Day v. State

Marbury, C. J., delivered the opinion of the Court. This is an appeal by Gerald Sylvester Day and Russell Sinclair Lewis from sentences of death, imposed after a joint trial and conviction by a jury in the Criminal Court of Baltimore for the murder of a trackless trolley operator. Day was represented by counsel employed by his family; Lewis was represented by counsel appointed by the court. On October 5, 1949, at about 11:15 P. M., Officer Gardner of the Baltimore City Police Department, at that time off duty, saw a trackless trolley car at the curb with all lights off at the intersection of Carey Street and West-wood Avenue in the city of Baltimore.

He went there and saw two men standing on the curb side looking in an open window. He recognized one of the men as Gerald Day. He had some words with him as to his presence there, and Day ran off. The other, a man whom the officer did not then know, but whom he later identified as Lewis, then also ran off.

The officer looked into the trolley, saw someone lying on the floor, and noticed blood ³⁸⁷ dripping out of the door. After an ambulance and other policemen arrived, he went into the trolley, found the driver stabbed, nearly dead, and a quantity of blood on the front platform. The driver was removed in the ambulance to a hospital where he was pronounced dead. Subsequently, in the early morning of the next day, Day was arrested, and later in the day, Lewis was arrested, both being taken on arrest to the Northwestern Police Station.

After questioning, each of the appellants made statements. Their statements were first taken down by a police officer, then subsequently by a stenographer of the Supreme Bench in the presence of an assistant State’s Attorney, and finally a joint statement was taken, all of which will be discussed later in this opinion. At the trial, four separate statements and part of the joint statement were admitted in evidence. Petitions for severance were filed by each of the traversers on identical grounds, namely, that their interests were separate, that they had different counsel, and that the State had statements in its possession which, if offered and submitted in a joint trial, would be distinctly harmful and in violation of their rights guaranteed by the Constitution of the United States.

These petitions were overruled and the joint trial then proceeded. During the course of the trial, the five statements were admitted, two by each of the defendants, and one, a joint statement, in all of which they contradicted each other. Each of the defendants admitted being present at the scene of the crime, that he knew the purpose of going to the trolley car was to rob the driver, but each accused the other of being the one who got in the car and, presumably, killed the operator. Each said that he, and not the other, remained outside and pulled the trolley pole from the wire so as to darken the interior of the vehicle.

The court was advised at the time the motion for severance was made that these statements were to be offered, and it was obvious that if they were admitted, the only way the court could protect each traverser from the statements of the other against him was ³⁸⁸ to instruct the jury (which was done) that each man’s statement was evidence only against him and not against the other. The question before us is whether, in a case such as this, that was sufficient protection, or, in other words, whether, where the court knew that would be the only protection, should it have granted the motion for severance, and was its failure to do so arbitrary and in violation of defendants’ right to a fair trial and, if so, is it subject to review by us. It has been generally held in this State that the granting or refusing of motions to sever is within the discretion of the trial court under all the circumstances of each case. In Smith v. State, 106 Md. 39, 41 , 66 A. 678 , it is said that it is “entirely” within the discretion of the trial court.

As authority for this statement, the case of U. S. v. Marchant, 12 Wheat. 480 , 6 L. Ed. 700 , is given. In that case, in which the opinion was written by Justice Story on March 12, 1827, the history of the theory of severance is given to show that it was not a matter of right. It was so held, and, in conclusion, it was stated: “In our opinion, it is a matter of sound discretion, to be exercised by the court with all due regard and tenderness to prisoners according to the known humanity of our criminal jurisprudence.” In Gray v. State, 173 Md. 690 (unreported), 195 A. 591 , the general statement that severance is within the discretion of the trial court is made, and this case is cited as authority in the late case of Jones v. State, 185 Md. 481 at page 487, 45 A. 2d 350 . In the last mentioned case, however, there was an indication that some circumstances might justify this court in reviewing the action of the trial court.

In that case the court said that there was no intimation that the defense of the respective defendants was hostile, and it might be assumed that it was not the case, that the matter was in the discretion of the court, there was no abuse of discretion, and the action of the court was correct. . There are a number of matters which are in the discretion of the trial court, but it is not true that in all ³⁸⁹ of these matters there is no review. Thus, in a criminal case, where the question was whether the State might offer certain testimony in rebuttal, this court quoted Poe’s Pleading and Practice, Vol. 2, § 287: “The subject is one which is addressed to the sound discretion of the court; and the appellate court will not reverse for an error on this point, unless the ruling of the court beloiv was both manifestly wrong and substantially injurious•. Indeed, as a general rule, in such cases no appeal will lie.” (Emphasis supplied.) Jones v. State, 132 Md. 142, 149 , 103 A. 459, 461 .

In another case, where the appellant had been sentenced to hang for murder, the same question arose and the same quotation from Poe was repeated. Snowden v. State, 133 Md. 624, 636 , 106 A. 5 . There is some confusion on the subject in both civil and criminal cases, and at times it has been decided flatly that there is no appeal from a matter in the discretion of the trial court. For example, Bannon v. Warfield, 42 Md. 22, 39 ; Watson v. Cook, 170 Md. 377, 381 , 184 A. 908 ; Schneider v. Hawkins, 179 Md. 21, 25 , 16 A. 2d 861 .

We think, however, the correct rule is that stated by Chief Judge Bond in the case of Newcomer v. Miller, 166 Md. 675, 681 , 172 A. 242, 244 , where he said: “The existence of a discretion does not in all cases prevent review, however. While absolute in some cases, and not open to review, in others discretion is reviewable. (Citing cases.) The extent of discretion and the right of review differ according to the purpose of the discretion. Here the court is considering, not a mere regulation of order and progress in a proceeding in court, or in a matter in which the judge’s close contact with the circumstances would give him an understanding preferable to that of judges on appeal, so that by reason of these or other circumstances it should defer to the judgment of the trial judge.

