Gibson v. State
| Decision Date | 28 February 1973 |
| Docket Number | 464 and 629,Nos. 413,s. 413 |
| Citation | 17 Md.App. 246,300 A.2d 692 |
| Parties | Henry GIBSON v. STATE of Maryland. John E. TATE v. STATE of Maryland. Robert T. AUSTIN v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Stephen Sachs and Charles Morgan, Baltimore, for appellant Henry gibson.
Joseph F. Padula, Hagerstown, for appellant John E. Tate.
Joseph F. Padula, Hagerstown, for appellant Robert T. Austin.
Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Daniel W. Moylan, State's Atty. for Washington County and Arthur Rozes, Asst. State's Atty. for Washington County, on the brief for appellee in No. 413.
Clarence W. Sharp, Asst. Atty. Gen., with no brief filed by appellee in No. 464.
Clarence Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Gilbert Rosenthal, Asst. Atty. Gen., Daniel W. Moylan, State's Atty., for Washington County and Arthur Rozes, Asst. State's Atty. for Washington County on the brief for appellee in No. 629.
Argued before THOMPSON, GILBERT and DAVIDSON, JJ.
The disorders occurring at the Maryland Correctional Institution, Hagerstown, Maryland, on May 17, 1971, led to the indictment of a number of inmates on varying charges, including assault, riot, and malicious destruction of property. Many of those charged filed a suggestion of removal, Md.Rules 542 and 738, under affidavit, 1 in which they alleged that they could not receive a fair and impartial trial in Washington County, Maryland. They requested removal of the trial of their cases to the Criminal Court of Baltimore. 2 The motion was argued before Judge Paul W. Ottinger on February 10, 1972. The memorandum in support of the motion that was submitted to Judge Ottinger contended that Art. IV, § 8 of the Maryland Constitution is violative of the Constitution of the United States, in that the failure to grant removal as a matter of right in non-capital criminal cases, while granting it in capital cases, amounts to a denial of equal protection under the Fourteenth Amendment. The movants also averred that the 'prejudicial atmosphere' that existed in the community, hardened by the pretrial publicity, had such a deleterious effect as to deprive them of their right to a fair and impartial trial. The movants additionally claimed that the 'prejudicial atmosphere is heightened and exaggerated' because of their status as 'alien figures in Washington County.' The 'alien figure' argument is grounded upon the homogeneous nature of the county where the racial composition of the population, according to appellants, is 98% white persons and 2% black persons, and upon their status as prisoners involuntarily placed in the County.
To buttress their contention regarding pretrial publicity, the movants presented to the court a series of newspaper articles. 3 Judge Ottinger denied the suggestion of removal and, in a memorandum filed February 22, 1972, stated:
'The Court finds that the Defendants in these cases can have a fair and impartial trial in the Circuit Court for Washington County and that the Defendants . . . have failed to make it satisfactorily appear to the Court that such suggestion is true and that there is (sic) reasonable grounds for the same.
The alleged riotous conduct in this case apparently lasted less than an hour and the publicity attendant thereto does not appear to have been substantial. . . . Moreover, the publicity last (sic) for a day or two only and such publicity happened about nine months ago and it seems doubtful to the Court that any prospective juror would remember in detail the short term publicity which resulted from this incident.
The Court is also not satisfied that it would be impossible for any harm done by such publicity to be exposed by a voir dire examination of prospective jurors; and the Court does find that such a voir dire examination would be a sufficient protection in these cases.'
The record before us in appeal #413, Henry Gibson, leaves much to be desired as there is no voir dire examination reported therein. Consequently, we are unable to evaluate the voir dire for the presence or the possibility of actual prejudice on the part of the talesmen. The record in appeal #629, Robert T. Austin, does, however, contain 'Voir Dire Requests' made by Austin's then counsel. Handwritten on the bottom of the 'Requests' is the notation 'all questions asked.' There is no contention here that the questions were not asked, and we assume that they were actually propounded to the jury panel. The questions are obviously designed to disclose prejudices, including those founded on pretrial publicity and race. The record is silent as to the answers of the voir dire interrogation as apparently no transcript was made. While in Austin's case we possess the questions and the belief that they were asked, we are no better off insofar as evaluating prejudice, or the possibility of prejudice resulting from pretrial publicity, than we are in the Gibson appeal.
