated by Judge Kenney in the following manner:
'In addition, the Defendant raises the question of double jeopardy, which the Court will consider as a motion to dismiss the indictments on those grounds.
'In the pleading denominated 'Additional Pleas', the Defendant also complains, 'That indictments numbered 2204, 2205, 2206, 2207 were returned by the Grand Jury without admissible, credible or direct evidence having first been heard and presented to the Grand Jury.' This, too, the Court will treat as a motion to dismiss the indictments.
'Section 8 of Article 59, as amended at the 1967 Session of the Legislature, provides in part, (Emphasis supplied.)
On the same day as the memorandum, Judge Kenney caused an order to be signed transferring the appellant to the custody of the superintendent of the Clifton T. Perkins State Hospital for examination and evaluation as to the appellant's sanity and competency. On November 8, 1967, appellant filed a motion in proper person to strike the appearance of counsel and on December 27, 1967, new counsel was appointed by the court for the defendant. The case finally came on for trial on October 21, 1968, before a jury, in the Criminal Court of Baltimore, Judge Solomon Liss presiding. At the close of the State's case the appellant refused to testify in his own behalf and he took the stand for the limited purpose of stating the reason for his refusal. The following colloquy took place between the appellant, his attorney Mr. Maxwell, and the trial court:
'MR. MAXWELL: Now, your Honor, I am placing the defendant on the stand for the limited purpose only of the defendant giving his explanation as to why he does not want to testify.
I have explained to the defendant that, naturally, he does have a right to testify in this matter. By the same token, he has a right not to testify, and the fact that he does not testify in no way is a reflection upon his guilt or innocence.
You are aware of this, Mr. Brice, is that correct?
Q. As a matter of fact, Mr. Brice, as your counsel, you appointed, counsel, it was my advice to you that you should testify, isn't this correct?
A. That is correct.
Q. However, you tell me that you do not wish to testify, is that right?
A. That is correct.
Q. Mr. Brice, you also stated that you wished to have in the record your reasons for not testifying. Would you please, for the record, again, tell Judge Liss who you choose not to testify?
A. Well, Judge, the reason that I refuse to testify in my own defense is on certain grounds or motion that I have before the Court that was denied before Judge Kenney. It is my belief that I was denied due process of law. I'm assuming that I was indicted unlegal, because the main witness, Mrs. Dicie Mae Richmond, didn't appear before the Grand Jury, and I was denied a preliminary hearing. And, it is my belief that under the new Grand Jury, that the main prosecutor witness should appear before the Grand Jury before the indictment would be returned. I was denied that motion before Judge Kenney. (Emphasis supplied.)
MR. MAXWELL: Now, your Honor, again, for the record, I have explained to Mr. Brice the fact that even if he testifies as I have recommended that he do testify, he, in no way, waives this objection. It is still part of the record in so far as the fact that Mrs. Richmond did not appear before the Grand Jury, or allegedly did not appear before the Grand Jury.
However, Mr. Brice, you still insist that you do not wish to testify, is that correct?
The appellant was found guilty on all of the counts of the indictments and judgment on the jury verdict was rendered on October 29, 1968. Appellant was sentenced to two ten (10) year prison terms for robbery with a deadly weapon and perverted practice to run consecutively with the murder and rape convictions for which appellant was sentenced to die in the gas chamber. From those convictions and sentences appellant this appeal. Appellant alleged several errors in the court below but we need only address ourselves to one of them.
It is the appellant's contention that the transcript of the trial below and the docket entries as to each indictment do not reveal a ruling by the lower court on the appellant's motions as to double jeopardy and the lack of admissible, credible, or direct evidence before the grand jury and that such rulings, if favorable to the appellant, would have resulted in the dismissal of the indictments against him. Therefore, he argues, such failure to rule on his motions was prejudicial to him, that he never waived his right to have said motions ruled upon and the lower court...
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