Bartholomey v. State

⁵⁰⁷ Barnes, J., delivered the opinion of the Court. The appellant, Joseph James Bartholomey, was indicted by the Grand Jury for Wicomico County in several indictments, four of which were removed from the Circuit Court for Wicomico County to the Circuit Court for Charles County for trial. In the latter court these four indictments for the crimes indicated received the following numbers: No. 3278 charging escape from the Wicomico County Jail; No. 3282 charging assault with intent to murder Ralph Pusey; No. 3284 charging murder of Albert Kelly; and, No. 3285 charging murder of Samuel A. Graham. The jury found the appellant to have been sane on December 8, 1968, the time of the commission of the crimes charged and guilty in all four cases.

The lower court (Digges, C. J.) sentenced the appellant in No. 3278 to a term of imprisonment of 10 years to begin at the conclusion of the sentences imposed in Nos. 3284 and 3285; in No. 3282 to a term of 10 years to run concurrently with the sentence imposed in No. 3278 and to begin at the conclusion of the sentences imposed in Nos. 3284 and 3285; and in each of cases Nos. 3284 and 3285, the appellant was sentenced to death by the administration of lethal gas. The appellant filed timely appeals from these judgments and sentences which, pursuant to Code (1970 Cumulative Supp.), Art. 5, § 5A, came to us rather than to the Court of Special Appeals inasmuch as they involve a death sentence. All of the crimes charged arose out of events occurring on the evening of December 8, 1968, at the Wicomico County Jail. This jail is situated on the top floor of the Court House in Salisbury, Maryland.

On that evening at approximately 10:00 P.M. the appellant, who was detained at the Wicomico County Jail on warrants charging him with assault and robbery, escaped from the jail in the course of which he shot and killed Sheriff Samuel A. Graham and Deputy Sheriff Albert Kelly. He also shot at Ralph L. Pusey, who was present at the jail to talk to Sheriff Graham about being deputized as Deputy Sheriff, but fortunately the bullet did not hit Mr. Pusey. ⁵⁰⁸ As its first witness at the trial, the State offered the testimony of Peter Boolukas, M.D., a qualified pathologist at the Peninsula General Hospital in Salisbury. Dr. Boolukas testified that he performed an autopsy on the bodies of Sheriff Graham and Deputy Sheriff Kelly on December 9, 1968. He testified that Albert Kelly died as a result of a gunshot wound in the skull and in addition to this wound, the victim had a gunshot wound in his left chest.

He further stated that Samuel Graham died as a result of a gunshot wound in the left chest. Two bullets were recovered from the body of Albert Kelly and four bullets were recovered from the body of Sheriff Graham. All six bullets were delivered to the Maryland State Police ballistics experts for their analysis. The State next offered evidence through John Walston, Chief Deputy Sheriff for Wicomico County, that he was in charge of the Wicomico County Jail on December 8, 1968, and that the appellant Bartholomey was being held at that jail on that date upon warrants charging the appellant with assault, receiving stolen goods, grand larceny, and breaking and entering.

These warrants were duly admitted into evidence as exhibits for the State. Donald Leon Dashiell, an inmate in the Wicomico County Jail on December 8, 1968, as a result of a 30-day sentence resulting from a conviction for assault, testified that at approximately 9:30 P.M. on that date he was sitting at a desk with Deputy Sheriff Kelly in an area adjacent to the cell block in which the appellant was confined in Cell No. 1. At that time, Deputy Sheriff Kelly approached Cell No. 1 with the intention of locking up the prisoner for the evening when Dashiell saw the appellant with a gun. Dashiell ran to the living quarters of Sheriff Graham which are located in an apartment adjacent to the jail.

At the direction of Deputy Sheriff Kelly, Dashiell closed the cell block door prior to seeking assistance from the sheriff. After telling Sheriff Graham that the appellant was attempting to escape and that Deputy Sheriff Kelly was in the cell block, Sheriff Graham told Dashiell to get help, whereupon Dashiell entered the ele ⁵⁰⁹ vator adjacent to the cell block area in an effort to obtain help. As he entered the elevator, he heard shots. He then observed Deputy Sheriff Kelly fall to the floor and Sheriff Graham standing in a corner by the cell door as the door of the elevator closed.

