Garland v. State

Moylan, J., delivered the opinion of the Court. The appellant, Michael Sean Garland, was orginally indicted by the Baltimore City Grand Jury for murder and for the unlawful use of a handgun. At the suggestion of the State and over the vigorous objection of the appellant, the case was removed from Baltimore City to the Circuit Court for Montgomery County for trial. In the Circuit Court for Montgomery County in a jury trial, presided over by Judge Ralph G. Shure, the appellant was convicted of murder in the second degree and of the handgun violation.

Upon appeal to this Court, the appellant raised initially ten contentions, the present cataloging of which is unnecessary. Following the argument in this Court but before a decision was handed down, the appellant moved for reargument because of the alleged pertinence of the then recently decided case of Mullaney v. Wilbur, 421 U. S. 684 , which decision was handed down by the Supreme Court of the United States on June 9, 1975. Agreeing that the principles enunciated in Mullaney v. Wilbur were, indeed, pertinent, we granted the motion for reargument. In our decision in Garland v. State, 29 Md. App. 27 , we reversed the conviction because of our belief that the appellant had been denied due process of law because of a jury instruction which arguably placed upon him the burden of lowering his degree of blameworthiness from the murder level to the manslaughter level.

Upon appeal by the State, the Court of Appeals in State v. Garland, 278 Md. 212 , reversed our judgment essentially on factual grounds, concluding that the instruction taken as a whole did not operate to shift unconstitutionally a burden of persuasion to the appellant, albeit certain portions of the instruction were inartfully phrased according to the hindsight of Mullaney v. Wilbur. The Court of Appeals remanded the case to us for ²⁶⁰ further consideration of the other contentions raised by the appellant. It is only necessary for us to come to grips with one of them: the claim by the appellant that he was denied the equal protection of the law when his case was removed from Baltimore City to Montgomery County. The case was fraught with racial overtones.

The appellant, a black man, shot and killed a white policeman, Officer Norman Buchman, on April 6, 1973. The appellant shot Officer Buchman in the head six times in rapid succession with the officer’s own service revolver. Immediately preceding the shooting, both the appellant and the victim had been fighting and rolling to the' ground outside the appellant’s mother’s home on Quantico Avenue in Baltimore City. There was evidence, from the appellant and others, that Officer Buchman had engaged in a pattern of harassment directed toward the appellant since the beginning of March, repeatedly following him, stopping him, arresting him, impounding the appellant’s new car and treating him in a rude and contemptuous manner.

There was, as we pointed out in Garland v. State, 29 Md. App. 27, 28 , a genuine jury question in this regard: “The critical defensive issue in this case was mitigation in that the appellant allegedly killed his victim in a hot-blooded response to legally adequate provocation, to wit, in the course of mutual combat. Without detailing the long and involved factual picture, it is enough to point out that the evidence, both from the State’s case and the defense case, was enough to generate a genuine jury issue on the subject of mitigation due to provocation.” This case involved non-capital charges and therefore the decision on removal rested in the sound discretion of the trial judge and will not be reversed absent a showing that that discretion was abused. Gibson v. State, 17 Md. App. 246 ; Smith v. State, 16 Md. App. 317 ; Stevenson v. State, 9 Md. App. 152 ; McLaughlin v. State, 3 Md. App. 515; Benton v. State, 1 Md. App. 647 . In looking to the question which the ²⁶¹ hearing judge must decide, however, it is clear that the State must allege in writing and under oath that it cannot receive a fair and impartial trial.

Furthermore, “It shall be necessary for the party making such suggestion to make it sastifactorily appear to the court that such suggestion is true, or that there is reasonable ground for the same.” Maryland Constitution, Article IV, § 8. And see Mason v. State, 12 Md. App. 655 . The moving party in this case was the State of Maryland. The appellant vigorously opposed the suggestion of removal.

We conclude that the State failed to carry its burden “to make it satisfactorily appear to the court” that it could not receive a fair and impartial trial in the City of Baltimore. The State supported the suggestion by filing some twenty-eight exhibits. At initial glance, the mass of exhibits is impressive. Upon more thorough examination, however, a full 95 percent of the allegedly prejudicial pretrial publicity is revealed to be immaterial to the issue upon which it is offered.

We note initially that the State alleged in its Suggestion for Removal “that neither the State nor the Defendant can have a fair and impartial trial in this Court.” It is not the prerogative of the State, however, to assert the rights of the appellant. As far as any impact upon the appellant was concerned, the appellant concluded that he could receive a fair trial in Baltimore City and made no move whatsoever to have his case removed. Indeed, he opposed the move. We will, therefore, look to the supporting evidence for the only material issue raised by the State — that it (the State) could not receive a fair trial.

Most of the exhibits filed by the State would have been very relevant if they had been filed by the appellant upon his own motion for removal. Those things which might tend to show that the appellant could not receive a fair trial, however, do not tend to show that the State could not receive a fair trial. We believe that the unduly broad brushstrokes used by the State may have lured the eminently fair and impartial jurist, who ordered the removal, into a false sense of solicitude for the appellant, which solicitude the appellant was not seeking and did not wish. ²⁶² The shooting occurred on April 6. There was significant, but not excessive, press coverage during the period of April 6 to April 10.

Several radio stations and several television stations briefly reported the killing of the policeman. A few newspaper articles appeared — in The Morning Sun, in The Evening Sun, in The News-American and in The Afro-American. Except for a banner headline on one occasion in The News-American, the articles were of moderate tone and length and were not particularly prominently displayed. The only basis for the State’s claim that it could not receive a fair trial was the fact that the defense attorney, shortly after the appellant’s arrest, claimed that his client had been beaten by the police and predicted that they would extract a confession from him.

The total coverage on this claim in all of the stories in all of the media consisted of no more than a few paragraphs. Indeed, the great bulk of the pretrial publicity, during its several days of relative prominence, militated strongly in favor of the State and not against it. The banner headline in The News-American and the lead paragraphs of most of the stories featured the fact that the appellant had shot and killed a policeman. The only photographs were of the slain policeman, his widow and orphaned daughter.

The Fraternal Order of Police called for a crackdown on police killers. Governor Mandel called for a reinstitution of the death penalty in view of the police killing. Civic watchdog Hyman Pressman called for an investigation as to why judges are “soft” on police killers. Some of the stories made much of the prior criminal record of the appellant.

Some made much of the hospital examination which tended strongly to negate his claims of having suffered physical harm at the hands of the police. All of this might well have supported his suggestion for removal, had he made one. The State, however, may not beef up its own case or obscure its lack of a case by making a case for the opposing party. The publicity had entirely run its course by April 10.