Stevenson v. State

Orth, J., delivered the opinion of the Court. The question here presented is whether the lower ¹⁵⁴ ■court’s refusal of a suggestion of removal as made by appellants was reversible error. We conclude, in the unusual facts and circumstances existent, that it was. The .judgments against Maurice Clayvone Stevenson and Ernest Spencer Borum (appellants) under Criminal Nos. 7366 and 7368, tried before a jury in the Circuit Court for Montgomery County, are reversed.

In Stevenson and Borum v. State, 4 Md. App. 1 , certiorari denied, 251 Md. 752 , we affirmed an order denying a motion to dismiss indictments Nos. 7367, 7366, 7368 and 7365. Those indictments jointly charged appellants with rape, assault with intent to rape and assault .and battery under 7367; robbery with a deadly weapon, attempted robbery with a deadly weapon, robbery, and assault with intent to rob under 7366; 1 the breaking of .a dwelling in the daytime with intent to steal, larceny and receiving stolen goods under 7368; and breaking a dwelling house in the daytime with intent to steal under 7365. The offenses in the first three indictments were alleged to have been committed on 22 June 1965. Appellants assert, and the State does not dispute, that they all arose out of the breaking charged in 7368, it being the contention of the prosecution that after appellants gained ■entry they raped and robbed a domestic working in the dwelling.

The offense in 7365 was alleged to have been ■committed on 3 June 1965. The four indictments were called for trial on 27 May 1969. Prior to trial the State filed a suggestion for removal of all four indictments. Appellants filed a motion to consolidate the indictments for trial, alleging that 7366, 7367 and 7368 “all relate to the same criminal activity and involve the testimony of the same witnesses as to acts occurring on the same date, at or about the same time”, and that 7365, “although relating to alleged criminal activity on a different date involves testimony by substantially the same witnesses”, and that “the police ¹⁵⁵ witnesses and expert witnesses to be called by the State will testify identically in the four cases.” They claimed that “to permit the State to try these cases individually would permit the State four opportunities to convict the defendants on identical and substantially identical evidence, which would be manifestly unfair to the defendants.” The motion stated that “the State advises it would be a burden to the State witnesses to try these cases individually and therefore will consent to this Motion.” The court indicated to the State that a separate suggestion for removal should have been filed as to each indictment.

The State’s Attorney said to the court : “Our position with respect to removal is this: If the Court does not consolidate the cases for trial, then we do not want to remove them; and we would withdraw our affidavit for removal. We do not think it is fair.” The court stated it would rule on the affidavits to remove first and recessed the court so the State could “put them in proper form.” After recess the State moved to withdraw its suggestions for removal and the court granted the motion. Appellants’ motion to consolidate all four indictments for trial was then considered by the court. The State told the court it had no objection to the consolidation.

The court granted the motion to consolidate Criminal Nos. 7365, 7366, 7367 and 7368. At that point in the proceedings, in answer to inquiry by the court, the State said it was ready for trial; defense counsel said he was not. 2 The transcript of the proceedings reads: “MR. MILLER (Defense Counsel) : I would like to just make a short statement to the Court. I have been down to Lorton, I guess, two or three occasions in the past, two or three weeks ago to see these two men. ¹⁵⁶ I went down there, and one time I recall specifically on May 1st of 1969, to discuss various aspects of this case with them.

At that time I discussed with them specifically their rights to a removal from this County in the event they felt they could not obtain an impartial trial. They did not desire at that time any removal from this County. I wrote them on May 8 in part, whether this confirmed our conversation, where you felt sincerely if you felt we would have a right to removal. They still did not.

Apparently they now desire me to file on their behalf an Affidavit of Removal. THE COURT: Well all right, I will remove the rape case. I will hear the others. Let me see your motion.

MR. MILLER: Your Honor, I believe it is consolidated. THE COURT: Yes, and if you and the State-think you are pulling me leg like that— MR. MILLER: I am not helping the State.

THE COURT: I heard you were less than fair with the Court when the Court said it would rule on this removal and you well knew— the Court strikes this order to consolidate for obvious reasons, as shown by the colloquy between counsel for the defendants and the State. 3 The State will entertain your suggestion of removal, but put it in each one of your forms. MR. MILLER: That is why I made the statement. It is not of the State’s doing or my doing.

This is these men. ¹⁵⁷ THE COURT: You knew it when you came into Court. Make your motion on each one of your individual cases, and I will rule on them. MR. MILLER: We would move, if the Court please, to move all four of the cases as being consolidated.

