Veney v. State

Smith, J., delivered the opinion of the Court. Appellant was convicted of murder in the first degree by a ¹⁸⁵ jury in Frederick County and sentenced to death. The victim was Sgt. Jack Cooper of the Baltimore City Police Department.

At approximately 9:40 P.M. on December 24, 1964, Luxie’s Liquor Store at 2002 Greenmount Avenue in Baltimore City was robbed. Several men were involved. Appellant was identified as one of those men. Lt.

Maskell of the Baltimore City Police Department arrived on the scene, accosted appellant, and was in the process of taking him into custody when one of the robbers shot Lt. Maskell. Lt. Maskell was shot a second time.

Appellant was identified as firing the second shot. Lt. Maskell was not fatally wounded. The culprits escaped.

Between 10:00 and 11:00 P.M. appellant and others alleged to have been involved were at the home of appellant’s sister. Discussion of the incident took place. Appellant stated, “I think I shot him, too.” Sgt. Jack Cooper was one of those searching for the participants in the robbery and shooting of Lt.

Maskell. Sgt. Cooper was seen at approximately 4:20 A.M. on December 25 by fellow officers. A few minutes later shots were heard from the direction in which Sgt.

Cooper had gone. He was found fatally wounded near his police car, lying across an alley, face down, in an unconscious condition. The dome light of his car was on. The driver’s door was open.

The microphone of the radio was lying on the front seat. The motor vehicle operator’s license of appellant was picked up from the floor of the police car. Just outside the car on the driver’s side under the open door were found the Social Security card, Selective Service card and birth certificate of appellant, together with a number of other papers connected with appellant. Appellant was seen with a gun before and after the Cooper shooting.

The girl friend of appellant’s brother testified as follows with reference to a conversation between 7:00 and 8:00 A.M. on December 25: “Q. What did you hear Sam say? A. I believe I heard him say he had to shoot him. “Q. What were his words? A. That he had to shoot him. I never heard him say who or what. “Q. Did he say why?

A. No, I heard him say something about an ID card. ¹⁸⁶ “Q. An ID card? A. But I never seen him or he never said it in my presence that he had shot anybody. Neither one ever admitted it.” An admitted participant in the robbery testified as follows: “Q. When you got to Eloise’s house, who was there? A. Earl was there, Eloise was there, and Shirley and Margaret was with me when we got around there. “Q. Now, did anyone else show up there after you got there ?

A. Sam came around later. “Q. What happened? Describe what happened when Sam came in. A. He came in and rather than coming straight in he knocked on the door and we opened it and he said, everybody be quiet and pulled down the shades and he said he just shot a policeman. “Q. Did he say why he had just shot a policeman? A. Yes. “Q. What did he say?

A. He said the police stopped him on his way around there and asked him for his identification and he showed it to him and when the police seen his last name was Veney he wanted to take him downtown and then he got to arguing with the police and he said the policeman hit him upside the head and that is when he shot him. “Q. What did the police hit him with upside the head according to him? A. With a blackjack. “Q. Blackjack? A. Yes. “Q. And he shot him? A. That’s right. “Q. What happened then after you were all around there and you heard this news?

A. Well, we tried to be quiet for a while and we were going to spend the night there and we would try to get out tomorrow and then he was talking about how he was going to get rid of the gun. “Q. Who said this ? A. Sam. “Q. All right. What did he say about the gun? A. ¹⁸⁷ He said he had to get rid of it as soon as he could and he wanted to get rid of it.

He didn’t want to take the chance of walking the streets with it.” The “Eloise” to whom reference is above made was Eloise Bennett. The niece of Eloise Bennett found a gun about a week later. The gun was identified as the gun of appellant. The gun was further identified as the gun that had fatally wounded Sgt.

Cooper and had wounded Lt. Maskell. Earl Veney was in the company of Frances Mitchell at the time of the shooting of Sgt. Cooper.

I. Appellant claims he was denied due process of law when prospective jurymen who did not believe in capital punishment were excluded from service. He lists eleven prospective jurymen so excluded. The questions propounded by the court to Paul Rice in the voir dire examination are typical of the questions propounded to the other prospective jurors so excluded. They are: “(Court) (Paul Rice #35) Mr. Rice have you formed or expressed an opinion as to the guilt or innocence of Samuel Veney, the defendant in this case?