Dashiell then testified that he heard additional shots from the area of the cell block as he travelled on the elevator from the third floor to the basement of the Court House. Dashiell also stated that at the time he saw the appellant with a pistol, he was standing some seven feet from the appellant and Deputy Sheriff Kelly. The next witness for the State, Ralph A. Harmon, who was confined in the juvenile section of the jail on December 8, 1968, testified that there was some firing and that Kelly fell across the doorsill and Graham fell back up against the wall after which he saw the appellant emerge from Cell No. 1 with a pistol in his hand. Harmon testified that he saw no other prisoners in the hallway adjacent to Cell No. 1 at the time of the shooting.

Ralph L. Pusey next testified for the State. He was in Sheriff Graham’s living quarters on December 8, 1968, discussing with the sheriff about being deputized as Deputy Sheriff. After drinking some coffee, he talked with Deputy Sheriff Kelly and then went down to the trusty’s cell. He heard a gunshot, then another shot.

When he stepped out into the hallway, he saw Deputy Sheriff Kelly lying on the floor and Sheriff Graham lying against the door. He started to run whereupon the appellant stepped from around the corner and fired an errant shot at Pusey which hit the elevator door. Pusey then ran into the elevator and closed the door to prevent the appellant’s escape. Pusey stated that the weapon he observed in the appellant’s possession was a .22 caliber pistol.

Vincent D. Horsey was an inmate on December 8, 1968, in the same juvenile cell as that occupied by Ralph Harmon. Horsey testified that he heard the appellant tell Deputy Sheriff Kelly to “Open the door” and threaten to kill him. Horsey subsequently saw the appellant reach around the door and fire his gun; he heard approximately six ⁵¹⁰ shots fired from a .22 caliber pistol which he had observed in the appellant’s possession. Detective Sergeant Robert D. Weir of the Maryland State Police testified that based on information obtained from David Hudson, a friend of Bartholomey, he notified the Delaware State Police that the appellant was an occupant of a motel on Route 13, Dover, Delaware.

He notified the Delaware State Police on December 9, 1968, that the appellant was at the motel under the assumed name of John Davis. Officer Irving Little of the Delaware State Police testified for the State that he was a member of the team of police officers who surrounded the Capital City Motel in Dover, Delaware and apprehended the appellant there on December 9', 1968. A .22 caliber pistol was recovered from the room occupied by the appellant, the pistol having been placed in an air conditioner in the room. The six bullets removed from the bodies of the victims had been taken to the Maryland State Police Headquarters at Pikesville, Maryland for analysis by the ballistics expert, Russell M. Wilhelm.

Mr. Wilhelm testified that the .22 caliber pistol recovered from the motel room in Dover was the gun which fired the bullets which killed Sheriff Graham and Deputy Sheriff Kelly. At the conclusion of the State’s case, the appellant moved for a judgment of acquittal which was denied by the trial court. The appellant then produced nine witnesses, three medical experts, and six lay witnesses. The six lay witnesses, his mother, his father’s second wife, his sister, a former girl friend, his aunt and a guard at the Maryland Penitentiary testified in regard to the appellant’s erratic behavior during his early youth and his attempts to commit suicide.

The three medical experts testified in regard to their opinion relative to the appellant’s mental condition on December 8, 1968. Dr. Norman H. Bradford was of the opinion that on that date the appellant was a paranoid psychotic; Dr. Stephen H. Kaufman was of the opinion ⁵¹¹ that the appellant was suffering from a mental disease on that date which he characterized as paranoid schizophrenia which resulted in the appellant’s lack of capacity to appreciate the criminality of his act and to conform his conduct to the requirements of the law; Dr. Stanislav Groff also was of the opinion that on that date the appellant was a paranoid schizophrenic who lacked substantial capacity either to appreciate the criminality of his acts or to conform his conduct to the requirements of the law. All three medical experts testified to the extent of their examination of the appellant and the criteria they used in reaching their respective opinions. The appellant, himself, testified on his own behalf.

