Smith v. State

• Decision Date: 26 October 1972
• Docket Number: No. 111,111
• Citation: 16 Md.App. 317,295 A.2d 802
• Parties: Walter William SMITH, Jr., v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 317

16 Md.App. 317

295 A.2d 802

Walter William SMITH, Jr., v. STATE of Maryland.

No. 111.

Court of Special Appeals of Maryland.

Oct. 26, 1972.

Certiorari Denied Jan. 8, 1973.

Gerald Adler, Glen Burnie, for appellant.

Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and J. Carroll Holzer, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Argued before MOYLAN, POWERS and GILBERT, JJ.

GILBERT, Judge.

In his second trial, Walter William Smith, Jr., appellant, was convicted by a jury in the Criminal Court of Baltimore, presided over by Judge David Ross, of robbery and assault with intent to murder. Appellant was sentenced to two concurrent 12 year sentences dating from September 3, 1969. ¹

Appellant's first conviction was reversed by this Court and the case was remanded for a new trial because of a failure by the then trial judge to allow certain voir dire questions pertaining to racial prejudice and because of a violation of appellant's constitutional right to be present at every stage of the trial. Smigh and Nelson v. State, 12 Md.App. 130, 277 A.2d 622 (1971). This appeal flows from the second trial.

Appellant presents three questions for our review:

1. Was Appellant denied due process when he was permitted to plead to the charges without being affirmatively advised of his right to request a change of venue?

2. Under the circumstances of this case, was it proper to remove the assault with intent to murder indictment from the stet docket and to place it on the trial docket?

3. Was the appellant deprived of genuine and effective assistance of counsel, and, therefore, was the denial of appellant's motion to discharge counsel an abuse of discretion by the trial court?

The testimony discloses that the appellant was involved in the armed robbery and shooting of John Shell, although the appellant was not the trigger man. Shell testified that when he left a bar on West North Avenue, in Baltimore City, he was accosted by a group of young men who demanded 'a quarter' from him. He refused to give it to them; whereupon a gun was produced by one of the group. Shell ran in an attempt to elude his attackers. After running several blocks, he came upon a taxicab and asked the cab driver to radio for the police. At this point in time, Shell's pursuers caught up with him. Shell again broke loose from the group and, as he was running from them, was shot with a .38 caliber pistol in the lower lumbar region of his back. The appellant, together with Luther Watkins, also not the gun man, then kicked and beat Shell while he lay wounded in the street. Watkins removed Shell's wallet, but stated there was no money in it. Shell, on the other hand, said that he had $43.00 stolen from him.

According to Watkins, ² an admitted accomplice, he and the appellant fled the scene, but later returned to it when a crowd gathered as the police and an ambulance arrived. Eyewitnesses to the beating of Mr. Shell pointed out to the officers present at the scene both Watkins and appellant as being Shell's assailants. Both were immediately apprehended. At the trial, the victim and two other witnesses made a positive judicial identification of the appellant as one of the assaulters.

I

Appellant argues that Art. IV, § 8 of the Maryland Constitution (Removal of Causes) is in pari materia to 'the right to elect between Court trial and Jury trial,' Rule 741, and therefore should require 'a specific showing that the accused knew he had a right to participate in the selection of his place of trial.' He avers that the 'increase in the incidence of reports of crimes of violence * * * in the City of Baltimore (has changed) (t)he public mind, mood, and temper' so that the appellant should have been advised of his right to request a change of venue.

Art. IV, § 8 of the Maryland Constitution provides in pertinent part:

'The parties to any cause * * * in all cases of Presentments or indictments for offences, which are or may be punishable by death, pending in any of the courts of law in this State having jurisdiction thereof upon suggestion in writing under oath of either of the parties to said proceedings that such party cannot have a fair and impartial trial in the court in which the same may be pending, the said court shall order and direct the record * * * to be transmitted to some other court having jurisdiction * * *, but in all other cases of presentment or indictment, pending in any of the Courts of law in this State having jurisdiction thereof, in addition to the suggestion in writing of either of the parties to such presentment or indictment that such party cannot have a fair and impartial trial in the court in which the same may be pending, it shall be necessary for the party making such suggestion to make it satisfactorily appear to the Court that such suggestion is true, or that there is reasonable ground for the same * * *.' (Emphasis supplied). ³

