Thornton v. State

Lowe, J., delivered the opinion of the Court. Appellant and a co-defendant “late of Prince George’s County” were indicted for burglary, housebreaking, larceny and receiving stolen goods “at Prince George’s County aforesaid.” The specified “goods and chattels, monies and properties” belonged to Abraham Lincoln, from whose dwelling they were taken “on or about the 25th day of February, 1975.” The jury found appellant not guilty of burglary, larceny or housebreaking, but guilty of receiving stolen goods. On appeal, appellant argues that this conviction should be reversed on two grounds: 1) “The trial court committed reversible error when it failed to permit a question on voir dire relating to possible racial prejudice of prospective jurors.”; and 2) “There was insufficient evidence to show that the Appellant had received stolen goods in the State of Maryland.” 1 ²⁰⁷ Since we agree with appellant’s second contention and will reverse his conviction on that ground, we will discuss it first. Sufficiency of the Evidence The evidence introduced at trial showed that appellant was seen with an acquaintance on the day following the burglary in the 3800 Block of Hayes Street, N.E., in Washington, D.C., unloading equipment that later proved to be that stolen from Lincoln’s house.

At the conclusion of the State’s case, the appellant moved for judgment of acquittal. That motion was denied essentially because the State had proven the theft from Mr. Lincoln’s household at night and the subsequent possession of the stolen property by appellant (and his co-defendant who was tried separately). The court said: “With respect to the principal matter raised, that of criminal agency of the Defendant, the possession of recently stolen property permits the inference in this State that the possessor is the thief. This property was stolen on the 25th and found in the Defendant’s possession on the 26th.” With regard to the receiving count and the larceny count, the court simply said: “With respect to the incompatibility of the third [larceny] and fourth [receiving] counts, it is true of course that a conviction cannot be had on both those counts.

They are mutually exclusive. However, that is once again the decision to be made by the jury and not appropriate matter for motion for determination by the Court at this point.” For purposes of the motion, the judge did not comment upon, if he then considered, what evidence there was that the stolen goods had been “received” in Prince George’s County. He did, however, properly instruct the jury on that issue: “Now, there is in this State law which permits ²⁰⁸ you ladies and gentlemen to infer that the unexplained possession of recently stolen goods is evidence that the possessor is the thief. The testimony would seem to show that the property in this case was taken from a home in Prince George’s County and subsequently recovered in the District of Columbia.

It is for this reason that I explained to you that the elements must occur in Prince George’s County. If you do not choose to infer that the possession indicates that the possessor was the thief, but rather that he was a receiver of these goods, and you find that the receiving occurred entirely in another jurisdiction, other than Prince George’s County, then he must be acquitted of receiving. You would have to be satisfied from the evidence that the receiving occurred in Prince George’s County.” Although the instruction is sound, there was not the slightest evidence upon which the jury could base its finding that the stolen goods were received in Prince George’s County. Although it concedes that the prosecution presented no direct evidence establishing appellant’s presence in Maryland, the State contends that, because appellant’s counsel asked the arresting officer several times on cross-examination whether appellant was free to “return to Maryland,” these questions “acted as an admission that appellant had recently come into the District of Columbia from Maryland.” It hardly seems necessary to note that neither arguments nor questions of counsel are evidence.

Moreover, we do not see how an inference that appellant had theretofore received stolen goods in Maryland could be drawn from an indication that appellant wanted to “return to Maryland.” Finally, the questions were asked out of the presence of the jury during what appears to have been a suppression hearing. Straining mightily, the State next argues that the geographical proximity of Washington, D.C., where appellant was apprehended, to Prince George’s County, from whence the goods were stolen, “supports the rational ²⁰⁹ inference that, thereafter, the goods were received by Appellant within the confines of the State.” It cites Commonwealth v. Obshatkin, 307 N.E.2d 341 (Mass. App.) as persuasive precedent. We do not find Obshatkin to be either persuasive or precedent.

A decision of another jurisdiction is not binding on this Court and is instructive only insofar as it deals with similar facts and is reasoned convincingly. Obshatkin is not convincingly reasoned, nor is it factually apposite. In that case, the Court held: “. . . while there was no direct testimony in the instant case that the defendant actually received the stolen property within the Commonwealth, the jury could have found from the evidence that the defendant lived in Taunton, that the goods were stolen in Taunton, and that the defendant possessed the goods in nearby Warwick shortly thereafter. From those circumstances the jury were warranted in inferring that the receipt did take place in Massachusetts.

While it is true that ‘possession out of the commonwealth of goods stolen in the commonwealth would not of itself warrant a conviction for receiving them . . . here’ (Commonwealth v. Phelps, 192 Mass. 591, 593-594 , 78 N.E. 741, 742 [1906]; emphasis supplied), we think that there was sufficient additional evidence presented here to warrant the defendant’s conviction.” 307 N.E.2d at 343 . In the instant case, there was no evidence introduced that appellant lived in Pepper Mill Village where the goods had been stolen. Indeed, there was no proof at all of his residence. Nor was there any proof offered to connect appellant with Prince George’s County except the possession of goods that had been stolen there.

That possession may have given rise to a logical inference that the possessor had stolen them in Prince George’s County since testimony showed that situs as the scene of the theft. When the jury found that appellant had not stolen the goods and, thus, that the theft was committed by someone else, the inference was ²¹⁰ that he was a receiver of stolen goods, Jordan v. State, 219 Md. 36, 46 , but there was no evidence from which it could be inferred that his receipt of the goods occurred in Prince George’s County. To the contrary, his possession of them, to the extent proven, was shown to be solely in Washington, D. C. which gives rise to the opposite inference. Wé must, therefore, reverse the conviction.

