*1 in- to the detailed Here the defense counsel door opened following quiry by propounding question: Garfield, ever threaten kill or harm “Q. did you Annette ? Johnson A. One time 1961—” cross-examination, this area on At- pursuing the State’s
torney inquired: Were
“Q. you convicted in cutting assault and one Annette ? Johnson A. No. sir.”
Thereafter, Attorney State’s the criminal proffered record evidence, court, into which the apparently motivated a de- caution, sire to exercise extreme refused to admit into evidence. feel, admitted, We had it been it would have been admissible as to his credibility. The record before us manifestly negates any merit in the allegation of therefore, prejudice to the appellant; the court acted properly its denial of the motion for mis- trial.
A supplemental raised, contention was after briefs were sub- mitted, challenging the make up jury panel. This ques- tion was not raised or decided Therefore, trial court. the question is not properly before us. Maryland Rule 1085.
Judgment affirmed. OF
ROOSEVELT BOONE STATE MARYLAND 48, September Term,
[No. 1967.] *2 24, 1968. Decided January
The cause was argued before J., C. and Ander- Murphy, son, Orth, and Morton, Thompson, JJ.
Robert F. Freeze for appellant. DeCosta, Jr.,
Frank A. General, Assistant Attorney with Burch, whom were Francis General, B. Attorney Charles B. Jr., Moylan, Attorney State’s City, Baltimore and Samuel for Peregoff, Assistant State’s Attorney Baltimore City, on the brief, for appellee. J., delivered the majority Orth, opinion of the Court. Thompson, J., dissents. Dissenting opinion by J., Thompson, 36, at page infra. Goode,
The appellant, Abraham Alphonso Craft, Obadiah Kitt were jointly indicted for the murder and robbery James grand Hazard aby
with a
of Charles Oliver
deadly weapon
29, 1965,
Baltimore
jury
January
prior
for the
of
City
of
Appeals
Schowgurow
decisions of the Court
Madison,
mony had cases him stetted. Craft against being from prosecution, co-defendant, in the trial Kitt.3 testified for the Although appear introduced from the evidence it does case, pleaded guilty to murder the second the instant Goode degree indictment filed. before the second robbery jury indictment on two case on the 2. The went *4 weapon. deadly attempted The counts—robbery robbery a and with guilty jury general and of returned a verdict years). (subsequently years to 17 reduced sentenced to 18 State, App. by judgment 2 Md. 80. this Court. Boone v. was affirmed May 3, 1966, guilty in the first murder found of 3. On Kit was deadly robbery capital punishment) a (without with degree and of Baltimore. He was weapon by jury in the Criminal Court life in imprisonment his natural for the term of to sentenced charge, robbery years charge on the of 20 and for a term .murder consecutively. judgments were affirmed sentences to run App. State, by Kitt v. this Court.
15 however, case, in the instant called to the stand Craft When had advised his he by attorney that he been had stated State, Kitt in the case of his immunity v. tes- granted been “* ** I was never I but informed that would have timony, case, in this I Boone and informed the against to testify I that I still don’t want to testify testify didn’t want to right indicated that it was his constitutional this case.” He ad- as the incriminate him but he testimony might testify “the same charge” against mitted he testified on in the case The trial court held that Craft was a witness compellable Kitt. the issue questions “pertinent him to answer directed * * * defendant, involved, the indictment of the namely here court that the trial contends The appellant Roosevelt Boone.” is an- fully The contention testify. erred in Craft to compelling State, Md. 73-74: 221 swered Butz by is a per- self-incrimination “The privilege against and, witness, be asserted by and must sonal one Curry that Mrs. is means certain it no although for the claimed the privilege, properly witness] [the that neither shall assume this case we purposes power conferral of without nor the prosecutor, court she statute, her and that immunity grant could of these as- With both claimed the privilege. properly him noth- avails appellant, in favor of sumptions witness, not to the ing. belonged The privilege 490, 502; Ray- Md. Finnegan, Roddy defendant. 126, 130, State, A. 2d 711. Cf. Md.
mond v.
112, 117,
Wigmore, Secs. Evidence witness, has a claim proper who testimony given by on the subject objection ground is not privilege, defendant, instance of the but is at the privilege him, against and admissible if ma- evidence competent 446, 455, Chesapeake Club v. terial. makes a claim of and it is privilege
And if a witness *5 court, disallowed improperly by the it is not reversible error on behalf aof party action. Wigmore, ibid., and other authorities named below.
In
making
ruling,
above
we realize that it is not
Chesapeake
conformity with one
Club
phase
case,
to, and,
referred
just
insofar as
case is to be
construed as a
holding to the effect that a de-
general
fendant in a criminal case is entitled to a new trial be-
material,
though
cause
a wit-
privileged,
testimony of
ness,
evidence,
who not
has been admitted in
party,
we decline
to follow same.”
Forrester
also
See
Md. 337. Thus we think that
and,
testimony
Craft was competent evidence
being clearly
material,
against
was admissible
the appellant.
assuming
Even
decide,
that the
testimony
privileged, which we need not
its admission
evidence did not constitute reversible
error.
relies on
Royal
But the Court stated that again only self-incrimination is a one and the witness personal may was an from a ci- appeal contempt assert it.” Shifflett and the Court held that since testify tation for refusal to no with attorney regard were asked questions prosecuting trial, matters material to the criminal cases then on there was no contempt. clear that was a the second He principal degree.