This section of the Constitution was ratified by the voters on November 2, 1875, and has remained unchanged for almost 97 years. Appellant cites no authority for his bald allegation that a suggestion of removal and the right to jury trial are entitled to equal treatment. The record in this case is silent as to any suggestion of removal that might have been made to Judge Ross. Rule 1085 would appear to be dispositive of the matter. Even if we assume, arguendo, the question to be properly before us, we note that the offenses charged were not punishable by death, and thus did not give rise to a right of removal per se. If the suggestion of removal had been made, it would be governed by the rule of discretion enunciated by the Court of Appeals in a number of cases, including, inter alia, McGowan v. State, 220 Md. 117, 161 A.2d 156 (1959); Piracci v. State, 207 Md. 499, 115 A.2d 262 (1955); Allers v. State, 144 Md. 75, 124 A.2d 399 (1923), and by this Court in Stevenson & Borum v. State, 9 Md.App. 152, 263 A.2d 36 (1970), and McLaughlin v. State, 3 Md.App. 515, 240 A.2d 298 (1968).

It has not been constitutionally mandated that an accused must be advised that he has a 'right of removal' in capital cases, or that he may suggest removal in non-capital cases, and we decline to so hold. It would indeed be circuitous to require in noncapital cases that the record must affirmatively demonstrate that an accused be advised of his right to suggest, under oath, that he could not receive a fair and impartial trial in a particular jurisdiction, and then have the trial judge to whom the suggestion is made, in the sound exercise of his discretion, deny the motion.

The argument urged upon us by the appellant is without basis in law and is, at best, a novel demonstration of psychic pyrotechnics.

II

When the appellant was initially indicted in 1969, the Grand Jury of Baltimore City specifically charged him in Indictment No. 6510, with robbery with a dangerous and deadly weapon, attempted robbery, robbery, assault with intent to rob, assault, larceny, and receiving stolen goods. At the same time, appellant was charged in a two count indictment, Indictment No. 6511, with assault with intent to murder, and assault. ⁴ The case was originally called to trial on January 19, 1970. The State then proceeded solely on Indictment No. 6510, and declined at that time to proceed on Indictment No. 6511. Appellant appealed his conviction under Indictment No. 6510, and we reversed and remanded for a new trial. Smith and Nelson v. State, supra.

On May 20, 1970, four months after the original trial, the State, pursuant to an order of court, Rule 718, placed Indictment No. 6511 on the stet docket. When, following our remand, the case was called to trial before Judge Ross, the State sought and obtained permission from the trial court, to remove Indictment No. 6511 from the stet docket, to restore it to the trial docket, and to try it simultaneously with Indictment No. 6510. Appellant opposed the restoration of Indictment No. 6511 to the trial docket, and said that he was not prepared to go to trial on that particular charge inasmuch as he had no knowledge that the State had intended to prosecute him under Indictment No. 6511. Judge Ross correctly observed that both indictments grew out of the same factual situation, and rejected appellant's contention.

Appellant's argument before the trial judge was somewhat ambiguous; the gist of it was, however, that he questioned the State's 'tactics' and averred that he was 'not involved in any shooting,' in addition to the above stated allegation. Here, appellant urges us to promulgate a rule of law requiring the State to affirmatively show that a defendant knowingly and intelligently had agreed to a stet before the State can remove a case from the stet docket and cause it to be tried. We decline to do so.

The entry of a stet in a criminal case simply means that the State will not proceed against an accused on that indictment at that time. It is not ordinarily a final determination of the charges against the accused, so that the State may, at a later point in time, proceed under the same indictment. See State v. Morgan, 33 Md. 44 (1870); Regle v. State, 9 Md.App. 346, 353 n. 1, 264 A.2d 119 (1970).

Appellant further avers that the Maryland stet procedure is violative of his right to a speedy trial and is similar in nature to the 'nolle prosequi with leave' procedure of the State of North Carolina which was proscribed by the Supreme Court in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). We disagree. Klopfer, a professor of zoology at Duke University, was indicted for criminal trespass, a misdemeanor punishable by fine and imprisonment in an amount and duration to be determined by the trial court in the exercise of its discretion. The case proceeded to trial 'with admirable promptness,' and when the jury failed to agree on a verdict, the trial judge declared a mistrial...