Wilson v. State

Orth, J., delivered the opinion of the Court. The appellant was found not guilty of murder but guilty of manslaughter under an indictment charging him with murder by ¹⁹⁵ a jury in the Circuit Court for Prince George’s County. He was sentenced to imprisonment for a term of four years. The questions presented on appeal from the judgment are herein considered in the order in which they were argued before this Court.

I “Was the defendant denied a fair and impartial trial when, the trial judge in his admonition to the jury affirmatively advised that throughout the trial they could talk about the case as long as they were alone among themselves or in the jury roomf” Trial commenced on 21 July 1967, resumed on 24 July and 25 July and concluded on 26 July. The jury separated during each trial day for lunch and at the end of each day of trial. The trial judge admonished the jury immediately before each separation, seven times in all. After the first admonition, given before the luncheon recess of court on the first day of trial, the-record shows the following colloquy between the court and counsel for the appellant, out of the presence of the jury: “MR.

FREEMAN: * * * I detected in the instruction to the jury about discussing the case that they should not discuss it among themselevs anywhere except in the jury room. I would request, if the Court please, an instruction that until the case is terminated that they should not even discuss it there. THE COURT: Well, they have a right to discuss it. They don’t have a right to take it up on the basis of determining the case itself, but they certainly have got a right — You have got to 1 be practical about it.

They are going to discuss it during a recess. But the thing that you are aiming at and we always instruct them not to take the case up, not to take a vote and not to. make any final determination. This is true of any case. But to tell them that they can’t talk about it in there is not realistic.

They are going to. You are not going to stop it. But the only purpose in telling them that, the intention of telling them that, is not to make any conclusion on the case, not to take any vote and not ¹⁹⁶ make up their minds. But you can’t deny them the right of discussing the case.

MR. FREEMAN: Well, I have made my request and I suppose it has been denied. THE COURT: Well, we are telling you what we do ■and what the usual meaning of it is, which I don’t think you are familiar with, and that is why we are doing it, to enlighten you. MR.

FREEMAN: Thank you.” We think it a fair construction of the admonitions given by the trial judge that the admonitions conveyed to the jurors that they could discuss the case among themselves before its final submission to them when they were together in the jury room as the •appellant’s counsel alleged. The appellant does not claim that the cautions given by the trial judge with regard to the conduct •of the jurors while separated were insufficient or improper. 1 But he urges that before the case is finally submitted to the jury, "they may not properly discuss it among themselves whether or 'not they are separated and therefore, the trial judge committed prejudicial error. There is no statute or rule in this jurisdiction requiring the trial judge to admonish the jury that they are 'not to discuss the case in the jury room before its final submis-sion to them. 2 Nor are we aware of a case which compels us to ¹⁹⁷ so hold. “It is, however, our established practice that an admonition be given by the trial court to members of the jury, prior to separation, against discussing the case with others or among themselves.” (emphasis added). Midgett v. State, 223 Md. 282, 293 .

The Court said in Midgett , at page 295, that the main objectives sought by the usual admonitions were “to avoid any outside influences and to cause the jury’s final verdict to be based solely on the evidence and on the whole of the evidence presented in the court.” But we do not construe Midgett to hold that the jurors may not discuss the case before its final submission to them when they are not separated. There the contention ¹⁹⁸ was that the conviction should be reversed because upon several adjournments during the course of the trial when the jury was allowed to separate, the court did not caution the jurors against discussing the case. The opinion must be considered within the frame of reference of the contention and we do not feel that it is applicable to a jury not separated. The usual caution against the jurors discussing the case among themselves applies when the jury is separated and we are not persuaded otherwise because the Court, in Midgett , in finding that there had been substantial compliance with the rule as to admonitions, noted that the trial court had cautioned the jury not to discuss the case “with anyone during recess, nor amongst yourselves” and had elaborated on the latter point, stating that it was “because you are supposed to discuss this case only when it is completed and it is turned over to you when you retire to the jury room for a verdict.” at page 294.

