Johnson v. State

• Decision Date: 08 July 1970
• Docket Number: No. 156,156
• Citation: 267 A.2d 152,258 Md. 597
• Parties: Frederick Douglas JOHNSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 597

258 Md. 597

267 A.2d 152

Frederick Douglas JOHNSON v. STATE of Maryland.

No. 156.

Court of Appeals of Maryland.

July 8, 1970.

Orie Seltzer, Washington, D. C. (Blair H. Smith, and Arthur M. Ahalt, Mt. Rainier, on the brief), for appellant.

Henry R. Lord, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, and Arthur A. Marshall, Jr., State's Atty., and Joseph C. Sauerwein, Asst. State's Atty., respectively for Prince George's County, Upper Marlboro, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

McWILLIAMS, Judge.

It was about 9:30 in the morning of 3 May 1968 when a man, alleged to have been the appellant (Johnson), entered an A & P Food Store in Oxon Hill, Prince George's County, jumped up on a counter and, brandishing a pistol, ordered the manager to open the safe. While the manager was kneeling before the safe he was shot and killed. Following indictment and the appointment of quite able counsel Johnson waived trial by jury and, some weeks later, filed a plea of insanity. The case came on for trial in the circuit court on 18 February 1969. When it appeared that Bowen, J., would preside Johnson filed a suggestion and affidavit of removal. Judge Bowen ordered the record transmitted 'immediately' to the Circuit Court for Calvert County for 'trial in that court on Friday, 21 February 1969.'

When the case was called for trial on Friday morning Johnson presented to the presiding judge, again Bowen, J., a 'Petition for Reconsideration of Removal to Calvert County and Exception to Removal of Case to Calvert County and Suggestion for Removal to a Court in Another Judicial Circuit.' He alleged, among other things, that when he filed the suggestion and affidavit of removal in Prince George's County three days earlier 'the court stated that the case would be removed to Calvert County for trial before the same member of the bench on Friday, February 21, 1969, a legal holiday'; that he 'vehemently and strenuously objected' to trial before 'the same member of the bench.' At the same time a second suggestion and affidavit was filed. In denying the petition Judge Bowen commented as follows:

'Gentlemen, we have argued these matters at some length informally in chambers and in addition to the matters set forth in the formal pleadings, the record should reflect that counsel and the court discussed together the fact that the defendant would prefer to have this case tried by some other member of the bench, as well as in some other jurisdiction. This is a preference which the defendant, having made known to the court, the court has considered.

'Historically this case was originally filed in Prince George's County. It is my understanding that a conference between the Chief Judge of the circuit and counsel was held and that certain preferences were made known to the Chief Judge and certain members of the bench in the circuit excused themselves or disqualified themselves from hearing this case and as a result of that conference, the case was assigned to this member of the bench.'

'At that time I made known to counsel that the case had been assigned to this member of the bench to try and we would be presiding in this court today. The defense counsel had argued most earnestly that such a proceeding in effect denies the defendant his absolute constitutional right of removal, because such right is designed to secure a new or different trier of the facts. The right, historically is justified, by the fact that when we have a removal you get a new jury.'

'The court has been urged to find that the form of removal was not a removal and did not satisfy the constitutional requirement of the absolute right of removal for this defendant. We have considered this and we conclude that the prior proceedings in this case did satisfy the constitutional right of the defendant to removal.

The constitution guarantees the removal from one court to another. The court is a political institution of a subdivision of the State and not from members that happen to compose it at any particular time. He has had his change of venue from Prince George's County to Calvert County and the accident that the resident judge of Calvert County (Judge Bowen) happens to be the judge assigned to try this case is a mere coincidence. The same result would have followed if the circuit had a policy of removing cases to another county other than this one.

'For the reasons we have stated gentlemen, the court refuses to reconsider the removal and have asked counsel if they wish to support their second * * * (suggestion) and affidavit, as we believe is required by showing a cause and they have stated that they did not desire to submit anything further than what has been submitted to the court in chambers.'

Johnson thereupon noted an appeal to the Court of Special Appeals and moved to stay all proceedings until its determination. Judge Bowen denied the motion and ordered the trial to proceed. Johnson was found guilty of murder in the first degree and sentenced to 'suffer death by the administration of Lethal Gas.' In the companion case (robbery, etc.) he was sentenced to serve 20 years on the first count and 10 years on the second count, both sentences to run concurrently.

The principal question Johnson puts to us is whether Art. IV, § 8, of the Maryland Constitution, gives him the absolute right to have his case tried before a different judge. The subsidiary question is whether the denial of his petition for reconsideration of the removal to Calvert County is immediately reviewable.

I.

Where the offense is punishable by death the right of removal, in the first instance, is absolute. Constitution Art. IV, Sec. 8; Code, Art. 75, § 44 (1969 Repl. Vol.); Maryland Rules 542 and 738; State v. Simms,234 Md. 237 (1964). For the history of Sec. 8 see Heslop v. State, 202 Md. 123, 95 A.2d 880 (1953). Further removal requires the party making the suggestion to 'make it satisfactorily appear to the court that such suggestion is true and that there is reasonable ground for the same.' Rule 738 c; Veney v. State, 251 Md. 182, 191, 246 A.2d 568 (1968). Johnson concedes he is not entitled to further removal since he cannot meet the requirements of Rule 738 c.

The reason underlying the right of removal was noted by our predecessors 146 years ago. In State v. Dashiell, 6 H. & J. 268, Judge Martin, for the Court, said:

'This section was intended to secure to every person charged with a criminal offence, in the courts of this state, a fair and impartial trial; and to attain this object, the courts are directed, upon a suggestion being made in writing, that a fair and impartial trial cannot be had in the court, to whom the suggestion is made, to remove the record and proceedings from the court in which the presentment had been found, to an adjoining county court for trial. Thus to enable the party accused to make his defence before a different jury from that to which it must have been submitted without this provision, and before a jury summoned by a different officer. The right of removal from one county to another to obtain a fair and impartial trial, where life, liberty and fame, may be endangered, is a great and inestimable privilege.' Id. at 269-270. (Emphasis added.)

A half century later, in Cooke v. Cooke, 41 Md. 362, 371-372 (1875), Judge Miller, holding that an equity case was not removable, said for the Court:

'* * * (N)ot only is there no language in the clause (Constitution of 1867, Art. IV, § 8) which plainly directs it to prejudice in the judges, but, looking to the origin of the right or power, we find it directed wholly to jury trials, and this, we think, has never been lost sight of or departed from in any of the Constitutional or legislative provisions on the subject. The object was to get rid of the influence of local prejudice in the community from which the jury to try the case was to come, and thus, as far as practicable, to secure a fair and impartial trial by jury.' (Emphasis added.)

In Chappell Chemical & Fertilizer Co. v. Sulphur Mines Co., 85 Md. 684 (unreported), 36 A. 712 (1897), aff'd 172 U.S. 474, 19 S.Ct. 268, 43 L.Ed. 520 (1899), upon the suggestion and affidavit of the defendant, the case was removed from the Baltimore City Court to the Superior Court of Baltimore City and tried by the same judge. Judge Russum, for this Court, said:

'The fact that, when it reached the superior court (Superior Court of Baltimore City), the case was tried before the same judge before whom it was to have been tried...