Smith v. State

Oppenheimer, J., delivered the majority opinion of the Court. Hornby and Barnbs, JJ., concur in the result. The appellant, Smith, was indicted for murder by a grand jury for the City of Baltimore on November 17, 1964, prior to the decisions of this Court in Schowgurow v. State, 240 Md. 121 , 213 A. 2d 475 (1965), and State v. Madison, 240 Md. 265 , 213 A. 2d 880 (1965). He pled not guilty by reason of insanity at the time of the commission of the crime, sane now, and not guilty generally.

At the time of his pleas and during all the proceedings in the trial court he was represented by experienced counsel privately employed. He was tried on October 14, 1965, ⁴⁶⁶ three days after the Schowgurow decision, in the Criminal Court of Baltimore where he elected to be tried by Judge Sklar without a jury. It has been stipulated by counsel, and the transcript of the proceedings makes clear, that, in open court, immediately before his trial, Smith intelligently and knowingly waived all possible defects in the indictment. This waiver followed clear and thorough explanations of the effect of the Schowgurow decision by Judge Sklar and by Smith’s counsel.

Smith’s counsel had also explained the effect of Schowgurow to Smith the day before. After these explanations, Smith said that it was his own wish and desire to- waive the defective indictment and to stand trial immediately; that this decision was his own free wish and without any suggestion or pressure. He was tried the same day and was found to be sane at the time of the commission of the crime and at the time of the trial. The court then proceeded with the trial on the indictment.

After the State had completed its testimony, Smith’s counsel moved for a verdict of acquittal as to first degree homicide and a verdict of acquittal as to the entire indictment. Both of these motions were denied. Smith, having been advised as to his rights, voluntarily took the stand to testify in his own behalf. At the conclusion of the case for the defense, Smith’s counsel again made the same motions for judgments of acquittal, and the motions were again denied.

The court then found Smith guilty of second degree murder. Sentence was deferred pending a motion for a new trial. Subsequently, on October 25th, before sentence was imposed, Smith asked the court for permission, which was granted, to file a motion to dismiss the indictment on the ground he had been indicted by an illegally constituted grand jury, even though he had waived his right to challenge the indictment in open court before his trial and conviction. The court denied the motion and also denied the motion for a new trial.

Smith was thereupon sentenced to 18 years in the Maryland Penitentiary. Smith notified the court of his desire to appeal and the judge appointed his trial counsel and co-counsel to represent him as an indigent defendant on the appeal to this Court. The first ground of appeal is that the trial court erred when it denied Smith’s motion to dismiss the indictment on the ground that it had been returned by an illegally constituted grand jury. ⁴⁶⁷ Smith contends that, under Schowgurow , the grand jury which had indicted him was illegally constituted and that any and all indictments issued by such a jury are null and void. Smith contends that his waiver of his right to challenge the jury which indicted him was invalid because he can not waive a constitutional right and can not waive an indictment that is an actual nullity.

He argues that his waiver, even though made voluntarily and knowingly, had no legal effect because the indictment against him never had any legal existence and therefore can be challenged at any time. He claims the denial of his motion and his subsequent conviction constituted a deprivation of his constitutional rights to due process of law under the Fourteenth Amendment, and were in violation of the Maryland law as to> the effect of an indictment by a grand jury improperly constituted. At the argument before us, Smith’s counsel frankly conceded that, under their contention, not only was the indictment of Smith null and void but that all indictments brought at any time by any grand jury which, under our decision in Schozvgurow, was improperly selected, were null and void and that any convictions thereunder had no legal effect. They contend that even though our decision in Schowgwr&w was brought about by the reversal by the Supreme Court of the United States of this Court’s decision in Torcaso v. Watkins, 223 Md. 49 , 162 A. 2d 438 (1960), and even though prior to Schowgurow , the grand juries operating throughout the State were selected in accordance with the Maryland law as it then existed and had existed for over a century, nevertheless, the effect of Schowgurow and Madison is to render all such proceedings a complete nullity.

They concede that, if their argument prevails, our holding in Schowgurow that the principle therein announced was to be prospective only, except as to' convictions which had not then become final, would be inoperative and that every convicted defendant incarcerated in the State of Maryland would have to be freed. There is nothing in our decisions in Schowgurow and Madison , nor in their legal effect, upon which to predicate so catastrophic a conclusion. In Schowgurow , we held that the decision of the Supreme Court in Torcaso v. Watkins, 367 U. S. ⁴⁶⁸ 488 (1961), overruling the decision of this Court, made the provision of the Maryland Declaration of Rights which excluded persons from jury service because of their lack of belief in a Supreme Being, invalid under the federal constitution. In Madison , we held that, because of the provisions of both the Maryland and federal constitutions, it would be a deprivation of due process and the equal protection of the laws if believers, as well as non-believers, were not accorded the right to be indicted and tried by grand and petit jurors from which non-believers were not unconstitutionally excluded under the Supreme Court decisions.

