Brown v. State

OppEnhEimER, J., delivered the opinion of the Court. The appellant, Brown, was convicted of first degree murder in the Criminal Court of Baltimore by Judge Harris, sitting without a jury. First sentenced to life imprisonment, the sentence was “stricken” or “suspended” in order to enable him to file a motion for a new trial. Brown’s motion for a new trial was filed but later withdrawn.

He was then sentenced to death. In this appeal from that judgment, the appellant contends first, that the trial court erred in failing to grant a motion for a directed verdict of acquittal of murder in the first degree; second, that the appellant’s representation by his trial counsel was so inadequate as to amount to a denial of due process of law; and, third, that the death sentence was illegally imposed. We shall consider these contentions in the order named. I The evidence is uncontradicted that Brown and the deceased, Geraldine Vandervall, had been living together for several years.

She left him and with her three children, one of whom was Brown’s, moved to her mother’s home, in Baltimore City. Patricia Bell, a cousin of the deceased, testified that, about a month before the tragedy, she had heard Brown threaten to kill Geraldine if she left him. On the night of September 11, 1963, Brown came to the home of Patricia Bell, on North Avenue, west of Longwood Street, where Geraldine had been spending much of her time. Patricia Bell and her sister, Dorothea Brad ⁴⁹⁶ ley, testified that Brown angrily demanded to see Geraldine; both girls told him Geraldine was not there and that they did not know where she could be found.

Brown left and continued his search for Geraldine, visiting the nearby homes of several of her neighbors. In the meantime, Geraldine had arrived at her cousin’s North Avenue house. Patricia Bell saw Brown return to his car, which he had parked on North Avenue, and Patricia told Geraldine of Brown’s return. Geraldine, according to Patricia, said she did not want to talk with Brown but thought she should “get it over with now.” Patricia said Geraldine stepped outside and called Brown’s name.

Brown said he wanted to talk with her and drove around the corner to Longwood Street with Geraldine following on foot. The two then engaged in conversation; Patricia could only see the rear of Brown’s car. Patricia, concerned about her cousin, walked around the corner several times, but, on each occasion, the couple stopped speaking as Patricia came into sight. Patricia observed Brown seated in the car with the door open and his feet on the curb; Geraldine was standing before him on the sidewalk.

After her second expedition, Patricia returned to her house and sat on the front steps. Shortly thereafter, she heard a man at the corner say, “Miss, is you all right?” Patricia ran to the corner and found Geraldine in the gutter, her eye gouged and her body bloodied. Brown’s car was still there, with the door open, but Brown had fled. The police were called and took Geraldine to a hospital.

She was dead on arrival. She was a slight woman, five feet one inch in height and only eighty-nine pounds in weight. The autopsy report shows she died of multiple stab wounds of the face, head, neck, back, upper body and abdomen. Brown voluntarily surrendered to the police later the same night.

Brown chose not to take the stand in his own defense. The only evidence as to what took place between Brown and Geraldine immediately before her death is contained in Brown’s unsigned confession. No contention was made at the trial, or is made on this appeal, that the confession was involuntary. Brown’s trial counsel (who is not counsel in this appeal) stated Brown said he gave the statement voluntarily, and, at the trial, on a question from the court, Brown said this was correct.

Sergeant Albert Thomas, to whom Brown gave his statement, testified Brown said, in part: ⁴⁹⁷ “[A]s he saw Geraldine come out of Patsy’s house he pulled around the corner and stopped and Geraldine came down and she got in the car and we were talking. He said first she was standing on the sidewalk and I was talking to her with the right door open. Then he got out, stood on the sidewalk and she got in the car. When I asked if she was going home with me, and she said, no, so I told her to get out of the car so I could go and she said she wasn’t finished talking and I told her; he said he told her he didn’t have any more to say.

She didn’t get out of the car so he reached in, grabbed her, tried to pull her out and she pulled the door shut. She tried to get the window up and he got inside the window and he said she found a screwdriver on the seat of the car. He said he took the screwdriver away from her and he hit her with it. He said he hit her with the screwdriver. * * * ‘She told me I hurt her’, and he said he hit her again.

