Bryant v. State

Delaplaine, J., delivered the opinion of the Court. Eugene E. Bryant, age 21, a resident of Hillside, a suburb of Washington, was tried before a jury in the Circuit Court for Howard County for the murder of Joan Marie Ruzza, age 17, of Capitol Heights. He was found guilty of murder in the first degree, and was sentenced to be hanged. He has appealed here from the judgment.

The murder was committed in Capitol Heights on the evening of April 8, 1954, at about 8 o’clock. The body of the young girl, who was a student at the Suitland High School, was found that night at 11:30 o’clock in a private driveway on 49th Avenue. Appellant, who was a veteran of the Korean War, was immediately suspected as the murderer. He had given the girl an engagement ring before Christmas, 1953; but she had returned the ring early in February after her father vehemently objected to the marriage and warned them not to meet again.

Shortly after midnight, scarcely an hour after the finding of the body, two policemen went to appellant’s home, had him roused from his bed, and told him that he was wanted at the police station at Seat Pleasant for questioning. He accompanied them without protest. On April 9 an autopsy was performed by Dr. James I. Boyd, Deputy Medical Examiner, who found five gunshot wounds, one in the left hand, one in the abdomen, one in the cheek, and two in the skull. Dr. Boyd also found that the girl had been pregnant between three and four months.

At 5:30 p. m. appellant signed a statement in the presence of Detective Sergeants Kearns and Huber, in which ⁵⁷³ he set up an alibi that he was with three other girls on the previous evening. Appellant then voluntarily agreed to take a lie detector test, although an attorney, who visited him that afternoon, advised him that he was not required to take such a test. That evening Leonard H. Harrelson, one of the owners of a detective agency in Washington, gave him the test in an office of the police station. During the test appellant told Harrelson that he did not kill the girl.

After the test Harrelson told him that the chart showed that he was lying. Harrelson also showed him the photographs which had been taken of the girl’s body on the autopsy table. Shortly after seeing the photographs, appellant told Harrelson and the police officers that he had killed the girl and was willing to make a confession. He began the statement at 9:07 p. m., and it was typed for his signature at 10:45 p. m.

After signing the confession in the presence of Sergeants Kearns and Huber, he accompanied the police to 61st Avenue and L Street, where he had hidden the revolver under a cardboard box. After searching in the weeds under the box, the officers found the revolver. Appellant was indicted for murder by the grand jury of Prince George’s County on April 13. On May 4 the Circuit Court for Prince George’s County, acting upon his suggestion that he could not obtain a fair and impartial trial in that county and his application for a change of venue, ordered the case removed to the Circuit Court for Howard County for trial.

On June 18 he filed a plea of not guilty because of insanity at the time of the commission of the crime. The case was set for trial on July 12. On July 8 appellant petitioned for a continuance on the ground that he could not obtain a fair and impartial trial by jury at that time. Judge Clark immediately denied the motion, and the trial began as scheduled.

Appellant’s father, Bainbridge E. Bryant, a pasteurizer of milk in a Washington dairy, described the serious injuries appellant received in an automobile accident on ⁵⁷⁴ July 14, 1952, after his return from Korea. In that accident two of appellant’s friends were killed. Mr. Bryant said that his son was taken to Walter Reed Hospital, where he seemed to be in a state of amnesia and could not remember the circumstances of the accident. The hospital records showed that, in addition to several broken bones, appellant sustained a cerebral concussion and had retrograde amnesia for several days.

He underwent an operation for a broken bone in his left leg, and was confined to the hospital for several months. Appellant’s mother testified that he had convulsions as a baby and rheumatic fever before he was five years old. When the State offered appellant’s confession in evidence, Sergeant Huber testified: “I told him that he didn’t have to talk if he didn’t want to, that if he made any statement whatsoever, the statement was made of his own volition without any threats or promises, without any inducements of any kind, and that if he did make that certain kind of a statement, that statement could be used against him in court, if necessary.” Appellant’s attorney informed the Court that he had no evidence to show that the confession was not made voluntarily. The confession was thereupon read to the jury.

In the Court of Appeals appellant stated that he made no objection to the admission of the confession in evidence. In this signed confession, appellant stated that on April 8 at about 7:40 p. m. he left his house and drove to Capitol Heights, and saw Joan walking along the street. He stopped his car and asked her to get in with him, but she refused. He then stated: “So I left and went up to F Street and parked my car and I walked down 49th Avenue to meet her.

