Hopkins v. State

⁵⁵ Gilbert, J., delivered the opinion of the Court. Gene Pierre Hopkins was indicted by the grand jury for Montgomery County on charges of murder, assault with intent to murder, assault with intent to maim, assault and battery, assault and carrying a dangerous weapon. The indictment grew out of a racially based escapade by three young white men who, for a “lark”, decided on the night of August 18, 1972 to “raise a little hell” with the black people who lived in the Ken-Gar area of Montgomery County. As the three youths drove along Plyers Mill Road they threw firecrackers at the people they saw.

The vehicle in which the youths were riding was driven by Mark Stephen Murray who was eighteen years old. According to the testimony of one of the youths, the perverted form of entertainment decided upon by the three young men was Murray’s idea. After the firecrackers were hurled at various pedestrians and bystanders, the vehicle continued on Plyers Mill Road to what proved to be a cul-de-sac. There the three observed that they were being approached by a group of black men.

One of the trio fled afoot, the other two, including Murray, remained in the vehicle. When the group of black men surrounded the vehicle they told the two remaining white youths to get out of the car. Murray responded with the question, “Can’t we talk this over?” One of the group of black persons possessed a gun and discharged the gun three times in a downward motion into the ground. Either ricochets or gravel came in contact with the underside of the motor vehicle.

Instead of alighting from the car, Murray began to drive the car forward and the person with the gun fired twice. The vehicle ground to’ a halt, and Murray exclaimed that he had been hit. He slumped forward over the wheel. The other white youth got out of the car and was beaten about his head and body.

Murray died as a result of a gunshot wound that entered his back, punctured both lungs and his aorta vein. The youth who was beaten by the group of black men positively identified the appellant, Hopkins, as the person who discharged the firearm into the ground. As a result of a search and seizure warrant, a .25 caliber pistol ⁵⁶ was recovered from the residence of Hopkins, and that weapon was positively identified by a ballistics expert as the weapon from which the fatal projectile was fired. The jury convicted Hopkins of manslaughter, assault and wearing or carrying a handgun.

Prior to trial Hopkins moved for a dismissal of his indictment on the ground that “the Grand Jury was not an impartial body, in violation of the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution, and of Article 23 of the Maryland Declaration of Rights, for the reason that a Montgomery County police officer was a member of the Grand Jury.” At the hearing before the three-judge panel, on November 16, 1972, Matthew Hyatt, a Montgomery County police officer, testified that he had been summoned as a grand juror for Montgomery County, and that when he appeared before the jury judge he stated that he “didn’t think that. . . [he] would be able to serve and observe in an unbiased manner.” He stated that he knew most of the police officers who would appear before the grand jury panel, and that in his view when an arrest was made he felt that that in itself was sufficient to warrant an indictment. The officer acknowledged that from time to time his advice was sought by members of the grand jury, and that on at ldast one occasion, 1 his vote had been the crucial one. The officer further said that he believed it was impossible for him to serve as a police officer six days a week and be an impartial member of the grand jury on the seventh day. He opined that he lived in dread of making a felony arrest and then having to appear as a State witness before the self-same grand jury of which he was member.

This latter eventuality did not occur, however. Officer Hyatt also told the panel that there were occasions when his “right to express” himself “might have been a factor involving persuading other people ⁵⁷ to change their vote” for indictment. 2 Officer Hyatt was asked: “. .. [W]ould it be fair to say that in every case that came before that grand jury, that you evaluated the testimony of each and every witness honestly and fairly and as completely as you could pursuant to your oath as a grand juror? ” Mr. Hyatt responded: “I did serve as best I could under the oath of being a grand juror.” When the jury judge was called to testify he told the panel of judges that he remembered Officer Hyatt because Hyatt had initially returned the grand jury questionnaire unanswered with the notation “across the top . . . that he was a police officer and that he wasn’t subject to grand jury service.” The officer was instructed as a result of the jury judge’s phone call to the police officer to send a completed jury questionnaire. Thereafter according to the judge’s “only clear recollection”, Officer Hyatt stated that service on the grand jury would require him “to give up his day off each week.” Jury service, he said, “would deprive him of accompanying his wife on shopping trips and doing other errands”, and that such service “would be very inconvenient to him and a hardship upon him.” The judge said that he had “no independent recollection” of any reference to “bias on ⁵⁸ account of [Hyatt’s] employment.” The judge also testified that he was “unconvinced that [Hyatt] would not be able to render impartial service.” There was testimony that two other law enforcement officers had been excused from the grand jury because their excuses were found to be “credible”. The record reveals the following questions put to the jury judge and his answers thereto: “Q. He was qualified to be a grand juror by the fact that you didn’t think he was a truthful person; is that it?

