McLaughlin v. State

• Decision Date: 03 April 1968
• Docket Number: No. 88,88
• Parties: John McLAUGHLIN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 515

3 Md.App. 515

240 A.2d 298

John McLAUGHLIN v. STATE of Maryland.

No. 88.

Court of Special Appeals of Maryland.

April 3, 1968.

Morris Lee Kaplan, Baltimore, with Michael Lee Kaplan, Baltimore, on brief, for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., Joseph Raymond, State's Atty. and Asst. State's Atty., for Baltimore City respectively, Baltimore, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ANDERSON, Judge.

Appellant, John McLaughlin, was tried in the Criminal Court of Baltimore by a jury, Judge J. Gilbert Prendergast presiding, upon three separate indictments charging him with riot, breaking and entering, and malicious destruction of property. The indictments came about as a result of the penitentiary riot that occurred on July 8, 1966. He was found guilty by the jury on the indictment charging him with malicious destruction of property and not guilty on each of the other two indictments. He was sentenced to the Maryland Penitentiary for the term of one year, to run consecutively with the term he is now serving, and was fined $500.00.

On July 8, 1966, at approximately 11:30 a. m., several hundred prisoners incarcerated in the Maryland Penitentiary began to riot. Order was not restored in the institution until approximately 4:30 p. m. During the course of the riot considerable damage was done to the institution and the commissary was looted and set afire. Fires were also started in the industrial shop building which is designated as 'G' building, in the Print and Tag shop, and in the institution's laundry. While the fires were being fought by the Baltimore City Fire Department approximately two hundred inmates were seen running and milling about the prison yards coming out of the dining hall and commissary. They were screaming and yelling, hurling missiles and smashing windows. The warden of the penitentiary put the institution's riot plan in effect and the prison guards were reinforced by the Baltimore City Police Department and their K-9 Squad. While the riot was in progress the inmates attempted to storm the institution's power house, but were thwarted by the guards and police. The door to the commissary was battered down and its entire contents were taken by the inmates during the looting of that building. The damages to the institution and losses from the commissary were estimated at $750,000.

Appellant was positively identified by eight witnesses testifying on behalf of the State as one of the principal participants in the riot. They were correctional officers and other employees of the institution personnel, who testified that appellant was one of the leaders, going from building to building, armed with a piece of wood, smashing windows, encouraging the others on, and was engaged in the attempt to storm the power house as well as the looting of the commissary.

Appellant took the stand in his own behalf and denied any participation in the riot and disturbance on July 8, 1966. He stated he was only an observer and could not get out of the prison yard during the commotion because the doors were locked. He further testified he went into the midst of the milling inmates to protect Father Toby, the prison Chaplain, and into the commissary to rescue Assistant Warden Jordan from the fire. Eight witnesses testified on behalf of the appellant. Six of these witnesses were inmates of the penitentiary. The other two witnesses were Father Toby and a correctional officer.

Appellant raises ten contentions on appeal:

1. That the lower court should have granted appellant's motion for a change of venue.

2. That the court should have granted appellant's motion to dismiss the indictment filed in proper person.

3. That the court erred in granting the State's motion for consolidation of the three cases against appellant over his objection.

4. That the court erred in admitting the photographs into evidence (State's Exhibits 1a through 2 and A a through B b).

5. That the court erred in refusing to permit defense counsel to interrogate defense witnesses as to their credibility.

6. That the court erred in refusing to permit defense counsel to interrogate Isaac Jacobs in reference to the credibility of the State's witness, Robert Jordan.

7. That the court erred in its instructions to the jury in the malicious destruction of property indictment.

8. That the court erred in refusing to grant appellant's motion for judgment of acquittal.

9. That the verdict was against the sufficiency of the evidence.

10. That the court erred in refusing appellant a copy of the transcript at the State's expense for the purpose of arguing his motion for a new trial.

I

Appellant's first contention is that the court should have granted his motion for a change of venue since he could not get a fair and impartial trial in Baltimore City because the local newspapers and other news media had been full of items and stories concerning the alleged riot.

