Veney v. Warden, Md. Penitentiary

• Citation: 271 A.2d 133,259 Md. 437
• Decision Date: 09 November 1970
• Docket Number: No. 2,2
• Parties: Samuel VENEY v. WARDEN, MARYLAND PENITENTIARY. Post Conviction
• Court: Court of Appeals of Maryland

Page 437

259 Md. 437

271 A.2d 133

Samuel VENEY v. WARDEN, MARYLAND PENITENTIARY.

Post Conviction No. 2.

Court of Appeals of Maryland.

Nov. 9, 1970.

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

PER CURIAM.

The petitioner, Samuel Veney, was convicted by a jury in the Circuit Court for Frederick County of murder in the first degree and on May 16, 1966, was sentenced by that court to death by the administration of lethal gas. We affirmed the judgment on October 15, 1968, in Veney v. State, 251 Md. 182, 246 A.2d 568. The Supreme Court of the United States denied certiorari on April 1, 1969. Veney v. Maryland, 394 U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482.

The petitioner on April 24, 1969, filed a petition for relief under the Post Conviction Procedure Act, Code (1957), Art. 27, § 645A et seq., and later filed a supplemental petition on July 9, 1969. The Honorable John P. Moore, one of the judges of the Circuit Court for Montgomery We have carefully considered the grounds for relief asserted by the petitioner and, for the reasons set forth in Judge Moore's Memorandum Opinion and Order, have concluded that leave to appeal should be denied. We direct the reporter to print as an appendix to this opinion Judge Moore's Memorandum Opinion and Order filed February 24, 1970.

County, was assigned that case pursuant to Maryland Rule 1202 b 1 and on November 14, 1969, held a hearing at which time the petitioner was represented by counsel, William R. Leckemby, Jr. Judge Moore considered eleven grounds for post conviction relief raised in a combination of the first petition of April 26, 1969, the supplemental petition of July 9, 1969, and a ground raised at the hearing. Judge Moore in a comprehensive and well reasoned Memorandum[271 A.2d 135] Opinion, filed February 24, 1970, carefully considered these eleven grounds and concluded that there was no ground upon which to grant post conviction relief. Accordingly he passed an order dated February 20 and filed on February 24, 1970, denying the petition. The petitioner, pursuant to Art. 27, § 645-I and Maryland Rule BK46 has applied to this Court for leave to appeal.

Application denied.

APPENDIX

IN THE CIRCUIT COURT FOR FREDERICK COUNTY, MARYLAND

SAMUEL VENEY

vs.

STATE OF MARYLAND

Miscellaneous Petition No. 3748

MEMORANDUM OPINION AND ORDER

This is a petition for post conviction relief from a first degree murder conviction by a jury in Frederick County. The indictment against the petitioner was filed on November 26, 1967, in the Circuit Court for Baltimore City. The case was removed to Frederick County pursuant to his request for removal. A further motion for removal was denied on March 29, 1966, and the petitioner was convicted by a jury in the Circuit Court for Frederick County after a five day trial from April 11 to April 15, 1966 before Judge Dudley Digges, then Chief Judge of the Seventh Judicial Circuit (now Associate Judge of the Court of Appeals) and Judge Robert E. Clapp, Jr. On May 16, 1966 the Court sentenced the petitioner to death by the administration of lethal gas. The defendant appealed and the Court of Appeals affirmed the judgment unanimously on October 15, 1968. 251 Md. 182, 246 A.2d 568.

The instant petition for post conviction relief was filed with the Circuit Court for Frederick County on July 9, 1969. The matter was assigned to this member of the Circuit Court for Montgomery County pursuant to Maryland Rule 1202 b, and a hearing on the petition was held in the Circuit Court for Frederick County on November 14, 1969.

The underlying facts in the case were summarized by the Court of Appeals as follows:

'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 scene, 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.' 251 Md. at 185, 246 A.2d at 570.

