Grammer v. State

Hammond, J., delivered the opinion of the Court. George Edward Grammer was tried by a Judge, without a jury, in the Criminal Court of Baltimore City on an indictment charging him with the murder of his wife. He was found guilty, in the first degree. A motion for a new trial, relying substantially on the same grounds which are urged here, was denied by the Supreme Bench of Baltimore City, two of the ten judges who sat dissenting.

After the denial of the motion, Grammer was sentenced to hang. From this judgment and sentence he appeals. The appellant says that at the time he was tried he could not, and in fact did not, obtain a fair trial. ²⁰⁵ Three reasons are asserted. The first is that by extensive and all enveloping television, newspaper, and radio publicity as to the crime, before and after indictment, fostered and participated in by the prosecuting officials and the police, the State not only stripped him of his presumption of innocence and convicted him of premeditated murder before he entered the courtroom to be tried, but also deprived him of his free election of a trial by jury and his opportunity of a fair hearing before a judge.

The second error urged is that his confessions were not voluntary and should not have been admitted in evidence against him. Third, he claims that the evidence before the Court did not warrant a verdict of murder in the first degree. The State, in the course of the preparation for printing of the joint appendix to be filed here, petitioned this Court to remand the record to the lower court for correction, or to expunge exhibits consisting of newspaper, magazine, television and radio stories of the crime and the case because they had not been in evidence at the trial. We denied the relief prayed and reserved the contentions made by the petition for determination at the time this appeal was decided.

At the start of the trial on October 14, 1952, the traverser, by his trial counsel who was not his counsel on appeal, made a proffer “for the record as evidence in this case” of the issues of all local newspapers containing stories of the case, and a similar proffer as to “all local television and radio stations . . . and as to the September 15, 1952 issue of Life Magazine” to show that publicity had deprived him of his constitutional right of trial by jury. The Court delayed its ruling on the proffers until after arraignment. The appellant then pleaded not guilty and, once again, elected to be tried by the Court without a jury. (At his original arraignment on September 16, he had elected in open court to take a Court trial).

After the plea and the election, the Court said, over the State’s objection, that the exhibits were in the record but that the election ²⁰⁶ of the defendant to take a trial by the Court eliminated any reason to take action on them. Since the exhibits were before the lower Court and were ruled to be in the record we will deny the petition of the State that they be expunged. The nature and facts of the crime made publicity inevitable. Soon after midnight on August 20, 1952, two Baltimore County policemen who had just turned their radio cruise car into Taylor Avenue from Belair Road, saw a Chrysler sedan coming downgrade on Taylor Avenue at high speed.

Suddenly it ran off the road to the right and over a lawn, came back onto the road and crossed to the other side, hit a bank, went up over it, hit a tree, turned over on its right side and came to rest against a telephone pole. In the car was Mrs. Grammer, under the dash, bent over so her head was between her knees. Her face and hair were matted with blood. She was apparently then dead; certainly, she was dead on arrival at the hospital.

The first stories in the newspapers indicated that the police thought she had been fatally injured when her car went out of control going down hill on Taylor Avenue. Pictures were published of Grammer at the home of his mother-in-law, Mrs. Schmidt, showing him seemingly a very much affected and bereaved husband. Early police suspicions that the death was murder and not accidental had been aroused in part by a stone found wedged under the heel of the accelerator so as to cause it to feed gas to the engine of the car which had an automatic drive. The Chief Medical Examiner of Baltimore, Dr. Russell S. Fisher, found, as he later testified, that death had been caused by craniocerebral injuries including lacerated wounds of the scalp and ear and extensive fracturing of the skull, inflicted by multiple blunt impacts coming from left to right.

There was also extensive aspiration and ingestion of blood. The back of the left hand and the left arm were swollen and' purplish. Dr. Fisher examined the car and found no object or surface which in his opinion could possi ²⁰⁷ bly have produced the injuries suffered by Mrs. Grammer. Further, he said the bruises could not have come from the accident because dead bodies do not bruise.

His conclusion, reported in the papers several days after the happening, was that she had been murdered and the automobile accident arranged to conceal the crime. Pictures were then again published showing Mrs. Schmidt acting as Grammer’s nurse, giving him sleeping pills and reporting that he was “dazed by murder”. Mrs. Schmidt reported that her daughter had once been beaten by an enemy while the husband was in the army. Grammer issued a public appeal for help “so that whoever is responsible for this will not have a chance to harm someone else”.

