Hopkins v. State, 297

• Decision Date: 19 December 1974
• Docket Number: No. 297,297
• Citation: 329 A.2d 738,24 Md.App. 53
• Parties: Gene Pierre HOPKINS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 53

24 Md.App. 53

329 A.2d 738

Gene Pierre HOPKINS v. STATE of Maryland.

No. 297.

Court of Special Appeals of Maryland.

Dec. 19, 1974.

Certiorari Denied March 5, 1975.

Durke G. Thompson, Assigned Public Defender, for appellant.

Leroy Handwerger, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County, Reginald W. Bours, III, Deputy State's Atty. for Montgomery County, J. James McKenna and William T. Wood, Asst. State's Attys. for Montgomery County, on the brief, for appellee.

Argued before ORTH, C. J., and GILBERT and LOWE, JJ.

GILBERT, Judge.

Gene Pierre Hopkins was indicted by the grand jury for Montgomery County on charges of murder, assault with intent to murder, assault with intent to main, assault and battery, assault and carrying a dangerous weapon. The indictment grew out of a racially based escapade by three young white men who, for a 'lark', decided on the night of August 18, 1972, to 'raise a little hell' with the black people who lived in the Ken-Gar area of Montgomery County. As the three youths drove along Plyers Mill Road they threw firecrackers at the people they saw. The vehicle in which the youths were riding was driven by Mark Stephen Murray who was eighteen years old. According to the testimony of one of the youths, the perverted form of entertainment decided upon by the three young men was Murray's idea: After the firecrackers were hurled at various pedestrians and bystanders, the vehicle continued on Plyers Mill Road to what proved to be a cul-de-sac. There the three observed that they were being approached by a group of black men. One of the trio fled afoot, the other two, including Murray, remained in the vehicle. When the group of black men surrounded the vehicle they told the two remaining white youths to get out of the car. Murray responded with the question, 'Can't we talk this over?' One of the group of black persons possessed a gun and discharged the gun three times in a downward motion into the ground. Either ricochets or gravel came in contact with the underside of the motor vehicle. Instead of alighting from the car, Murray began to drive the car forward and the person with the gun fired twice. The vehicle ground to a halt, and Murray exclaimed that he had been hit. He slumped forward over the wheel. The other white youth got out of the car and was beaten about his head and body. Murray died as a result of a gunshot wound that entered his back, punctured both lungs and his aorta vein. The youth who was beaten by the group of black men positively identified the appellant, Hopkins, as the person who discharged the firearm into the ground. As a result of a search and seizure warrant, a .25 caliber pistol was recovered from the residence of Hopkins, and that weapon was positively identified by a ballistics expert as the weapon from which the fatal projectile was fired. The jury convicted Hopkins of manslaughter, assault and wearing or carrying a handgun.

Prior to trial Hopkins moved for a dismissal of his indictment on the ground that 'the Grand Jury was not an impartial body, in violation of the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution, and of Article 23 of the Maryland Declaration of Rights, for the reason that a Montgomery County police officer was a member of the Grand Jury.'

At the hearing before the three-judge panel, on November 16, 1972, Matthew Hyatt, a Montgomery County police officer, testified that he had been summoned as a grand juror for Montgomery County and that when he appeared before the jury judge he stated that he 'didn't think that . . . (he) would be able to serve and observe in an unbiased manner.' He stated that he knew most of the police officers who would appear before the grand jury panel, and that in his view when an arrest was made he felt that that in itself was sufficient to warrant an indictment. The officer acknowledged that from time to time his advice was sought by members of the grand jury, and that on at least one occasion, ¹ his vote had been the crucial one. The officer further said that he believed it was impossible for him to serve as a police officer six days a week and be an impartial member of the grand jury on the seventh day. He opined that he lived in dread of making a felony arrest and then having to appear as a State witness before the self-same grand jury of which he was a member. This latter eventuality did not occur, however. Officer Hyatt also told the panel that there were occasions when his 'right to express' himself 'might have been a factor involving persuading other people to change their vote' for indictment. ² Officer Hyatt was asked: '. . . (W)ould it be fair to say that in every case that came before that grand jury, that you evaluated the testimony of each and every witness honestly and fairly and as completely as you could pursuant to your oath as a grand juror?' Mrs. Hyatt responded: 'I did serve as best I could under the oath of being a grand juror.'

