State v. Suter

Gilbert, C. J., delivered the opinion of the Court. Procedure is to law what the wheel is to a cart — a necessary factor. The importance of procedure to our society, functioning under a rule of law, was well illustrated by Curtis Bok in an address at the National Book Awards in New York City on January 26,1954. Bok said: “In the whole history of law and order the longest step forward was taken by primitive man, when, as if by common consent, the tribe sat down in a circle and allowed one man to speak at a time.

An accused who is shouted down has no rights whatever. Unless people have an instinct for procedure, their conception of basic human rights is a waste of effort, and wherever we see a negation of those rights it can be traced to a lack, an inadequacy, or a violation of procedure. Hence procedure effectively comes first: the mechanics of argument and discovery are often set up before the rights they serve take full form in practice.” Failure by the trial judge, with the express acquiescence of the Assistant State’s Attorney, to follow proper procedure in the instant case necessitates our declination to consider the State’s appeal from the dismissal by the Circuit Court for Baltimore County of five indictments that had been brought against Joseph Richard Suter, a police officer of that County. Our reason for declining to consider the State’s appeal is that the issues all have been mooted as a result of the procedural misstep. 1 We shall explain why this is so. ⁷⁴ The Supreme Court of the United States, speaking through Mr. Justice Rehnquist in Illinois v. Somerville, 410 U. S. 458, 460 , 93 S. Ct. 1066 , 35 L.Ed.2d 425 (1973), 2 pointed out that jeopardy attaches in a criminal trial when the jury is impaneled and sworn. 3 See also United States v. Jorn, 400 U. S. 470, 479-80 , 91 S. Ct. 547 , 27 L.Ed.2d 543 (1971); Green v. United States, 355 U. S. 184, 188 , 78 S. Ct. 221 , 2 L.Ed.2d 199 (1957); Wade v. Hunter, 336 U. S. 684, 688 , 69 S. Ct. 834 , 93 L. Ed. 974 (1949).

That rule, prior to Benton v. Maryland, 395 U. S. 784 , 89 S. Ct. 2056 , 23 L.Ed.2d 707 (1969), was applied to federal but not State proceedings. Benton , however, held that the Fifth Amendment prohibition against former jeopardy was applicable to the States through the vehicle of the Fourteenth Amendment’s Due Process Clause. See also Blondes v. State, 273 Md. 435 , 330 A. 2d 169 (1975); Neal v. State, 272 Md. 323 , 322 A. 2d 887 (1974); Cornish v. State, 272 Md. 312 , 322 A. 2d 880 (1974); State v. Rhodes, 36 Md. App. 214 , 373 A. 2d 636 (1977); Baker v. State, 15 Md. App. 73 , 289 A. 2d 348 , cert. denied, 265 Md. 744 (1972). In the matter now before us, the appellee was indicted on a series of charges alleging one count of obstruction of justice, four counts of receiving stolen goods, and one count of misconduct in office. 4 Suter moved to dismiss the indictments.

The reason he assigned for the dismissal of the obstruction count was that the statute of limitations ⁷⁵ barred the prosecution of that offense. A similar reason was given for the dismissal of the receiving charges, and Suter also contended that the receiving offenses were based on allegedly receiving stolen goods from a person who had obtained them by false pretense rather than larceny. When the case was called to trial, the judge said: “Motions have been filed dealing with various problems in these cases, and what I’d like to do is to select a jury and excuse the balance of the jury panel so that they can go about their business and go home, the jurors who won’t be used; and then the twelve jurors that will serve on the trial panel, I can excuse them, and we can deal with these motions. “I hate to keep twenty-five people just sitting around outside the courtroom in limbo, kind of. Do you have any objection to that?

MR. WHITE: [Defense Counsel] No objection, Your Honor. MR. RUPPERSBERGER: [Assistant State’s Attorney] No objection, Your Honor.

THE COURT: All right. Now, what I propose to do, gentlemen, is to take a plea and the — and prepare for a jury trial, then I will have the jury sworn for a voir dire examination, and I will ask them certain basic questions that would seem to be appropriate in this particular type of case. After I have done that, I will call the roll, and each juror will