Brown v. State

• Decision Date: 12 May 1961
• Docket Number: No. 247,247
• Citation: 170 A.2d 300,225 Md. 349
• Parties: , 85 A.L.R.2d 1107 Johnnie BROWN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 349

225 Md. 349

170 A.2d 300, 85 A.L.R.2d 1107

Johnnie BROWN v. STATE of Maryland.

No. 247.

Court of Appeals of Maryland.

May 12, 1961.

Richard M. Pollitt and Patrick L. Rogan, Jr., Salisbury (Vaughn E. Richardson, Salisbury, on the brief), for appellant.

Clayton A. Dietrich, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Henry P. Turner, State's Atty., Easton, for Talbot Co., Alfred T. Truitt, Jr., State's Atty., and Hamilton P. Fox, Jr., Special Asst. State's Atty., for Wicomico County, Salisbury, on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ.

MARBURY, Judge.

The appellant, Johnnie Brown, was indicted by the Grand Jury for Wicomico County on September 9, 1958, on a charge of murder. After various preliminary motions the case was removed to Dorchester County for trial. The defendant was convicted of murder in the first degree and sentenced to death, but on appeal this Court reversed and remanded the case for a new trial (220 Md. 29, 150 A.2d 895). He was tried on remand again in Dorchester County and was again convicted of murder in the first degree and sentenced to death, and on this second appeal this Court reversed and remanded the case for a new trial (222 Md. 290, 159 A.2d 844). Subsequent to the second remand the case was removed to Talbot County where it was tried a third time before a jury, which resulted in a verdict of guilty of murder in the first degree, and sentence of death.

The facts leading up to his trial and conviction are set forth in his prior appeals, will not be restated here, and are unnecessary to the consideration of the question presented on this appeal.

On the morning of the third day of the trial (three judges presiding), September 30, 1960, a conference was had in chambers wherein the prosecution and defense offered certain prayers or requests for instructions. Argument was had on such prayers or requests for instructions and the instructions were formulated or settled by the Court. Brown, the accused, was not present at this conference. Those in attendance were all counsel for the State and for the accused, and all members of the Court. Nothing of these proceedings in chambers affirmatively appears in the record of the trial except that it does appear that neither counsel for the prosecution nor the defense made any objection to the instructions as formulated by the court. The appellant's appendix, however, contains a stipulation signed by all counsel and approved by the three judges, which states 'that after hearing all objections and requests, the Court prepared its instructions to be given the jury and counsel for both sides indicated no further objections to said instructions; that the defendant, Johnnie Brown, was not present during these discussions and conferences; that there was no objection made by the counsel for the defendant to his not being present; that the instructions formulated as a result of these discussions and conferences were later read to the jury as the instructions of the Court.'

The stipulation further states 'that after the Court's instructions were reduced to final written form in chambers, the Court in the presence of counsel for both sides, before returning to the court room, asked all counsel whether there were any exceptions or requests for additional instructions and received replies in the negative. Then after returning to the court room and after the written instructions had been read by the Court to the jury, in the presence of the accused, the Court again inquired of counsel for both sides, in the presence of the accused, in open court whether there were any exceptions to the instructions as read or any requests for additional instructions to which counsel for both sides again replied in the negative.'

The only contention made by the appellant in this appeal is that it was prejudicial error for the accused not to be present in chambers when proceedings were had wherein prayers or requests for instructions were offered by the defense and the prosecution, argument was had on such prayers or requests for instructions, and the instructions were settled or formulated by the court.

The precise question involved in this appeal is now presented to this Court for the first time. We have construed Article 5, Declaration of Rights, as giving the defendant the right to be present at every stage of the trial. Midgett v. State, 216 Md. 26, 37, 139 A.2d 209; LaGuardia v. State, 190 Md. 450, 58 A.2d 913; Duffy v. State, 151 Md. 456, 135 A. 189; Dutton v. State, 123 Md. 373, 91 A. 417; cf. Noel v. State, 202 Md. 247, 252, 96 A.2d 7; Orfield, Criminal Procedure from Arrest to Appeal, at page 413. These cases were concerned with the giving of instructions or information to the jury or the taking of testimony in the absence of the appellant. They did not involve law arguments. In Goldstein v. State, 220 Md. 39, 46, 150 A.2d 900, this Court held that a handbook of elementary instructions for prospective jurors was not a communication with the jury out of the defendant's presence.

The weight of authority holds that it is proper for the trial judge to consider prayers and hear law arguments in a criminal case out of the presence of the defendant. 23 C.J.S. Criminal Law § 974; 14 Am.Jur., Criminal Law § 189; 144 A.L.R. 199; People v. Justice, 167 Cal.App.2d 616, 334 P.2d 1031, 1036. The seventh circuit rejected a contention to the contrary in United States v. Jakalski, 7 Cir., 267 F.2d 609, 611-612, certiorari denied 362 U.S. 936, 80 S.Ct. 759, 4 L.Ed.2d 751. Recently the second circuit overruled a similar complaint from a defendant who was excluded from a conference in the judge's robing room. United States v. Gironda, 2 Cir., 283 F.2d 911, 912.

The minority view relied upon by the appellant...