The appellant relies on Winebrenner v. United States, 147 F. 2d 322 (8th cir.) in which the jury was admonished not to discuss the case “to such an extent that you form definite fixed ideas that would prevent you from changing after you heard all the evidence in the case.” page 327. The court felt that this caution warranted the jury to discuss the case among themselves before final submission of it to them. It believed that this was harmful because the jury had not heard all the evidence, they had not received the court’s instructions “as to how the evidence was to be considered by them,” they had not heard argument of counsel and they were enabled “to divide themselves into separate groups and distinct deliberative bodies.” It found that the right to a fair trial and due process of law were violated and reversed the judgment, remanding the case for a new trial. We do not agree that it necessarily follows that an accused is denied a fair trial and due process of law because of the absence of an admonition not to discuss the case before its final submision to them or because they are told, in effect, that they may so discuss it.

Of course, it is the constitutional right of a defendant in a criminal case to be tried by an impartial jury. Amendment VI to the Constitution of the United States, Article 21 of the Declaration of Rights of Maryland, Jones v. State, 2 Md. App. 429 . “In our present state of society, all that can be required of a juror, to render him ¹⁹⁹ competent, is that he shall be without bias or prejudice for or against the accused, and that his mind is free to hear and impartially consider the evidence, and to render a verdict thereon without regard to any former opinion or impression existing in his mind, formed upon rumor or newspaper reports.” Garlitz v. State, 71 Md. 293, 300 quoted in Baltimore Radio Show, Inc. v. State, 193 Md. 300, 328 . A defendant is entitled to be tried by a jury composed of competent jurors, “exercising their judgment with perfect freedom from improper influences.” Marguiles v. State, 153 Md. 204, 211 . 3 We think that the jurors properly may be regarded, in the absence of a showing to the contrary, as performing their duties as they have sworn to perform them. 4 The trial court made it clear in its admonitions that while the jurors were separated they were not to discuss the case “* * * among yourselves or with anyone else * * * or to read any newspapers or listen to any broadcasts or look at any television or anything concerning this particular case * * * The point is we just don’t want any outside interference 5 * * * [Y]ou are to divorce yourself from any of this because there is always a possibility that it may contain something which is not in the evidence, or it may contain somebody else’s thoughts or reactions to what was presented. And you are entitled to all of the evidence, but no one of you is entitled to have anything that the others don’t have the benefit of * * 6 In the instant ²⁰⁰ case there is no hint or suggestion that the verdict of the jury was not based solely on the evidence and the whole of the evidence or that the jurors committed their minds until all the evidence was presented to them and we see no reason for us to assume to the contrary.

There was no showing that the appellant was prejudiced and we feel that the refusal of the trial judge to admonish the jury not to discuss the case among themselves in the jury room or even the possibility that they did discuss it does not present a matter of constitutional dimension. We find no denial of the appellant’s constitutional right to a fair trial and are not persuaded by Winebrenner that the right to due process of law is properly extended to embrace the matter. We deem a proper due process of law standard for a criminal trial to be one tried in accordance with the Bill of Rights and laws passed pursuant to constitutional power, guaranteeing to all alike a trial under the general law of the land. We think that the trial of the appellant complied with this standard.

It may be the better practice, in order to preclude any possibility of misconduct (insofar as admonition can do so) that every jury be admonished not to discuss the case among themselves, even when in the jury room, until it is finally submitted to them. 7 But having found that it is not required, constitution ²⁰¹ ally or by statute, rule or decision, we cannot find prejudicial error in the trial judge’s admonitions under the facts and circumstances of the instant case. II “Did the trial court abuse its discretion in refusing to grant a request for a bill of particulars setting forth the facts which the State contended showed premeditation or malice on the part of the defendant or which showed the acts which the defendant allegedly committed?” Prior to trial the appellant filed a motion for a bill of particulars which included a request for all facts which the State contended showed premeditation, malice and “the specific act or acts which the defendant is alleged to have performed which resulted in the death of the decedent,” In its answer to the motion the State asserted that the appellant had been furnished with particulars through oral disclosure and extended discussion between his counsel and the Assistant State’s Attorney and the answer contained a summary of the events related to the charge, additional to that given orally. Other than to the extent disclosed, the State excepted to the demand for facts showing premeditation, malice and the specific acts performed by the appellant. At a hearing on the motion the trial court refused to require the State to furnish more particulars. 8 The appellant concedes that, as he was convicted of manslaughter, the denial of the request with regard to facts showing premeditation and malice is moot.

