Boyd v. State

JAMES S. GETTY, Judge, Retired, Specially Assigned. The appellant, Jody Kathleen Boyd, was convicted of first degree murder at the conclusion of a court trial in the Circuit Court for Anne Arundel County. The trial judge sentenced appellant to life imprisonment without possibility of parole. Upon review of sentence initiated by appellant, her sentence was reduced by a three judge panel to life imprisonment with a possibility of parole.

This appeal followed. The issues raised by appellant are: 1. The trial judge erred in refusing to recuse himself. 2. The trial judge erred in refusing to suppress appellant’s statement to the police. 3.

The trial judge erred in admitting extrajudicial statements of the alleged co-conspirators. 4. The trial judge erred in allowing the State to amend the charging document. Before addressing the issues raised, a recitation of the events that precipitated the criminal charges is instructive. Although no precise date is set forth in the record, it is apparent that in early June, 1987, a plan began to evolve whereby Michael Boyd, appellant’s husband, would cease to exist.

From the number of people who were aware of the plot, this conspiracy to commit murder must have been one of the worst kept secrets in Anne Arundel County. One witness testified “about twenty people knew about it.” According to James Hayes, 1 a fifteen-year-old who participated in Boyd’s murder on July 2, 1987, a meeting was held at the home of Laura Dilley in early June of 1987. Present at that meeting were Hayes, appellant, Michael Woods and ⁵⁷ Donald Dare. During that meeting, according to Hayes, appellant “threw some wire” to Woods who allegedly said he would “use it to blow up Michael Boyd’s car.” Subsequently, Woods and Dare purchased an explosive device and planted it in Boyd’s car.

The device malfunctioned and was later retrieved before Boyd had an opportunity to discover it. Hayes then recounted the events that occurred on July 2nd. Woods and Dare arrived at Hayes’ home and all three left at 9:30 p.m. and drove to the Glenmar Apartments. Woods and Dare, both armed, left Hayes in the car.

Shortly thereafter they returned and, Hayes stated, Dare “told me that Mike Woods had shot Michael Boyd.” Two other witnesses testified to events leading up to the shooting. Michelle Madden stated that she overheard a conversation between appellant and Woods during which appellant said she wanted to get rid of her husband and thought about removing brake fluid from his car so that he would have an accident. Another witness, Cheri Rutherford, stated that she was sleeping on a couch at appellant’s home several days before the murder. Woods and Dare arrived at 7:30 a.m. and the witness, pretending to be asleep, overheard Woods complaining that the victim was not where he was supposed to be at 5 o’clock.

Appellant then asked if they could try again the next day. Woods agreed and, according to Rutherford, “Jody said she wished they would kill him and get it over with.” Rutherford notified the police immediately after learning that Boyd had been shot and killed. In her statement to the police after the murder, appellant admitted discussing the murder of her husband with Woods and Dare including the amount of money to be paid to Woods. She admitted being aware of the botched bombing attempt, but insisted that she broached the idea of killing Boyd in a non-serious “laughing” manner.

Appellant further informed the police that her husband had repeatedly raped and beaten her, had beaten their children and threat ⁵⁸ ened to kill her if she attempted to obtain a separation or divorce. I Recusal Appellant contends that the trial judge should have recused himself because he presided over a court trial of a co-defendant in this case three weeks prior to appellant’s appearance in court. The colloquy between the trial judge and defense counsel, on a motion to reconsider the judge’s refusal to recuse himself, includes, in pertinent part, the following: COUNSEL: The defendant is constitutionally entitled to choose between a fair and impartial trier of fact, be it a court or a jury. COURT: What is your election?

COUNSEL: ... If the court says, well then take a jury trial. COURT: No, no, I’m asking what’s your election. You say she has the ability to do that, let her make her election.

Counsel cited Carey v. State, 43 Md.App. 246 , 405 A.2d 293 (1979), cert. denied, 445 U.S. 967 , 100 S.Ct. 1660 , 64 L.Ed.2d 244 and asked for the same option granted the defendant in that case after the court had refused a motion to recuse. In Carey the court allowed the defendant to elect either a jury trial or removal of the case to another jurisdiction. Thereafter, the court in the present case said: COURT: Why aren’t you given that option? COUNSEL: If the court would say to us, would you like to move this case out of [sic] another jurisdiction.

COURT: Well you have to make an election judge or jury ... Your whole argument is a waste of time if you want a jury trial. COUNSEL: ... I would suggest to the court that our defense may be more legally based than factually based.

In which case the decisions as to the application of the law would be for the court to determine even if a jury were impaneled in the case. ⁵⁹ COURT: Make an election. COUNSEL: We would make our election after the court rules on ... our request to reconsider ... or request to allow us to move this to another jurisdiction. COURT: All right. At this time I’ll overrule your motions.

And, that will depend, and then I’ll reconsider it once you make your election. COUNSEL: .. .At this point dealing with the court and the court’s ability to hear the case, we will base our motion on, for removal on the fact that the court denied the motion to recuse itself. COURT: Okay. All right.

