Brown v. State

Decision Date08 May 1959
Docket NumberNo. 219,219
Citation220 Md. 29,150 A.2d 895
PartiesJohnnie BROWN v. STATE of Maryland.
CourtMaryland Court of Appeals

Richard M. Pollitt, Salisbury (Vaughn E. Richardson, Salisbury, on the brief), for appellant.

Clayton A. Dietrich, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Hamilton P. Fox, Jr., State's Atty. for Wicomico County, Salisbury, and C. Burnam Mace, State's Atty. for Dorchester Co., Cambridge, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and and HORNEY, JJ.

HAMMOND, Judge.

Johnnie Brown, a Negro, appeals from a judgment and sentence of death following a jury's verdict that he was guilty of murder in the first degree for shooting a policeman as he was being taken to the station house. It is contended that the trial court erred in refusing to examine the jurors on their voir dire as to possible prejudice against Negroes, that it was error to admit evidence tending to prove prior crimes, that the jury should have been instructed that there was no evidence as a matter of law of murder in the first degree, and, finally, that two questions asked appellant by the trial court were improper and prejudicial.

Johnnie Brown, who apparently had never before been in trouble with the law, uttered two checks he had forged on September 5, 1958, in Salisbury. The next day he attempted to utter another check he had forged. A description was furnished immediately by the storekeeper who had refused to cash the proffered check, and in the evening of that day an officer of the Salisbury police force arrested Brown. It was stipulated that the arrest and custody were lawful. The police officer did not handcuff appellant or put him under any form of physical restraint. The two walked together towards the police station several blocks away. To get to the station it was necessary to pass through a dark alley about ten feet wide. As the officer was preceding the appellant up the alley, he was shot by a bullet from appellant's pistol. The bullet entered his back at about the level of his third rib and came out the front of his neck. The officer staggered into police headquarters, where he died shortly thereafter, and the appellant ran out of the alley and down the street and was soon taken into custody by another policeman as he lay hiding in some bushes. No one saw the shooting and there was no testimony, except that of Brown, as to how it occurred.

Brown's story was that he wished to discard his pistol, which he had put in his pocket as he was leaving his room that evening, because he suspected that he had been picked up for forgery and thought it wise to get rid of the pistol, and that he reached with his left hand into his right coat pocket in an attempt to ease the gun to the alley, and the shot followed by mistake or accident. Several witnesses saw the appellant running from the alley with the gun in his right hand. A ballistics expert testified that a bullet and shell, which were picked up by a patrolman in the alley at the place of the shooting, came from appellant's gun, that it took a five or six-pound pull on the trigger of the gun to discharge it, and that it could not have been discharged accidentally, by jolt or otherwise, only by pulling the trigger.

The case was moved to Dorchester County for trial, and counsel for appellant, who had been appointed by the court, submitted to the court a list of fourteen questions to be asked prospective jurors. The court asked six of the questions and refused to ask the other eight. Three of those not asked were whether the jurors had read or heard any accounts of the case in the newspapers or on the radio or television, and whether they had discussed the guilt or innocence of the accused. Another question not asked was whether the jurors were associated with or related to the attorneys in the case, either for the State or for the defense. The remaining unasked questions were directed towards ascertaining whether the jurors had any prejudice against a Negro which would prevent them from giving a Negro as fair and impartial a trial as they would a white man. Question ten, for example, was: 'Can you, without bias or prejudice, pass your verdict in this case solely on the evidence produced from the witness stand without regard to the race, creed or color of the Defendant?'

As we reiterated in McGee v. State, 219 Md. 53, 58, 146 A.2d 194, 196: 'It it settled in Maryland that in examination of jurors on their voir dire, the court may frame its own questions and not permit cross-examination by counsel, that the extent of the examination rests in the sound discretion of the court, and that the purpose of the inquiry is to ascertain 'the existence of cause for disqualification and for no other purpose.' Adams, Nelson, and Timanus v. State, 200 Md. 133, 140, 88 A.2d 556, 559, and cases cited; Bryant v. State, 207 Md. 565, 115 A.2d 502.' We see no abuse of discretion or prejudice to the accused in the refusal to ask the questions as to reading or hearing accounts of the case, or discussing it. All the jurors had already said that they had not formed or expressed any opinion as to the guilt or innocence of the accused, and the fact that a prospective juror has read or heard publicity concerning the accused or the crime does not of itself disqualify him or raise any presumption of prejudice. Bryant v. State, 207 Md. 565, 577-579, 115 A.2d 502; Piracci v. State, 207 Md. 499, 511-512, 115 A.2d 262; Grammer v. State, 203 Md. 200, 209, 100 A.2d 257.

The question as to the connection of any juror with the attorneys of the case did not have to be asked, as was held in McGee v. State, Bryant v. State, both supra; and Emery to Use of Calvert Ins. Co. v. F. P. Asher, Jr., & Sons, Inc., 196 Md. 1, 6, 75 A.2d 333.

The refusal to ask any questions as to the bias or prejudice which jurors might have as to a Negro, and as to whether the jury could give the defendant as fair and impartial a trial as they could a white man, falls into a different category, requiring more consideration. Although some courts have found no error in refusal to question prospective jurymen as to such prejudice, the majority, and we think the far better reasoned, of the cases, holds to the contrary. One of the more recent cases on the subject, which expresses well the views we hold, is State v. Higgs, 143 Conn. 138, 120 A.2d 152, 154, 5 A.L.R.2d 1199. There, on voir dire examination, the negro defendant was not permitted to ask questions designed to uncover prejudice against the Negro race to such an extent that it would take less evidence to convince that a Negro was guilty of the crime charged than to convince that a white person had committed a similar crime. The Supreme Court of Errors held that there was an abuse of discretion in excluding from the examination on the voir dire all questions as to race prejudice. The Court said:

'Clearly, therefore, if there is any likelihood that some prejudice is in the juror's mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case. Otherwise, the right of trial by an impartial jury guaranteed to him * * * might well be impaired. * * *

'In line with this thought, it is almost uniformly held in other jurisdictions that it is reversible error in a criminal case in which a Negro is the defendant to exclude questions, propounded by him on the voir dire, designed to bring out that a prospective juror is so prejudiced against the Negro race that it would take less evidence to convince him that a Negro was guilty of the crime charged than to convince him that a white person had committed a similar crime. * * *

'We cannot be blind to the fact that there may still be some who are biased against the Negro race and would be more easily convinced of a Negro's guilt of the crime of rape than they would of a white man's guilt. * * *

'So long as race prejudice exists, even in a relatively few persons, there is a substantial chance that one of those few will appear in court as a venireman. Consequently, the fact that most people in the state are not prejudiced against Negroes is not of controlling importance.'

The Supreme Court reached the same conclusion in Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 473, 75 L.Ed. 1054. There the Court said that the question was not as to the dominant sentiment of the community and the general absence of disqualifying prejudice, but as to the bias of the particular jurors who were to try the accused, and continued:

'If in fact, sharing the general sentiment, they were found to be impartial, no harm would be done in permitting the question; but if any one of them was shown to entertain a prejudice which would preclude his rendering a fair verdict, a gross injustice would be perpetrated in allowing him to sit. * * * we do not think that it can be said that the possibility of...

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