He urges, however, that the denial with regard to facts of specific acts alleged to have been performed by him, specifically as shown by the testimony of Alvin Phillip Luckel, whom he designates as a key witness for the State, was error. He complains that the testimony of the witness at the trial as to the specific acts included “continual kicking (by the appellant of the deceased), despite pleas to stop, which quite differ ²⁰² from what he testified to at the preliminary hearing.” He asserts that he was therefore “surprised upon receipt of that evidence at the trial.” The testimony of Luckel at the trial, to which the appellant refers, was that Luckel said that he noticed the appellant kicking the deceased and when Luckel told him, “For God’s sake, quit kicking the guy,” the appellant did not reply. “He just kept kicking him.” There was no objection to this testimony. We do not have the transcript of the proceedings at the preliminary hearing before us but at the hearing on the motions filed by the appellant, his counsel quoted Luckel as saying at the preliminary hearing that “* * * it appeared to me that he (the appellant) was kicking him (the deceased).” In his argument at the hearing on the motions counsel characterized this testimony as Luckel saying he saw the appellant “* * * kicking away at the guard (the deceased).” Further, in the answer to the motion for particulars, the State set forth that Luckel was struck “one' time” by the deceased, “next remembering the Defendant striking and kicking the deceased.” Maryland Rules of Procedure, 715 a provides that the court may order the filing of a bill of particulars. But a defendant is not entitled thereto as of right.

The grant or refusal of particulars is within the sound discretion of the trial court and this Court will not reverse a denial of particulars unless there has been a gross abuse of discretion resulting in injury to the accused. Pea rlman v. State, 232 Md. 251, 261 . Bills of particulars are intended to guard against the taking of an accused by surprise by limiting the scope of the proof. Hadder v. State, 238 Md. 341, 351 .

We do not think that the appellant can validly claim surprise as to the point of which he complains on appeal and find no gross abuse of the discretion by the trial court resulting in injury to the accused. We note also that the defense is not prohibited from interviewing the State’s witnesses prior to trial. Ill “Did the court below err when it refused to permit the appellant to express his state of mind, his intent, at the time that he allegedly committed the acts comprising■ a specific intent crime?” The appellant was charged with the murder of a security ²⁰³ guard whose duties included a check of the premises of an apartment complex. The appellant and Luckel had been in one of the apartments and when they left they went to Luckel’s car which had been left on the apartment parking lot.

The appellant got in the car. The deceased drove up and accosted Luckel. The appellant testified that he heard Luckel holler, “Bob, Bob come here quick.” The appellant heard “scuffling,” got out of the car and saw Luckel standing by the fender oí a car and the guard “had his hands poised as if he were going to strike.” Defense counsel asked the appellant, “Now, what was your intent when you approached the scene there.” Objection to the question was sustained. The appellant then testified that he approached the guard, that the guard kicked him and came toward him and the appellant “started swinging.” He was asked by defense counsel “* * * the reasons why you started swinging” and he replied, “I was afraid that this nut was going to kick my brains out.

That’s just my feelings at that time.” Later during his testimony the appellant said that he went to the office of his counsel and made a statement “as to how he was involved in this crime.” At this time he did not know that a warrant had been issued for his arrest or that the police were looking for him. He then went with his counsel “to report in to the authorities.” The appellant was asked by his counsel whether he had any intention of “not reporting” in to the authorities. The State objected, the appellant answered “No” and then the court said, “Sustained.” There was no motion to strike the answer. Defense counsel then asked the appellant what his “intentions were with respect to reporting in to the authorities” and objection to the question was sustained.

The appellant contends that these rulings of the court were reversible error. An accused is competent to testify as to his intent or state of mind. Davis v. State, 204 Md. 44, 52 ; Webb v. State, 201 Md. 158, 162 ; Wharton’s Criminal Evidence, 12th Ed., Vol. 1, § 164, p. 318. No other person can testify positively with regard to a particular intent entertained by an accused but an accused could, if truthfully inclined, swear positively to that intent; if his testimony as to that fact is material and pertinent to the issue, his testimony ought not to be excluded.

Fenwick v. State, 63 Md. 239, 241 . In the instant case the appellant was charged ²⁰⁴ with murder and raised the issue of self defense. His intent at the time of the assault would thus be material as to the existence of malice, Davis v. State, supra, p. 52, and as to justification for the homicide. But although his