Avey v. State

Thompson, J., delivered the opinion of the Court. On October 21, 1965, Bradley Arlington Avey, the appellant, was convicted on two charges of assault with intent to murder two police officers who interrupted a storehouse breaking. He was also convicted of the breaking. In Avey v. State, 1 Md. App. 178 , 228 A. 2d 614 , we affirmed the convictions but the Court of Appeals granted certiorari to consider the trial court’s instructions as to the effect of drunkenness on the ability of the accused to form the specific intent required for these crimes, and reversed the convictions, Avey v. State, 249 Md. 385 , 240 ²³⁰ A. 2d 107.

Avey was again convicted of the two charges of assault with intent to murder and was sentenced to consecutive 12 year terms, after a jury trial in the Circuit Court for Prince George’s County. The testimony at the second trial was not as complete as at the first trial, but the essential facts are as set out in the prior reported opinions. We will not repeat them here, except as necessary to discuss the particular issues raised. Avey raises seven contentions: I “The Trial Court Erred In Failing To Grant A Bifurcated Trial On The Issues Of Not Guilty And Not Guilty By Reason Of Insanity.” Prior to trial, Avey made a motion for a bifurcated trial before separate juries as to the issue of “not guilty” and the issue of “insanity at the time of the crime.” At the argument thereon, he requested a “sequential” trial asking that a jury be empaneled to first determine the guilt or innocence, and thereafter, to determine the question of insanity.

He alleges that the defense of “I didn’t do it” was inconsistent with “I didn’t have mental capacity at the time.” He relies on Holmes v. United States, 363 F. 2d 281 (CA D.C.) and Contee v. United States, 410 F. 2d 249 (CA D.C.). In Tull v. State, 230 Md. 596, 601 , 188 A. 2d 150 , the Court of Appeals construed Md. Rule 720 and Md. Code, Art. 59, § 7, as then in effect, and held the issues should be tried simultaneously. In Strawderman v. State, 4 Md. App. 689, 244 A. 2d 888 , we held there was no change by reason of the new Maryland legislation on insanity. See Md. Code, Art. 59, § 9.

In Sweeney v. State, 6 Md. App. 431 , 252 A. 2d 9 , we indicated we were not persuaded by the two District of Columbia cases, Holmes v. United States, supra, and Contee v. United States, supra, that it was necessary to have separate determination of these two questions anymore than an accused should be permitted to have one trial in which he denies that he committed a homicide, and a second one, in which he admits he did it but tenders an issue of self-defense; ²³¹ or to defend a rape case by denying the act, then have a separate trial saying that the act was performed with consent of the victim; or to have one trial in which he denies that he committed a crime requiring a specific intent, and then a separate trial as to whether or not he was so intoxicated as to be deprived of his capacity to form the requisite intent. 1 Furthermore, we note that the issues of not guilty and not guilty by reason of insanity are not necessarily inconsistent as are the examples we have cited, yet we are aware of no authority that requires separate trials in such other cases. We hold that an accused is not entitled to separate trials on the issues of insanity or not guilty, whether before the same jury, or separate juries. We cannot permit criminal trials to become so complex without compelling reasons, which we fail to see here. If an accused wishes to cite conduct at the time of the crime to support an insanity plea, he must admit the facts, just as he must admit the facts if he wishes to plead consent in a rape case.