In neither case did we hold that the grand jurors who indicted Schowgurow and Madison were not competent and qualified. Nor did we hold, in either case, that the oaths administered to the jurors were unconstitutional or illegal in any way because of their references to God. It was only the fact that all prospective jurors were required to take the oath irrespective of their individual beliefs about religion and to affirm their belief in God, that, under Torcaso , rendered the method of selection invalid. If each prospective juror had been freely permitted, according to his individual desire, to take the traditional oath or merely to affirm, absent any prior interrogation as to belief, the exclusion which Tor caso and other Supreme Court decisions rendered unconstitutional would not have existed.

Smith, like Schowgurow and Madison, was indicted by a grand jury, every member of which was competent and qualified to serve. Maryland had jurisdiction over Smith and the subject matter of the alleged offense. There is no question but that Smith had reasonable notice of the charge and opportunity .to be heard. The court in which he was tried had authority, under our constitution, to try him.

The grand jury which indicted him was selected in accordance with what was then and had been the law of this State until, by reason of decisions of the Supreme Court, a provision of that law was declared invalid. Under these circumstances, in a case in which there had not been a final conviction, the defect in the method of the selection of the grand jury was error, but error which did not render the indictment inoperative unless Smith validly exercised his right to attack it. It was error which gave him the ⁴⁶⁹ right, by timely challenge, to have his indictment quashed, but error which he could knowingly and intelligently waive. This is the law under both our federal and state constitutions, as indeed it must be, if the preservation of order by government, which is the basis of any society, is to survive.

We shall first consider the federal decisions, in connection with Smith’s contention of deprivation of due process of law, and then the decisions of this Court as to the effect of an indictment brought by a grand jury improperly selected. I In United States v. Gale, 109 U. S. 65 (1883), the defendants had been indicted for misconduct as election officers at a Florida election of a congressman. In empanelling the grand jury, four persons, otherwise competent, were excluded from the panel under a federal statute, for voluntarily taking part in the Rebellion and giving aid and comfort thereto. The defendants made no objection to the indictment until after a plea of not guilty and conviction in a United States circuit court, when objection was first taken on a motion in arrest of judgment.

The judges of the circuit court certified several questions to the Supreme Court, one of which was whether the disqualifying statute was unconstitutional, and another of which was whether judgment could be rendered against the defendants on an indictment found by a grand jury empanelled under the disqualifying section. The Supreme Court did not answer the first of these questions because it found the defendants had waived it by not entering a timely challenge to the array. It answered the other question in the affirmative. In delivering the opinion of the Court, Mr. Justice Bradley said: “A disqualified juror placed upon the panel may be supposed injuriously to affect the whole panel; but if the individuals forming it are unobjectionable, and have all the necessary qualifications, it is of less moment to the accused what persons may have been set aside or excused.

The present case is of the latter kind. No complaint is made that any of the grand jurors who found the indictment were disqualified to serve, or were in any respect improper persons. It is only ⁴⁷⁰ complained that the court excluded some persons for an improper cause, that is, because they labored under the disqualification created by the 820th section of the Revised Statutes, which is alleged to be unconstitutional. It is not complained that the jury actually empanelled was not a good one; but that other persons equally good had a right to be placed on it * * * “Some importance is attached to the fact that the court followed an unconstitutional law, or one assumed to be such.

We do not see that this is in any wise different from the case in which the court misconstrues the law. The result is the same: certain persons, under a misconception of the court, are excluded from the grand jury who are qualified to serve on it; but the jury, as actually constituted, is unexceptionable in every other respect. In either case, whether the court is mistaken as to the validity of a law or as to its interpretation, the objection relates so little to the merits of the case that it ought to be taken in the regular order and due course of proceeding. “There are cases, undoubtedly, which admit of a different consideration, and in which the objection to the grand jury may be taken at any time. These are where the whole proceeding of forming the panel is void; as where the jury is not a jury of the court or term in which the indictment is found; or has been selected by persons having no authority whatever to select them; or where they have not been sworn; or where some other fundamental requisite had not been complied with.

But there is no complaint of this kind in the present case: the complaint simply relates to the action of the court in.excluding particular persons who might properly have served on the jury. We do not think that this vitiated all the proceedings so as to render them absolutely null and void. It might have sufficed to quash the indictment if the objection had been timely and properly made. Nothing more.” 109 U. S. 65 at 70-71 . ⁴⁷¹ The principle enunciated in Gale, so apposite to the present case, has been applied through the years to other indictments brought by grand juries improperly selected.

In Rodriguez v. United States, 198 U. S. 156, 165 (1905), the plaintiffs in error had been convicted of larceny in a District Court of the United States for the District of Puerto Rico. After they had been found guilty by a jury, they moved in arrest of judgment on the ground that the grand jury was not such a body as could legally find an indictment because the jurors were selected by persons having no authority to select them. The motion was overruled and no exception was taken. The Supreme Court held that even if the defect in the method of selection of the grand jury was a matter of substance, the accused, by not objecting to the ruling of the lower court, waived the objection.

