Veney v. State

• Decision Date: 15 October 1968
• Docket Number: No. 566,566
• Citation: 246 A.2d 568,251 Md. 182
• Parties: Samuel VENEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 182

251 Md. 182

246 A.2d 568

Samuel VENEY v. STATE of Maryland.

No. 566.

Court of Appeals of Maryland.

Oct. 15, 1968.

Daniel E. Klein, Jr., Baltimore, and Wallace E. Hutton, Frederick, for appellant.

David T. Mason, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, Baltimore, and Robert S. Rothenhoefer, State's Atty. for Frederick County, Frederick, on the brief), for appellee.

Before HAMMOND C. J., and MARBURY, BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

SMITH, Judge.

Appellant was convicted of murder in the first degree by a jury in Frederick County and sentenced to death. The victim was Sgt. Jack Cooper of the Baltimore City Police Department.

At approximately 9:40 P.M. on December 24, 1964, Luxie's Liquor Store at 2002 Greenmount Avenue in Baltimore City was robbed. Several men were involved. Appellant was identified as one of those men. Lt. Maskell of the Baltimore City Police Department arrived on the sence, accosted appellant, and was in the process of taking him into custody when one of the robbers shot Lt. Maskell. Lt. Maskell was shot a second time. Appellant was identified as firing the second shot. Lt. Maskell was not fatally wounded. The culprits escaped. Between 10:00 and 11:00 P.M. appellant and others alleged to have been involved were at the home of appellant's sister. Discussion of the incident took place. Appellant stated, 'I think I shot him, too.'

Sgt. Jack Cooper was one of those searching for the participants in the robbery and shooting of Lt. Maskell. Sgt. Cooper was seen at approximately 4:20 A.M. on December 25 by fellow officers. A few minutes later shots were heard from the direction in which Sgt. Cooper had gone. He was found fatally wounded near his police car, lying across an alley, face down, in an unconscious condition. The dome light of his car was on. The driver's door was open. The microphone of the radio was lying on the front seat.

The motor vehicle operator's license of appellant was picked up from the floor of the police car. Just outside the car on the driver's side under the open door were found the Social Security card, Selective Service card and birth certificate of appellant, together with a number of other papers connected with appellant.

Appellant was seen with a gun before and after the Cooper shooting. The girl friend of appellant's brother testified as follows with reference to a conversation between 7:00 and 8:00 A.M. on December 25:

'Q. What did you hear Sam say? A. I believe I heard him say he had to shoot him.

'Q. What were his words? A. That he had to shoot him. I never heard him say who or what.

'Q. Did he say way? A. No, I heard him say something about an ID card.

'Q. An ID card? A. But I never seen him or he never said it in my presence that he had shot anybody. Neither one ever admitted it.'

An admitted participant in the robbery testified as follows:

'Q. When you got to Eloise's house, who was there? A. Earl was there, Eloise was there, and Shirley and Margaret was with me when we got around there.

'Q. Now, did anyone else show up there after you got there? A. Sam came around later.

'Q. What happened? Describe what happened when Sam came in? A. He came in and rather than coming straight in he knocked on the door and we opened it and he said, everybody be quiet and pulled down the shades and he said he just shot a policeman.

'Q. Did he say why he had just shot a policeman? A. Yes.

'Q. What did he say? A. He said the police stopped him on his way around there and asked him for his identification and he showed it to him and when the police seen his last name was Veney he wanted to take him downtown and then he got to arguing with the police and he said the policement hit him up side the head and that is when he shot him.

'Q. What did the police his him with upside the head according to him? A. With a blackjack.

'Q. Blackjack? A. Yes.

'Q. And he shot him? A. That's right.

'Q. What happened then after you were all around there and you heard this news? A. Well, we tried to be quiet for a while and we were going to spend the night there and we would try to get out tomorrow and then he was talking about how he was going to get rid of the gun.

'Q. Who said this? A. Sam.

'Q. All right. What did he say about the gun? A.

He said he had to get rid of it as soon as he could and he wanted to get rid of it. He didn't want to take the chance of walking the streets with it.'

The 'Eloise' to whom reference is above made was Eloise Bennett. The niece of Eloise Bennett found a gun about a week later. The gun was identified as the gun of appellant. The gun was further identified as the gun that had fatally wounded Sgt. Cooper and had wounded Lt. Maskell.

Earl Veney was in the company of Frances Mitchell at the time of the shooting of Sgt. Cooper.

I.

Appellant claims he was denied due process of law when prospective jurymen who did not believe in capital punishment were excluded from service. He lists eleven prospective juryment so excluded.

The questions propounded by the court to Paul Rice in the voir dire examination are typical of the questions propounded to the other prospective jurors so excluded.

They are:

'(Court) (Paul Rice #35) Mr. Rice have you formed or expressed an opinion as to the guilt or innocence of Samuel Veney, the defendant in this case? A. No, I haven't.

'Q. Do you have any conscientious scruples against capital punishment? A. Yes, I have.

'Q. Do you feel that those scruples are such that you could not fairly and justly weigh the evidence in this case bearing in mind it is the Court's function and not the jury's to impose punishment in case the finding should be guilty? A. I am afraid so.

'(Court) All right, the Court will excuse you.'

Appellant cites Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) in support of his position.

The Illinois jury, pursuant to the authority granted by Illinois law, imposed the death penalty. The jury has no such right in Maryland. Its authority under Code (1967 Repl.Vol.) Art. 27, § 413, is limited in rendering a verdict of murder in the first degree to adding the words 'without capital punishment', in which case the sentence of the court is required to be imprisonment for life. We take judical notice of the fact that there have been many convictions in Maryland of murder in the first degree where the words 'without capital punishment' have not been added by the jury and where the sentence has been to life imprisonment rather than death.

In Witherspoon Mr. Justice Stewart speaking for the Supreme Court said:

'The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant's guilt. * * *' (emphasis supplied) 391 U.S. at 513, 88 S.Ct. at 1772.

In footnote 21 at page 522 to its opinion, 88 S.Ct. at page 1777 in Witherspoon the Supreme Court said:

'We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant, sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case.' (Emphasis in original)

The same day the Supreme Court decided Witherspoon it decided the case of Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In that case the defendant had been convicted of rape. The North Carolina statute imposed a death penalty for such conviction, unless the jury recommended life imprisonment. The jury did recommend life imprisonment. It was contended that the constitutional right of Bumper to an impartial jury was violated when the prosecution was permitted to challenge for cause all prospective jurors who stated that they were opposed to capital punishment or had conscientious scruples against imposing the death penalty. Mr. Justice Stewart speaking for the Supreme Court said:

'* * * Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant's guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. * * * We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily 'prosecution prone', and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon. Accordingly, we deline to reverse the judgment of conviction upon this basis.' 391 U.S. at 545, 88 S.Ct. at 1790.

See also State v. Mathis, 52 N.J. 238, 245 A.2d 20 (1968) where the Supreme Court of New Jersey had occasion to consider the application of Witherspoon, supra, and Bumper, supra. In New Jersey conviction of murder in the first degree carries with it the death sentence unless the jury recommends life imprisonment. The New Jersey Court affirmed the conviction. Mathis was sentenced to death.

The trial of appellant was prior to Witherspoon and prior to the enactment of Chapter 500 of the Acts of 1967 providing that no...