II “The Trial Court Erred In Refusing To Dismiss Appellant’s Grand Jury Indictments And In Denying Appellant’s Motion To Challenge The Array.” Avey alleges that the following two sections of Md. Code, Art. 51 are unconstitutional on their face: § 1: “No person shall be selected and placed upon a panel as a juror who shall not have arrived at the age of twenty-five years.” And Md. Code, Art. 51, § 9: “. . . and in Prince George’s County a panel to consist of not less than four hundred (400) names, the names to be fairly and impartially selected of the age aforesaid by the said judges, ²³² with special reference to the intelligence, sobriety and integrity of such persons. . . Since the instant case was argued, the Supreme Court of the United States, on January 19, 1970, filed an opinion in Carter v. Jury Commission of Greene County, 396 U. S. 320 , 90 S. Ct. 518 , 24 L.Ed.2d 549 , which completely disposed of this issue: “On the merits, the appellants argue that the District Court erred in refusing to invalidate the Alabama statute requiring the jury commissioners to select for jury service those persons who are ‘generally reputed to be honest and intelligent. . . and . . . esteemed in the community for their integrity, good character and sound judgment. . . .’ Ala. Code, Tit. 30, § 21 (Supp.1967).” ❖ ❖ “While there is force in what the appellants say, we cannot agree that § 21 is irredeemably invalid on its face. It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors.

The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character. ‘Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.’ “Statutory provisions such as those found in § 21 are not peculiar to Alabama, nor to any particular region of the country. Nearly every State requires that its jurors be citizens of the United States, residents of the locality, of a ²³³ specified minimum age, and able to understand English. Many of the States require that jurors be of ‘good character’ or the like; some, that they be ‘intelligent’ or ‘well informed.’ “Provisions of similar breadth have been challenged here and sustained before. In Franklin v. South Carolina, the Court rejected a similar attack upon a jury-selection statute alleged by the plaintiff in error to have conferred arbitrary power upon the jury commissioners.

The pertinent law there provided that the commissioners should ‘prepare a list of such qualified electors under the provisions of the constitution, between the ages of twenty-one and sixty-five years, and of good moral character, of their respective counties as they may deem otherwise well qualified to serve as jurors, being persons of sound judgment and free from all legal exceptions, which list shall include not less than one from every three of such qualified electors . . . .’ In upholding the validity of these standards, the Court said: ‘We do not think there is anything in this provision of the statute having the effect to deny rights secured by the Federal Constitution. . . . There is nothing in this statute which discriminates against individuals on account of race or color or previous condition, or which subjects such persons to any other or different treatment than other electors who may be qualified to serve as jurors. The statute simply provides for an exercise of judgment in attempting to secure competent jurors of proper qualifications.’ “Again, in Smith v. Texas, we dealt with a statute leaving a wide range of choice to the commissioners. Yet we expressly upheld the validity of the law.

The statutory scheme was not in itself unfair; it was ‘capable of being carried ²³⁴ out with no racial discrimination whatsoever.’ •“No less can be said of the statutory standards attacked in the present case. Despite the overwhelming proof the appellants have adduced in support of their claim that the jury clerk and commissioners have abused the discretion that Alabama law confers on them in the preparation of the jury roll, we cannot say that § 21 is necessarily and under all circumstances invalid.” III “The Trial Court Erred In Instructing The Jury That They Were The Judges Of The Law As Well As Of The Facts.” Avey contends that Art. XV, § 5 of the Maryland Constitution providing that “in the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact . . . violates the due process and equal protection clause of the Fourteenth Amendment of the Constitution of the United States. The same argument was made in Avey v. State, supra, and was rejected by this Court. In Lewis v. State, 2 Md. App. 678, 685 , 237 A. 2d 73 , we considered the question in more detail and again rejected the contention.

We reiterated the holding in Sizemore v. State, 5 Md. App. 507 , 248 A. 2d 417 , Phillips v. State, 6 Md. App. 56 , 250 A. 2d 111 , and Holbrook v. State, 6 Md. App. 265 , 250 A. 2d 904 . Although there is some logical argument to support the appellant’s argument, there is a dearth of authority to support it. He cites only United States v. Battiste, Fed. Cases No. 14, 545 (1835) (24 Fed. Cases 1042, 1043). We think the sparseness of authority to support the argument indicates that the logic is more academic than real, i.e. that this argument is supported more by academic arguments than by practical ones, and if Maryland desires to continue its quaint colonial custom, there is no constitutional reason why it should not do so.