He stated that he believed that all police officers, judges and people working for the State were Communists who were conspiring to kill him. He testified that the Communists and Chinese were plotting to take over the world and that he had heard voices directing him to resist the plot and, in effect, to kill the aggressors. After reading a prepared speech to the jury, the appellant, on cross-examination, testified : “Q. Were you also instructed to eliminate Samuel Graham and Albert Kelly? A. I am instructed to eliminate all Communist agents. “Q. Well, did you eliminate Samuel Graham and Kelly?

A. Yes, I did. I eliminated him thoroughly.” At the conclusion of the appellant’s case in the lower court, the State produced two medical experts in rebuttal. Dr. Robert H. Sauer, a psychiatrist and former staff member of the Clifton T. Perkins State Hospital (Perkins), who had participated in a staff conference for an evaluation of the appellant, testified that in his opinion the appellant was an “antisocial personality with drug dependence” but that in his opinion the appellant was not on December 8, 1968, suffering from a mental disease or defect of such severity that he lacked substantial capacity to appreciate the criminality of his conduct or to con ⁵¹² form his conduct to the requirements of the law. After cross-examination by counsel for the appellant, the records of Perkins in regard to the appellant’s psychiatric evaluation were received into evidence.

The final witness in rebuttal was Dr. Herman Riener, a psychiatrist and the clinical director at Perkins, who testified that he was the chairman of the staff conference which evaluated the appellant on March 26, 1969. He was also of the opinion that the appellant on December 8, 1968, did not suffer from a mental disease or defect of such severity as to cause him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. On cross-examination Dr. Riener acknowledged that he did not have the Maryland State Police reports in his possession when the Perkins staff evaluation was made. He further testified that in his opinion the appellant had a tendency to malinger mental disease, despite the fact that he concurred in Dr. Sauer’s diagnosis.

At the conclusion of the entire case, the appellant again moved for a judgment of acquittal. Upon this being denied, the issue of the sanity of the appellant at the time the offenses were perpetrated as alleged in the indictments as well as the appellant’s guilt or innocence, was submitted to the jury in a comprehensive and careful charge to the jury, about which we will comment more fully later in this opinion. After the arguments of counsel, the jury deliberated and on October 8, 1969, found the appellant to be sane when the offenses occurred and guilty on the four indictments as above set forth. The jury was polled on each finding.

The trial court did not immediately pass sentence but ordered that a pre-sentence report be made. A motion for a new trial filed on behalf of the appellant was argued on October 29, 1969, and was denied by the lower court on that day. The judgments and sentences already set forth were imposed by the lower court on December 30,1969. ⁵¹³ The appellant presented seven arguments to us in his brief and at argument. These are: 1.

The imposition of the death penalty in these cases is unconstitutional as violative of the Eighth Amendment of the Constitution of the United States. 2. The appellant was never identified as the perpetrator of any of the crimes by the State. 3. The Maryland single verdict procedure violated the privilege of the appellant against self-incrimination. 4. The trial court erred in instructing the State’s Attorney as to how to frame questions to enable the State’s expert testimony to be heard. 5.

The appellant was not represented by counsel at an extradition hearing in Delaware — a critical stage in the prosecution. 6. The rebuttal testimony of the State in regard to the sanity of the appellant was insufficient. 7. The trial court erred in not instructing the jury as the appellant requested. Questions 1, 3, and 5 do not appear to have been raised below and ordinarily we will not consider such questions on appeal pursuant to Maryland Rule 885.

This, however, is a case involving the death penalty and we have decided to consider and determine all of the questions briefed and argued by the appellant before us whether or not tried and decided by the lower court. The appellant by a letter dated December 15, 1970, and received by the Clerk of the Court on December 16 after argument of the case on December 15, indicated dissatisfaction with his counsel in the case and that the appellant had several points in regard to inadequate representation. At our direction, the appellant was advised by a letter from the Clerk to him dated December 16 that the case had been argued before us the preceding day but that the appellant was given 20 days in which to file any ⁵¹⁴ additional material, including the points stated in his letter of December 15 which must be filed on or before January 5, 1971. The appellant filed his additional five points on December 28, 1970.