Public interest in what the papers called the “near perfect crime” was fanned by stories as to the pebble under the accelerator and comment on the obvious fact that if chance had not caused the car to swerve and overturn on Taylor Avenue, it would have torn across heavily travelled Belair Road — U. S. Route 1 — and either struck another vehicle or a stone and concrete wall along the east side of Belair Road. If this had happened the evidence as to the cause of death and the accelerator might well have been obscured by resulting fire or wreckage and the near perfect crime have become the perfect crime. On Sunday afternoon, August 31, while in custody of the police, Grammer confessed that after a brief quarrel in the parked Chrysler, he had struck his wife with a piece of iron pipe. About 4:20 P.M. on Sunday, August 31, the only formal statement ever issued by the State’s Attorney was given out.

It appeared in the newspapers the next day. The statement read: “After an investigation in connection with the death of Dorothy May Grammer, and interrogation of a number of witnesses, including George Edward Grammer, Mr. Grammer will be charged with the killing of his wife. . .” There are no evening newspapers published in Baltimore on ²⁰⁸ Sunday, but at 10:45 P.M. there was a television broadcast over a station owned by one of the newspapers. Present in the studio, and shown to the television audience, were the State’s Attorney of Baltimore City and two Assistant State’s Attorneys of Baltimore County, and two Baltimore County policemen. The commentator said to the television audience that: “We are told tonight by Mr. Anselm Sodaro, State’s Attorney for Baltimore City, who is here in the studios with us, that Mr. Grammer has been charged with the murder of his wife.. .” In introducing those present, as the camera was focused on them, the commentator said: “. . . we’d like you to meet this team which has been responsible for bringing a conclusion to this case, that is, conclusion before pre-trial. . .” No one spoke, other than the commentators except Mr. Sodaro, who, after pictures had been shown of the Chrysler, the Towson Court House, of Grammer being taken to the scene of the crime, and the scene of the crime, confirmed a statement that this was in Baltimore City about a sixth of a mile from the County line by saying: “That’s correct.” Several times the announcer warned of prejudgment.

Once he said he would not go into details or motives because: “. . . we will not attempt to prejudge.”; and again, “. . . we will ask for no comment from these police and prosecuting officials at this time in the best interests of Mr. Grammer so that we will not prejudice his case.” On September 2, it was announced in the paper that Dr. Fisher would explain on television step-by-step the facts which led to his conclusion that Dorothy May Grammer’s death was homicide. This was done on one of a series of television broadcasts produced by the University of Maryland on a program entitled “Death and the Law”. No transcript of the program is available but a summary, verified as accurate by Dr. Fisher, shows that he had been scheduled to appear on the program, before the Grammer murder occurred, to describe-the functions of the office of the Medical Examiner. ²⁰⁹ It was suggested to him that he • use the Grammer case as an illustration of his work. With the prior approval of the State’s Attorney, he did so.

The appellant’s name was not mentioned, although photographs of Mrs. Grammer were used. Another dereliction by the State complained of by the appellant is that a newspaper photographer was permitted to take a picture of the Chrysler while it was on a police lot with a stone lodged under the accelerator, placed there by the photographer, and this picture was used by Dr. Fisher on his broadcast without a statement that it was staged. Also, it is said, detectives showed photographers where the pipe, the murder weapon, had been found. The final charge is that the State, through the Judge who heard the case assisted the prosecution in withholding the name and true identity of “the other woman” by permitting her to use a fictitious name and give the bail piece in that name, and that the State’s Attorney, while refusing to identify her, let it be known to the press that she had a responsible job, was not of the theatrical world, had an excellent family background and was “more than a casual acquaintance” of Grammer.

We think the appellant attributes to the undoubtedly very extensive public knowledge of and interest in the case and its component facts a prejudice which can neither be shown nor fairly and reasonably be assumed to have existed. All of the facts which the public had learned of the case of any probative value for or against Grammer were presented as evidence at the trial. The appellant’s counsel, in announcing the election of a Court trial at the first arraignment, spoke of an existing “hysteria” which, he felt, would prevent a fair and impartial jury trial “anywhere in the country”. Hysteria is scarcely an accurate description of the apparent public state of mind.

The newspaper accounts give no hint of anger, of hatred, or of intense resentment in the community, such as exists when a child or' woman is atrociously molested- or raped, or there ²¹⁰ has been a series of such incidents or there is a racial element which has aroused abiding prejudice or passion in the public. Here the citizens were intrigued by the nearness to perfection in the crime, and the motive in the form of the love affair with the other woman. Compare Fountain v. State, 135 Md. 77 . This is not to say that the actions of the officials of the State should be either minimized or condoned.