It is Craft used the actual the automobile perpetrators drove crimes and was close to the im- contiguity proximity committed, in a position crimes were where the mediate place *6 232; State, 220 Md. v. render aid and assistance. Vincent therefore, was, an ac- State, He 278. Agresti App. v. State, be- His testimony App. Barton v. complice. admissible, cor- sufficiently is it was whether ing question roborated, that it was not. contending the appellant aside would not be set jury
At common law a verdict of the
an
which
accomplice
because founded on the evidence of
merely
State,
ju-
was
In the rule was formulated After behind the of the discussing reasoning development rule, said, the Court pp. 293-294: safer to some cor- require
“Hence it seem to be would * * rule, *. As the reason for the as roboration Courts, testimony is that the an most adopted by is regarded alone and too accomplice unsupported safe, the matter is important doubtful to be to have him in at least some of the material points supported involved, to show of the accused.” tending guilt not said, however, trial courts should too require It that the it is and that required of corroboration way much convict, exclusive of the accomplice’s have sufficient evidence said, the Court Wright testimony. 648: page case, Luery followed the
“In all of the cases which 1950, the supra, during the from 1911 to rule period were either judgments restated and the affirmed was or the dismissed because the appeals sufficiency of cor- roboration was reviewable only on motion new court trial in the lower and not on appeal.” December effective (the Since date of the amendment 5 of Article XV of the Constitution of Maryland giving § right Court of Appeals duty—if and when a question raised—to review the properly legal sufficiency of the evi- dence in a criminal case) to decision in Wright, suffi- ciency corroboration of an accomplice’s testimony cases, considered in a number of and was deemed sufficient be- “* * * cause it consisted of the behavior and conduct of accused, or his at the presence scene of the crime under sus- circumstances, picious or the and sufficient ample testimony non-accomplice witnesses of some the material support *7 points of In accomplice’s 219 testimony.” Wolf State, said, dictum, v. the Court of by way had “* * * that the was that the requirement corroborative evidence tend charge should to sustain the with respect to ‘some of State, material involved’ In points v. [quoting Luery supra].” Wright thought to more salutary fully discuss and the material what was meant “corroborate” “some of Underhill, Criminal (5th 1 points” facts. Evidence Citing 185; b 1940) 2059 1956) Wigmore (3rd Ed. Evidence Ed. § § State, c,,and it restated the rule v. Polansky follows, as 650: in the of. is way required much corroboration “[N]ot * * * in and of itself for the necessary it is convict, yet evidence be sufficient to
corroborative to testimony evidence must support the corroborative the material as to some of facts tend- accomplice accused was either with that the ing show identified participated the crime or had perpetrators of the commission the crime (emphasis sup- of itself.” plied) of rule is in accord with the reasons re-
This restatement
an
to be corroborated
accomplice
of
testimony
quiring
19 rule testimony “The for the requiring reason is it is the testi- an be corroborated accomplice to with guilt, contaminated mony person admittedly in the his crime which participation who admits defendant, he and it be particularly blames should caution, regarded with because great suspicion the life or of an liberty otherwise innocent person might taken makes away by be a witness who the ac- either malice him- cusation his or to shield gratify self punishment, from or in the clem- hope receiving turning evidence.” ency by State’s
It is also in accord with the rule as followed Tennessee where rule is and not It judicial statutory. was said Sherrill supra, 321 W. 2d : S. 815 force, in- must of its own
“The corroborative evidence tend con- accomplice’s testimony, dependently nect the defendant with the of the crime.” commission York, Alabama and in New rule statute as established by Kress, supra, the Court People like California is to effect. Procedure, Criminal said that York Code the New § with the defendant connect that the evidence specifically requires Title (1958) itself. Code of Alabama crime § defen- connect the evidence requires tending corroborative and such corroborative dant with the commission of the offense if it the commission of merely evidence not sufficient shows People Lyons, thereof. In the offense or the circumstances said, must P. such evidence supra, the Court 2d *8 of- to the the the tend connect defendant with commission of Underhill, fense him. 1 Criminal implicate See Evidence 399-400. (1956 Ed.) pp. § is that evidence in this it clear that the rule
We think if is not sufficient of testimony accomplice the an corroborating or circum- the the of offense merely it shows the commission the ac- the material facts of and that some of stances thereof are such which must material support complice’s testimony identified to that the accused was either which tend show facts in the crime or had the participated the of with perpetrators 20 has in testimony of the crime itself. “Whether the
commission must, course, fact depend upon been corroborated of sufficiently circumstances, the facts and the inferences deducible there- from, State, supra, Wright in each case.” v. 650. page in Court this when Appeals confirming judgments raised, has have evidence question been found corroborative with the tending to the defendant identify perpetrators crime, show his tending the commission participation State, 2 of the crime or both.4 In Keene v. Md. 325 we App. reversed rendered on stolen because judgments receiving goods “* * * there was no evidence the ac- identify whatsoever cused with the of the crime or to show he had perpetrators * *”* in the the crime itself participated commission of except for the testimony of accomplice.