They are all directed at the alleged incompetence of James F. Garrity, Esquire, court-appointed counsel for the appellant and state in effect (1) that his counsel had never handled a capital case before; (2) had only visited the appellant five times before the trial so that there was insufficient opportunity to discuss some important issues with counsel in addition to the fact that he was in maximum security with a guard present and could not speak openly to his counsel; (3) that his counsel would not call certain witnesses to the stand when the appellant requested it, and failed to summon one witness which counsel said he had summoned; (4) that his counsel admitted at sentencing that he probably did not represent the appellant as best he could; and, (5) that the appellant was almost executed because his counsel thought there was an automatic appeal and stay of execution pending such appeal; the Governor, however, stayed the execution in time to prevent its being carried out. The appellant requests that his counsel be found incompetent and that a new trial be granted. The record shows that Judge Digges, on February 13, 1970, revoked his warrant of December 30, 1969, fixing the week of February 15, 1970, as the time for the execution of the death sentence. There is nothing in the record to indicate a stay by the Governor. 1.

The appellant earnestly contends that the imposition of the' death penalty in these criminal cases is unconstitutional as being violative of the Eighth Amendment to the Constitution of the United States which provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual 'punishments inflicted.” (Emphasis supplied.) In the Constitution of Maryland there are similar provisions. In Article 16 of the Declaration of Rights it is provided: ⁵¹⁵ “That sanguinary Laws ought to be avoided as far as it is consistent with the safety of the State; and no law to inflict cruel and unusual pain and penalties ought to be made in any case, or at any time, hereafter.” Article 25 of the Declaration of Rights provides: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted, by the Courts of Law.” Except for the addition of the last five words “by the Courts of Law,” which were really superfluous, the language of Article 25 is identical to the language of the Act of Parliament of 1689, 1 W. & M., Chap. 2. These provisions of the present Maryland Constitution of 1867 were part of the Declaration of Rights in the original Maryland Constitution of 1776 and have been continued intact in all subsequent Maryland Constitutions. We, and our predecessors, have construed Articles 16 and 25 of the Declaration of Rights.

Inasmuch as the Articles do not define “unusual pains and penalties” and “cruel and unusual punishments,” it is “the province of the Legislature to fix the penalty for the commission of crimes and offenses....” Kirschgessner v. State, 174 Md. 195, 198 , 198 A. 271, 272 (1988). In Delnegro v. State, 198 Md. 80, 88, 89 , 81 A. 2d 241, 245 (1951), our predecessors construed the words: “cruel and unusual punishment,” as follows: “The term ‘cruel and unusual punishment’ has usually been understood to mean barbarous punishment by torture. In commenting on Article 25 of our Declaration of Rights, Judge Bryan said: ‘This article is copied almost word for word from Statute I, W. & M., Chapter 2, which was passed immediately after the expulsion of the Stuarts. * * * History informs us that it was intended by the supreme legislative power as a solemn condemnation of the arbitrary and ⁵¹⁶ oppressive proceedings which had taken place in the Courts during the preceding reigns.’ Mitchell v. State, 82 Md. 527, 532, 533 , 34 A. 246, 247 .” In Foote v. State, 59 Md. 264 (1883), this Court held that the punishment of whipping for wife beating was not a “cruel and unusual punishment.” Judge Stone, for the Court, aptly stated: “The eighth amendment to the Constitution of the United States is not a restraint upon, and does not apply to, the Legislature of a State, but only to the National Legislature, and, therefore, has no application to this case. Pervear v. Commonw. 5 Wall. 479 .” “We are not dealing with the expediency, justice, or efficacy of this punishment, but only with the true interpretation of the terms of the Constitution under which we live.

