Gray v. State

• Decision Date: 14 February 1961
• Docket Number: No. 133,133
• Citation: 167 A.2d 865,224 Md. 308
• Parties: Raymond John Anthony GRAY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 308

224 Md. 308

167 A.2d 865

Raymond John Anthony GRAY v. STATE of Maryland.

No. 133.

Court of Appeals of Maryland.

Feb. 14, 1961.

Earl E. Manges, Cumberland (Harold E. Naughton, Cumberland, on the brief), for appellant.

James H. Norris, Jr., Sp. Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and James S. Getty, State's Atty. and Donald W. Mason Asst. State's Atty., for Allegany County, Cumberland, on the brief), for appellee.

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

MARBURY, Judge.

This is the third and last appeal by Raymond John Anthony Gray from a judgment of the Circuit Court for Allegany County, in which Gray was found guilty of armed robbery to a jury. This was the result of this Court reversing the previous convictions of the appellant and remanding the case for a new trial. Gray v. State, 221 Md. 286, 157 A.2d 261; and Gray v. State, 219 Md. 557, 150 A.2d 221. He was sentenced to be confined in the Maryland penitentiary for a period of ten years.

The appellee moved to dismiss the appeal as to the appellant's contention that the testimony of an accomplice was not corroborated and that the evidence consequently was insufficient to sustain his conviction. This motion was based upon the claim that the appellant had not printed in his appendix enough of the testimony to present this question properly for decision by this Court. Dismissal is discretionary with this Court and not mandatory, and we think that the same factors are present here as in Brown v. Fraley, 222 Md. 480, 482-483, 161 A.2d 128--that the omission was not due to any deliberate intent to violate or evade the rule and that the omissions have been supplied--and we accordingly deny the motion.

The appellant's first and main contention is that the Court erred in refusing to grant his motion to remove the case to some other court for trial. He had previously been tried upon an information in three counts charging armed robbery, receiving stolen goods, and assault, and convicted by a jury with two others, Mrs. Alma Johnson and Howard Iser, on the first count of the information and found not guilty on the second and third counts. The ohters did not appeal.

Upon the second remand of the case by this Court, on March 9, 1960, the defendant, upon arraignment, through his Court appointed counsel, entered a plea of guilty to the second count of the information (Receiving Stolen Goods), and given a ten year sentence to the Maryland Penitentiary. Later on the same day the trial judge, realizing that Gray had pleaded guilty to receiving stolen goods, of which he had already been acquitted by the jury's verdict in the former trial, called counsel into chambers whereupon, the docket entries show, on March 9 the 'plea of guilty to second count of the information withdrawn by defendant, dismissal of first and third counts of information by State's Attorney withdrawn and sentence to confinement in the Maryland Penitentiary stricken out.'

On April 1, 1960, the docket entries show that counsel, who had represented the appellant in his previous trials and appeals, were again appointed by the Court to represent him and that 'second and third counts of information dismissed by State. Prisoner arraigned--Plea Not Guilty on first count of Information. Motion for removal by defendant. Motion of State's Attorney to dismiss petition for removal. Hearing on Motion for removal--Motion refused--in open Court.'

The transcript, immediately following the Court's ruling, contains the following:

'The Court: Do you want the jury examined on their voir dire?

'Mr. Naughton: Yes, sir.

'The Court: Do you have any inquiries that you want the Court to propound to the jury?

'Mr. Manges: Yes, sir.

'The Court: Present them. (Thereupon counsel approached the Bench.) (A jury was duly impaneled and sworn.)'

The transcript of record from the lower court contains a sheet entitled Questions on Voir Dire. Those questions were:

'1. Have you read any newspaper articles concerning the case, State of Maryland vs. Raymond John Anthony Gray?

'2. After having read such article or articles, have you formed or expressed an opinion as to the guilt or innocence of the Defendant, Raymond John Anthony Gray '3. Have you discussed with any person the guilt or innocence of the Defendant, Raymond John Anthony Gray?

'4. Are you related to the prosecuting witness, William J. Cover or Gray?

'5. In passing upon the evidence in this case, if you are selected as a juror, could you give the benefit to the Defendant here of a reasonable doubt and determine from all the evidence whether he is innocent or guilty?'

It is thus not clear whether the questions listed were the ones submitted by defense counsel or whether they were actually employed by the trial judge in examining the prospective jurors on their voir dire. Since no complaint is made by the appellant of any refusal to ask the questions listed, we will assume that they were the ones presented and propounded, and that the answers received were satisfactory to all counsel in the case.