From the record in instant case we find no corroborative Craft, testimony evidence supporting accomplice, to some facts of material to show that the tending was identified with perpetrators of the crime or had partici- in the crime commission itself. Craft testified pated he, about M. January 12:15 A. 1965 the appellant, Goode Melvin,” and Kitt rob “Little narcotics planned pusher. Melvin failed to at his house after a wait some appear three identify 4. For cases which the corroborative evidence tended perpetrators the defendant with crime see: Ferraro v. State, 274; Wright State, 643; Mulcahy State, 200 Md. v. 219 Md. v. 413; State, 337; Boggs State, 221 Md. Forrester v. Md. 224 228 v. 168; State, 597; State, Md. McKenzie 236 Md. v. Barton Md. v. 2 App. 52; State, App. v. Kitt 2 Md. For cases which the corroborative evidence tended to show participation Polansky defendant’s the crime itself see: v. Md, State, 362; State, 301; Judy State, 205 Md. Brown v. 210 v. 168; State, 239; State, Md. v. 227 Md. DeHart McDowell v. 231 Md. 205; 422; State, State, App. Tucker v. Md. O’Connor v. 1 Md. 627; Bright State, App. 657; State, App. v. 1 Md. Wilson v. 210; State, App. Johnson For which the cases corroborative evidence tended both to identify perpetrators with the the defendant of the crime and to participation State, his in the crime show itself Nolan see: (the Md. 298 corroborative evidence judg- was sufficient but reasons); 472; ment reversed for other Novak v. Booth Md. 528. *9 for an- formulated plans and one-half hours and the quartet in Craft’s they Pursuant the drove plan, other to robbery. a the street “cream ’62 to lot “down yellow” colored Chevrolet Cafe, robbery. of intended Craft behind” Burman’s the the place the went toward remained in automobile while the other three Kitt inside while the cafe. The and Goode to appellant go were automobile, remained after left the Shortly outside. the three a with had on hood boy Craft saw a “little come The boy by.” automobile, the the back to eyes and nose cut Kitt came out. The and Goode. followed a few later the appellant seconds bag a placed rear the automobile and appellant went the Kitt, and Craft over the Goode plate joined license then white handle pointed a with a automobile. Kitt had pistol he had shot someone said at Goode because Goode pistol Kitt’s grabbed in the it an The cafe but was accident. him Goode. shooting” arm sense saying any “it wasn’t shortly after Kitt automobile appellant and left Craft’s each them. killing, at which time Goode some gave money were his companions Craft did not remember how any dressed. testimony evidence read into
By stipulation, Burman, trial, owner C. three at the first witnesses James name), Wayne in his wife’s license was property (the Marchbanks, a of- newsboy, police a and Leon Fleming, young M. on January 6:30 A. ficer. arrived at the cafe about Burman 1965, register floor and an cash open all over the saw blood his delivering papers, Fleming, with therefrom. missing $23.00 A. January about 6:05 M. on saw two men inside the cafe had He walked around corner green jacket. 1965. One on a in their hands. and two men ran around corner with bags no descrip- a He Negro. gave He noticed that man was one white tion of the ran a ’62 or ’63 Chevrolet. They other men. either something “I think the trunk. they opened They put car, in the than they got took out and less something was into the street.” gone seconds later car down thirty in- mask Fleming wearing was face morning cident in evi- because was cold. mask introduced Marchbanks, Fleming. “working dence identification upon go car” on received call to Bur- January radio *10 man’s a He the investigate Tavern to discovered bar- holdup. tender, Hazard, had been- shot. him that Hazard told “two bar colored males came into the and ordered a coffee and cup of vodka, bar, a the bottle of when he set the articles on one a subject produced gun and walked the bar around behind started going through the cash told him to register, lay the floor, and Mr. Hazard him told there was some in a money drawer, bottom and as went to he the out of the get money drawer, he said that’s when the shot him he subject while was floor, on the and at that laying time of them run outside both bar.” the
The in report, by stipulation, also admitted evidence autopsy wound, established that his that Hazard died of a gunshot homicide, was death a a at Burman’s incurred during holdup Cafe, wherein the deceased found. was corroborated accom- evidence adduced by State plice’s as of the offense and the to the commission testimony testimony circumstances it did not his support thereof but to some of show that the tending appellant the material facts was either identified had in its with the crime or participated evidence, was no for example, commission. There corroborative either that was in the of the the-appellant company perpetrators crime, shortly was in the before or after the or that he shortly committed, vicinity of the crime when it was he or that was the murder or of some possession weapon proceeds - of the that robbery or he was seen Craft’s automobile. short, there no evidence to was connect with the appellant or the commission of the crime perpetrators testi- except of the and this is In Kitt v. mony accomplice not sufficient. State, supra, in which found we the corroborative evidence to sufficient, be was testimony there non-accomplice, Eve- lyn between A. Knight, that 6 :00 M. and 7:00 M.A. on the morning January and Kitt appellant came to her house and Kitt had with a white gun handle. Kitt also Craft, acknowledged a police officer that he had seen Goode and the together appellant prior commission of crime. Knight was called as a Mrs. witness in the instant case, but objection, her was upon testimony ruled inadmissible. We find that there was not sufficient corroboration of the tes- must, conviction. We sustain the accomplice timony therefore, remand the case for and shall reverse the judgment a new trial. trial, deemed for a new it is the case is remanded
