Smith v. State

Mason, J., delivered the opinion of the Court. The appellant, John Henry Smith, was tried before a jury in the Circuit Court for Cecil County 1 and convicted of two counts of murder and two counts of arson. He was sentenced to life imprisonment for each of the murder counts, the terms to be served concurrently. For the arson counts, he was sentenced to two thirty year terms which were to run concurrently with each other, but consecutively to the sentences imposed for the murder counts.

The crimes for which the appellant was convicted stemmed from the burning of Gene’s Bar and Restaurant in Forest Hill, Harford County, during the early morning hours of January 30, 1972. The building — a single structure with the bar and restaurant on the lower floor and family dwelling quarters on the upper floor — was completely destroyed. At the time of the fire, the bar and restaurant ¹⁰⁹ had closed for the night and seven persons were sleeping in the living quarters. Five persons managed to escape but the bodies of Rosalie Ann Poe, age fifteen, and Diane Elizabeth Reichert, age eighteen, were found in the debris, burned beyond recognition.

On appeal five issues are raised: I. Whether a second and subsequent indictment on the arson charges could properly be removed to Cecil County, over the objections of the appellant, for consolidation with the other charges pending against appellant.

II

Whether appellant’s conviction of two counts of arson for the burning of a single building constitutes double jeopardy.

III

Whether appellant’s motion for acquittal in regard to the murder charges should have been granted on the basis that the State failed to prove the corpus delicti of the alleged crimes.

IV

Whether the Miranda warning given appellant was so defective that the trial court erred in admitting, over appellant’s objection, certain statements made by the appellant while in police custody. V. Whether the trial court erred in refusing to admit the results of a “psychological stress evaluation” test proffered by appellant. We consider these issues in order. I. REMOVAL OF THE SUBSEQUENT INDICTMENT Article IV, Section 8 of the Constitution of Maryland provides in relevant part: ... in all cases of Presentments or indictments for offences, which are or may be punishable by death, pending in any of the courts of law in this State having jurisdiction thereof upon suggestion in writing under oath of either of the parties to said proceedings that such party cannot have a fair and impartial trial in the court in which the same may ¹¹⁰ be pending, the said court shall order and direct the record of proceedings in such suit or action, issue presentment, or indictment, to be transmitted to some other court having jurisdiction in such case for trial, but in all other cases of presentment or indictment, pending in any of the Courts of law in this State having jurisdiction thereof, in addition to the suggestion in writing of either of the parties to such presentment or indictment that such party cannot have a fair and impartial trial in the court in which the same may be pending, it shall be necessary for the party making such suggestion to make it satisfactorily appear to the Court that such suggestion is true, or that there is reasonable ground for the same, And thereupon the said court shall order and direct the record of proceedings in such presentment or indictment to be transmitted to some other Court having jurisdiction in such cases for trial....

This constitutional provision has been embodied in Maryland Rules 542 2 and 738. On January 30, 1973, the grand jury for Harford County returned three indictments, charging the appellant with the murder of Diane Reichert, the murder of Rosalie Ann Poe, and the arson of a dwelling house. On July 11, 1973, the appellant filed a motion for removal under Maryland Rule 738 3 in which he claimed he could not receive a fair and impartial trial in Harford County. The motion was granted and the case was transferred to Cecil County.

On April 6, 1974, the grand jury for Harford County returned an additional ten count indictment against the appellant. This ¹¹¹ indictment arose out of the same factual circumstances as the first indictments and was apparently obtained because the State believed the first arson indictment may have been defective. The new indictment charged several counts of arson and related burning offenses and one count of burglary. The State, under Maryland Rule 725 (Motion for Appropriate Relief) moved to transfer the new indictment to Cecil County in order that it could be consolidated with the other indictments by proper motion in that court.

The appellant objected to the granting of this motion, claiming the additional indictment was a new case in which the State, in order to transfer it, had to comply with Maryland Rule 738 and file a suggestion under oath that it could not receive a fair and impartial trial in Harford County. The State indicated it could not in good conscience make such an affidavit. The motion was granted and the new indictment was transferred to Cecil County. Prior to trial in Cecil County, the State entered a nolle prosequi to the first arson indictment and substituted, in lieu thereof, the new arson indictment.

The issue is whether the subsequent indictment containing non-capital offenses arising out of the same indictment was properly removed. In Stevenson and Borum v. State, 9 Md. App. 152 , 263 A. 2d 36 (1970), this Court held that where the defendant exercises his absolute right to removal of the capital charge the other non-capital previously consolidated charges are carried along. In that case, however, both the capital and non-capital offenses were removed at the same time. See also State v. Coffield, 17 Md. App. 305 , 301 A. 2d 44 (1973).

