Brooks v. State

• Decision Date: 03 April 1968
• Docket Number: No. 191,191
• Citation: 3 Md.App. 485,240 A.2d 114
• Parties: Riley BROOKS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 485

3 Md.App. 485

240 A.2d 114

Riley BROOKS v. STATE of Maryland.

No. 191.

Court of Special Appeals of Maryland.

April 3, 1968.

Jerome F. Connell, Sr., Glen Burnie, for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Baltimore, and Julian B. Stevens, Jr. and Marvin H. Anderson, State's Atty. & Asst. State's Atty., on the brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and RIDGELY P. MELVIN, Jr., Special Judge.

ANDERSON, Judge.

On January 17, 1966, the appellant, Riley Brooks, was convicted by a jury of murder in the first degree, without capital punishment, in the Circuit Court for Anne Arundel County, Judge Matthew S. Evans presiding. Appellant was sentenced to life imprisonment.

Appellant raises two contentions on appeal:

1. That the jury by which the appellant was convicted was not drawn or impaneled in accordance with the requirements of due process and equal protection of the law.

2. That the lower court error in refusing to grant the Defendant's Motion for a Judgment of Acquittal of murder in the first degree.

The evidence adduced at the trial established that one Idus Wimberly was shot several times by the appellant, Riley Brooks, and died as a direct result thereof. There were two divergent explanations of the occurrence. The deceased's widow, Myrtle Wimberly, testified that after an altercation, arising out of the deceased's remarks to the appellant, reminding appellant that he and Coretha Thomas were not married, and the deceased's ordering of the appellant from the deceased's house, while threatening him with a raised chair, the appellant drew a gun and shot the deceased several times. Appellant's version was that after Mrs. Wimberly had left the room, the deceased ordered him from the house and produced a pearl handled gun which appellant successfuly wrested from him only to be confronted by another gun which appellant successfully wrested from under his mattress, which allegedly was the same gun used earlier in the day by the deceased to shoot at one Dreece Green, thus compelling the appellant to begin firing at the deceased in self-defense. Appellant further testified that as he fled from the deceased's residence shots were fired at him. Appellant testified that he disposed of his weapon somewhere along Fort Meade Road.

The record before us indicates that on July 5, 1965, a picnic was held at the home of Idus and Myrtle Wimberly, on Elkridge Landing Road, Anne Arundel County, Maryland. Riley Brooks, Coretha Annette Thomas, Mrs. Wimberly's niece, and her six children arrived at the Wimberly residence. Also present were Dreece Roberta Green, William H. Boone, Joe McKen, Beulah McKen, Mr. and Mrs. George M. Davis and their five children. Later, Idus Wimberly, William H. Boone and George M. Davis drove to the Elkridge Liquor Store, where Idus Wimberly purchased two fifths of whiskey and they returned to the picnic. After everyone ate, Idus Wimberly and some of the children were outside, when the children began teasing him, calling him 'Mr. Wimpy', causing him to become very upset. This incident precipitated an altercation between Idus Wimberly and George Davis. Subsequent thereto, Idus Wimberly appeared to have calmed down and entered the house expressing his intention to lie down. Shortly thereafter, he emerged firing a gun and ordered everyone off his property. He then sought out George Davis and later fired at Dreece Green.

Following the shooting, everyone with the exception of Joe McKen, Beulah McKen and Mr. and Mrs. Wimberly went to the home of Riley Brooks, the appellant. Appellant then telephoned the Wimberly residence, talked with Mrs. Wimberly and then returned to the Wimberly place. He entered into a conversation with the Wimberlys culminating in an altercation and the subsequent shooting and death of Idus Wimberly.

I

Appellant's contention that there was an extreme variation between the number of Negro and white jurors, thus raising the presumption of discrimination against the Negro race in the selection of the jury and the consequential violation of the constitutional rights of the appellant, is predicated upon the premise that once this issue is raised, a prima facie case is established and the State assumes the burden of establishing that the selection system used was fairly calculated to produce a true cross section of the community.

In support of this contention, appellant relies entirely upon the cases of Clark v. Allgood, 258 F.Supp. 773 (D.C.1966) and Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967).