Although other contentions. to consider certain appellant’s advisable JEOPARDY DOUBLE in jeopardy. that he was twice placed contends first, that grounds: “jeopardy This on two contention based returned indictment” attached at the moment of the subsequent State, supra, Schowgurow him after the decision against and, second, his trial in he first placed jeopardy resulting grant- Baltimore County, Court for Circuit *11 the form trial murder because of ing charge of a new on the jury. of the verdict set proceedings accused in criminal rights the of an Among of the United forth in Amendment V to the Constitution States * “* * be for the same offense is that no shall person subject * * in life or limb This provi to be twice put jeopardy be to state court prose sion held to yet applicable has not as been Fourteenth Amend the Process Clause of the cutions under Due 5 State, State, 580; 2 Md. 230 Md. v. App. ment. Ruckle v. Gee However, in double protection against jeopardy Maryland, v. the common way Barger, available law. by State 616; State, in Md. 297. In App. Smith Hoffman the 434 the Court of stated com Appeals it: mon and meaning adopted law that nothing
“At common law it meant more than final where there had been a verdict either of acquittal conviction, indictment, on an adequate defen- in not dant could be a second time placed jeopardy offense.” for the particular posed in issue was Cichos v. S. 87 S. Ct. U. Supreme it, dismissing writ of not reach but Court did improvidently granted. Rehearing U. was denied. 385 certiorari as Adams, Appeals In 344 the Court of S. 1020. State prohibition jeopardy of double Fifth Amend- said that process requisite of due under Fourteenth
ment was not a Amendment. record, Hoffman, following were proceedings entered of 430: here, said that after to the court appears
“[BJecause sworn, the said had been and the above indict- jury them, charged ment had been read to had been they here, usual the clerk of the court several way witnesses for been in attendance up who had absent, to that had been be period, discovered to that after the next the said wit- adjournment day, absent, nesses were still which said witnesses had been duly summoned and put under for their security pres- case, ence in court the trial of upon attach- against ments them been and returned having issued ‘non no statement having been made or evidence estf case, therefore, to the offered the said jury order here, of the said court the said are jury discharged, and are wholly from discharged any verdict of giving and upon premises in the above mentioned said case » * * * The defendant objected discharge of the and moved jury the court him the he not discharge ground could be put twice for the same com- jeopardy Applying the offense. mon law meaning, held he was “for the same limb,” offense twice life or put jeopardy of and that the dis- court, charge being a matter of jury, discretion of the trial *12 was not a subject of review on a writ of error. The defendant based his the contention on double jeopardy clause of the Fifth Amendment. The did Court not discuss the applicability clause to state 14th Amendment prosecutions (The was not de- 28, clared 1868) ratified until but July interpreted the clause in accordance with the authorized exposition established its that, adoption, stating “Being transformed from a legal maxim clause, not, to a constitutional does it is apprehended, change words, the of it makes meaning although right they the guar- solemn and anty, more sacred.” p. It found that in the decisions the English of courts antecedent to the Constitution the term “twice in been jeopardy” had construed as equivalent to autre acquit autre or convict that this construe- fois fois the United Court Supreme had been followed by tion Massachusetts, and Miss- New York the courts of by States is ren- said, Thus, in until verdict no man is jeopardy issippi. as stated double meaning jeopardy law dered. The common in in Anderson was followed Hoffman in case was a criminal Court the fact that a holding jury no bar a was verdict discharged agree upon because unable to “* * * by a there was no verdict trial because subsequent ren- until been and man is in verdict has jury, jeopardy no in Robb v. dered.” was cited p. Hoffman rule against as the statement that the authority for but double is not set in the Constitution jeopardy Maryland out is in law and this a doctrine of the common applied State in the rule as set Barger, also 619 where State forth in in a “The Principle discussion of quoted Hoffman di- of Double find in this Jeopardy”. holding We no case inference law of double rectly meaning that the common as enunciated in is not now jeopardy controlling.6 Hoffman effect of the a nolle is inconsistent with entry prosequi this If common law entered without the consent of the meaning. defendant after trial has attaches because it begun, jeopardy States, 6. Downum v. United prosecu- 372 U. S. federal tion, years comparable decided one hundred after facts Hoffman contrary is holding to the in found Hoffman. placed jeopardy, jury having defendant had been dis- been charged being after selected and sworn for because witnesses prosecution absent, saying, were 736: right “At times defendant his valued to have trial completed particular tribunal summoned to sit judgment public may on him be subordinated interest imperious necessity —when there is so. an to do [How- discharge jury the discretion before ever] it has ‘only very reached a verdict is to be exercised extra- circumstances,’ ordinary striking pro- [because] Jeopardy against hibition Double Clause ‘not being against put jeop- punished, being but twice twice ” ardy.’ We not have before us and do not decide whether fact do presented today situation would afford an accused re- Hoffman lief, example, jeopardy, as, for reasons other than under double process the due Amendment. clause of the Fourteenth *13 Hochheimer, as an
operates acquittal. Crimes and Laws of Procedure, Criminal 2nd Ed. 171. For of a nolle entry § before trial prosequi State, 636; see Barrett v. 155 Md. for such entry after trial has begun see Friend v. 175 Md. great majority of the cases in this jurisdiction which the question of double jeopardy is presented involve the after a question verdict of acquittal or conviction. It has been established that an accused cannot be again after a verdict tried As acquittal. Shields, the Court said in v. State Adams, (quoted v. State 348) :
“It has always been a settled rule the law common that after an of a acquittal regular a trial party upon misdemeanor, on an indictment for either a aor felony the afterward, verdict of can never acquittal on the application of the prosecutor, form of proceed- any ing, be set aside a and new trial granted, and it mat- ters’.not whether such’verdict be the result of a mis- law, direction of the judge oh a question of or of a fact misconception of of the jury.” part Reed, also In Barger See State Md. 263. murder a accused was indicted for and found by to be