I walked all the way down to the bottom of the hill, where I met her. * * * When we got to the spot where the shooting took place, she told me that she did not want to walk any farther with me, as she was afraid that her father or brother might see us. * * * I told her that I ⁵⁷⁵ wanted her to go with me now so that I could talk with her. Then she said ‘No,’ and started to holler, and I took her by the arm, and I pulled this gun out of my back pocket and told her to come on with me, and she reached out with her hand and grabbed the gun. I had the hammer back on the gun and it went off and I kept on pulling the trigger. She fell and I walked over to where she was laying, knelt down beside her and I tried to pick her up. * * * I stood there for a few minutes. * * * I then walked up to my car, drove up 57th Avenue, and turned down L Street, where I went up in the woods and hid the gun.

Then I went back up the road and picked up three girls on 57th Avenue, drove them around for about an hour, took them home, then went home myself.” In reply to a question of the police, appellant said that he stole the revolver because he had one in the army and he always wanted one. He also made the reply that he picked up the three girls because he figured that he would get caught and this would be the last time he would be with some girls, and he also figured that they could be used as an alibi. Upon taking the witnéss stand, appellant testified that while he was in the army he was absent without leave several times, was court-martialed, and was sentenced to the stockade. He stated that on three occasions, while he was in the stockade, he cut his wrist with a razor blade.

He declared that he wanted to bleed to death so that he would get out of jail. He was discharged from the army in August, 1953. Appellant then testified that he became engaged to Joan Ruzza in September, 1953. He also stated that he had frequent sexual intercourse with her during a period of five months, from early in October, 1953, until early in March, 1954.

Appellant further testified that on February 2, 1954, Joan’s father ordered her not to see him again; but he ⁵⁷⁶ persisted in seeing, her. He stated that he lost the job which he had at a department store in Washington, and that he had nothing else to do. Frequently he drove Joan to school. He said: “I’d meet her down at the bottom of the hill where she lived at. * * * Take her to school, sit around, talk, and we ride around until it was time for her to go to school, and I pick her up after school.” Appellant further testified that when he met Joan again on March 7 and 8, she told him that she could not see him any more.

On both of those days they had arguments which resulted in his arrest on two charges of assault. He was tried by Magistrate Nita S. Hinman Crane in Upper Marlboro on March 12. He contended that all he did was to “grab her by the arm.” However, Miss Crane found him guilty and fined him $10 in each case. Even after those convictions, appellant watched Joan walking to school, and talked with her in a movie theater on April 4.

Appellant further testified that on April 8 he met Joan on the street at about 4:30 p. m. She told him that she was pregnant, and that she wanted to talk with him that evening. He agreed to meet her in a drug store' at 7:30. He was determined to see her father and tell him the truth.

At about 7:30 he met Joan on the street, and they agreed to meet on 49th Avenue. He parked his car, and took the revolver with him “for two or three reasons,” one of which was that he intended to see Joan’s father, who had threatened to kill him. When the estranged lovers met on 49th Avenue, appellant warned Joan that he was determined to see her father and force him to consent to their marriage. Joan pleaded with him not to see her father, as she feared that her father would kill him.

Appellant then gave the following account of their final conversation: “I was just tired of every time I wanted to see her I had to meet her some place. * * * Well, at the time being, I pulled this gun out of my pocket. She had seen the gun before, because I ⁵⁷⁷ showed it to her on March 5th. I stole it on March 3rd or the 4th. * * * I told her the reason I had it, for my protection, and because I just like guns. * * * She jumped back when I pulled that gun out. * * * She asked me what it was for, what I was going to do with it. I told her I was going to take it to go in the house.

If Mr. Ruzza wouldn’t listen to me, I was going to just sit him down, make him sit down, hear what we had to say, and if he don’t want to do it the way I want to do it, I would get your clothes, and we’ll go up to my house, and get some money from my mother and father, * * * and then we’d run away tonight and get married. * * * I said, ‘We’re going to do it this way, or you’re going to find yourself another father or husband — I can’t remember the exact words — for the baby.’ I don’t know. After I said that, I can vaguely remember that * * * she reached out and grabbed for the gun. The gun went off. I remember that part.

The next thing I actually can remember is when I was riding around with these girls in the car.” I. Appellant’s first contention was that Judge Clark committed error in denying his petition for a continuance. He alleged that on July 7 he escaped with four other prisoners from the jail in Upper Marlboro, but was recaptured ; that the Baltimore and Washington newspapers carried the story with large headlines together with pictures of him handcuffed; that these newspapers circulated in Howard County and it was reasonable to assume that the jurors had read the articles, which would prevent him from obtaining a fair and impartial trial in the immediate future. When the case came before the Court of Appeals, appellant mentioned that the reports of his escape and recapture were also announced by radio and television. He contended that Judge Clark should have continued the ⁵⁷⁸ case until such time as it could be estimated with assurance that the prejudicial effect of the publicity had so far worn off that the trial could proceed free of public preconception of guilt.