Well, I’ve heard no reason except what you’ve stated so far with regard to removal. And, I’ll overrule your motion to recuse. And so I’ll ask again what is your election, judge or jury? COUNSEL: We would proceed before the court without a jury.

Appellant’s original motion to recuse was predicated upon the trial court’s having heard the prior trial of a co-defendant. The earlier trial, appellant argued, involved the same issues that would arise in the instant case and the trial judge had already determined that a conspiracy to murder existed among appellant, Woods and Dare. Further, appellant contended that the court had heard evidence damaging to appellant from Woods’ statement to the police that would be inadmissible at appellant’s trial. The testimony of witnesses Madden and Dilley implicating appellant in the conspiracy to murder, it was alleged, would be the same in both cases.

Appellant was not automatically entitled to removal because the State did not seek the death penalty pursuant to Md. Code, Art. 27, sec. 412. A transfer to another jurisdiction is mandated only where the maximum penalty is death. Md. Rule 4-254; Md. Constitution, Article IV, sec. 8. A right of removal, moreover, does not carry the right to have a different judge preside at the trial.

Johnson v. State, 258 Md. 597 , 267 A.2d 152 (1970). We shall not speculate on ⁶⁰ whether the trial judge may have presided had he permitted the case to be removed. The issue before us, therefore, is whether he abused his discretion in denying the recusal motion. We note that appellant makes no claim that she could not receive a fair trial by jury.

She claims that she had the same right to a court trial by a judge who has not heard, and accepted as true, evidence of appellant’s guilt in a separate trial three weeks earlier. We begin the discussion of the applicable law on the recusal issue with the Carey case cited by appellant. In Carey , as here, the trial judge found appellant’s co-defendant guilty of bribery in a non-jury trial. The allegations in Carey included: the court exhibited prejudice toward appellant and his counsel in that the judge recused himself in another case due to his dislike for counsel; that he found a co-defendant guilty of the same charges; that he granted a defendant a new trial and accepted a plea of nolo contendere in a separate case so that the witness would be available as a State’s witness in Carey’s case; and that appellant’s motion to dismiss was held sub curia in order that appellant’s case could be heard without any interlocutory appeal.

Rejecting appellant’s arguments, this Court (Melvin, J.) held that “participation in prior legal proceedings involving related parties or proceedings is simply not grounds for a judge to recuse himself.” See, United States v. Partin, 552 F.2d 621 (Fifth Cir.1977); Laws and Dorman v. State, 7 Md.App. 84 , 253 A.2d 780 (1969). The burden borne by a defendant on the issue of recusal is a substantial one because of the “assumed proposition that judges are men of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence.” State v. Babb, 258 Md. 547 , 267 A.2d 190 (1970). The issue of recusal of a trial judge was before this Court in Nash v. State, 69 Md.App. 681 , 519 A.2d 769 (1987). The recusal motion by the appellant in Nash set forth that the ⁶¹ same judge had presided at appellant’s previous trial wherein appellant was accused of committing similar sexual offenses against the sister of the victim in the case then before the court.

Specifically, appellant alleged that the judge knew that the accused had a prior record; that the court refused to merge various criminal charges in the earlier case and imposed consecutive sentences. This Court (Garrity, J.) held that a judge’s previous participation in an earlier related trial is “beside the point” where the judge is merely presiding over the presentation of the evidence to a jury. The Court added that there is no per se rule requiring recusal where the judge is the fact-finder in the subsequent trial. A review of out of state cases on recusal indicates that a majority of decisions addressing the issue are consistent with our holding in Carey and in Nash.

Jones v. State, 416 N.E.2d 880 (First Dist. Ind.1981), cites with approval our holding in Carey . Jones predicated his motion for recusal on the Indiana Code of Judicial Conduct, Canon 3(C)(1)(a) which provides in pertinent part that: (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; ... 2 Jones and a co-defendant were charged with possession of narcotics. The co-defendant was tried at a bench trial and was convicted.

At a later time Jones appeared before the same judge, waived a jury trial, and moved that the judge disqualify himself. The oral motion was overruled. Denying Jones’ allegation of error, the Indiana Court of Appeals said: The law presumes that a judge is unbiased and unprejudiced in the matters before him____ The only prejudice ⁶² which will disqualify a judge is a personal prejudice for or against a party. [Citation omitted.] The record must show actual bias or prejudice of the judge against the defendant before a conviction will be reversed on the ground that the trial judge should have disqualified himself. [Citations omitted.] The Court rejected Jones’ contention that the mere fact of the judge’s participation in the prior bench trial of a co-defendant precluded the same judge from presiding as the fact finder in Jones’ case. Other cases have held that a judge who presided at the trials of all co-defendants did not err in refusing to recuse himself in the trial of a remaining defendant.

United States v. Partin, 601 F.2d 1000 (9th Cir.) (1979). Nor does the fact that a judge has accepted a guilty plea in a prior proceeding where the defendant was implicated disqualify him from hearing the