A. No, I haven’t. “Q. Do you have any conscientious scruples against capital punishment? A. Yes, I have. “Q. Do you feel that those scruples are such that you could not fairly and justly weigh the evidence in this case bearing in mind it is the Court’s function and not the jury’s to impose punishment in case the finding should be guilty ? A. I am afraid so. “(Court) All right, the Court will excuse you.” Appellant cites Witherspoon v. Illinois, 391 U. S. 510 , 20 L. Ed. 2d 776 , 88 S. Ct. 1770 (1968) in support of his position. The Illinois jury, pursuant to the authority granted by Illinois law, imposed the death penalty.

The jury has no such right in Maryland. Its authority under Code (1967 Repl. Vol.) Art. 27, § 413, is limited in rendering a verdict of murder in the first ¹⁸⁸ degree to adding the words “without capital punishment,” in which case the sentence of the court is required to be imprisonment for life. We take judicial notice of the fact that there have been many convictions in Maryland of murder in the first degree where the words “without capital punishment” have not been added by the jury and where the sentence has been to life imprisonment rather than death.

In Witherspoon Mr. Justice Stewart speaking for the Supreme Court said: “The issue before us is a narrow one. It does not involve the right of the' prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an mpartial decision as to the defendcmfs guilt. * * *” (emphasis supplied) 391 U. S. at 513 . In footnote 21 at page 522 to its opinion in Witherspoon the Supreme Court said: “We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punnishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. Nor does the decision in this case affect the validity of any sentence other than one of death.

Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.” (emphasis in original) The same day the Supreme Court decided Witherspoon it decided the case of Bumper v. North Carolina, 391 U. S. 543 , 20 L. Ed. 2d 797 , 88 S. Ct. 1788 (1968). In that case the defendant had been convicted of rape. The North Carolina statute ¹⁸⁹ imposed a death penalty for such conviction, unless the jury recommended life imprisonment. The jury did recommend life imprisonment.

It was contended that the constitutional right of Bumper to an impartial jury was violated when the prosecution was permitted to challenge for cause all prospective jurors who stated that they were opposed to capital punishment or had conscientious scruples against imposing the death penalty. Mr. Justice Stewart speaking for the Supreme Court said: “* * * Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant’s guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. * * * We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily ‘prosecution prone’, and the materials referred to in his brief are no more substantial than those brought to our attention in Wither-spoon.

Accordingly, we decline to reverse the judgment of conviction upon this basis.” 391 U. S. at 545. See also State v. Mathis, 52 N. J. 238, 245 A. 2d 20 (1968) where the Supreme Court of New Jersey had occasion to consider the application of Witherspoon, supra, and Bumper, supra. In New Jersey conviction of murder in the first degree carries with it the death sentence unless the jury recommends life imprisonment. The New Jersey Court affirmed the conviction.

Mathis was sentenced to death. The trial of appellant was prior to Witherspoon and prior to the enactment of Chapter 500 of the Acts of 1967 providing that no person shall be disqualified for service as a juror by reason of his beliefs against capital punishment. It appears to us that the lower court in its questions on Voir dire to those individuals who confessed having scruples against capital punishment made careful inquiry as to whether those ¹⁹⁰ scruples were such that they could not fairly and justly weigh the evidence in the case. We believe it significant that, although not ultimately serving because of the right of peremptory challenge exercised by the State, there were five jurors accepted as qualified who stated that they did not believe in capital punishment.

In each instance these jurors indicated that they could render a fair and impartial verdict notwithstanding their beliefs. As heretofore indicated, the procedure used in this case was to first obtain a panel of jurors held to be qualified to serve. Upon the panel so established each side then exercised its peremptory challenges. This panel appears to have been fairly selected and to have represented a fair cross section of the community.

The actions of the trial court in this case were in accordance with our decision in Price v. State, 159 Md. 491, 493 , 151 A. 409 (1930).

II

Appellant contends he was denied a fair trial when the court refused to grant a change of venue from Frederick County. The crime took place in Baltimore City. The case was moved to Frederick County pursuant to the appellant’s request for removal. Although appellant claims that the Criminal Court of Baltimore City merely indicated that appellant’s case and certain companion cases would be removed to Frederick County and that the presiding judge in that county would then make a determination whether or not a removal was in order, it is to be noted that Chief Judge Foster in Baltimore in considering the first removal petition said: “As to your first motion, which is really a suggestion for removal filed by Samuel Veney, Indictment 5738, as I have already indicated I will sign an order removing that case from Baltimore City.” Moreover, it is to be noted that in the argument before the Circuit Court for Frederick County appellant’s counsel said: “I understood the opposition to be we already had one removal and particularly in the murder case it is not a matter of right for a second removal.” ¹⁹¹ The absolute right of removal can be exercised only once.