It is undeniably a fundamental right of any person charged with crime to have the question of his guilt or innocence determined by a fair and impartial trial according to law. In order that the defense may be considered impartially, the accused is entitled to have the verdict represent solely the effect of the evidence without the influence of popular sentiment, and the jurors should have the opportunity to weigh the evidence calmly without having their minds distracted and dominated by manifestations of public hostility. The existence of such a high state of excitement against a prisoner as would have a tendency to swerve or intimidate the jury, and thus prevent a fair and impartial trial, should entitle him to a continuance until there has been a reasonable time for the excitement to subside. ■ In Fountain v. State, 185 Md. 77, 87 , 107 A. 554 , 108 A. 473 , 5 A. L. R. 908, where a large crowd gathered with the object of lynching the prisoner, the jury found him guilty of rape and the Court sentenced him to be hanged. The Court of Appeals stated that, while it was natural that popular indignation and wrath should have been aroused by the atrocious crime, the law does not tolerate any interference with the right of the humblest citizen to be accorded justice and, when charged with crime, to have the question of his guilt or innocence fairly and impartially determined.

The Court further stated that the attempt to forestall the verdict of the jury by lynching, the flight of the prisoner to escape death at the hands of the mob, and the unusual measures taken by the Court to insure his safety when recaptured, all combined to create an atmosphere incompatible with the right of an accused to a fair and impartial trial. It was not probable, the Court said, that the jury could have kept their judgment free from the influence of the demonstrations made against the prisoner in the immediate ⁵⁷⁹ neighborhood of the Court in which the trial was being conducted. However, the legal meaning of “public excitement” is more than the excitement which is a natural consequence of criminal conduct. Moreover, mere opportunity for prejudice does not raise a presumption that prejudice exists.

If it did, it would be difficult to obtain a fair jury trial under present-day conditions. As Judge Henderson said in the opinion of this Court in Baltimore Radio Show v. State, 193 Md. 300, 330 , 67 A. 2d 497, 511 , certiorari denied, State v. Baltimore Radio Show, 338 U. S. 912 , 70 S. Ct. 252 , 94 L. Ed. 562 , “Trials cannot be held in a vacuum, hermetically sealed against rumor and report. If a mere disclosure of the general nature of the evidence relied on would vitiate a subsequent trial, few verdicts could stand.” Thus, in Grammer v. State, 203 Md. 200, 209 , 100 A. 2d 257 , where the prisoner claimed that there was public hysteria over his case, which would prevent him from having a fair and impartial trial by jury, we did not find any hysteria and did not believe that the widespread interest in the case had created such prejudice as to make a fair and impartial trial impossible. The question of the prejudice of jurors created by stories in the newspapers came before the United States Supreme Court in Holt v. United States, 218 U. S. 245 , 31 S. Ct. 2, 4 , 54 L. Ed. 1021 .

The accused in that case had been found guilty of murder and had been sentenced to imprisonment for life. He contended that the trial court erred in not sustaining a challenge to one of the jurors. Justice Holmes, in delivering the opinion of the Court, rejected the argument with the following comment: “On his examination it appeared that this juryman had not talked with anyone who pur-. ported to know about the case of his own knowledge, but that he had taken the newspaper statements for facts; that he had no opinion other than that derived from the papers, and that evidence would change it very easily, although it ⁵⁸⁰ would take some evidence to remove it. He stated that if the evidence failed to prove the facts alleged in the newspapers, he would decide according to the evidence or lack of evidence at the trial, and that he thought he could try the case solely upon the evidence fairly and impartially.

The finding of the trial court upon the strength of the juryman’s opinions and his partiality or impartiality ought not to be set aside by a reviewing court unless the error is manifest, which it is far from being in this case.” In the case at bar appellant suggested that the reports in the newspapers might have given the jury the impression that he broke out of jail because his trial was approaching and he had a guilty conscience. In denying the motion for a continuance, Judge Clark stated: “The defendant has no one to blame for his attempted escape but himself. It was entirely his idea. He cannot use it as a basis for a motion for postponement. * * * As a matter of fact, I do not have the least doubt of the defendant’s ability to obtain a fair and impartial trial in this court on Monday, July 12, 1954.” It has long been a rule of practice in Maryland that the granting or refusal of a motion for continuance is within the discretion of the court, and its action on such a motion is not ground for reversal in the absence of anything in the record to show an abuse of discretion.