When, therefore, we find that the people who made this Constitution, and who must be presumed to understand the meaning of the terms they use, have, from the time these words were first incorporated, in 1776 down to 1882, a period of more than a hundred years, through the several successive Legislatures, uniformly held that the punishment of whipping was not included in that class which the Constitution forbids, we should violate the plainest principles of the construction of statutes now to decide otherwise. We have not only the contemporaneous, but the continued, exposition of the meaning of the words in this long course of legislative construction, upheld and continually enforced by the courts, in the imposition of the punishment.” * * * “For the prevention of crime, which is the true end of all punishment, the law-giver may prop ⁵¹⁷ erly consider the frequent and easy opportunities of committing the crime and the difficulty of guarding against it, and may grade his punishment accordingly.” (59 Md. at pages 267, 268 and 269.) The death penalty has been held by this Court not to be a “cruel and unusual” punishment. In Dutton v. State, 123 Md. 373 , 91 A. 417 (1914), this Court indicated that the imposition of the death penalty as permitted by the applicable Maryland statute upon conviction for an attempt at rape — then a misdemeanor in Maryland — was not a “cruel and unusual” punishment, the sentence being within the statutory limits provided by the General Assembly. Chief Judge Boyd, for the Court, stated: “It would hardly be contended that the punishment provided by our statute for the crime of rape — death or confinement in the penitentiary for not less than eighteen months, or more than twenty-one years — is in conflict with those provisions, and when the Legislature changed the penalty, for an attempt to commit the crime, to death or confinement in the penitentiary, in the discretion of the Court, it is probable that it took into consideration, the fact that it is often difficult to prove whether the crime of rape was actually consummated.

Under some circumstances the outrage upon the particular woman and upon society can scarcely be said to be less because the prisoner did not succeed in accomplishing his purpose than if he had. If a revolting crime of this nature is so frequently repeated as in the judgment of the Legislature to call for such punishment, we cannot declare it to be contrary to such provisions of the constitution.” ( 123 Md. at 385 , 91 A. at 422 .) In Dutton it was again pointed out that the Eighth Amendment to the Federal Constitution did not apply to ⁵¹⁸ the States. Dutton was followed in Walker v. State, 186 Md. 440 , 47 A. 2d 47 (1946) and was recently cited by us with approval in Jones v. State, 247 Md. 530 , 233 A. 2d 791 (1967). In Mitchell v. State, 82 Md. 527 , 34 A. 246 (1896), this Court, by dictum, indicated that in cases in which the trial judge had the power to impose sentence without definite limit, it was possible to violate the Constitutional provision prohibiting cruel and unusual punishment, but no such case appears to have ever occurred in Maryland.

In Jones, supra, Chief Judge Hammond, for the Court in sustaining the imposition of a sentence of death in a rape case, summarized the applicable Maryland law as follows: “Imposition of the penalty of death for rape does not violate the proscription of Article 16 of the Declaration of Rights of the Constitution of Maryland against cruel and unusual punishment. Dutton v. State, 123 Md. 373, 385 , 91 A. 417 . Almost always the matter of sentence in Maryland is within the province of the trial judge, and his choice, if it is within the limits of the law, will not be changed on appeal. The law on the point was precisely set out in Reid v. State, 200 Md. 89, 92-93 , 88 A. 2d 478 , 479: “ ‘The imposition of sentence in a criminal case in this State is a matter peculiarly within the province of the trial judge who hears the case and sees the witnesses and the accused.