He said, T will kill you,’ and he said he kept on hitting her and she was trying to get out of the other side of the car and she was hollering, and ‘The last time I hit her I saw blood on my hand.’ Then he dropped the screwdriver and ran down to his brother’s house at 1719 Moreland Avenue.” The scope of our review as to the sufficiency of the evidence to sustain the conviction of murder in the first degree is not to determine whether the State has proved its case beyond a reasonable doubt, but whether there was sufficient relevant evidence properly before the trier of the facts to sustain the conviction. Sample v. State, 235 Md. 554 , 201 A. 2d 797 (1964); Tull v. State, 230 Md. 596, 604 , 188 A. 2d 150 (1963); Lee v. State, 224 Md. 260 , 167 A. 2d 595 (1961) and cases therein cited. In this case, there was testimony as to Brown’s threat to kill his paramour, uttered several weeks before the slaying. He admitted using the screwdriver to inflict repeated blows upon his victim; he confessed that he hit her again when she said he had hurt her and told her “I will kill you.” The fact that the screwdriver was not found and apparently had not ⁴⁹⁸ been on Brown’s person before the crime and Brown’s statements that the slightly built woman he killed had tried to keep him out of the car and that it was she who had picked up the screwdriver, were for the trial judge’s consideration in arriving at his verdict.

It was for the judge to determine whether the State had proved first degree murder beyond a reasonable doubt. There was ample evidence to sustain the court’s finding. II The record does not show Brown ever complained of his representation at his trial in the court below or thereafter, before this appeal. The point can not be raised for the first time here.

Maryland Rule 885, Stevens v. State, 230 Md. 47 , 185 A. 2d 194 (1962). In any event, however, the complaint of inadequate counsel is not supported in the transcript of the record of the trial. Some testimony was admitted without objection when objections might have been made, but the adequacy of counsel is not to be measured by the number of his objections. An attorney may deem it expedient, in his client’s interests, not to risk emphasizing adverse testimony.

Even though, on hindsight, a decision may seem unwise, mere error in trial tactics does not amount, per se, to inadequate representation. Greene v. State, 233 Md. 274, 196 A. 2d 454 (1964); Stevens v. State, supra. Browns’ trial counsel was vigorous in cross-examination. The fact that he produced no defense witnesses does not prove inadequacy; there may have been none.

Brown elected not to take the stand. Often, where the State’s case is strong, experienced trial counsel direct their principal efforts to the mitigation of sentence. In this case, the sentence originally imposed was less than the maximum permitted by law. III Determination of the question of whether, on the facts, the increase of the life sentence originally imposed to capital punishment was illegal, requires an examination of the place of motions for new trials in criminal cases in Baltimore City and the procedure in respect thereto.

Absent State constitutional or statutory requirements, the ⁴⁹⁹ right to file a motion for a new trial after conviction for a criminal offense is not guaranteed under the due process clause. There is no right, under that clause, even to an appeal. Griffin v. Illinois, 351 U.S. 12, 18 (1956); Winkler v. State, 194 Md. 1, 16-17 , 69 A. 2d 674 (1949) and cases therein cited. In Maryland, before the adoption of the amendment to Section 5 of Article XV of our Constitution, this Court did not have the power to review the legal sufficiency of the evidence to sustain a conviction.

Giles v. State, 229 Md. 370, 384 , 183 A. 2d 359 (1962); Slansky v. State, 192 Md. 94 , 63 A. 2d 599 (1949). However, Section 33 of Article IV of the Maryland Constitution provides that the Supreme Bench of Baltimore City shall have jurisdiction to hear and determine all motions for a new trial in cases tried in any of its courts where such motions arise either on questions of fact or for instruction upon any matters of law, and that the Supreme Bench shall make all needful rules and regulations for the hearing before it of all of said matters. Code (1957) Article 27, Section 594 provides, inter alia, that all motions for new trials in criminal cases in Baltimore City shall be heard by the Supreme Bench. In Johnson v. State, 219 Md. 481 , 150 A. 2d 446 (1959), Judge Prescott, for the Court, pointed out that this constitutionally granted power to hear motions for new trials is unusual, if not unique.