It is considering an action which might have a much closer connection with essential justice.” The court in that case was considering the right of certain stockholders of a corporation to examine the books under circumstances in which receivers had been ap ³⁹⁰ pointed who were claimed to be a debtor of the corporation and his counsel. It said “* * * it does not seem permissible to deny review on complaints of substantial wrong, as here” and reversed the lower court. In the case of Northwestern National Insurance Co. v. Rosoff, 195 Md. 421 , 73 A. 2d 461 , we held that our Rule Four of the General Rules of Practice and Procedure, Part Two, III, which gives the right to implead third parties in the discretion of the trial court does not necessarily mean that where the action of the trial court is clearly arbitrary, or has no sound basis in law or reason, it cannot be reviewed. We said, however, that we cannot reverse the judgment of a trial court unless there is grave reason for doing so.

A joint trial under the circumstances in this case would necessarily raise in the minds of the jury the question which of the defendants was telling the truth, or whether both were lying. Under such circumstances it would be a practical impossibility for the jurors to dismiss from their minds the statements of Lewis against Day when considering the Day case, and to dismiss the statements of Day against Lewis when considering Lewis’s case. No juror, no matter how intelligent and how desirous of doing his duty, and obeying the instructions of the court, could rid his mind of the impression necessarily made upon him by these statements of each of the defendants against the other. This court has said that an instruction given on behalf of one defendant to disregard statements made against him by another defendant is all that the court can do in a joint trial, but it has not passed upon the question whether the court could not or should not do more by way of granting a severance, if it is known to the court at the time the severance is asked that that situation is going to arise.

In the case of Markley v. State, 173 Md. 309 , at page 318, 196 A. 95 at page 99, this court said, speaking through Chief Judge Bond: “It may be that the practical value of such a restriction is small, but it is the only remedy practicable on a joint trial.” (Emphasis ³⁹¹ supplied.) That was a conspiracy case in which no severance was asked. In the case of Jackson v. State, 180 Md. 658 , at page 665, 26 A. 2d 815 ; Markley v. State, supra, was quoted as authority for not striking out the confessions after it appeared that one defendant had made admissions which would implicate the other. That case was a murder case in which the three defendants had been jointly indicted and tried for murder. The court was careful to point out, at the beginning of the case, that the defendants did not ask for severance.

In the case of Jones v. State, supra, 185 Md. at pages 490-491, 45 A. 2d 354 , it appears that counsel for the defendants did not make any motion to limit the evidence in each confession to the traverser making it. In that case, a motion for severance was made on behalf of one defendant, but no reason was given, and the court at that time may well have been unaware of the situation that was about to develop as to the confessions. In the case of Peters & Demby v. State, 187 Md. 7, 14 , 48 A. 2d 586 , it does not appear that any motion for severance was made, or that there was any prospect of disagreement between the traversers at the inception of the trial. Confessions were received and the court directed that each confession would be received only as evidence against the person making it.

We said that practice had been approved. The State contends that the defenses of the appellants were not hostile because, when a murder is committed in the course of a robbery, each of the participants is equally guilty of murder in the first degree, and that, as each confessed that he participated, he was not harmed by the confession of the other. We think, however, this contention does not go to the root of the matter. It is true that each defendant on his own confession might be held guilty of murder in the first degree, but the jury is not only the judge of the law and the fact, but in cases of murder in the first degree, it has something to do with the sentences.

It may find one defendant guilty of murder in the first degree without capital punishment, ³⁹² thereby saving his life. It is quite possible that the jury might, with complete legality, decide to find the man who it thought actually did the killing, guilty without a recommendation of mercy, but might make such a recommendation for the man who stayed outside the trolley car. Under such circumstances, there would be a very real contest between the defendants, with their lives as a stake, as to who actually did the killing. The jury might believe one or the other, or neither, and it might not recommend mercy for either, but the possibility is there, and to that extent we think the defenses of the two traversers were not only hostile but very damaging to each other.

In other jurisdictions, in similar cases, appellate courts have reversed the trial courts and granted severances. Thus, in State v. Desroche, 47 La. Ann. 651 , 17 So. 209 , 210, the defendants had been convicted and sentenced for burglary. The Appellate Court, reversing the trial court, said: “We are informed by the bills that the defenses were antagonistic, and each had made confessions incriminating the other.

To try both together was, in effect, to try each on the confession of the other; and this, of course, would be to disregard the obvious principle that no man can be affected in his rights of person or property by the statements of another out of his presence, and not assented to by him. (Citing Louisiana cases.) It is possible there might be some grave cause to refuse a severance in such a case, although the refusal would lead to the use in evidence against each of the confessions of the other, and it is possible such cause might be deemed sufficient to warrant trying both accused before the same jury. It is enough to say the bills show no such cause. It appears that before the trial the severance was asked, and the ground of antagonistic defenses and incriminating confessions assigned. * * * The court * * *■ refused the severance; and the testimony went to the jury over the objection of the counsel of the accused. * * * Our learned brother- of the district court was, doubtless, influenced in his action by the general ³⁹³ rule that applications for severance are addressed to the discretion of the court.

Still, to this general rule there are exceptions. * * * In other words, the application for a severance is addressed to the legal discretion of the lower court, and the appeal requires us to determine whether the cause existed for the application. We think the basis is exhibited.” In Flamme v. State, 171 Wis. 501 , 177 N. W. 596 at page 598, the court said: “It is contended that the court erred in refusing to grant the defendants’ request