The appellant contends that the two newspaper articles, which were filed with the motion at the time it was argued, were prejudicial to him because they show that Gray pleaded guilty to the second count of the information charging receiving stolen goods, after this Court had reversed his previous convictions. The articles, which are contained in the transcript as defendant's Exhibits 'A' and 'B', were published in the Cumberland News and Evening Times, Cumberland, Maryland, on March 10, 1960. In reviewing the correctness of the Court's ruling on the motion for removal it becomes necessary to examine the contents of the articles. For the sake of some brevity, since the article published in the Evening Times is apparently a rewrite of the one published in the Cumberland News and adds nothing to what was contained in Exhibit 'A', the second article will be considered as encompassed by the first. Defendant's Exhibit 'A' is as follows:

'The Cumberland News, Cumberland, Md.

Thursday, March 10, 1960

Confusion Ends: Gray Awaits Third Trial

Judge Refuses Stolen Goods Plea 'Another confusing episode in the case against Raymond John Anthony Gray, 36 year old former local man, was unfolded yesterday afternoon in Allegany County Circuit Court, but when it was all over he was still awaiting a third trial on an armed robbery charge.

'Gray, through his court-appointed attorneys, Harold E. Naughton and Earl E. Manges, appeared in court about 1:30 p. m., and pleaded guilty to the second count of the criminal information, a charge of receiving stolen goods. Chief Judge Morgan C. Harris then proceeded to sentence Gray to the maximum sentence, 10 years in the Maryland Penitentiary. That was the sentence he twice before had received for armed robbery. Both times the Maryland Court of Appeals set aside the conviction and granted Gray a new trial.

'Checks Record

'Later, after returning to chambers, Judge Harris began to consider the implications of the guilty plea. In checking the record on Gray's second trial, conducted last May 13, he discovered that the jury had found Gray guilty of armed robbery and not guilty of the two lesser counts of the information, receiving stolen goods and assault.

'Consequently, State's Attorney James S. Getty, Assistant State's Attorney Donald W. Mason and the two defense attorneys were called back to the Court House about 2:30 p. m., Gray was brought to the court room from the County Jail, where he had been since Monday night.

'In court for a second time about 2:48 p. m., Judge Harris issued a brief statement explaining the situation. Having once been found not guilty of receiving stolen goods, Gray could not now plead guilty to the charge. Otherwise, a question of double jeopardy would be raised.

'Court Rules Cited

'Judge Harris stated that he was convinced this was not a trick pleading on the part of the defense attorneys. Nevertheless, he said it would be improper to accept such a plea. He then explained that in accordance with Maryland Criminal Rules Nos. 724 and 744, he was correcting the situation.

'Rule 724 concerns the refusal to accept a plea of guilty and No. 744 gives the court the right to correct an illegal sentence. Because Gray had once been acquitted of receiving stolen goods, the sentence earlier yesterday was illegal.

'After that statement, Mr. Getty withdrew his motion for dismissal of the first count of the information which charged armed robbery.

'The defense attorneys similarly withdrew their plea of guilty to receiving stolen goods. When Gray expressed unwillingness to plead guilty to armed robbery, pleading not guilty, Judge Harris postponed the trial until such time as Gray will be physically able to be tried. That is not expected for about a month.

'Undergoes Operation

'Gray underwent a gall bladder operation and an appendectomy several weeks ago in Baltimore. No one here was informed of the recent operations until after Gray arrived here Monday night with a State Penitentiary guard. He became ill Tuesday when the third trial was scheduled to start and as a result there was a postponement until yesterday.

'The former local man then living in Baltimore, was first tried in Allegany County Circuit Court October 17, 1958. That was a non-jury trial before Judge Harris, who found Gray guilty of armed robbery of William Jackson Cover, South Cumberland service station operator, from whom $350 was taken on Shade's Lane on September 11, 1958. He was sentenced that day to 10 years in the Maryland Penitentiary and has been confined there ever since.

'When the Maryland Court of Appeals reversed that first conviction, a second trial was conducted May 13, 1959, and a jury in the same court convicted Gray a second time of armed robbery. Again the Court of Appeals reversed the conviction and the stage was set for the third trial, now postponed at least a month.

'Gray was returned to the State Penitentiary...