Smith v. State

Childs, J., delivered the opinion of the Court. William Edgar Smith and David Lee Whisman were both indicted in Montgomery County on the charges of rape, assault with intent to rape and assault. They were tried together before a jury and on June 10, 1966, Whisman was found guilty of rape, and Smith found guilty of assault. On this joint appeal, Whisman contends that he was denied his constitutional right when the presiding judge denied his request for removal, while Smith contends (a) that he was denied due process of law because of the denial of Whisman’s request for removal, (b) that the lower court’s refusal to sever his trial from Whisman’s trial was arbitrary under the circumstances of this case, and (c) that he was denied due process of law as a result of prejudicial remarks made by the trial judge.

On the first day of the trial, Whisman’s counsel presented Judge Shure with a handwritten document which read: “Comes now the Defendant, David Lee Whisman and suggests to this Honorable Court, that he cannot have a fair and impartial trial in this county and requests that the matter be removed to another jurisdiction for trial. s/ David L. Whisman Subscribed and sworn this 7th day of June 1966 s/ Clayton K. Watkins.” After both of the accused had éntered pleas of not guilty .the Court directed Whisman to take the stand and the following colloquy took place: “THE COURT: Let the record show that I called this man to inquire into the affidavit which was handed to the Court at ten minutes after ten on the day of the trial. ⁷⁵ Examination by the Court Q I show you this signature and ask if that is your signature ? A Yes. Q And in whose writing is the rest of this paper? Not your signature, but the rest.

A I don’t know. Q You don’t know? A No — Mr. Brown. Q Who gave it to you ?

A Mr. Brown. Q And have you read it ? A No, sir. Q You have not read it ?

A No, sir. Q Well, then, of course, you don’t know what is in it if you haven’t read it ? A No, sir. THE COURT: All right; we will proceed.

Obviously, the man doesn’t know what was in the affidavit. The Court is going to ignore it entirely and take proper action later with respect to it. (Italics by this Court) MR. BROWN: Did Your Honor ask him if he could read ?

THE COURT: Mr. Brown, he signed an affidavit and didn’t know what was in it. This is sufficient. Would you like to inquire further ? MR.

BROWN : He didn’t read it; I read it to him. THE COURT: Mr. Whisman, do you know what is contained in this affidavit ? Eet the record show that he indicates by nod that he does not. MR.

BROWN: If Your Honor please, for the purpose of the record, I want to say that I feel that the affidavit is in perfect order in view of the development in this matter which took place yesterday afternoon. I wrote the affidavit for the accused and asked one ⁷⁶ of the Clerks to take him before the Clerk of the Court and swear to the affidavit. The affidavit is in my hand and was prepared at the Counsel table just a few moments ago. THE COURT: Would you remove all the jurors from the Courtroom, please, so that we don’t have anything that might be interpreted as prejudicial.

All the jurors please leave the room. (All jurors are excluded from the Courtroom.) Now, Mr. Brown, do I understand that you prepared this affidavit and had this man swear to it in view of what he now tells me that he doesn’t know what was in the affidavit and he had not read the affidavit ? MR. BROWN: I prepared the affidavit and I spoke with the boy and his father in the hall and I said to him, ‘David, I think the case ought to be removed; what do you think about it?’ I said, ‘This lady has signed a letter that says that she does not want to testify in the case and the Court has said that we are going to go ahead regardless or in spite of it.’ He said, ‘Mr. Brown, I’ll leave it to whatever you think.’ ” And after extended discussion with counsel Whisman was recalled. “Q Now, you heard what your attorney has just said.

He said you left it up to him. Do you feel that you cannot get a fair and impartial trial in this county ? Do you, yourself, feel that ? A I don’t know.

Q Well, why do you think you could not get a fair and impartial trial in this county? Give me some of the reasons. I will be glad to hear and consider it. A No reason.

THE COURT: All right, sir; step down. (Witness is excused.) THE COURT: You have heard the proceedings and you know the consequences thereof, Mr. Brown, just ⁷⁷ as well as I do. Do you think this is a bona fide affidavit that you want to be filed in this case ? MR.

BROWN: Tdo. THE COURT: Mark it filed, Mr. Clerk.” Whisman’s case was thereupon ordered removed and the jury selection proceeded in Smith’s case. However, after a recess the judge announced that he had concluded the affidavit was invalid and would proceed to try both defendants as scheduled. Counsel then moved for severance on behalf of Smith.

The motion was denied. On the morning of the second day of trial Whisman’s motion for mistrial grounded on the failure to remove and questioning in front of prospective jurors was filed and denied. Later the same day, the motion was twice reasserted and denied. Likewise, a motion for a new trial on the same grounds was denied.

This appeal followed. I. In argument, the State candidly admitted that it felt that the trial judge fell into error in refusing to remove, and we agree. Article IV, Section 8 of the Maryland Constitution