The Court, through the first Mr. Justice Harlan, said: “We perceive no reason why they could not have legally waived an objection based upon the grounds stated in the motion.” In Kaizo v. Henry, 211 U. S. 146, 149 (1908), the Supreme Court stated that a conviction of murder was not void even though the indictment had been brought by a grand jury half of whose members may have been disqualified to serve. Mr. Justice Moody, in delivering the Court’s opinion, said: “Disqualifications of grand jurors do not destroy the jurisdiction of the court in which an indictment is returned, if the court has jurisdiction of the cause and of the person, as the trial court had in this case. Ex parte Harding, 120 U. S. 782 ; In re Wood, 140 U. S. 278 ; In re Wilson, 140 U. S. 575 . See Matter of Moran, 203 U. S. 96, 104 .

The indictment, though voidable, if the objection is seasonably taken, as it was in this case, is not void. United States v. Gale, 109 U. S. 65 . The objection may be waived, if it is not made at all or delayed too long. This is but another form of saying that the indictment is a sufficient foundation for the jurisdiction of the court in which it is returned, if the jurisdiction otherwise exists.” That case goes far beyond the present one, in which every juror was competent and qualified. ⁴⁷² In Michel v. Louisiana, 350 U. S. 91 (1955), three Negroes had been sentenced to death for aggravated rape.

The three petitioners challenged the composition of the grand juries which indicted them on the ground that there was a systematic exclusion of Negroes from the panel. The Louisiana statute provided that objections to a grand jury must be raised before the third judicial day following the end of the grand jury’s term or before trial, whichever is earlier. In each case, the challenge was filed after the expiration of the statutory period, although, in each case, strong factual reasons were offered as excuses for the delay. The Supreme Court, in a six to three decision, held that the Louisiana statute, as applied, did not violate the Fourteenth Amendment.

The Court upheld the finding of the lower courts that the question of the constitutionality of the method of selection of the grand jury had been waived. Two United States Circuit Court of Appeals’ decisions are closely in point to the specific case here presented, where the method of selection of the grand jury which brought the indictment was in accordance with the law then in effect but where the law was declared invalid after the indictment. In Madison , we discussed Ballard v. United States, 329 U. S. 187 (1946). Ballaird held that indictments and trials by grand and petit juries from which women had been systematically excluded were invalid.

Dean v. United States, 169 F. 2d 70 (9th Cir. 1948) and Wright v. United States, 165 F. 2d 405 (8th Cir. 1948) involved the validity of indictments brought before Ballard by grand juries in federal district courts from which it was admitted women had been deliberately and systematically excluded. In each case, the court held that the defendant had waived the question by failure to make timely objection. In Deem, the indictment had been returned in 1933 and the motion to vacate the judgment on the ground that, by reason of the invalid exclusion of women from the grand jury, the court was without jurisdiction to impose any sentence, was not filed until 1947. The court held the infirmity had been waived, even though the government conceded the grand jury had been improperly selected under Ballard .

In Wright , the court quoted from the opinion of the Supreme Court in Fay v. New York, 332 U. S. 261 (1947), as follows: ⁴⁷³ “ ‘The question is whether a warranted conviction by a jury individually accepted as fair and unbiased should be set aside on the ground that the makeup of the panel from which they were drawn unfairly narrows the choice of jurors and denies defendants due process of law or equal protection of the laws in violation of the Fourteenth Amendment to the Federal Constitution. If answered in the affirmative, it means that no conviction by these special juries is constitutionally valid, and all would be set aside if the question had been properly raised at or before trial.1 (Italics supplied.)” 165 F. 2d at 407-08 . In considering whether the judgment of a court is null and void, or only voidable upon proper and timely attack, the analogy of the effect of the disqualification of a judge is in point. In Tumey v. Ohio, 273 U. S. 510, 535 (1927), the Supreme Court held that to subject a defendant to trial in a criminal case before a judge having a personal interest in convicting him is a denial of due process of law.

Tumey had been convicted for violation of the Ohio Prohibition Act. He was tried before the mayor of the village of North College Hill. Under the Ohio law, the mayor could receive no fee unless he found the defendant guilty; moreover, one-half of the fines on conviction went to the village. Chief Justice Taft, in delivering the Court’s opinion, held that it was clear under the English and American cases that the pecuniary interest of a judge in a resolution of the subject matter which he was to decide rendered the decision voidable.

In his opinion, the Chief Justice said: “He (the defendant) seasonably raised the objection and was entitled to halting the trial because of the disqualification of the judge * * *” The authorities cited in the opinion emphasize that a judgment of an interested judge is voidable but not void. Phillips v. Eyre, L.R. 6 Q.B. 1 (1870) ; Dimes v. Grand Junction Canal Co., 3 H.L.C. 759 (1852). Indeed, “in case of necessity, as where all the judges of a court having exclusive jurisdiction over the subject-matter happen to be interested, the objection cannot prevail.” Phillips v. Eyre, supra, at