The question of whether a noncapital criminal case should be removed to another jurisdiction is one which rests within the trial court's discretion. Maryland Constitution, Art. IV, Sec. 8; Maryland Rules 542 a 1 and 738 b. However, the trial court's decision is reviewable on appeal for a determination of whether there has been an abuse of discretion. Seidman v. State, 230 Md. 305, 187 A.2d 109 (1962); Benton v. State, 1 Md.App. 647, 652, 232 A.2d 541 (1967).

The question before the court is whether the trial court abused its discretion in refusing the requested removal. The cases in this State hold that newspaper disclosures standing alone do not support a defendant's suggestion that such disclosures deny him as fair trial. Gray v. State, 224 Md. 308, 316, 167 A.2d 865 (1961) and cases cited.

The lower court permitted the appellant to make his motion for removal orally and to take the stand and testify in support of his motion. Appellant testified that he was one of thirty men sent to the City Jail on July 10, 1966, as one of the ringleaders of the riot which had occurred on July 8, 1966, and that this had appeared in news media. He also stated that he had noticed in a newspaper where it said Saturday that the trials were to begin Monday of the alleged ringleaders, and he felt that it was unjust that the tab of ringleader was placed upon them. He further testified that the Morning Sun of July 11, 1966 gave the thirty names of the men sent to the City Jail, of whom he was one, and that the article stated that the men were sent there by authority of Vernon L. Peppersack, Commissioner of Correction, who stated these men were the ringleaders of the riot.

The court in denying the motion stated that appellant had given no reason why he could not get a fair and impartial trial before the court. As to adverse publicity, the court said that he was of the opinion that the publicity had been distinctly favorable to the defendants in the alleged riot cases because many of them had been tried and found not guilty by a jury, some by the court, and only one man convicted so far. Also, a great many cases had been dismissed by the State and the publicity was all favorable to the defense.

The appellant chose to be tried by a jury and the questions and answers on voir dire as submitted by his counsel adequately covered the matter of freedom from prejudice, and, in particular, adverse news publicity.

We, therefore, must conclude from this record that the trial judge did not abuse his discretion in denying the motion for removal.

II

Appellant contends that the court should have granted the motion to dismiss the indictment filed in proper person. The motion sets forth no grounds that can be understood, save the fact that he did not receive a preliminary hearing. This contention is groundless. Under Maryland law a preliminary hearing is not required. Cherrix v. Warden, 1 Md.App. 65, 68, 227 A.2d 50 (1967) and cases cited. Here, the case was submitted directly to the Grand Jury.

III

Appellant's third contention is that the court erred in granting the State's motion for consolidation of the three cases against him over his objection. He argues that the crimes with which he is charged could not have 'conceivably' been joined in one indictment without a misjoinder of counts. While appellant cites no authority to support his contention, the question raised is an interesting one.

Here, appellant was charged with three separate offenses, riot, breaking and entering, and malicious destruction of property. All three offenses grew out of the same transaction, the riot in the Maryland Penitentiary on July 8, 1966; all involved the same facts, occurred at or about the same time, on the same date and at the same place. Moreover, the crimes of malicious destruction of property and breaking and entering were acts of the penitentiary inmates which constituted part of the riot.

Maryland Rule 734 provides that: 'The court may order two or more indictments to be tried together, if the offenses and the defendants, if there be more than one, could have been joined in a single indictment.' The purpose is to save the time and expense of separate trials under the circumstances named in the Rule, if the trial court, in its discretion, deems a joint trial proper. Maryland Rule 716a. provides: 'Two or more offenses may be charged in the same indictment.'

Since the trial judge concluded that neither the accused nor State would be prejudiced by a joinder for trial, as provided in Maryland Rule 735, we find that the trial judge properly ordered a joinder for trial of the three indictments under which appellant was charged. The appellant could have been charged with all of the offenses in one indictment by using separate counts under the provisions of Rule 716a. and Rule 734, both supra; since under the facts herein the offenses are of the same general nature, form part of the development of the same transaction, and permit...