jury guilty degree. of murder in second On appeal, and for a judgment reversed remanded case new trial because the trial court in advisory erred an denying struction with regard right of the accused to assert the defense of self Following defense. remand the indicated State it intended to retry accused as if he were being tried the first time and the accused moved to dismiss the indictment on the The lower court ground jeopardy. granted of double motion “as in the first and the degree” to murder appealed, State “* * * supra. The Court held that where there Barger, State has trial regular been on a valid indictment finding first guilty degree of murder in the the accused cannot there after be tried instigation for the offense of “* * * degree first murder” the appeal of a granting new trial did not have the effect of waiving question 625-626, double as to first jeopardy degree murder.” pp. reaching decision the Court three cited cases as sufficient *14 has been law rule as it con illustrate the effect of the common Shields, supra; v. Coch sistently in this applied State—State Rosen, State, 539; Md. v. 181 167. ran v. State indictment and been on a each the accused had valid acquitted rule double Although against further was barred. prosecution offense a trial for same when forbids second jeopardy also convicted, State; Md. this Gilpin accused v. 142 was retrial reversal upon does not on remand preclude granted Williams, Md. v. 5 82. So judgment State appeal.7 See be held could supra, Barger that Barger, in v. the Court State Whether manslaughter. or degree murder again tried on second outstanding when that there is no conviction the rationale be is accomplished by is or that a waiver judgment reversed a judg when he procures affirmative action of the defendant set be aside on appeal, ment him to reversed against consistently this have permitted Court Appeals cases in tried a reversal. Other again upon the accused to be are of double has been question presented which jeopardy If has tried on a with the rule. an accused not been consistent indictment, has not in be put valid he been jeopardy may State, Md. The same is true again. Kearney tried v. 48 State, 81 Md. trial on invalid information. v. an Stearns 728, 729; Warden, 341, 347; Md. ex rel v. 192 Shatzer State, is each of Kear Basta v. Md. 572. It noted that Stearns, Defective de ney, and Basta cited Shatzer Hoffman. Eggleston in do one linquent proceedings jeopardy, not place State, authorities for by prison Punishment State, is no Ford v. escape. bar for escape prosecution a magis Md. 266. at a before Discharge hearing preliminary Wampler v. trate does not bar a War subsequent prosecution, den, 231 A Md. 639. in court for prosecution magistrate’s minor, that contributing to the of a which court over delinquency had exclusive was no bar to a cir jurisdiction, prosecution cuit court over which the had statutory rape, magistrate no Bennett v. Md. 208. jurisdiction, put Gilpin 7. In accused twice the Court found conspiracy jeopardy rob was tried and convicted of when he being acquitted robbery after at a former trial of of the same person separate were and distinct. the offenses determined that law Having of double meaning common State, supra, as stated in jeopardy, controlling Hoffman in Maryland, it to first apply we the facts before us. Clearly ground urged by his appellant to contention support he was twice he was put jeopardy—that placed jeopardy at the moment the second was returned him indictment against —is without merit. At that time he had not been brought indictment; trial under the first had he not been once even placed And if jeopardy. even he had been tried previously under invalid, the first indictment which he elected to declare would not have jeopardy attached. App. Sadler *15 The factual situation with to his regard ground—that second he was in placed at jeopardy his first trial—is at that the jury that trial a returned verdict guilty of on the murder indict- ment without whether specifying it was murder in the first or second was degree and without discharged so The finding. ques- tion is whether the verdict one was a final or con- acquittal viction. The verdict was not to Md. pursuant Repl. Code (1967 27, Vol.) Art. 412 which provides on a finding person § * “* * murder, guilty the shall jury ascertain in their ver- ** *,” dict whether it be murder in the first or second degree therefore, was, Sutton, 387, and v. In 4 Gill improper. State counts, first indictment contained two for and second rape jury, finding assault with intent to and the no rape making count, on the first rendered a of guilty verdict on the second count. The court the defendant discharged lower and the State found, verdict, sued out a writ of error. Court “This there- ill, books, fore, and should been in of the was have language agree It not with the course set aside did p. Court.” judgment discharg- court in pursued arresting the lower accused, stating, 391: ing correctness, verdict,
“It said with a cannot be nullity, which in is a could legal contemplation jeop- * * * a ard the life limb of The verdict was party. ascertained, and the matter issue not as imperfect, thereon, that the Court could render any judgment a and therefore was mis-trial. County should the Court discharging prisoner; erred venire novo.” a de awarded have Court, 514, State, that the statute noting Ford v. murder, conviction of ascertain that the on a jury,
required degree, it murder in the first or second whether be their verdict said, sufficient, at “guilty” found that a verdict 549: law, has no valid
“In there been eye verdict; must and, a there consequence, sufficient State, is not like Cochrane be a new trial. This case a new to find necessity where there was indictment, which the defect the one on because of there and tried. In this case arraigned the accused was indictment, can and the be defect party no Sutton, Gill, it, 494. This tried as in again mistrial, de be was a and a venire novo must awarded.” declared the ver- Md. the foreman In Williams degree. murder in the first On guilty dict of the to be jury without responded guilty specify- each jury, juror poll a null- The Court held the verdict of murder. ing degree is a said, on the poll verdict rendered It ity. “[T]he verdict, must and award and we reverse judgment defective In Price v. returned jury a new trial.” find- of murder in the first without a guilty degree a verdict of *16 which had sanity the issue of been ing on raised.
