Jones v. State

• Decision Date: 16 November 1967
• Docket Number: No. 231,231
• Citation: 234 A.2d 900,2 Md.App. 429
• Parties: Leon Ellsworth JONES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 429

2 Md.App. 429

234 A.2d 900

Leon Ellsworth JONES v. STATE of Maryland.

No. 231.

Court of Special Appeals of Maryland.

Nov. 16, 1967.

Samuel J. DeBlasis, Hillcrest Heights, for appellant.

Richard M. Pollitt, Sp. Atty., Salisbury, Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., and Ronald Willoner, State's Atty. and Asst. State's Atty., for Prince George's County, Upper Marlboro, on the brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and TRAVERS, WILLIAM W., Special Judge.

PER CURIAM.

The appellant was found guilty on August 2, 1966 by a jury in the Circuit Court for Prince George's County of murder in the second degree, and sentenced to a term of eighteen years in the Maryland Penitentiary. Two questions of law are presented on this appeal: (1) whether appellant was denied his right to an impartial jury by the empaneling of four jurors sitting in this case who had sat six weeks previous in a separate criminal action in which the appellant was the accused, and (2) whether the trial court committed error in overruling appellant's objection to, and subsequent motion to strike, certain testimony relating to his oral statement to police made at the time of his apprehension.

The evidence adduced at trial indicated that one Andrew Dunston was shot in the head with a pistol while he was involved in an altercation with David Michael Leazer outside a dance hall in Forestville, Maryland. Appellant was identified by eyewitnesses as the man who fired the shot and left the scene in a 1957 Chevrolet automobile. Appellant was subsequently apprehended by police a short distance from the scene of the shooting, whereupon he denied having been at the dance hall. Identification of the appellant as the man who had done the shooting was then made by a witness, and appellant was arrested. No question of the sufficiency of the evidence is presented on this appeal.

Conceding the proposition that appellant's right to an impartial jury is guaranteed by both Article 21 of the Maryland Declaration of Rights, Bristow v. State, 242 Md. 283, 288, 219 A.2d 33, and the Fourteenth Amendment to the Federal Constitution, Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, it is clear that the burden of proving that the jury was in fact not impartial is on the appellant. Bristow v. State, supra. Appellant does not, however, carry that burden by merely establishing that four of the jurors sitting on his trial had previously sat on a jury which convicted him of another unrelated offense. The general rule is that a juror is not necessarily incompetent because he had been a member of the jury on a former trial of the same accused for a different offense. See, e. g., Ex parte Craft, 41 Ala.App. 519, 138 So.2d 266 (1962); Bowling v. Commonwealth, 286 S.E.2d 889 (Ky.1955); Howell v. State, 95 Tex.Cr.R. 583, 255 S.E. 171 (1923); Burford v. Commonwealth, 132 Va. 512, 110 S.E. 428 (1922); State v. Riley, 151 S.E.2d 308 (W.Va.1966); Annotation: 6 A.L.R.3d 546. The former trial of appellant on which the four jurors had sat was for storehouse breaking and larceny on a set of facts totally unrelated to the instant case. In the absence of specific proof of their bias, these jurors cannot be presumed to have acted other than impartially. We hold, on the record before us, that no unfairness has been shown by appellant, and we so conclude without even considering the probability that appellant waived his right to challenge the array by failing to object at trial, failing properly to question prospective jurors on voir dire, or failing to exhaust his peremptory challenges.

Appellant's...