Dimery v. State

• Decision Date: 08 May 1975
• Docket Number: No. 161,161
• Parties: Thomas Henry DIMERY, III v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 661

274 Md. 661

338 A.2d 56

Thomas Henry DIMERY, III v. STATE of Maryland.

No. 161.

Court of Appeals of Maryland.

May 8, 1975.

Fred Warren Bennett, Assigned Public Defender, Mt. Rainier, for appellant.

Arrie W. Davis, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

SMITH, Judge.

Petitioner, Thomas Henry Dimery, III (Dimery), was convicted by a Prince George's County jury of the crimes of rape, attempted murder, assault and battery, and arson. He was sentenced to life imprisonment for rape, to concurrent terms of 20 years each for arson and attempted murder, and to a concurrent term of one year for assault and battery. The Court of Special Appeals affirmed the convictions in an unreported per curiam opinion, No. 826, September Term, 1972, filed September 13, 1973. We granted Dimery's petition for the writ of certiorari confined 'solely to the question whether the trial court could impose a sentence of life imprisonment on petitioner's conviction for rape where the trial court had failed to instruct the jury that it could limit the penalty by rendering a verdict without capital punishment . . ..' We shall decide the matter adversely to Dimery.

Maryland Code (1957) Art. 27, § 461 provides that '(e)very person convicted of a crime of rape . . . shall, at the discretion of the court, suffer death, or be sentenced to confinement in the penitentiary for the period of his natural life, or undergo a confinement in the penitentiary for not less than eighteen months nor more than twenty-one years . . ..' The only revision in this section from the time of its enactment by Chapter 138, § 4, of the Acts of 1809 to the present time was the addition by Chapter 284 of the Acts of 1935 of the language 'or be sentenced to confinement in the penitentiary for the period of his natural life.'

By Chapter 22 of the Acts of 1949 there was added to the Maryland statutes what is now Code (1957) Art. 27, § 463, providing in pertinent part:

'The jury which finds any person guilty of rape under § 461 of this subtitle . . . may add to their verdict the words 'without capital punishment,' in which event the sentence of the court shall not exceed twenty years in the penitentiary; and in no such case in which the jury has returned a verdict including the words 'without capital punishment' shall the court in imposing sentence, sentence the convicted person to pay the death penalty or to be confined in the penitentiary for more than twenty years.'

The trial in this case concluded on July 21, 1972, a few weeks after the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), held by us (after the trial in this case) in Bartholomey v. State, 267 Md. 175, 297 A.2d 696 (1972), to have proscribed the death penalty as it then existed under Maryland statutes.

We held in England and Edwards v. State, 274 Md. 264, 334 A.2d 98 (1975), that § 463 remained viable after Furman, that when read together with § 461 it reveals a legislative intent that the words 'without capital punishment' are to prevent not only the death penalty, but also life imprisonment, and that whenever a jury qualifies its verdict by adding those words, the punishment is not to exceed 20 years imprisonment.

Dimery was on trial not only for rape, assault and battery, arson, and attempted murder, of which he was convicted, but also for grand larceny. At the outset of his instructions to the jury the trial judge advised the jurors that he would 'give (them) in (his) own handwriting each of th(o)se counts and possible verdicts as to each and every one prior to (their) going in the jury room so that (they would) know specifically what the defendant (was) charged with as to each count and the possible verdicts that could apply to those counts.' He also referred to a special issue relative to sanity and advised that there was a place for the foreman to check 'Yes' or 'No' on that issue after the jury had made its determination. The jury was fully instructed. Counsel were asked if they had any exceptions or requests for additional instructions. There was an exception, not here relevant, and a request for an additional instruction, which was granted. No inquiry was made of the court as to the proposed form of verdict nor was any exception taken on that subject. Counsel then proceeded to argue the case before the jury. After argument the court instructed the jury relative to the form of its verdict, stating in pertinent part:

'Criminal Trials 11,565, Count 1 is the crime of rape; possible verdict is either guilty or not guilty.'

This was in accordance with the memorandum in the trial judge's 'own handwriting (as to) each of these counts and possible verdicts as to each and every one,' to which reference has previously been made. No exception was taken. Likewise, there was no request for an additional instruction.