said, 500: p. in is for indispensable
“As the crime of murder it in for the court to know degree to find the order jury where, be so may given, what sentence or judgment indictment, is taken on it insanity, after the defence made statute similarly requisite by party’s alleged at the time of the offence sanity both trial found a sentence or must be verdict before be judgment passed.” may held,
It 503 : fatally incomplete given
“On the verdict in ap- trial jurisdiction at bar the court had no peal pro- which, ceed to a judgment, a being nullity, no bar trial, to a second and the judgment entered should be reversed and the case should be remanded for a sec- ond trial under a writ of venire de novo.” facias We hold that the verdict of the jury on the murder indictment at the first trial was a appellant and the nullity appellant was not either thereby convicted or of murder in the acquitted first or second There degree. being no final verdict either of conviction, acquittal the appellant was not put jeopardy was, therefore, at that trial and twice in put jeopardy by retrial, the first and will not be put twice re- jeopardy by trial for murder on remand upon our reversal of the judgment of the second trial. OP
STATEMENTS THE APPELLANT At the trial Craft testified that when the returned appellant to the automobile after the crime he said he over the bag put afterwards, license and shortly Kitt preventing from shoot- * * * Goode, ing said that “it wasn’t sense in him any shoot- ing him.” The appellant claims it was error to allow this testi- mony because those statements had not been furnished in answer to his motion for We think the state- discovery. ments were not such “oral statements” as to be within pur- view of Maryland Rule 728 and were not inadmissible State, reason urged. Barton v. App. OF THE ARREST
THE LEGALITY if arrest We need not decide was with- appellant out cause as he contends. sufficient No “fruits” of the probable against arrest were him and if the admitted evidence even' not, itself, arrest were that does and of illegal, preclude State, trial Hutchinson or vitiate a conviction. 1 Md. App. 362; 304; Nadolski v. Powell v. App. App. A CONVICTION OF CO-DEFENDANT
THE alleges that when called trial in Baltimore *17 to murder in the guilty Goode second City pleaded degree that, that the was the court. He contends plea by trial accepted this, he in the view of should not be convicted of murder first the degree, pulled since Goode was the one who especially and, the ex- cites no we doubt trigger. appellant authority, any, istence of this If it had merit its support contention. logical extension would be that the of a acquittal co-defendant require would the of all other co-defendants. At best acquittal it would trier preclude the of facts from an deter- independent mination of the case before it. We note that neither the fact of nor Goode’s conviction of the witnesses examined testimony in order to determine by the court Goode’s confession upon 27, Code, 412 were of murder as Art. degree required by § The contention for appellant’s offered evidence trial. State, 2 this reason has merit Johnson v. alone no on appeal. But any event we do not think such App. stage proceed- evidence would be admissible at the guilt if ings The fact of the conviction or one proffered. acquittal with a crime is neither relevant nor material person charged charged another person innocence of guilt to the issue of the Contrary posi- crime as a co-perpetrator. with the same feel that the admission of evi- tion taken we appellant, at a trial would prior dence of a of the conviction co-defendant be error. prejudicial OP MIRANDA
THE APPLICABILITY 7, was held on March The first trial of appellant and March in a verdict of the resulting jury murder as set forth and indictment hereinbefore convictions In af- with a robbery attempted robbery deadly weapon. offenses, judgments on the we found firming robbery statement of the admitted in We appellant properly evidence. and that voluntarily given freely had been held Arizona, in Miranda U. S. standards enunciated Miranda is not applicable were not decided June State, 2 Md. 93-97. Because of App. Boone retroactive. charge, murder on the verdict defective that offense on motion made respect a new trial with granted Miranda, to the decision was subsequent The retrial him. *18 trial, the court that and at that lower held the statement was inadmissible because Miranda was then and its applicable pro- cedural had not been observed. The safeguards question whether the Miranda as the warning requirements, prerequisite for statement, a admissibility although freely otherwise and vol- made, are to be retrials untarily applied to after occurring June cases that were 1966 of tried on valid indict- originally ment to that decision has prior not been determined Court of and is a matter of Appeals first this impression before Court. the case
We feel it neither
nor reasonable that
should
logical
trial,
rule,
first
mak-
be retried under a
not
at the
prevailing
trial,
statement,
first
inad-
ing
which was admissible at the
interest
missible on retrial. We think it not in the best
of pub-
Miranda
fair-
justice
lic
to be so
Fundamental
applicable.