Other important facts are that a verbal admission of shooting a police officer was overheard by a witness who identified the speaker's voice as that of the petitioner; that the petitioner had been seen with a gun before and after the Cooper shooting; and lastly that his gun had been identified as the gun that had fatally wounded Sgt. Cooper and had wounded Lt. Maskell.

The petition of Samuel Veney of April 26, 1969, and his supplemental petition filed July 9, 1969, raise ten distinct grounds for post conviction relief, and an eleventh was raised at the hearing of November 14, 1969:

1. That petitioner was denied due process of law when the jury was allowed to separate before the verdict.

2. That the petitioner, a male, is the victim of unconstitutional sex discrimination since the state for nearly thirty years allegedly has not sought the death penalty in the case of any female accused of crime.

3. That the petitioner was the victim of an attempted unlawful arrest.

4. That his conviction was based on insufficient evidence.

5. That the denial of a change of venue from the Circuit Court for Frederick County was wrongful in light of the publicity which surrounded not only his trial but also the earlier trial in Frederick of his brother, Earl.

6. That the petitioner was denied his right to a speedy trial and held incommunicado without counsel.

7. That the petitioner was prejudiced by the introduction of testimony allegedly inadmissible because it (a) consisted of an unreliable voice identification, and (b) was allegedly coerced from the witness under threat of criminal prosecution.

8. That the petitioner's counsel failed to subpoena a defense witness whom petitioner wished to have testify on his behalf.

9. That petitioner was denied due process because the trial court allegedly refused to allow petitioner's counsel to poll the jury following the reception of the jury's verdict.

10. That the petitioner was the victim of a prejudicial in-court characterization by the state's attorney.

11. That the petitioner was denied his right to present his own defense because he was not present at a conference in Chambers prior to the trial at which the ground rules for the conduct of the trial were established.

While contentions numbered seven, eight and ten merit more than routine consideration, it is the first point, the allegedly improper separation of the jury, that the petitioner most strenuously urged upon the Court. The jury was permitted to separate each day during the four day trial at the luncheon, dinner and overnight recesses, but was not allowed to do so after the case had been submitted to them for their deliberation upon a verdict. The case is therefore clearly within the scope of Maryland Code, Article 51, Section 22 (Supp.1969), which provides:

'The jurors sworn to try a criminal action may, at any time before the submission of the case to the jury, in the discretion of the court, be permitted to separate or may be kept in charge of proper officers.'

The petitioner recognizes the applicability of this provision, but claims that the trial court abused its discretion in permitting the jury to separate in the face of allegedly harmful publicity to which the jurors in Frederick were claimed to be exposed during the periods of their separation. The petitioner makes no attempt to demonstrate actual prejudice in his case, but argues that prejudice must be presumed from the jurors' exposure to stories and reports concerning the petitioner's trial.

The Court finds no merit in this contention. In light of the discretion reposed in trial courts by Maryland Code, Article 51, Section 22, there can be no presumption that separation prior to the submission of the case to the jury has prejudiced the rights of the person standing trial. As the Court of Appeals stated in Midgett v. State, 223 Md. 282, 295-296, 164 A.2d 526, 533 (1960), cert. denied, 365 U.S. 853, 81 S.Ct. 819, 5 L.Ed.2d 817 (1961), 'the separation of the jury is permissible, in the discretion of the trial court, prior to submission, and * * * prejudice is not to be presumed from such separation simply because of the possibility of influence or contamination through outside contacts.' Accord, LaGuardia v. State, 190 Md. 450, 58 A.2d 913 (1948). As pointed out in a thorough annotation entitled 'Separation of jury in criminal case,' in 21 A.L.R.2d 1088, 1117, supplementing 34 A.L.R. 1115 and 79 A.L.R. 821, 'it is regarded as settled' that where separation is within the discretion of the trial court, no prejudice can be presumed if the jury is allowed to separate.

Our refusal to make an assumption of prejudice in this case is buttressed by two additional considerations: first, as reflected in...