Harris v. State, 141 Md. 526, 530 , 119 A. 154 ; Lee v. State, 164 Md. 550, 553 , 165 A. 614 ; Hunter v. State, 193 Md. 596, 600 , 69 A. 2d 505 ; 2 Poe, Pleading and Practice, Tiffany’s Ed., sec. 178. As the trial court is in a much better position than the appellate court to determine whether it is proper to continue a case on the ground of public excitement and prejudice, the appellate court will give great weight to the trial court’s determination that newspaper publicity of charges against the defendant was not likely to prejudice him at the trial. Walker v. State, 136 Ind. 663 , 36 N. E. 356 ; Delaney v. United States, 1 Cir., 199 F. 2d 107, 115 , 39 A. L. R. 2d 1300. Generally, ⁵⁸¹ the mere fact that excitement has been aroused by the escape and recapture of a prisoner does not make it mandatory that the court shall grant him a continuance, especially if the jail break did not occur in the county where the case is to be tried.

Wright v. State, 18 Ga. 383 . In this case we have not found that the articles in the newspapers gave any indication of intense public resentment such as there sometimes exists when a woman or child is atrociously raped, or when there is a racial problem that has aroused persistent passion or prejudice among the people. The statements made by the jurors support the view that they obeyed their official oaths. Every juror on the panel, before he was sworn, stated that he had not formed or expressed any opinion as to the guilt or innocence of the accused, and felt that his mind was perfectly free and clear of all prejudice or bias of any kind that might prevent him from rendering a proper verdict.

II

Appellant next contended that his attorney should have been allowed to question the jurors on their voir dire. Judge Clark announced that he would ask the questions. The clerk thereupon called six members of the panel at a time. They came forward and stood in front of the bench.

The practice of submitting questions to jurors on their voir dire has not been uniform in the United States. For example, in Massachusetts prior to 1887 the examination of jurors, beyond the questions expressly provided for by statute, was left to the discretion of the presiding judge. In 1887 the Legislature of Massachusetts directed that, upon motion of either party, the parties or their attorneys, under direction of the court, may examine jurors to learn whether they are related to either party or interested. It was held by the Massachusetts Supreme Judicial Court, however, that the trial court still has the discretionary power to conduct the examination.

Commonwealth v. Poisson, 157 Mass. 510 , 32 N. E. 906 ; Commonwealth v. Spencer, 212 Mass. 438 , 99 N. E. 266, 269 . ⁵⁸² In Florida, on the contrary, there grew up in criminal trials the practice of allowing counsel to conduct the voir dire examination, the trial judges interfering only to correct or supplement the questions. In 1891,, however, the Supreme Court of Florida observed in Pinder v. State, 27 Fla. 370 , 8 So. 837 , 839, that there was no statute in Florida “to prohibit the court from exclusively burdening itself with the entirety of such examinations, if it sees proper to do so.” The question as to the proper practice in conducting voir dire examinations in Maryland came before the Court of Appeals in 1905 in Handy v. State, 101 Md. 39 , 60 A. 452 . The defendant in that case was charged with the murder of his wife. After the trial court had examined a juror on his voir dire and found him to be qualified, the attorneys for the defense stated that they wanted to ask the juror some questions; but the court refused to let them do so, ruling that questions could be suggested to the court and the court would decide whether to ask them.

After the defendant was found guilty of murder in the first degree, this Court held that when a juror is sworn on his voir dire and is declared by the court to be qualified, counsel for the defendant is not entitled to interrogate the juror generally for the purpose of determining whether or not to exercise the right of peremptory challenge. That rule has been reaffirmed in subsequent decisions, and we see no reason to change it. Whittemore v. State, 151 Md. 309, 312, 313 , 134 A. 322 ; State for Use of Miller v. Welsh, 160 Md. 542 , 154 A. 51 ; Lee v. State, 164 Md. 550, 557 , 165 A. 614 ; Cohen v. State, 173 Md. 216 , 195 A. 532 , 196 A. 819 ; Adams v. State, 200 Md. 133, 140 , 88 A. 2d 556, 559 . Judge Clark asked each juror the following questions: (1) Have you formed or expressed any opinion as to the guilt or innocence of the accused?

(2) Do you feel that your mind is perfectly free and clear of all prejudice or bias of any kind that might prevent you from rendering a proper verdict ? ⁵⁸³ (3) Have any of your close relatives ever been killed or murdered? (4) Have you any conscientious scruples against inflicting capital punishment? When the judge found that a proposed juror was qualified, he asked the attorney for the defense if he had any other questions he would like to have asked. The attorney replied that he wanted the Court to ask each juror (1) whether he had ever been a police