defendant,
ness
to
only
flows both to the
and to a
one to the
it is
feeling,
necessary
exclusion of
other. So
Miranda
to determine whether we are precluded
holding
from
us, and
here before
to
under the circumstances
be inapplicable
v. New
corners of
the answer lies
four
Johnson
within
Johnson,
Court, called
the Supreme
384 U.
Jersey,
719.
S.
determine whether Miranda
also
upon
(and
Escobedo
Illinois,
held
retroactively,
should be
478)
applied
378 U. S.
“* * *
the trial
to cases in which
applies only
that
Miranda
* *
of our decision
1966.
after the date
began
June
“All
was restated
holding
throughout
opinion.
721. The
p.
Mi-
making
above for
Escobedo
of the reasons set forth
decisions should ap-
that those
suggest
randa nonretroactive
were announced.”
the decisions
after
begun
to trials
ply only
after the
trials
only
begun
“Prospective application
p. 732.
p.
here.”
appropriate
is particularly
announced
standards were
considerations, we con-
these additional
“In
light
cases
Miranda
apply only
should
clude
Escobedo
“This
were announced.”
p.
decisions
after those
commenced
guidelines),
down additional
(laid
in Miranda
we have done
only
persons
are therefore available
guidelines
and these
734. We
1966.”
begun'as
had not
trials
whose
June
once the
the word “commenced”
by using
cannot conclude
than it intended when
significance
a different
Court intended
it used the words
or
“began”
“begun.” “Begin”
defined in
Webster’s Third New International Dictionary of the English
1968, as “to
Language, unabridged,
perform or execute the first
action,
“commence”,
of an
part
or
activity
procedure”
given
thereunder,
explanation
“show occurrence or performance
therefore,
definition,
of first
stages.”
steps
does not pre-
clude, but rather
an
supports,
inference that a case coming up
for retrial on the
granting of motion or a reversal on appeal
“began”
the first trial where the occurrence or performance
*19
of the first
steps
stages was
We think
shown.
that the lan-
used
guage
does not
us
compel
to close our eyes to the fact
that the trial of the appellant
began
actually
to Miranda
prior
that,
considered,
for the
here
purposes
the second trial for
the same
facts,
offense and on the same
as an incident to the
of the
granting
verdict,
motion because of the defective
simply
amounted
ato
continuance of the same case
toward a
looking
final judgment
context,
of either acquittal or conviction. In
we
take “began,” “begun” and “commenced” in Johnson to refer
to those
only
trials in which the defendant was
called to
first
trial after the stated date.
We are inclined toward this view
the failure
of the Court
“* * *
find any persuasive reason to extend
Escobedo
Miranda
decisions,
to cases tried before those
even though the
“* * *
cases may be on direct appeal”, it being
clear that there
are no jurisprudential or constitutional obstacles to the rule
* * *”
Johnson,
adopted
384 U.
at p. 733. As was
S.
said
Vigliano,
State v.
peal, suddenly have become on retrial applicable rules, after a reversal for reasons such foreign to seems us illogical. to be We think that completely Court Supreme did not so intend. v. Vigliano, 232 A. 2d See State 129 (N. J. 1967). We believe language discussing said, holding its is also It significant. 384 U. 732: S. "Future will benefit fully from our new defendants standards governing in-custody interrogation, while past still may avail themselves of the vol- defendants untariness test. Law enforcement officers and trial will courts have fair notice that statements taken in violation of these standards may be used against an accused. Prospective application only trials begun after the standards were announced is particularly ap- propriate Authorities here. attempting to protect have privilege not been apprised heretofore of the spe- cific safeguards which are now obligatory.” (emphasis supplied)
We also find support our view in the reasons of the Court for its holding. It listed its three'factors de- influencing standards; cision : the of the Miranda purpose reliance on pre- *20 rules; Miranda and the effect the administration of the that, criminal laws. It noted although the prime purpose “* * * full of rulings guarantee Miranda to effectuation * * * the they encompass self-incrimination privilege against in is not as danger necessarily great situations which the as when the to and obvious subjected accused overt coercion.” Thus, in the Miranda the absence of 384 U. at 729-730. p. S. * * “* test may invoke substantive safeguards, the accused which, has because of abusive be- practices, of voluntariness the in- years.” meticulous the through So coming increasingly as im- is not finding process substantially of the fact tegrity stages case, of trial and convictions at various instant regard factors of reliance and burden review. the direct We justice as entitled to such over- on the administration unsupport- significance riding to make that distinction as able.” 87 at Ct. S.