When the jury judge was called to testify he told the panel of judges that he remembered Officer Hyatt because Hyatt had initially returned the grand jury questionnaire unanswered with the notation 'across the top . . . that he was a police officer and that he wasn't subject to grand jury service.' The officer was instructed as a result of the jury judge's phone call to the police officer to send a completed jury questionnaire. Thereafter according to the judge's 'only clear recollection', Officer Hyatt stated that service on the grand jury would require him 'to give up his day off each week.' Jury service, he said, 'would deprive him of accompanying his wife on shopping trips and doing other errands', and that such service 'would be very inconvenient to him and a hardship upon him.' The judge said that he had 'no independent recollection' of any reference to 'bias on account of (Hyatt's) employment.' The judge also testified that he was 'unconvinced that (Hyatt) would not be able to render impartial service.' There was testimony that two other law enforcement officers had been excused from the grand jury because their excuses were found to be 'credible'. The record reveals the following questions put to the jury judge and his answers thereto:

'Q. He was qualified to be a grand juror by the fact that you didn't think he was a truthful person; is that it?

A. I thought he was emotionally upset and he wasn't presenting a credible story as to why he should be excused.

Q. But this was at least his second or third attempt to be excused; right?

A. Well, his first attempt was to not fill out the questionnaire, and he cited in his questionnaire respondent filled out that he was a police officer and he wasn't supposed to serve on a jury.

Q. Did any information come to you after he served, after he was sworn, that he still wanted to get off, that at this time he wanted to get off the grand jury?

A. I don't recall any request made during the jury service.

Q. Do you know if your office received any letters from him or an attorney who represented him, or telephone calls from an attorney who represented him?

A. I don't recall any. My secretary would have the letters, if they were received.

Q. Did you receive any letters or requests from any of his superior officers in the Police Department?

A. Any requests that he be excused?

Q. Yes.

A. None whatever.'

The three judge panel, on December 22, 1972, denied the appellant's motion to dismiss the indictment. ³

On appeal to this Court appellant attacks the ruling of the three judge panel. He argues that the Due Process Clause of the Constitution of the United States 'protects a defendant from jurors who are actually incapable of rendering an impartial verdict based on the evidence and the law.' Further, he assets that 'the U.S. Supreme Court has held that a State may not subject a defendant to indictment and trial by grand and petit juries that are plainly illegal in their composition.' In support of his contention appellant cites Jordan v. Massachusetts, 225 U.S. 167, 32 S.Ct. 651, 56 L.Ed. 1038 (1912); Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923) and Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). We think appellant misreads Jordan, Moore and Peters, and then misapplies them to the instant case.

Jordan dealt with a member of the petit jury who was insane. Moore was concerned with a petit jury's being intimidated by 'a threat of mob violence'. Peters involved a Caucasian's challenge to the systematic governmental exclusion of black persons from both the grand and petit juries. Clearly, Jordan and Moore are inapposite and need no discussion. Peters does not stand for the proposition that in order for an indictment to be valid the grand jury must be free of bias. Mr. Justice Marshall, writing for the plurality, opined at 501, of 407 U.S. at 2168, of 92 S.Ct.:

'. . . (I)f a State chooses, quite apart from constitutional compulsion, to use a grand or petit jury, due process imposes limitations on the composition of that jury.

Long before this Court held that the Constitution imposes the requirement of jury trial on the States, it was well established that the Due Process Clause protects a defendant from jurors who are actually incapable of rendering an impartial verdict, based on the evidence and the law.'

In our view, Peters v. Kiff, supra, does not modify the holding of the Supreme Court in Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962). In that case the Court upheld the State of Washington's high Court's affirmation of Beck's conviction. Beck had argued that the grand jury was biased because of adverse magazine and newspaper publicity in which Beck's guilt was accepted as having been established as fact. The Supreme Court said that there had been no showing of actual prejudice. It went on, however, to state flatly that it did not ...