It was a manifest impropriety for the State’s Attorneys to appear on the television program. The Medical Examiner should not have used a pending case as an example of the work of his office, and the State’s Attorney should not have approved of his so doing. Officials of the State should not announce, or sanction the announcement, that an accused has confessed or that he has made a statement. The term statement includes those which are exculpatory in varying degrees but to the public mind it has come to be an euphemism which does not deceive but connotes an admission of guilt.

We do find that the public knowledge of the facts of the case cannot fairly be laid at the door of the officials of the State up to the time that Grammer was charged. Until then, the facts themselves had been the inspiration of most of the publicity and appellant and his family had contributed much of it. Since the public knew of the manner of the murder and the effort to make it appear an accident, and also knew that the police were questioning the appellant, the bare announcement by the State that he was being formally charged with the murder of his wife would leave upon the community consciousness the impression that he had told the police things that had led them to believe he was guilty, as directly as the newspaper and television stories about a statement. A charge by the State’s Attorney or an indictment by the Grand Jury clearly and obviously implies that the police believe the accused to be guilty, and yet the announcement of such a charge or indictment is not only proper but ²¹¹ necessary.

Baltimore Radio Show, Inc. v. State, 193 Md. 300 . Certiorari denied 338 U. S. 912 , 94 L. Ed. 562 . If the wide public knowledge of the crime and its details had the effect which the appellant claims, he did nothing to so demonstrate, other than have his counsel announce an unsupported conclusion that he could not have a fair and impartial jury trial. This is not enough.

It is not to be presumed that an unbiased jury cannot be had. Baltimore Radio Show, Inc. v. State, supra. If he had wanted a jury trial he had several avenues open to him. He could have examined prospective jurors on their voir dire to ascertain whether twelve citizens were available who would affirm under oath that they would be guided only by the testimony produced at the trial.

There is nothing in the record to show that this could not have been done. In Garlitz v. State, 71 Md. 293 , a talesman, examined upon his voir dire, said frankly he had formed an opinion as to the guilt or innocence of the prisoner and accepted as true the newspaper accounts he had read and the rumors he had heard, but that this could be changed and he could give the prisoner a fair trial, governed only by the evidence. He was held a competent juror. Judge Alvey, after commenting on the natural instincts which lead all men to be biased against crime, and particularly crime of an atrocious character, said that this natural bias should not be regarded alone as sufficient cause for the disqualification of a juror.

He continued: “The intellectual, as well as the moral impressions, produced by the reading or hearing of reports or statements of facts in regard to the commission of crime are such that intelligent minds cannot resist; indeed, in many cases the mind receives the impressions from such statements intuitively. But these impressions, with intelligent, fair minded men, are always a hypothetical nature, resting upon the supposition of the truth of what they read or heard. The minds of such men always remain open to the correction of former impressions, and remain entirely impartial, with power ²¹² to hear and determine upon the real facts of the case, without the least bias in favor of former impressions, whatever they may have been. And therefore, in our present state of society, all that can be required of a juror, to render him competent, is,,that he shall be without bias or prejudice for or against the accused, and that his mind is free to hear and impartially consider the evidence, and to render a verdict thereon without regard to any former opinion or impression existing in his mind, formed upon rumor or newspaper reports.” In Dennis v. United States, 339 U. S. 162 , 70 S. Ct. 519 , 94 L. Ed. 734 , 742, in discussing whether Government employees could properly sit on District of Columbia juries, where Communists were being tried, because of the loyalty oath required of such employees, the Supreme Court said: “One may not know or altogether understand the imponderables which cause one to think what he thinks, but surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.” And again: “There is no disclosure in this record that these jurors did not bring to bear, as is particularly the custom when personal liberty hinges on the determination, the sense of responsibility and the individual integrity by which men judge men.” See also Holt v. United States, 218 U. S. 245, 251 , 31 S. Ct. 2 , 54 L. Ed. 1021 , where Mr. Justice Holmes said: “If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day.” The appellant could have exercised his absolute right of removal, as an accused in a murder indictment, if he felt that a more remote and rural atmosphere would be more likely to furnish a fair jury and there could have examined the talesmen on their void dire.

He could have asked for a continuance but rather, when asked on September 16 when he would be prepared for trial, said he would like á delay of but three, weeks. This ²¹³ was granted and the State secured another postponement of a week so there was a month’s delay. The appellant sought no further postponement. Not only did the appellant and his counsel, active and experienced in criminal trials, make no move to avoid a trial at that time by the Court, but they freely and voluntarily elected a trial by Judge Moser.