THE COURT: The Court orders that the motion to consolidate, that to its approval of the motion to consolidate Criminal Nos. 7365, 7366, 7367 and 7368 be and it is hereby rescinded and stricken. Now, the Court will entertain your suggestion for removal, and I will take first the one that you have a right to have removed, as a matter of law without any question; and that I believe is the indictment for rape in Criminal No. 7367.” The court granted appellants’ suggestion for removal in 7367 charging the rape, removing it to Dorchester County. After hearing argument it said to defense counsel: “If you desire to present no evidence [as to prejudice], then your motion to remove and suggestion and affidavit of removal in Criminal Nos. 7365, 7366 and 7368 is denied. Now, I will entertain a motion to consolidate if you like for those three cases.” The State’s Attorney said it would prefer to consolidate only 7366 and 7368.

He added, “We must say, though, of course, again on the record that the State would prefer, as the Court knows, to have all three, June 22 cases [7366, 7367 and 7368], tried together; but since that is not possible, the State would move to consolidate 7366 and 7368 and try them today.” Appellants again moved “to consolidate them at this time, No. 7367 which is the removed case and have them all sent together to Dorchester County.” The court ruled, “The defendants’ motion is denied. The State’s motion in Criminal 7366 and 7368 is granted.” Defense moved again for a continuance bringing to the attention ¹⁵⁸ of the court that a habeas corpus proceeding was pending in the United States Court of Appeals for the Fourth Circuit on appeal from the District Court of Alexandria, “seeking an injunction against this prosecution” and that appellants desired a continuance until disposition of it was made. The motion was denied. Trial proceeded on 7366 and 7368.

Appellants were each convicted of robbery with a deadly weapon under the 1st count of 7366 and of breaking a dwelling house with intent to steal under the 1st count and petit larceny under the 2nd count of 7368. The original order of the court to consolidate the indictments for trial was in nowise improper. We said in Wilson, et al v. State, 8 Md. App. 653 (1970) : “The Maryland Rules of Procedure as to a joint trial relate to both offenses and defendants. The general rule is that the court may order two or more indictments to be tried together if the offenses and the defendants could have been joined in a single indictment.

Rule 734. Two or more offenses may be charged in the same indictment in a separate count for each offense. Rule 716 a. Two or more defendants may be charged in the same indictment ‘if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.

Such defendants may be charged in one or more counts together or separately and it shall not be necessary to charge all the defendants in each count.’ Rule 716 b. But even if two or more offenses and two or more defendants could be charged in a single indictment, the court ‘if it appears that an accused or the State will be prejudiced by a joinder of offenses or defendants in an indictment, or by joinder of trial together, * * * may order an election or separate trial of counts, grant separate trial ¹⁵⁹ of defendants or provide such other relief as justice requires.’ ” Rule 735. The question of consolidation usually arises upon a motion for severance presented by the defendants and opposed by the State. However, here it is clear from the record that both the prosecution and defense desired that the cases be consolidated, the prosecution feeling that it was to its benefit and in the interest of justice to do so- and the defense feeling that it would be prejudiced if the-cases were not tried together.

We do not say that the feeling of either the prosecution or the defense, or their agreement with respect thereto, is necessarily controlling in the matter, for within the rules it is for the sound discretion of the trial court. Nor do we say that once a court has ordered cases consolidated for trial it may never thereafter strike the order before the trial commences- and order separate trials as provided by Rule 735. But we believe that in the facts and circumstances here the court abused its discretion in striking its order of consolidation. It obviously was satisfied, at the time it ordered the cases consolidated, and we think fairly so, that neither the accused nor the State would be prejudiced by the joinder of the cases for trial, and there was nothing thereafter shown which would properly lead it to believe that either would be prejudiced so as to require separate trials.

We are constrained to conclude that the compelling reason of the court in striking its order was because of the suggestion of removal made by appellants, the court desiring that the cases be tried before it insofar as that was possible in the face of the suggestion. We hold that on the facts and circumstances of this particular case, as shown by the record, the striking of the original order of consolidation was an abuse of judicial discretion. We note that when consolidation is proper, to have-separate trials would unnecessarily occupy the time of the court and add enormously to the costs of the case. Williams v. State, 214 Md. 143, 152 .

Having found error in the striking of the order con ¹⁶⁰ solidating the indictments for trial, the question is what effect did the consolidation of the indictments have on the suggestion of removal. Change of venue is dealt with by the Constitution of Maryland, Art. IV, § 8; by statute, Code, Art. 75, § 44; and by rule, Eules 542 and 738. The Constitutional provision and the statute, each under the subtitle “Eemoval of Causes”, read the same in all material aspects. Section 8 of the Constitution, provides, inter alia: “The parties to any cause may submit the same to the Court for determination without the aid of a jury, * * * and in all cases of Presentments or indictments for offenses, which are or may be punishable by death, pending in any of the courts of law in this State