Because we remand this case for retrial subject to the holding in Gray v. State, 254 Md. 385 , we will respond to appellant’s second question which may again arise if he is retried. Racial Prejudice Inquiries on Voir Dire Until the middle of the twentieth century, this country (as was said of M. de Lessay 2 ) flattered itself on being without prejudice. In 1954, the Supreme Court abruptly ended this delusion by demonstrating that our pretension was itself a very great prejudice. 3 A conscience-piqued nation then began an honest and intense self-evaluation in an effort to recognize and discard prejudices, especially racial ones, within ourselves and inherent within our judicial system. The pendulum of national awareness of our racial prejudices, once jarred loose from its extreme position of obscurity, began its swing to the opposite extreme where its new visibility would cause it to become the focal point of our national conscience.

In 1959, as the pendulum started its swing, the Court of Appeals heard the appeal of Johnnie Brown, a black man who had never been in trouble with the law until, on September 5, 1958, he shot a white policeman (who had arrested him on a charge of uttering bad checks) in the back. The case was removed from Salisbury, Maryland where the crime occurred, to Dorchester County. At his trial, Brown proffered a series of questions to be ²¹¹ asked prospective jurors. Among these questions were several seeking to ascertain “. . . whether the jurors had any prejudice against a Negro which would prevent them from giving a Negro as fair and impartial a trial as they would a white man.

Question ten, for example, was: ‘Can you, without bias or prejudice, pass your verdict in this case solely on the evidence produced from the witness stand without regard to the race, creed or color of the Defendant?’ ” Brown v. State, 220 Md. 29, 33-34 . On Brown’s appeal from his conviction, he took issue with the trial court’s refusal to include such questions in the voir dire examination of prospective jurors. The Court found that: “Although some courts have found no error in refusal to question prospective jurymen as to such prejudice, the majority, and we think the far better reasoned, of the cases, holds to the contrary.” Id. at 34 . Quoting from the opinion in State v. Higgs, 120 A. 2d 152 (Conn.), Judge Hammond reasoned for the Court that: “ ‘In line with this thought, it is almost uniformly held in other jurisdictions that it is reversible error in a criminal case in which a Negro is the defendant to exclude questions, propounded by him on the voir dire, designed to bring out that a prospective juror is so prejudiced against the Negro race that it would take less evidence to convince him that a Negro was guilty of the crime charged than to convince him that a white person had committed a similar crime. . . . ‘We cannot be blind to the fact that there may still be some who are biased against the Negro race and would be more easily convinced of a Negro’s guilt of the crime of rape than they would of a white man’s guilt. .. . ²¹² ‘So long as race prejudice exists, even in a relatively few persons, there is a substantial chance that one of those few will appear in court as a venireman.

Consequently, the fact that most people in the state are not prejudiced against Negroes is not of controlling importance.’ ” Id. At 35. Judge Hammond also relied upon language of the Supreme Court in Aldridge v. United States, 283 U. S. 308 , to emphasize that the required question was not aimed at revealing the dominent sentiment of the community, see Smith and Nelson v. State, 12 Md. App. 130, but at revealing the bias of the particular jurors who were to try the accused: “ ‘If in fact, sharing the general sentiment, they were found to be impartial, no harm would be done in permitting the question; but if any one of them was shown to entertain a prejudice which would preclude his rendering a fair verdict, a gross injustice would be perpetrated in allowing him to sit. * * * we do not think that it can be said that the possibility of such prejudice is so remote as to justify the risk in forbidding the inquiry. And this risk becomes most grave when the issue is of life or death.’ ’’Brown v. State, 220 Md. at 36 .

Then presumably to point out that this view was not of recent vintage based on the tenor of the times, Judge Hammond pointed out that: “In Lee v. State, 164 Md. 550, 556 , there was at least an implication that the accused would have been entitled to have asked the questions that the appellant here requested.” Id. at 36. Finally, and most conclusively, the Court stated: “We hold that the failure to elicit from the jurors the essence of the information sought by the appellant was reversible error.” Id. at 36. Two years later, in Contee v. State, 223 Md. 575 , wherein a black man appealed his conviction of raping a white woman, ²¹³ the Court went even further. In that case, the lower court had rejected six questions, all proffered by appellant in an apparent attempt to ascertain racial prejudice of prospective jurors.

In spite of the fact that the questions were so improperly couched that they . . all appear[ed] to be examples of what not to request the court to propound to prospective jurors on voir dire in a case of this type which is likely to have aroused some racial feelings in the community where it is to be tried.” 223 Md. at 580 , the Court reversed the conviction below, observing that the trial court “had no intention of making any inquiry as to whether the jurors could or would set aside the feelings he or she might have as to racial differences and fairly and impartially decide the case solely on the evidence and the applicable law.” Id. at 581 . The Court went well beyond the ruling in Brown v. State, supra, and held: . - that where, as here, a defendant is denied the opportunity of submitting or requesting proper questions relating to racial bias or prejudice to be propounded by the court to prospective jurors on voir dire, such denial constitutes reversible error.” 223 Md. at 581 . While recognizing the importance of protecting defendants against racially prejudiced jurors, in Humphreys v. State, 227 Md. 115 , also an appeal from the conviction of a black man of the rape of a white woman, there is language indicating that the right to question veniremen as to racial bias is not an absolute which is available to all black defendants. Rather, it is only mandated “. . . where prejudice