Lee v. State, 164 Md. 550, 552 , 165 A. 614 (1933), cert. denied, 290 U. S. 639 (1933). Appellant complains of the extensive publicity given the trial of his brother, Earl Veney, on the robbery of Luxie’s Liquor Store and the subsequent shooting of Lt. Maskell which trial took place in Frederick County beginning February 14, 1966, and ending February 16, 1966. Appellant’s trial began April 11, 1966, and ended April 15, 1966.

Sentence was not imposed in the Earl Veney case until a week after the conclusion of appellant’s trial. Therefore, any prejudice would be from the Earl Veney trial and not from the Earl Veney sentence. Frederick County is a county with a 1960 census population of 71,930 people. Appellant submitted newspaper clippings from “The Baltimore News-American”, purportedly referring to appellant and his brother, Earl Veney.

The following circulation figures were submitted: Frederick Post—9000 Frederick News—7000 Baltimore Morning Sun—1064 Baltimore Evening Sun—506 Baltimore Sunday Sun—2702 No figures were submitted for The Baltimore News-American. A large part of the clippings submitted from Baltimore newspapers were in the period between the commission of the crime on December 25, 1964, and October 6, 1965, when the case was moved to Frederick. Appellant relies on the case of Sheppard v. Maxwell, 384 U. S. 333 , 16 L. Ed. 2d 600 , 86 S. Ct. 1507 (1966). He does not complain that the jury was exposed to news coverage of facts regarding the issue to be tried, but claims news coverage of facts elicited from the previous trial of his brother, Earl Veney, were prejudicial.

He relies on Sheppard, supra, to support this position. The facts, however, are dearly distinguishable. In Sheppard, supra, one of the issues was the fact that jurors had been exposed to information pertaining to the case they were trying through news accounts submitted by various branches of the news media. Mr. Justice Clark said for the Supreme Court: ¹⁹² “But the Court has also pointed out that ‘[l]egal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.’ Bridges v. California, supra, [ 314 U. S. 252 (1941)] at 271.

And the Court has insisted that no one be punished for a crime without ‘a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.’ Chambers v. Florida, 309 U. S. 227, 236-237 (1940). ‘Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.’ Pennekamp v. Florida, 328 U. S. 331, 347 (1946). But it must not be allowed to divert the trial from the ‘very purpose of a court system. . .to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.’ Cox v. Louisiana, 379 U. S. 559, 583 (1965) (Black, J., dissenting). Among these ‘legal procedures’ is the requirement that the jury’s verdict be based on evidence received in open court, not from outside sources. Thus, in Marshall v. United States, 360 U. S. 310 (1959), we set aside a federal conviction where the jurors were exposed ‘through news accounts’ to information that was not admitted at trial.

We held that the prejudice from such material ‘may indeed be greater’ than when it is part of the prosecution’s evidence ‘for it is then not tempered by protective procedures.’ At 313. At the same time, we did not consider dispositive the statement of each juror ‘that he would not be influenced by the news articles, that he could decide the case only on the evidence of record, and that he felt no prejudice against petitioner as a result of the articles.’ At 312. Likewise, in Irvin v. Dowd, 366 U. S. 717 (1961), even though each juror indicated that he could render an impartial verdict despite exposure to prejudicial newspaper articles, we set aside the conviction holding: ‘With his life at stake, it is not requiring too ¹⁹³ much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion. . . .’ At 728. 193 “The undeviating rule of this Court was expressed by Mr. Justice Holmes over a half a century ago in Patterson v. Colorado, 205 U. S. 454, 462 (1907) : ‘The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.’ “Moreover, ‘the burden of showing essential unfairness ... as a demonstrable reality,’ Adams v. United States ex rel McCann, 317 U. S. 269, 281 (1942), need not be undertaken when television has exposed the community ‘repeatedly and in depth to the spectacle of [the accused] personally confessing in detail to the crimes with which he was later to be charged.’ Rideau v. State of Louisiana, 373 U. S. 723, 726 (1963) .* * *” 384 U. S. at 350-352 . Appellant likewise relies on Estes v. Texas, 381 U. S. 532 , 14 L. Ed. 2d 543 , 85 S. Ct. 1628 (1965).

That case is clearly distinguishable from the present case. In that case the pre-trial proceedings were covered live from the court room and parts of the trial were also filmed. We regard Seidman v. State, 230 Md. 305 , 187 A. 2d 109 (1962), cert. denied, 374 U. S. 807 (1963) as pertinent. Seidman was indicted for pandering and conspiracy with Fifer and others to violate the pandering laws of the State of Maryland.

Fifer was convicted on a Friday. Seidman’s trial commenced the