After stating his conclusion that a fair and impartial jury could not be obtained, appellant’s counsel said in Court on September 16: “For that reason, I have taken the matter up with my client and have assured him that he is rather fortunate to have your Honor, who I am sure will give him a fair and impartial trial, to hear this case. That is the reason we are asking for a court trial.” This election was made again just before the trial on October 14. There is no possible inference, either on the facts of this case, or under Maryland practice, that this was a reluctant choice, made because of the publicity, rather than a considered and deliberate decision, based on the pending evidence, that a better verdict might be obtained before a judge. It is the customary rather than the exceptional practice, particularly in Baltimore City.

Rose v. State, 177 Md. 577, 580, 581 , dealt with a case where the appellant had first elected to be tried by a jury and then withdrew that election and was tried by the court alone. The appellant complained in this Court that she had been deprived of her Constitutional rights. Chief Judge Carroll Bond pointed out that trials without juries had been allowed since near the founding of the province, if not from the beginning, and that instances of trials without juries appear in some of the records of the Provincial Court and county courts of the 17th Century. He continued: “And so it was during the 18th century, before and after the Revolution.

The practice was then usually supposed to have been derived from the old English practice of confession and submission in minor cases, although innocence was nevertheless provable, and acquittals were ²¹⁴ obtained.” He continues, in speaking of the practice of trial without a jury: “There is hardly an institution in the state more firmly established. To the knowledge of men now living, trials without juries have long been elected in the greater number of criminal cases in the state, and in the criminal courts of Baltimore City, where the number of such cases is naturally greater than in other jurisdictions, more than ninety per cent of all trials have for many years been held without juries. “Strictly speaking, there is in this no waiver of a requirement of jury trial. It is more accurate to say that an equally normal method is elected. And there is no reason for disapproving it as deprivation of something an accused should have.

It is demonstrated that there is a pronounced desire for it. And for persons who fear the effect of any prejudice in the jury box, racial or other prejudice, it is a boon.” The report of the State’s Attorney’s office of Baltimore City for the year 1951 shows that of 6,188 cases tried, 5,967 were tried by the court without a jury, always at the election of the traverser since the choice is his; of 90 murder-manslaughter trials, 77 were so tried without a jury. For the year 1952, the report of that office shows a total of 5,790 trials, of which 5,695 were tried by the court without a jury. The murder trial figures show a total of 86, with only 4 tried by a jury.

Since the appellant did twice freely elect a non-jury trial without moving any of the alternatives, there is nothing in this aspect of the case for us to consider on the record. Rule 9, Rules of the Court of Appeals, provides: “In no case shall the Court of Appeals decide any point or question which does not plainly appear by the record to have been tried and decided by the court below.” The rule applies to criminal as well as civil cases, Davis v. State, 189 Md. 269 , and often has been applied. See Swann v. State, 192 Md. 9 ; Larch v. State, 201 Md. 52 , 92 A. 2d 463 ; and Hutson v. State, ²¹⁵ 202 Md. 333 , 96 A. 2d 593 . The appellant says that this Court should reverse nevertheless because of the serious prejudice to his fundamental rights.

In Madison v. State, 200 Md. 1 , 87 A. 2d 593 , a capital case, Judge Markell said for the Court: “Defendant contends that by the ruling admitting the photograph in evidence and by other action or non-action which involves no ruling at all by the trial court, ‘serious error may have been committed’ and should be corrected without regard to the rules of law ordinarily governing appeals. . . We are, however, without authority to review errors in trial tactics of defense counsel or to speculate as to possibilities that different tactics might have produced a different result.” If we were permitted to speculate, we would find no reason to suppose that different trial tactics would have changed the result, or indeed that twelve unbiased citizens, who had heard of appellant and the case for the first time in the Court room at the trial, would have felt the evidence called for a lesser verdict. The requirement of due process has not been offended in this case. There was no need, indeed no reason, why the Court below sua sponte should have delayed the trial or taken any action, other than to accept, as it did, the normal election of the appellant to be tried by the Court, at a time agreeable to him.

The revelations in the press and on the radio as to the confession and prior record of the accused involved in Baltimore Radio Show, Inc. v. State, supra, were far more damaging, inflammatory and potentially prejudicial than in this case. It was there decided that neither public knowledge of a confession nor public statements as to matters that might or might not be admitted in evidence against the accused nor disclosure of the nature of the