Gibson 4 and Austin 5 were convicted in separate jury trials, and Tate 6 was convicted in a non-jury trial.
In their appeals to this Court, appellants jointly attack Art. IV, § 8 of the Maryland Constitution on the ground that it creates constitutionally impermissive classifications for removal in criminal cases, i. e., capital crimes and non-capital crimes, and thereby denies the appellants equal protection of the law. They further assail the trial judge's ruling on their 'Suggestion for Removal' as an abuse of discretion. They assert that they could not receive a fair and impartial trial in Washington County as a result of pretrial publicity, racial prejudice and the 'prejudicial atmosphere.' The fact that Tate later chose a non-jury trial does not preclude his arguing against the trial judge's denial of the suggestion for removal that was filed and denied well before his trial.
Since 1806 Maryland has vacillated between the absolute right of removal in all cases and the discretionary right of removal in non-capital cases. There appears to be no mention of a change of venue in the Constitution of 1776, but that Constitution was amended in 1806 so as to grant to the trial courts the discretionary right to remove all criminal cases upon suggestion that an accused could not receive a fair and impartial trial. In 1851 the State Constitution was again changed, and the absolute right of removal was given in every criminal case. Because it was felt that the privilege of removal was being abused, the Constitutional Convention of 1864 returned the removal of cases to the discretion of the trial judge. Three years later the absolute right to remove was restored in the Constitution. In 1874 it was again felt that the right of removal was being abused so that the Legislature proposed an amendment to the Constitution of 1867, limiting the absolute right of removal to those cases in which the death penalty could be imposed. The proposed amendmant was adopted by the voters in 1875 and has continued unchanged since that time in spite of an abortive attempt in 1952 to change it by statute. See Ch. 69 (1952) Md.Laws. The statute was declared unconstitutional in Heslop v. State, 202 Md. 123, 95 A.2d 880 (1953).
During oral argument before this Court, the appellants sought to inject a new ingredient not raised below in order to support their position. They maintained that the allowance of removal as an absolute right in most civil cases, and only as a discretionary right in non-capital criminal cases denies them equal protection. We do not consider that argument because it was not raised below. Rule 1085. Even constitutional questions must be raised and decided in the trial court. Richardson v. State, 14 Md.App. 487, 287 A.2d 339 (1972); Brooks v. State, 13 Md.App. 151, 282 A.2d 516 (1971); Woodell v. State, 2 Md.App. 433, 234 A.2d 890 (1967).
We limit our discussion to the argument that Art. IV, § 8 of the Maryland Constitution creates an invidious distinction between capital and non-capital criminal cases. Art. IV, § 8 provides in pertinent part:
'. . . (I)n all cases of Presentments or indictments for offences, which are or may be punishable by death, pending in any of the courts of law in this State having jurisdiction thereof upon suggestion in writing under oath of either of the parties to said proceedings that such party cannot have a fair and impartial trial in the court in which the same may be pending, the said court shall order and direct the record of proceedings in such suit or action, issue presentment, or indictment, to be transmitted to some other court having jurisdiction in such case for trial, but in all other cases of presentment or indictment, pending in any of the Courts of law in this State having jurisdiction thereof, in addition to the suggestion in writing of either of the parties to such presentment or indictment that such party cannot have a fair and impartial trial in the court in which the same may be pending, it shall be necessary for the party making such suggestion to make it satisfactorily appear to the Court that such suggestion is true, or that there is reasonable ground for the same, And thereupon the said court shall order and direct the record of proceedings in such presentment or indictment to be transmitted to some other Court having jurisdiction in such cases for trial. . . .'
The procedures for placing into effect the rights granted under Art. IV, § 8 are contained in Maryland Rules 542 and 738.
The portion of Art. IV, § 8 concerned with capital crimes has been negated, at least at this time, by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Bartholomey v. State, Md.App., 297 A.2d 696 (1972). This Court has interpreted the rulings in those cases to abolish effectually the death penalty in Maryland. McLaughlin v. Warden, Md.App., 298 A.2d 201 (1973). In the instant case, however, we shall look to the law as it existed when...
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