The life of the law is experience not logic. IV “The Trial Court Erred In Refusing To Strike ²³⁵ The Order Of Court Allowing The State To Peruse The Keeords Of Clifton T. Perkins State Hospital.” After Avey filed a plea raising the defense of insanity under the new test set forth in Md. Code, Art. 59, §§ 9-12 (Effective June 1, 1967), the trial court, pursuant to § 9 thereof, ordered that Avey be sent to the Department of Mental Hygiene for reexamination. Thereafter, the State’s Attorney for Prince George’s County alleged that the Department of Mental Hygiene would not permit him to review the records without an order of court, and that he needed to make such an inspection in order to prepare the case for trial; whereupon, the trial court signed an ex parte order permitting such an examination. Avey, upon learning of the signing of the order, moved that the order be stricken, claiming it was a violation of several constitutional rights including the Fifth Amendment of the Constitution of the United States.

Although his brief does not make clear whether or not he also contends on appeal the order violated Md. Code, Art. 35, § 13A which, with certain exceptions, makes communications between a patient and a psychiatrist privileged, his reply brief makes clear the only point now pursued is that the order violated his right to avoid self-incrimination under the Fifth Amendment of the Constitution of the United States and Art. 22 of the Maryland Constitution. He alleged that the order violated the spirit of Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 and Mapp v. Ohio, 367 U. S. 643 , 81 S. Ct. 1684 , 6 L.Ed.2d 1081 citing Shepard v. Bowe, 442 P. 2d 238 (Oregon, 1968). There is no need for us to discuss the application of any of the cases, either with a view towards their literal or spiritual effect. No principle of constitutional construction is better established than that a court will not pass upon such question unless it is clearly presented by the record.

Citation of authority seems hardly necessary; see, however, Dayhoff v. State, 206 Md. 25 , 109 A. 2d 760 , Wethington v. State, 7 Md. App. 79 , 253 A. 2d 523 . Avey does not point to ²³⁶ any evidence or information which the State’s Attorney gleaned from perusing said records that would be helpful to him on a trial on the issue of guilt or innocence. Reference to Avey v. State, 1 Md. App. 178 , 228 A. 2d 614 discloses that at the prior trial of this case, the defense produced one psychiatrist who testified that Avey was insane at the time of the offense, and that at one time the state’s psychiatrist was of a similar opinion, which he changed after further examinations. With this background, it seems apparent the State’s Attorney quite legitimately wanted to make an examination of whatever records were available at the hospital in order that he could be thoroughly familiar with any evidence that would likely be produced pertaining to the issue of insanity. 2 In view of the thoroughness in which the facts were brought out at the prior trial, by both the State and the defense, it seems most unlikely the State’s Attorney could have gleaned any helpful information on the issue of guilt or innocence.

Since no improper use of the records was shown, we reject the contention. V “The Trial Court Erred In Failing To Suppress All Evidence Obtained As A Result Of An Illegal Arrest.” This question was raised in the prior appeal and we disposed of it in the following manner: Avey v. State, supra, 1 Md. App. 178, 185 , 228 A. 2d 614 : “The trial court found that the arrest did not occur until after Avey had voluntarily gone to the Air Police Operations Office and voluntarily gone to the Prince George’s County Hospital for treatment. There is ample evidence to support the finding. After the bullet wounds were observed, no one could contend that the officers lacked reasonable grounds to believe a felony had been committed and that Avey was the felon.

We hold that after Detective Ross observed the ²³⁷ hole in the left glove and remembered that Avey had held his hand between his knees enroute to the Air Police Operations Office, there was ample grounds for an arrest at any time thereafter, if not before, McChan v. State, 238 Md. 149 , 207 A. 2d 632 ; Hewitt v. State, 242 Md. 111 , 218 A. 2d 19 .” The evidence offered at the second trial on the issue of