Laws v. State

Per Curiam. At the trial below, there was evidence from which the jury could have found that Clyde Edmond Laws and Thomas Franklin Dorman, the appellants, robbed a grocery store situated in Montgomery County. When police officers stopped their vehicle about an hour thereafter, Laws shot at the two officers. One of the officers was wounded.

Dorman was present in the car, but did not engage in the shooting. They were each convicted of ⁸⁶ armed robbery and assault with intent to murder each police officer by a jury in the Ciruit Court for Talbot County to which court the case had been removed. Judge Harry E. Clark, the presiding judge, imposed sentences on each totaling twenty-five years, consecutive to a twenty year term they each had previously received for a kidnapping which followed, but did not directly involve the assault on the officers. The latter case contains a more complete statement of the facts of the crimes involved in the present appeal and is reported in 6 Md. App. 243 , 251 A. 2d 237 .

In that case we considered and rejected two contentions which were also raised in the present appeal. The appellants allege error in the failure of the trial court to sever their cases for trial and in the failure to exclude evidence resulting from an alleged illegal search and seizure. Since those two issues were disposed of in the prior appeal on substantially the same evidence, there will be no need to discuss them further here. Counsel has conceded in oral argument that our ruling on the latter point would also dispose of his argument in the present appeal that the evidence, without the excluded evidence would be insufficient to support a conviction, although he did not concede the correctness of the ruling.

There remain two contentions to discuss in the present appeal. The first concerns the refusal of the trial court to remove the cases to another court for trial. The evidence to support the motion consisted of testimony by the appellants that their preceding trial for kidnapping, which occurred a few weeks prior to the present trial, would unduly prejudice them in the present proceedings because of wide-spread publicity and because the judge trying the present case was one of the two judges who tried the preceding case. They offered no evidence to support their allegation concerning publicity except their own bare statements that it must have occurred.

In Sizemore v. State, 5 Md. App. 507 , 248 A. 2d 417 we reviewed prior Maryland cases and stated the rule to be that the burden is on an accused to show that he has ⁸⁷ been prejudiced by adverse publicity and that a voir dire examination of prospective jurors would not be adequate to insure him a fair and impartial jury. It is apparent that the appellants failed to meet this burden. Although the constitutional right of removal is directed towards the fairness of the jury rather than the fairness of the trial judge, Jones v. State, 185 Md. 481 , 45 A. 2d 350 and Cooke v. Cooke, 41 Md. 362 , we will consider the motion as though it were also a motion for the trial judge to disqualify himself because he sat at the previous trial. In Day v. State, 2 Md. App. 334 , 234 A. 2d 894 and in Thomas v. State, 2 Md. App. 645, 236 A. 2d 747 we held that in the absence of showing of bias or prejudice, a judge on retrial of a jury case is not disqualified from trying the case merely because he presided at the original trial.

We recently reiterated the rule in Stallard v. State, 6 Md. App. 560 . Testifying in the