Johnson v. State

• Decision Date: 10 August 1973
• Docket Number: No. 728,728
• Citation: 18 Md.App. 571,308 A.2d 426
• Parties: Dexter JOHNSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 571

18 Md.App. 571

308 A.2d 426

Dexter JOHNSON v. STATE of Maryland.

No. 728

Court of Special Appeals of Maryland.

Aug. 10, 1973.

Certiorari Denied Oct. 25, 1973.

I. Elliott Goldberg, Baltimore, for appellant.

Harry A. E. Taylor, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., for Baltimore City, Michael Libowitz and Richard Karceski, Asst. State's Attys., for Baltimore City on the brief, for appellee.

Argued before THOMPSON, GILBERT and DAVIDSON, JJ.

THOMPSON, Judge.

Dexter Johnson was convicted of manslaughter by a jury in the Criminal Court of Baltimore, Judge Marshall A. Levin presiding, and received a ten year sentence. The nature of the questions raised on appeal makes a statement of facts unnecessary.

I Excusing a Qualified Juror

One of the jurors was excused by the court sua sponte when she admitted, in answer to a voir dire question, that she was acquainted with the defendant's mother. Johnson contends that because the trial court failed to make inquiry as to whether the relationship was such as to preclude the juror from rendering a fair and impartial verdict, he was denied a fair and impartial jury. He cites Mills v. State, 12 Md.App. 449, 459, 279 A.2d 473, to support the proposition that mere acquaintanceship between a juror and a prospective witness is not sufficient grounds for disqualification. He does not cite any authority to support his ultimate proposition that the court's sua sponte release of a juror for this reason is reversible error.

Although the precise point does not seem to have been presented to the Maryland courts, the Court of Appeals has promulgated a rule by way of dictum in Bluthenthal & Bickart v. May Company, 127 Md. 277, 285, 96 A. 434, 438, in the following language:

"The authorities support the proposition that it is not reversible error for the Court of its own motion to exclude a juror, even for insufficient cause, if an unobjectionable jury is afterwards obtained. In Pittsburgh, etc., Ry. Co. v. Montgomery, 152 Ind. 1, 49 N.E. 582, in discussing an objection such as that now under consideration, the Court said: 'It is complained under the motion for a new trial that the circuit court erred in excusing on its own motion the juror Overholser, who it is alleged was a competent juror, over appellant's objection. But it is not shown that the jury which was finally impaneled was not a fair and impartial jury. In such a case, the matter is very much in the discretion of the trial court, and no error is committed where no injury results from the court's action in excusing the juror. De Pew v. Robinson, 95 Ind. 109. It is not even claimed that any injury resulted therefrom.' "

Then again in Grossfeld v. Braverman, 203 Md. 498, 101 A.2d 824, the Court reiterated its earlier rule. The rule seems so well established that an extended discussion of the cases is not warranted. See 50 C.J.S. Juries § 249; 47 Am.Jur. Jury, § 222. In the latter publication it is stated that there is some authority that excusing a juror without sufficient cause is reversible error in a criminal case. However, People v. McQuade, 110 N.Y. 284, 18 N.E. 156 is the only criminal case cited in support of the statement. It seems to us that case turns solely on the language of a New York statute. The Maryland statute quoted in the footnote is not as specific and subsection (ii) allows the court to excuse a juror on the ground that the person may be unable to render impartial jury service. ¹ We note that under subsection (ii) the judge is not required to give a specific reason for excusing a juror. We cannot say that the trial judge abused his discretion by excusing a single juror because of her acquaintance with a prospective witness.

II Motions for Mistrial

During the trial appellant twice moved for a mistrial. He contends on appeal that the trial court twice committed reversible error by denying his motions. In our discussion of the motions it is well to bear in mind that the ruling on a motion for mistrial is an exercise of the discretion of the trial judge and there will be no reversal unless a clear abuse of that discretion is shown. We must give consideration to the fact that the lower court in the trial setting is in a much better position to assess the prejudicial effect, if any, of the occurrence prompting the motion. Among the many cases supporting this proposition see Peterson v. State, 15 Md.App. 478, 292 A.2d 714, Mills v. State, 12 Md.App. 449, 279 A.2d 473 and Britton v. State, 10 Md.App. 70, 267 A.2d 747. Additionally, the cases point out that such a motion should not be granted for light and transitory reasons which do not result in any real prejudice to the accused.

Approximately two weeks before the trial, the State filed an amended answer to interrogatories of the appellant listing as an additional prosecuting witness, the name of Roderick Laramee Jones and gave his address as "2520 West Lafayette Avenue." About a week prior to the filing of the amended answer the witness was incarcerated in the Anne Arundel Detention Center and was not available at the address listed by the State. The record shows that the appellant's counsel made little if any effort prior to trial to contact the witness but when the witness was called for trial, the court was informed of the error in the State's answer to the interrogatories and defense counsel requested five minutes in which to interview the witness. Over objection of the State, the court granted the interview and permitted it to be conducted in his chambers with the State's Attorney present. Neither appellant nor his counsel raised objection to the presence of the State's Attorney at the interview. After the interview had proceeded for 10 or 15 minutes the trial judge reentered his chambers and was informed that counsel were at loggerheads as to whether defense counsel could ask the prospective witness questions as to prior criminal convictions and other matters that could properly come out on cross-examination. The court stated that he felt that the interview should be concluded without asking such questions but did develop through counsel that the witness had one prior conviction for larceny. At this point defense counsel made a motion for a mistrial alleging that his interview was unduly circumscribed by the presence of the State's Attorney and his not being permitted to ask cross-examination questions. While we are at a loss to understand why the court permitted the State's Attorney to be present or the interview to be so limited (See 14 A.L.R.3d 652), we do not think that the appellant was entitled to a mistrial as a result thereof. Indeed we would have affirmed the ruling under the circumstances if the trial judge had precluded any interview since it is apparent that counsel had made little, if any, effort to contact the witness in the two weeks prior to trial. As we pointed...