Under Maryland Rule 756 g, 'the particular omission (in the instructions) . . . (not having been) distinctly objected to before the jury retired to consider its verdict and . . . the grounds of objection (not having been) stated at that time,' we take cognizance of the matter only if we conclude that this constituted 'plain error in the instructions, material to the rights of the accused . . ..' As may be expected, Dimery says this is plain error and the State says it is not.

Dimery relies upon Rowe v. State, 234 Md. 295, 199 A.2d 785 (1964); Calton v. People of Territory of Utah, 130 U.S. 83, 9 S.Ct. 435, 32 L.Ed. 870 (1889); Webb v. State, 154 Ark. 67, 242 S.W. 380 (1922); Vickers v. United States, 1 Okl.Cr. 452, 98 P. 467 (1908); Commonwealth v. Madaffer, 291 Pa. 270, 139 A. 875 (1927); and State v. Chaney, 117 W.Va. 605, 186 S.E. 607 (1936). We regard each of those cases as legally and factually inapposite.

In Rowe the defendant was on trial for murder. As Judge Horney put it for the Court:

'The primary questions posed by this appeal arise out of the acceptance by the trial court of the jury verdict of 'not guilty of murder in the first degree but guilty of murder in the second degree' on the issue of guilt or innocence despite the fact that the jury had found on the issues of sanity and insanity that the defendant was insane at the time of trial ('insane now') in addition to also finding that he was sane at the time of the offense ('sane then').' (First and second emphasis added.) Id., 234 Md. at 297, 199 A.2d at 786.

At page 300 of 234 Md., at page 788 of 199 A.2d the Court's opinion pointed out that among the exceptions interposed to the trial court's instructions was one on the precise ground precipitating the reversal by this Court, that 'the court failed to inform the jury that it should not return a verdict on the indictment if it should find the defendant sane then and insane now on the issues.' (Emphasis in this Court's opinion.) Rowe did not press this point on appeal. The Court said at page 301, at page 788 of 199 A.2d, 'The reasons for these omissions are clear. On instructions from the defendant, court-appointed appellate counsel refrained from presenting any question which might bring about a reversal and a new trial. For reasons best known to himself, the defendant seems to fear the risk of another trial.' The only issues presented on appeal were those which would have had the effect of releasing Rowe from custody or reducing the time of his incarceration had there been a reversal. Over the strong dissent of Chief Judge Brune and Judges Henderson and Hammond, the Court took cognizance of the sanity issue. As Judge Henderson put it for the dissenters, the point was open to the 'serious objection . . . that it decides the case on a question not presented and on a proposition not advocated by either side.' The reasoning behind the majority's taking cognizance of the point was, as Judge Horney put it for the Court:

'The failure of the trial court to advise the jury that it should not return a verdict on the indictment if it found the defendant insane at the time of trial, as well as the acceptance of the verdict when the court knew that the jury had determined that the defendant was insane at that time, raises a vital question as to whether certain aspects of the trial were valid.' Id. at 302, 199 A.2d at 789.

The peculiar circumstances under which the majority took cognizance of the point raised in the trial court but not raised on appeal, the reverse of the situation now before us, was pointed out when the Court said at page 309, at page 793 of 199 A.2d that 'neither the counsel for the defendant, nor the Attorney General, nor those members of this Court who do not agree with the majority, pointed out a single case in which it has been held that a defendant who is insane should be tried for a criminal offense.' The Court was faced with a finding of fact by the trier of fact, the jury in that instance, that the defendant was insane at the time of trial.

In Calton the defendant was convicted of murder in the first degree in the then Territory of Utah. As Mr. Justice Harlan put it for the Court, 'the authority given (by the territorial statute) to substitute imprisonment at hard labor in the penitentiary for life for the penalty of death, when the accused is found guilty of murder in the first degree, depends upon a previous recommendation to that effect by the jury. Without such recommendation, the court, in the absence of sufficient grounds for a new trial, has no alternative but to sentence the accused to suffer death.' (Emphasis added.) The trial court in that instance failed to instruct the jury relative to the statute. The reversal by the Supreme Court was placed upon statutory grounds, not the due process grounds here urged by Dimery. Mr. Justice Harlan said for the Court:

'If (the Jury's)...