Judge Prescott said: £i[T]hat one of the purposes of the procedure contemplated by the constitution is to seek uniformity of decision and provide a forum where there can be had the benefit of review in cases where an, appeal will not lie. Often, where an appeal does lie the powers of review of the Supreme Bench in ruling upon the motion for a new trial are broader in scope than those of this Court. It may weigh the evidence in a criminal case even though the case was tried before a jury, and grant a new trial in its sound discretion. It also has the authority to weigh and consider newly discovered evidence.

The opportunity to seek a setting aside of his conviction before the Supreme Bench is a valuable one which appellant was denied solely because of lack of funds.” 219 Md. at 483 . ⁵⁰⁰ See also Williams v. State, 204 Md. 55, 67 , 102 A. 2d 714 (1954). It was held in J ohms on that under Griffin v. Illinois, supra, an indigent defendant, convicted in a criminal court in Baltimore City, must be furnished a free transcript of the testimony if he requests it in seeking a new trial as long as the Supreme Bench will not hear such motions without a transcript. Rule 747 of the Rules of the Supreme Bench of Baltimore City (1961) reads as follows: “Every motion for a new trial or in arrest of judgment in criminal cases shall be filed before the official closing hour of the clerk’s office on the third day succeeding that upon which the verdict shall have been rendered, but in no event shall such motion be filed after the court shall have imposed sentence, unless the defendant at the time the verdict is rendered requests the court to suspend sentence pending the filing of a motion for a new trial or in arrest of judgment. “The computation of time for filing a motion under this Rule shall be in accordance with Md. Rule 8. “All reasons for a motion shall be filed within the time limited for filing the motion, and no other reason shall be assigned thereafter without leave of the court.” 1 Maryland Rule 764 b provides: “For a period of ninety (90) days after the imposi ⁵⁰¹ tion of a sentence, or within ninety (90) days after receipt by the court of a mandate issued by the Court of Appeals upon affirmance of the judgment or dismissal of appeal, or thereafter, pursuant to motion filed within such period, the court shall have revisory power and control over the judgment or other judicial act forming a part of the proceedings. The court may, pursuant to this section, modify or reduce, but shall not increase the length of a sentence.

After the expiration of such period, the court shall have such revisory power and control only in case of fraud, mistake or irregularity.” Within this frame of constitutional and statutory provisions, decisions and rules of court, we turn to what happened to Brown. After Judge Harris had rendered his verdict on December 12, 1963, he asked whether Brown wished sentence deferred or was ready for sentence. Brown’s counsel said he believed his client was ready for sentence then. The following colloquy then occurred between the court, Mr. Cannizzaro, the Assistant State’s Attorney who had tried the case for the State, and Mr. Manelli, Brown’s trial counsel: “(The Court) Is there any record?

(Mr. Cannizzaro) May 1952, disorderly conduct. On February 18th, 1960 he was released after serving five years for manslaughter, having been convicted October 11th, 1956 in Frederick County. (The Court) Is that all he has ? (Mr. Cannizzaro) Yes sir.

(The Court) Brown, stand up. Is there anything you care to say prior to imposition of sentence ? (Mr. Brown) No, sir. (The Court) I sentence you to prison for the rest of your natural life.

(Mr. Manelli) Your Honor, I would like to preserve the man’s right for a motion for a new trial. (The Court) If you wish to, I will have to strike out ⁵⁰² the sentence. If you wish to give it further thought I will strike out the sentence. (Mr. Manelli) On his request, I would like to consider it.” The clerk’s docket entries of that day show only “Sentence deferred pending the filing of a Motion for a New Trial.” The motion was filed on December 16.

On Brown’s petition and affidavit to prosecute the motion as an indigent defendant, his present counsel was appointed by the court to represent him. On April 15, 1964, Brown, by his new counsel, withdrew his motion for a new trial. Thereafter, certain information came to the judge as to the details concerning Brown’s manslaughter conviction referred to prior to the imposition of the life sentence on December 12,1963. 2 On May 20, 1964, over the objection