In Clark v. Allgood, supra, 258 F.Supp. at page 776, the District Court, relying upon the Fifth Circuit Court of Appeals' decision in Brooks v. Beto, 366 F.2d 1 (C.A. 5, 1966), stated:

'When the statistics show what appears to be a uniform, systematic inclusion of a token number or of a uniform number of Negroes on a jury panel, a prima facie case of discrimination is established. It is then up to the State to rebut the presumption by showing that the system used was fairly calculated to produce a cross section of the community, and that the lack of a cross section on a particular list or panel just happened to be the fortuitous result of chance.'

However, the statistics upon which that Court based its findings in Clark consisted of evidence that from 1951 until 1961, a time span encompassing the ten years prior to the petitioner's conviction, twenty consecutive grand juries had been impaneled and of those, nineteen of them, as finally impaneled, contained the name of one Negro, and one contained the names of two Negroes. It was also noted that the happenstance of mere chance, producing that outcome if the above had been drawn by lot, 'would be less than one in ten thousand.' The evidence presented clearly showed that 'the commissioners intentionally placed a limited number of Negroes' names thereon in order that the Negroes would not be entirely excluded from the venire list.'

In Whitus v. State of Georgia, supra, the Supreme Court found sufficient proof that Georgia had employed the same procedures which had concededly resulted in discrimination in the first trial of the petitioners and thus 'constituted a prima facie case of purposeful discrimination' in the selection of the grand and petit juries involved in the second trial of the petitioners.

The Supreme Court noted at 385 U.S. page 550, 87 S.Ct. page 646 that:

'The burden is, of course, on the petitioners to prove the existence of purposeful discrimination, Tarrance v. State of Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572 (1903). However, once a prima facie case is made out the burden shifts to the prosecution.'

The proof relied upon by the Supreme Court in Whitus developed from the following facts at pages 550-551, 87 S.Ct. at page 646:

'It is undisputed that the 'revised' jury list was made up from the 1964 tax digest, the old jury list and the personal acquaintance of the commissioners with persons in their respective communities. It is admitted that the old jury list had been condemned as illegal by the Court of Appeals when it reversed petitioners' first convictions. It is conceded that 27.1% of the taxpayers in the county are Negroes; that the county had a population in 1960 of 10,206 people over the age of 21 years, of whom 4,706 were male, with 2,004, or 42.6%, of this latter number being Negroes; that 33 prospective jorors were drawn for grand jury service for the term of court during which petitioners were indicted, three being Negroes, of whom one actually served on the grand jury of 19 persons; that a venire of 90 persons was used for the selection of the petit jury which tried petitioners, of which number at least seven were Negroes; and, that no Negro was accepted on the petit jury.

'Furthermore, it is obvious that the 1964 tax digest was required to be made under the same segregated system as were the previous digests, and suffered the same deficiency. Indeed, the State employed the same procedure which it concedes resulted in discrimination in the petitioners' first trial.'

The constitutional principle enunciated in Whitus had a long somewhat staccato evolution but is possessed of deep roots in our juridical heritage. Our careful review of the authorities evidences a clearly delineated tracing of the original pronouncement regarding the intent and ambit of the Fourteenth Amendment in the histric Slaughter-House Cases to the current body of law surrounding the instant issue. This distinct, tenacious fibre has interwoven itself into each subsequent opinion until through the careful process of stare decisis one is currently appraised of the ruling in Whitus and the subsequent decisions hereinafter noted.

In tracing this evolutionary process, in an attempt to establish a historical precedent interpretable as a guide to the current posture of the law governing the issue of jury discrimination and the the prerequisite prima facie evidence of same, a careful review of the origins of this doctrine produced the following cases of note.

In Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1872), the Supreme Court considered the proposition: 'Can any exclusive privileges be granted to any of its citizens, or to a corporation, by the legislature of a State?' Therein, the Court was initially defining the true spirit and meaning of the Thirteenth, Fourteenth and Fifteenth Amendments of the Constitution of the United States stating at page 67:

'We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions so far reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citizens of the States and of the United States, haven been before this court during the official...