A. I thought he was emotionally upset and he wasn’t presenting a credible story as to why he should be excused. Q. But this was at least his second or third attempt to be excused; right? A. Well, his first attempt was to not fill out the questionnaire, and he cited in his questionnaire respondent filled out that he was a police officer and he wasn’t supposed to serve on a jury. Q. Did any information come to you after he served, after he was sworn, that he still wanted to get off, that at this time he wanted to get off the grand jury?

A. I don’t recall any request made during the jury service. Q. Do you know if your office received any letters from him or an attorney who represented him, or telephone calls from an attorney who represented him? A. I don’t recall any. My secretary would have the letters, if they were received.

Q. Did you receive any letters or requests from any of his superior officers in the Police Department? A. Any requests that he be excused? Q. Yes. A. None whatever.” ⁵⁹ The three judge panel, on December 22, 1972, denied the appellant’s motion to dismiss the indictment. 3 On appeal to this Court appellant attacks the ruling of the three judge panel.

He argues that the Due Process Clause of the Constitution of the United States “protects a defendant from jurors who are actually incapable of rendering an impartial verdict based on the evidence and the law.” Further, he asserts that “the U.S. Supreme Court has held that a State may not subject a defendant to indictment and trial by grand and petit juries that are plainly illegal in their composition.” In support of his contention appellant cites Jordan v. Massachusetts, 225 U. S. 167 , 32 S. Ct. 651 , 56 L. Ed. 1038 (1912); Moore v. Dempsey, 261 U. S. 86 , 43 S. Ct. 265 , 67 L. Ed. 543 (1923) and Peters v. Kiff 407 U. S. 493 , 92 S. Ct. 2163 , 33 L.Ed.2d 83 (1972). We think appellant misreads Jordan, Moore and Peters, and then misapplies them to the instant case. Jordan dealt with a member of the petit jury who was insane. Moore was concerned with a petit jury’s being intimidated by “threat of mob violence.” Peters involved a Caucasian’s challenge to the systematic governmental exclusion of black persons from both the grand and petit juries.

Clearly, Jordan and Moore are inapposite and need no discussion. Peters does not stand for the proposition that in order for an indictment to be valid the grand jury must be free of bias. Mr. Justice Marshall, writing for the plurality, opined at 501: “.. . [I]f a State chooses, quite apart from constitutional compulsion, to use a grand or petit jury, due process imposes limitations on the composition of that jury. ⁶⁰ Long before this Court held that the Constitution imposes the requirement of jury trial on the States, it was well established that the Due Process Clause protects a defendant from jurors who are actually incapable of rendering an impartial verdict, based on the evidence and the law.” In our view, Peters v. Kiff, supra, does not modify the holding of the Supreme Court in Beck v. Washington, 369 U. S. 541 , 82 S. Ct. 955 , 8 L.Ed.2d 98 (1962). In that case the Court upheld the State of Washington’s high Court’s affirmation of Beck’s conviction.

Beck had argued that the grand jury was biased because of adverse magazine and newspaper publicity in which Beck’s guilt was accepted as having been established as fact. The Supreme Court said that there had been no showing of actual prejudice. It went on, however, to state flatly that it did not “remotely intimate any view” on whether an accused is entitled under the Due Process Clause to an unbiased grand jury. Appellant’s reading of Peters v. Kiff, supra, appears to be overly broad.

Patently a grand jury does not “render a verdict”, but merely determines from the one-sided presentation of facts whether there is sufficient proof before it upon which to bring a charge. It is the trier of fact, the petit jury, that hands in a verdict. Had the Supreme Court intended to depart from its decision in Beck, supra, and intimate its view, it would, in our opinion, have done so. Significantly, the Supreme Court did not deviate from the course it chose in Beck .

