Brice v. State

Barnes, J., delivered the opinion of the Court. The appellant, Willie Frank Brice, was convicted by a jury in the Circuit Court for Cecil County of murder in the first degree, rape, robbery with a deadly weapon and perverted sexual practice. The case originated in the Criminal Court of Baltimore but was removed by the defendant, Brice, to the Circuit Court for Cecil County. The lower court, J. DeWeese Carter, C. J., and Roney, J., sentenced Brice to death in the gas chamber upon the indictments for rape and also for murder, to 10 years imprisonment upon the robbery indictment and to 10 years imprisonment upon the indictment for perverted practice to run consecutively with the robbery sentence.

Upon application for review of sentence before a panel of Rasin, Clark and Turner, JJ., the panel affirmed the death penalty for the murder conviction, reduced the death penalty for the rape conviction to life imprisonment, increased the sentence for robbery with a deadly weapon from 10 to 20 years imprisonment and affirmed the sentence of 10 years imprisonment for perverted ³⁵⁴ practice, all sentences to run consecutively to each other. A timely appeal was taken directly to this Court, the case involving the death penalty. The trial upon the indictments in the Circuit Court for Cecil County was the second time the case was tried. The original trial was in the Criminal Court of Baltimore before Liss, J. and a jury.

Brice was convicted under all four indictments and was sentenced to death for murder and rape, to 10 years imprisonment on the robbery with a deadly weapon indictment and to 10 years imprisonment upon the perverted practice indictment, to run consecutively with the death sentences. Two motions of the defendant, Brice, had not been passed upon by Judge Kenney — then in the Criminal Court of Baltimore — and these motions were inadvertently overlooked and were not passed upon prior to Brice’s convictions and sentences. Upon appeal to us, we concluded that the failure to pass upon these motions was prejudicial to the defendant, Brice. We reversed the judgments and remanded the case for a new trial.

See Brice v. State, 254 Md. 655 , 255 A. 2d 28 (1969). After the remand, Brice, as we have indicated, removed the case to the Circuit Court for Cecil County for trial with the results above set forth. When the case came on for trial on February 16, 1971, the lower court denied Brice’s motion to dismiss the indictments alleged to have been based on inadmissible evidence. Later, Brice withdrew his pleas of not guilty by reason of insanity which he had filed on January 19, 1971.

Chief Judge Carter then examined the prospective jurors on their voir dire in regard to conscientious or religious scruples relating to capital punishment as such scruples would affect their ability to render a fair and impartial verdict based upon the evidence in the case. There being four separate indictments, it was agreed between counsel for the respective parties that the defendant, Brice, was entitled to 80 peremptory challenges and the State was entitled to 40 peremptory challenges. At the conclusion of the voir dire examination by the ³⁵⁵ lower court, it permitted the State to exercise 15 of its 40 peremptory challenges, thus excusing 15 prospective jurors who had indicated scruples in regard to the death penalty. This will be discussed later in this opinion.

It was also agreed that the four cases should be consolidated for trial. After counsel for the State concluded his opening statement (counsel for Brice having reserved his opening statement until after the end of the State’s case, at which time he made an opening statement for the defendant), the State produced four police officers to relate the physical circumstances surrounding the events of August 2, 1964, out of which the present case arose. Certain photographs showing the physical surroundings, the body of the decedent, John Calvin Richmond, and a large kitchen knife, the murder weapon, were identified and introduced into evidence. Thereafter, the State introduced the testimony of Dicie Mae Richmond, wife of the decedent, who was the prosecuting witness and sole eye witness.

Mrs. Richmond testified that her husband and Brice had lived in the same home town in South Carolina and had been raised together. However, she had only met Brice through her husband in 1948 or 1949. Mrs. Richmond and her husband lived at 2650 West Franklin Street in Baltimore City. Their residence had two stories.

On the first floor, the steps lead to the second floor from a living room. There was a kitchen behind the living room. On the second floor, there were three bedrooms and a bathroom. In the basement, there was a toilet.

The Richmonds, who were married in 1942, operated a grocery store at 605 Dolphin Street. Most of the cooking for their meals was done at the grocery store, rather than at their Franklin Street home. Mr. Richmond took care of the meats at the grocery store and Mrs. Richmond took care of the sales and receipts. Brice came to the grocery store in 1964 and, against her wishes, her husband allowed Brice to rent a room on the second floor of the Franklin Street ³⁵⁶ home, paying a nominal rent.