It is not cruel and unusual punishment if it is within the statutory limits prescribed for the crime of which the accused is found guilty, and the trial court alone has the right to determine the penalty within these limits. * * * The sentence in the case before us is within the statutory limit. * * * We have been referred to several cases from other jurisdictions which allow their appellate courts ⁵¹⁹ to review sentences. * * * As we have pointed out, the law in this State is different, and we have no such power, so that the decisions in these cases are not authority for our taking any such action. “ ‘Where the punishment is grossly and inordinately disproportionate to the offense, “so that the sentence is evidently dictated not by a sense of public duty, but by passion, prejudice, ill-will or any other unworthy motive, the judgment ought to be reversed, and the cause remanded for a more just sentence.” Mitchell v. State, 82 Md. 527, 534 , 34 A. 246, 247 ; Apple v. State, 190 Md. 661, 668 , 59 A. 2d 509 ; Von den Bosch v. Swenson, 194 Md. 715 , 70 A. 2d 599 . The reports of this court disclose no case in which such action has ever been taken by it.’ See also Merchant v. State, 217 Md. 61, 70 , 141 A. 2d 487 . “As was held in Reid : ‘In the case before us, we see no occasion to hold the punishment comes within the exception suggested in Mitchell v. State, supra.’ ” (247 Md. at pages 532, 533, 233 A. 2d at page 792 .) In our opinion, we are bound by the prior decisions of this Court to hold that the imposition of the death penalty for the first degree murders of Sheriff Graham and Deputy Sheriff Kelly was not a cruel and unusual punishment forbidden by the Declaration of Rights in the Maryland Constitution. The appellant, however, although recognizing the effect of the prior decisions of this Court, argues that a proper consideration of cases in the Federal appellate courts and in some State appellate courts should lead us to overrule those prior cases and now hold that the imposition of the death penalty in the present case was “cruel and unusual punishment.” ⁵²⁰ It would serve no useful purpose and would substantially prolong this opinion to review all of the decisions of the Supreme Court of the United States and other Federal courts cited by the appellant. It is sufficient to observe that notwithstanding Mr. Justice Frankfurter’s clear exposition in his concurring opinion in Louisiana v. Resweber, 329 U. S. 459, 466 , et seq., 67 S. Ct. 374, 377 , et seq., 91 L. Ed. 422 (1947) that the provisions of the Eighth Amendment of the Federal Constitution (as well as of other provisions of the first eight amendments) do not apply to the States through the due process clause of the Fourteenth Amendment, Robinson v. California, 370 U. S. 660, 666 , 82 S. Ct. 1417 , 8 L.Ed.2d 758 (1962) appears to imply, at least, in the majority opinion that the provisions of the Eighth Amendment do possibly apply to the States, although it would seem that the decision could rest on the due process provisions of the Fourteenth Amendment quite apart from consideration of whether or not the punishment in Robinson was “cruel and unusual.” See the concurring opinion of Mr. Justice Harlan, 370 U. S. at 678-79 , 82 S. Ct. at 1426-27 , 8 L.Ed.2d at 769-70 , one of the two concurring opinions necessary for the decision in Robinson .

See also the dissenting opinion of Mr. Justice White, 370 U. S. at 689 , 82 S. Ct. at 1430-32 , 8 L.Ed.2d at 773-76 . See, however, Powell v. Texas, 392 U. S. 514 , 88 S. Ct. 2145 , 20 L.Ed.2d 1254 (1968), which appears to limit Robinson to its particular facts and not to apply the Eighth Amendment generally to the States through the due process clause of the Fourteenth Amendment. Whatever may be the present state of the law in the Supreme Court of the United States in this regard, there is no decision of that Court which holds that the imposition of the death penalty as punishment for the deliberate murder of two law enforcement officials during an escape from lawful custody is “cruel and unusual punishment” and we rather doubt that it will ever so hold. Until it does, we shall adhere to the previous decisions of this Court already mentioned.

At the argument, the appellant referred us to the de ⁵²¹ cisión of the United States Court of Appeals for the Fourth Circuit in the very recent case of Ralph v. Warden, Maryland Penitentiary, decided December 11, 1970, 438 F. 2d 786 . This opinion reviews prior cases, statutes, law review articles and various data relative to the death penalty with a consideration of the various arguments for and against its constitutionality. We have read this decision with care and observe that, quite apart from the reasoning in the case upon which we make no comment, it is not applicable in the present case by its own terms. The Ralph case applied only to rape which did not take or endanger the life of the victim, and not to all rapes.

As Circuit Judge Butzner stated for the Fourth Circuit: “Lest our opinion be given a breadth greater than is necessary for the decision of this case, we do not hold, despite the argument of the amicus curiae, that death is an unconstitutional punishment for all rapes.” Ralph obviously does not apply to the deliberate murder of two law enforcement officials during an escape. Further, a decision by the Fourth Circuit, although entitled to respect, is not binding upon this Court. We note that there are two cases presently pending before the Supreme Court of the United States involving the death penalty, McGautha v.