Although historians disagree as to the origin of the grand jury, 4 G. Edwards The Grand Jury 2 (1906) states: “Strictly speaking there is no obscurity surrounding the origin of the ‘grand jury’, for it was not until the 42nd year of the reign of Edward III (A.D. 1368) that the modern practice of returning a panel of twenty-four men to inquire for ⁶¹ the county was established and this body then received the name of ‘le graunde inquest’. ” The Englishmen who first settled in the colonies brought with them “all the civil rights which they enjoyed in their native land, and with them came the grand jury.” Id. at 31. The Constitution of the United States, as originally adopted, 5 contained no provision guaranteeing a presentment or indictment by a grand jury. The omission was corrected by the ratification of the Fifth Amendment, December 15, 1791. 6 The Fifth Amendment provides in pertinent part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger, . . .” The above-quoted portion of the Fifth Amendment has not been held to be applicable to the several States, Peters v. Kiff, supra, Hurtado v. California, 110 U. S. 516 , 4 S. Ct. 111 , 28 L. Ed. 232 (1884), although it is indubitably binding upon the Federal Government. 7 ⁶² The grand jury system has been both praised and damned. There are those who view the grand jury as the “security of Englishmen’s lives”, 8 “the grand bulwark of his liberties”, 9 and “the noblest check upon the malice and oppression of individuals and states”. 10 On the other hand, its critics view it as “purely mischievous”, 11 a “relic of barbarism”, 12 and a “rubber stamp” for prosecutors.

As Chief Judge Murphy noted in his address to the General Assembly of Maryland, n. 7, supra, there is nothing in the Maryland Constitution that mandates indictment by a grand jury as a prerequisite to trial. Moreover, the Legislature heeded the advice of Chief Judge Murphy and conferred upon State’s Attorneys a qualified right to elect to proceed against an accused either by way of indictment or information. Md. Ann. Code art. 27, § 592. 13 The Court of Appeals and this Court have stated that a grand jury is: ⁶³ Hopkins v. State, supra. See also Coblentz v. State, 164 Md. 558 , 166 A. 45 , 88 A.L.R. 886 (1933).

In Coblentz the Court of Appeals considered a case wherein the president of a bank was charged with accepting deposits even though he knew that his bank was insolvent. The Court, speaking through Chief Judge Bond said at 570: ⁶² “ . . . [A]n inquisitional and accusatory body. It does not determine the guilt or innocence of the accused as that decision is vested in the petit jury or court, if there be a non-jury trial.” ⁶³ “A second objection advanced in the plea was that nine members of the grand jury were disqualified from serving in the investigation and from finding this particular indictment because they had been subject to losses as depositors in the Central Trust Company, or in other depositaries which had been merged with that company, and were embittered against the defendant; and because the foreman, one of those depositors, had publicly declared his hostility to the defendant and charged him with fraud. This objection we find insufficient to support the plea.

The grand jury, as has been observed, is not a judicial body; it is an accusing body, permitted to act upon knowledge obtained by its members from any source. Under the requirements of the statute law of the state, Code, art. 51, secs. 7 to 10, they are chosen with judgment and discretion with reference to their intelligence, sobriety, and integrity; and they are sworn to present no person for envy, hatred, malice, or ill will. But there are no statutory provisions in Maryland, as there are in some other states, prescribing additional cautions or qualifications, and we find no ground for imposing a requirement that they must be unprejudiced, as the objection demands. On the contrary, such a requirement would seem inconsistent with their freedom to accuse upon their own knowledge, for persons who come with knowledge sufficient to serve as a basis of indictment are likely to come with the conclusion and prejudice to which that knowledge leads.

They must act upon their own ⁶⁴ convictions, after conferring secretly and without any interference; but they are not required to come without any prejudice.” It has been held that a person is not disqualified to serve as a grand juror on the ground that: (a) he was the prosecutor of the case, U. S. v. Williams, 28 F. Cas. 666 (No. 16,716) (C.C.D. Minn. 1871); (b) he was a relative of the person the accused was alleged to have injured, Collins v. State, 3 Ala. App. 64 , 58 So. 80 (1912); (c) the complaining witness, Holmes v. State, 160 Ark. 218 , 254 S. W. 470 (1923); (d) the son-in-law of the murder victim, Oglesby v. State, 83 Fla. 123 , 90 So. 825 (1922); (e) the father of a rape case prosecutrix, Zell v. State, 15 Ohio App. 446 , 32 Ohio C. A. 385 (1922); (f) the committing magistrate, State v. Chairs, 9 Baxt. (Tenn.) 196 (1877); (g) a member of a petit jury before whom perjury was alleged to have been committed, State v. Wilcox, 104 N. C. 847 , 10 S. E. 453 (1889); (h) a special police officer, Commonwealth v. Hayden, 163 Mass. 453 (1895); (i) a member of an organization the object of which was to detect crime, Musick v. The People, 40 Ill. 268 (1866); (j) that he had previously issued a warrant for and expressed an opinion as to the guilt of the accused, United States v. Belvin, 46 F. 381 (1891); (k) a deputy sheriff, Owens v. The State, 25 Tex. App. 552 (1888). 14 Note, 111 U. Pa.