Brice became a roomer some two weeks prior to August 2, 1964. On the Thursday prior to August 2, Brice had come to Mrs. Richmond’s room and attempted to get in bed with her. She resisted him physically and he desisted in his efforts. Prior to August 2, Mr. Richmond and the defendant, Brice, had a dispute in regard to a gun owned by Mr. Richmond which had a broken firing pin and would not operate.

On the evening of Saturday, August 2, 1964, the Richmonds and Brice closed the grocery store at approximately 9:00 p.m. They went to the home of Bubbles Robinson where they had some drinks. They then went to a seafood establishment at the corner of Monroe Street and Warwick Avenue, where Mrs. Richmond bought some crabs. When they arrived at the Franklin Street-home, Mrs, Richmond prepared the crabs.

When the crabs had been eaten, Mr. Richmond went into the living room and lay down on the sofa apparently to sleep. Mrs. Richmond also went into the living room and sat on a chair near the stairway. As she sat there reading, Brice, who had previously gone upstairs, came down the stairs, went into the kitchen and thereafter entered the living room. The following testimony of Mrs. Richmond is rather grisly.

Mrs. Richmond heard Brice, mumble something, but did not look up immediately. She then heard her husband say “whomp” and then looked up to see Brice standing.over her husband — who was still on the sofa— stabbing him with her large kitchen knife. She saw blood gush from her husband’s chest. She then ran to her husband and asked Brice why he was stabbing her husband.

She struggled with Brice, during which Brice’s hand was cut, and pleaded with him to stop stabbing her husband, but to no avail. Brice then ordered Mrs. Richmond “to get upstairs” and “to take off every piece [she] had on or [she] would get the same thing.” She then went upstairs. Brice followed her upstairs and placed his penis ³⁵⁷ in the mouth of the nude woman. They then heard Mr. Richmond, who had managed to drag himself upstairs and who had collapsed in the bathroom, call “Dicie Mae, Dicie Mae, help me.” Brice then said to Mrs. Richmond: “Don’t cry, I can’t stand no crying.” He then said, “Wait a minute, I am going to shut him up for good.

You stay in here if you know what is good for you.” Brice then went into the bathroom, closed the door and Mrs. Richmond could hear him stabbing her husband some more. She heard her husband’s death rattle but could not go to him. Brice then returned and again forced Mrs. Richmond to take his penis in her mouth and to participate in an act of fellatio. Thereafter, he demanded that she have coitus with him.

Brice then carried Mrs. Richmond to her bedroom where he continued to have sexual relations with her for approximately one hour. Brice then forced Mrs. Richmond to accompany him to the toilet in the basement and to remain beside him while he had a bowel movement. Later he forced her to turn over to him the receipts of the grocery store for August 2 — approximately $100.00 — and took possession of a .22 caliber revolver which her husband had instructed her to carry for her protection. Brice then removed the automobile keys for the Richmonds’ car from Mr. Richmond’s body and then covered the body with a chenille bedspread.

Brice thereafter instructed Mrs. Richmond to drive him in the Richmond automobile to a house in Baltimore occupied by two or three unidentified persons. Brice instructed her to “act natural” and “not to forget that he had the gun.” All present drank beer for a short time when Mrs. Richmond suggested to Brice that he should take the car keys and see if the car was parked right. As he did this, Mrs. Richmond ran from the house screaming, “Where does Teresa live?” Teresa was her husband’s niece. Someone directed her td Teresa’s house.

Mrs. Richmond then related to Teresa what had hap ³⁵⁸ pened, after which Teresa called the police who immediately responded. Thereafter, Mrs. Richmond was taken to the police district for a physical examination. Brice was thereafter apprehended and charged as already indicated. The lower court denied Brice’s motions for judgment of acquittal and the State filed dismissals with prejudice to the State of all counts other than the first count of the respective four indictments.

Brice elected not to testify in his own behalf. He offered evidence to show that Mrs. Richmond had not obtained the required permits to operate her grocery store between 1964 and 1968 apparently to contradict her testimony that she had such permits and thus to impeach her credibility. Brice presents four contentions before us. 1. He was denied his rights under the Sixth Amendment to the Federal Constitution as applied to the States through the Fourteenth Amendment by the procedure in the trial court in selecting a jury. 2.

The trial court erred in allowing the State to use 15 of its peremptory strikes during the course of the voir dire examination. 3. The trial court erred in determining the admissibility of certain evidence in the presence of the jury. 4. The death penalty received constitutes cruel and unusual punishment violative of the Eighth Amendment rights made applicable to the States by the Fourteenth Amendment of the Federal Constitution. We will consider these contentions in the order indicated. 1.