35 has been other of its decisions. It by Miranda by proved relying law enforcement officers had been on pre- found and that retroactive obtaining ap- Miranda rules in confessions effect of error justifiable curing would not have plication disregard clearly committed constitutional rulings already It felt that Miranda foreshadowed. retroactive application * “* * seriously disrupt would administration of our crim- inal of those various light laws.” 384 U. S. Miranda be applied considerations it concluded that should not effect similar to that of a retroactively. presence disrupting considered Court as well as Supreme import by criteria, other two reinforced of the Court language its direct stating holding and exclusion of cases which decision, were to appeals at the time of the leads us pending Mi- conclude that we are Johnson to apply not compelled randa to retrials such one before us. pr^-Miranda as the rules, Escobedo, were avail- including those announced find- able of the fact to protect integrity his retrial would ing Holding Miranda process. applicable be incon- significant effect no therein and would improvement sistent with the intention apparent Supreme give cases in the trial uniformity began which stability People before Worley, the date of that decision. v. 227 N. See 2d 746 (1967). E. dis with jurisdictions question
Other
have considered
re
that the Miranda
parate
following
results. The
cases held
v.
230 A.
quirements do not
retrials: Jenkins
apply
;
People
2d
227
2d 746
Worley,
(Ill.)
262
v.
N.
(Del.);
E.
;
v.
232 A. 2d
Commonwealth v.
Vigliano,
(N. J.)
State
129
Co., Pa.),
Pa. D. & C. 2d
1 Cr.
Brady,
(Crawfford
Law
1967). Contrary
cases are: Gibson v.
Rep.
(17 July
States,
Brock,
(5th
1966);
2d
v.
United
363 F.
Cir.
State
601;
v.
People
101 Ariz.
416 P. 2d
P. 2d
Doherty, 429
Ruiz,
Contentions of the before not herein appellant, properly of, disposed are not considered view of our reversal of the judgment. to this Court the ap- submitted
Various documents were Brief,” entitled “Supplement pellant proper person Al- “Additional Brief.” “Amendment to Supplement” filing reply Rules for though Maryland provide brief, sup- is no for provision filing Rule 1030 there in the amended briefs. The contentions additional or plemental, us and various documents submitted are not before properly we them. do not consider reversed; case remanded
Judgment trial. a new Thompson, J., dissenting: the result of the decision majority I concur with
Although standards of voluntariness required by I cannot that the agree Arizona, 86 Ct. Miranda v. 384 U. S. L. S. Ed. to a retrial of this case. The majority 2d 694 will not apply New Jersey, Johnson v. 384 U. Ct. interprets S. S.
37 1772, 882, 16 2d L. which held that Miranda would not Ed. 13, cases apply to to trial brought before 1966 to refer to June original trials and not only to retrials. Johnson, Court had It Supreme several alternatives. could, course, have the classic applied doctrine of Gideon v. 335, Wainwright, 792, 372 U. 83 S. Ct. 9 2d S. 799 Ed. L. (on to right that a counsel) court’s decision is retro completely active; or it could have applied the same rule it had applied in Walker, 1731, 618, Linkletter 381 U. 85 Ct. 14 S. S. L. 601, 2d Ohio, which held 643, Ed. that Mapp v. 367 81 U. S. 1684, Ct. 6 S. L. 2d 1081 (on Seizure) Ed. & was ap Search plicable to all cases in which a state court decision had not be come final prior announcement Mapp; or it could have applied the rule Denno, subsequently applied Stovall 293, 388 U. S. Ct. which S. held that United States Wade, 388 U. 87 Ct. S. 1926 and Gilbert v. California, S. U. S. Ct. S. (on line-ups) were applicable only to line-ups conducted after the announcement of Wade Gilbert.
Instead of applying any these rules Johnson adopted middle ground, which permitted to introduce prosecutor not confessions that had been rules, procured violation of Miranda but at the same time did not disturb trials. It seems completed apparent the Supreme Court did not adopt Stovall rule because it regarded improper confessions as more serious than improper line-ups; and it did not rule adopt Gideon because it regarded improper confessions less than a seriously trial without counsel.
All of the its re- reasoning adopting rule on majority’s trials is equally trials in- applicable subsequent pursuant 13, 1966; dictments filed before yet, they go do not so far. June I quite agree that should so far because such a they go hold- ing would be Johnson. I contrary express language of think that it is clear that Miranda to a retrial applies equally as well as an trial after original date. magic majority of the members reject of this court the views of the majority of the courts cases by stating, language, curious that these majority opinion. cases collected See little, if we do any,
“contain discussion of problem are merely not find them of the courts persuasive.” majority therefore, Johnson; carrying they out the directions laid down feel little discussion Those the con- necessary. applying doctrine do discuss it at are trary length they because trying avoid obvious. of,
If the if give, could I could think majority one reason Miranda why apply should not to retrials which is not equally *23 to a trial under an indictment applicable filed prior June reason, I would with them. there agree is no such Since I must dissent. RANDOLPH AND
WILLIAM FREY GEORGE OF EDWARD PEYTON STATE MARYLAND 83, September Term, [No. 1967.]