L. Rev. 1000 ,1001-02 (1963) discussed the reason that the general rule as to impartiality of grand juries has not been superseded by the Supreme Court in its ⁶⁵ recent grand jury racial discrimination cases. The author stated: “The asserted right [by Beck] to an unprejudiced grand jury was based primarily upon the Court’s statement in Cassell v. Texas [ 339 U.S. 282 , 70 S.Ct. 629 , 94 L.Ed. 839 (1950)]: ‘Review was sought in this case to determine whether there had been a violation by Texas of petitioner’s federal constitutional right to a fair and impartial grand jury.’ ” Cassell marked the culmination of the development, in a long line of racial discrimination cases, of a rule that ‘a Negro is denied the equal protection of the laws when he is indicted by a grand jury from which Negroes as a race have been intentionally excluded.’ This principle is not applicable by analogy to the ‘impartiality’ question in the instant case. Systematic discrimination against the race is the sole issue in the Negro cases, and there is no inquiry as to the state of mind of the grand jurors concerning the defendant. Mr. Justice Douglas’ interpretation of Cassell as insuring impartiality towards the defendant overlooks the fact that it is the manner of selection — as opposed to the mental attitude of those selected — that violates the equal protection rule enunciated in Cassell .

Exclusion of Negroes from the panels is not indicative of the mental attitude of the white persons actually selected, and the Court has never held that a defendant has a vested right to representation of his race. The majority opinion expressly disclaimed any intimation on whether due process requires impartiality vis-a-vis the defendant, but did cite dicta in three recent cases 15 to show that a ⁶⁶ colorable argument to this effect might be made. But until the Court either adopts Justice Douglas’ position and extends the meaning of ‘impartiality’ beyond protection of minority groups, or reverts to a viewpoint that has been criticized in the past half century — that the function of the grand jury is to stand between the prosecutor and the accused — , due process does not seem to require that grand jurors be completely impartial toward prospective defendants.” (Footnotes omitted). By Laws of 1969, ch. 408, the legislature repealed and reenacted Md. Ann. Code art. 51, Juñes. 16 In doing so it eliminated all exemptions from jury service.

Subsequently at the next legislative session two exemptions were added, viz., “members of the organized militia duly certified as such by the military department”, and those persons “seventy (70) years or older” who are exempted if they in writing so prove. 17 We observe that then Md. Ann. Code art. 51, § 9 18 provided that a person could be excused from jury duty, “(ii) ... by the court on the ground that such person may be unable to render impartial jury service or that his service as a juror would be likely to disrupt proceedings, or . . . (vi) excluded upon determination by the court that his service as a juror would be likely to threaten the secrecy of the proceedings, or otherwise adversely affect the integrity of the jury deliberations.” The quoted provisions of § 9 are by the permissive language utilized directed to the sound discretion of the court. It is apparent from the record that the jury judge, who considered Officer Hyatt’s request to be excused from jury ⁶⁷ duty, believed that the officer’s request was motivated by: (1) the officer’s desire not to perform jury duty on his “day off”, and (2) the officer’s desire to be with his wife, and to go shopping with her. The fact that Officer Hyatt was a police officer did not, as we have already observed, per se disqualify him from grand jury duty, and Mr. Hyatt’s status as a policeman did not in and of itself demonstrate bias or prejudice, nor is there anything in the record before us that shows that Mr. Hyatt’s jury service disrupted those proceedings, threatened their security or adversely affected the integrity of the jury’s deliberations.

Although we think the jury judge did not abuse his discretion in refusing to exclude a policeman from grand jury service, we believe the better course of action would have been to have excused the officer. We repeat, however, that there is nothing in the Constitution of the United States or the State of Maryland, nor the statutes of the State of Maryland