In the present case, the capital and non-capital charges were removed on July 11, 1973, but the additional charges were not removed until September 25, 1974. As a general rule, the effect of a change of venue in a criminal case is to remove the cause absolutely from the jurisdiction of the court granting the change, except for curing irregularities or omissions in the record. Further, the court to which the indictment has been transferred is not ¹¹² divested of jurisdiction by dismissal, nolle prosequi or mistrial, and it retains exclusive jurisdiction to try the case after a new indictment for the same offense has been returned. 21 Am. Jur., Criminal Law, §§ 431, 434 (1965).

Although the cases are few, there is authority in other jurisdictions which hold that a subsequent indictment can be transferred to a removee court without the necessity of complying with the statutory provisions authorizing removal. In Ex parte Lancaster, 206 Ala. 60 , 89 So. 721 (1921), a change of venue in a murder prosecution was ordered. The trial in the removee court resulted in a mistrial and a nolle prosequi was entered. The accused was re-indicted in the court of original jurisdiction, and he sought to prevent trial in that court.

The State resisted, claiming that the jurisdiction of the removee court was divested by the entering of a nolle prosequi in the case. The State further contended that if the accused wanted his case transferred to another court, he would have to file another application for removal. The court held: When the change of venue was granted for the trial of the defendant for this offense to Marion county, the statute contemplates that Marion county is the only one in which the trial of the defendant for that offense may be had, regardless of the number of the indictments that may afterwards be preferred against him for the same offense. See also Annot. 85 A.L.R.2d 997 (1962).

Cf. State ex rel. English v. Normile, 108 Mo. 121 , 18 S. W. 975 (1892), where the court held that the finding of a new indictment was not an amendment of the pleadings in the pending case, but was the recommencement of the prosecution which could only be done in the court having original jurisdiction. We think the better rule is that once an order for removal has been granted in a criminal case, jurisdiction in the transferring court to try the case ends.

Thereafter,, all subsequent indictments for the same offense, or founded upon the same transaction, should be transmitted to the transferee court without the necessity of complying with the ¹¹³ provisions of Maryland Rule 738. Furthermore, if a nolle prosequi of the original indictment or any count contained therein is entered in the transferee court, this fact does not reinvest jurisdiction for the trial of the new indictment in the court of original jurisdiction. To hold otherwise would mean that once a case has been removed the prosecution could not effectively correct a defective indictment or bring additional charges. It would also permit the prosecution, for all intents and purposes, to nullify the removal statute by entering a nolle prosequi to an indictment that has been ordered removed.

We hold, therefore, that the removal by the appellant of his case from Harford County to Cecil County because he could not receive a fair and impartial trial fixed, at that point, the place of venue in Cecil County, not only for the original indictment, but also for the subsequent indictment.

II

DOUBLE PUNISHMENT Article 27, § 6 of the Annotated Code of Maryland provides in part: Any person who . . . sets fire to or burns . . . any dwelling house, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto . . . shall be guilty of arson .... The appellant was convicted under Counts One and Three of the arson indictment, which charge in part: Count One . . . John Henry Smith . . . unlawfully did willfully and maliciously set fire to and burn and cause to be burned a certain dwelling house ... of Milton Eugene Poe, Sr. . . . Count Three .. .

John Henry Smith ... on the said day, in the ¹¹⁴ said year .. . unlawfully did willfully and maliciously set fire to and burn and cause to be burned a certain shop . . . t/a Gene’s Bar and Grill, said shop being parcel of, belonging to, and adjoining a certain dwelling of Milton Eugene Poe, Sr. . . . The building the appellant was convicted of burning was a single structure which served a dual purpose. On the first floor Milton Eugene Poe, Sr., operated a bar and restaurant. On the second floor he resided with his wife and four children.

Between the two floors there was an inside stairway which provided access and communication. The pivotal question is whether the single act of burning-one building housing a bar and restaurant on the first floor and a dwelling on the second floor constitutes one or two offenses under § 6, supra. 4 In judging whether crimes set forth in different counts of an indictment are the same we must determine, “whether each count so set up constitutes the same elements and would require the same evidence to convict. If such is the case, then the counts charged the same crime, but if such is not so, the counts would charge a different crime.” Weinecke v. State, 188 Md. 172, 177 , 52 A. 2d 73 (1947). In Thomas v. State, 277 Md. 257 , 353 A. 2d 240 (1976), the Court of Appeals after a comprehensive review of the federal and state laws on the issues of double jeopardy observed: Certain principles concerning the required evidence or same evidence test emerge from the cases.

The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double ¹¹⁵ jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes. And of course if both statutes have exactly the same elements, the offenses are also the same within the meaning of the prohibition against double jeopardy, and successive prosecutions are barred.

At common law the term