The first contention of Brice is that the procedure followed by the trial court in the selection of the jury denied him an impartial jury contrary to the Sixth Amendment guarantee applied to the States through the due ³⁵⁹ process clause of the Fourteenth Amendment to the Federal Constitution. We perceive no such denial of a right to an impartial jury. The principal thrust of Brice’s argument is that the trial court’s examination of prospective jurors on voir dire resulted in the impaneling of a jury biased in favor of his conviction by the exclusion of prospective jurors who opposed the death penalty, such jurors being as competent to weigh the evidence as those who had no such opposition to the death penalty. The trial court first posed the following question on voir dire: “Do any jurors have conscientious or religious scruples against finding a verdict of guilty where the penalty might be death under the law?

If you do, would you please stand up.” Fifteen prospective jurors stood up in response to this question. The trial court then asked the question: “Are your conscientious and/or religious scruples against the death penalty such that you could never under any circumstances vote for a verdict of guilty where the penalty of the verdict might possibly be death in the discretion of the Court?” In regard to Thomas Lovelace, the first person to whom the second question was addressed, the answer was “No.” The trial court continued the interrogation, as follows: “Q. Then I take it from that statement that while you have conscientious and religious scruples against the death penalty and are opposed to it in principle, that your opposition to it is not such that you would never vote for a verdict of guilty where the penalty might possibly be death regardless of the evidence of the law. In other words, that you would consider ³⁶⁰ the evidence and weigh it in the light of the alternative punishments provided by the law if you were the juror in this case? A. I mean, I couldn’t vote that way. “Q. Sir?

A. I couldn’t vote, I mean, to have him put away, you know, killed, if he was found guilty. “Q. Do I understand you correctly to say that you would never under any circumstances vote for a verdict of guilty regardless of the evidence and regardless of the law if that verdict might possibly result in the death penalty? You would not vote for a verdict of that kind under any circumstances? A. Yes, sir. “Q. Is that a correct understanding? A. Yes, sir. “Q. Let me get this clear, Mr. Lovelace.

Are you saying that you would never vote for a verdict of guilty where the penalty possibly could be death in the discretion of the Court, regardless of what the evidence was or regardless of what the law states, are you saying that? A. Yes, sir. “Q. In some of the charges to be tried here a general verdict of guilty under the law would give the Judge the discretion of whether to impose the death penalty or life imprisonment. However, in those cases in that instance, the Jury could prohibit the Judge from imposing the death penalty by adding the words ‘without capital punishment.’ Are you saying that under no circumstances would you bring in a verdict of guilty giving to the Court the discretion to impose the death penalty? A. No, sir. “Q. You are not saying that?

A. No, sir. “Q. You are saying it or you are not saying it? A. I ain’t saying it.” * * # “Q. Would you vote for a verdict whereby the ³⁶¹ Court might either give him life or death? You would not vote for that kind of a verdict under any circumstances? A. No, sir. “Q. You would not?

A. No. I mean, on the death, I wouldn’t on that. I mean, on the other, maybe I would.” The interrogation by the trial court in regard to the same two basic questions, indicates to us that the remaining 14 jurors could possibly have been challenged by the State for cause. We are not required to pass upon this question, however, inasmuch as the State used 15 of its peremptory challenges to strike them from the panel. The propriety of this will later be considered in this opinion.

Brice relies upon a statement in Curtis v. State, 4 Md. App. 499, 505 , 243 A. 2d 656, 660-61 (1968) in which the Court of Special Appeals, in commenting upon Code (1968 Repl. Vol.) Art. 51, § 8A, added to the Code by the Laws of 1967, ch. 500, stated: “In view of § 8A of Art. 51 we think it the better practice for the court not to put or permit a question to prospective jurors as to their beliefs against capital punishment. But in the circumstances of the instant case we do not think that the mere asking of the question violated the constitutional rights of the appellant. We feel that the court did not abuse its discretion in the asking of the question so as to require reversal.

We do not presume prejudice to the appellant therefrom and find none from the record.” In our opinion, reliance upon this statement in Curtis is misplaced. The statute referred to in Curtis provided: “Hereafter no person shall be disqualified for service as a juror of this State by reason of his beliefs against capital punishment.” ³⁶² This statute, however, was repealed by the Laws of 1969, ch. 408, § 1; and by this new statute a new § 9 of Art. 51 entitled “Excuses and Exclusions” was passed, subsection (b) of which provides: “(b) Belief against capital punishment. — No person shall be disqualified, excused, or excluded from service in a particular case as a juror of this State by reason of his beliefs against capital punishment unless such belief would prevent his returning a verdict of guilt or innocence according to law." (Emphasis supplied.) The italicized portion of subsection (b) was the newly added portion of the enactment to former § 8A and obviously added an important modification of the former