Bartholomey v. State

Smith, J.,

dissenting:

I concur in the dissent of Judge Barnes, but I would add a few words of my own.

In a matter of constitutional proportions I do not think we should be placed in the position of having to guess at the holding of the highest Court in the land. In the absence of a clear cut holding from the Supreme Court of the United States on the death penalty arising from a state where, as in Maryland, the penalty is specified not by a jury, but by a judge or judges, and arising under circumstances approaching our cases, guessing is exactly what we are doing.

The majority in their opinion confirm the analysis of Furman by Judge Barnes when they say:

“Justice Douglas concluded that statutes like those involved in Furman which permitted discretion in the imposition vel non of the death penalty were unconstitutional in their operation, as infrequently and arbitrarily applied to unpopular groups, thereby violating the principle of equal protection implicit in the Eighth *222 Amendment’s ban on cruel and unusual punishment.”

I know that many changes have taken place in recent years, including changes in the methods of teaching mathematics — since my school days. I believe, however, that even in the “new math” currently in vogue 4 + 1 still equals 5 and 5 — 1 still equals 4. It is obvious that without the holding of Mr. Justice Douglas a majority of the Court did not hold the death sentence invalid. Therefore, it becomes of great importance to ascertain whether his views as applied to the Maryland system and Bartholomey would permit the imposition of the death sentence, because, if they would, his one vote added to the four who dissented would equal a majority.

As was so ably pointed out by Judge Barnes, it is obvious that Bartholomey was not part of an unpopular group. Moreover, if the death sentence has been infrequently applied in recent years, it is because of the challenges to its validity that were pending in the Supreme Court and the desire of the constituted authorities not to proceed with an execution until those challenges ultimately were decided. 1 Yet another factor is the seemingly endless litigation in criminal cases, much of it fostered by the federal system. 2

The death sentences in Bartholomey and the other *223 cases here were not imposed as in Furman by a jury, but by a judge or judges, just as every other criminal sentence in Maryland is imposed and has been imposed for generations. There was nothing arbitrary about them.

*222 “ ‘The evidence offered in this case concerning the man- . ner and means of the decedent’s death are the most extensive and vicious that this Court has ever had brought to its attention as either, in its earlier days as a prosecutor, in its later days as a defense counsel in criminal cases, or since I have been a member of this Bench.’ ” Id. at 272-73.

*223 At least since before this member of the Court was born Maryland has been sufficiently enlightened to not have a mandatory death sentence. I would hate to see us go to a system where the judge as the sentencing authority was divested of all discretion in imposing sentence. The Gallup poll tells us a majority of the American people desire that in certain types of criminal cases the death sentence be permitted. 3 We have just seen the results of the recent California voting upon the subject. Short of a constitutional amendment upon the matter, under the holding of the majority there may be no death sentence unless the statute makes the sentence mandatory, a procedure which may make convictions more difficult to obtain.

I sincerely believe that the Maryland system as heretofore practiced would have received the approval of a majority of the Supreme Court. I believe the dissenting 4 + 1 of Mr. Justice Douglas equals 5 or a majority that would uphold the death sentence as imposed upon Bartholomey.

It is unfortunate that by today’s holding we shall never know whether the Maryland system, one that differs radically from that in the cases before the Supreme Court, would have received its approval.

. I can quickly count four cases in the space of one year decided by this Court in which we affirmed convictions upon which trial courts had directed that the death penalty be imposed, Bartholomey; Wilson v. State, 261 Md. 551 , 276 A. 2d 214 (1971) ; Gilmore v. State, 263 Md. 268 , 283 A. 2d 371 (1971); and Brice v. State, 264 Md. 352 , 286 A. 2d 132 (1972). Accordingly, one wonders how the term “infrequently” is defined. In Gilmore the distinguished trial judge who heard the case and who had extensive experience as a trial lawyer in criminal cases said in imposing sentence:

. An apt example is that of Johnnie Brown, tried and convicted of having murdered a Salisbury police officer in 1958. See Brown v. State, 225 Md. 349 , 170 A. 2d 300 , 85 A.L.R.2d 1107 (1961) ; the same Brown involved in cases reported in 228 Md. 654 , 179 A. 2d 419 (1962); 230 Md. 629 , 186 A. 2d 595 (1962), *223 cert. den. 372 U. S. 960 (1963); 217 F. Supp. 547 (D. Md. 1963); 334 F. 2d 9 (4th Cir. 1964), cert. den. 379 U. S. 917 (1964); 346 F. 2d 149 (4th Cir. 1965), cert. den. 382 U. S. 910 (1965); 248 F. Supp. 342 (D. Md. 1965); 245 Md. 679 , 226 A. 2d 333 (1967); 264 F. Supp. 528 (D. Md. 1967), aff’d by the U. S. Court of Appeals for the Fourth Circuit on September 22, 1967, cert. den. 390 U. S. 992 (1967); and 266 Md. 196 , 292 A. 2d 645 (1972). He is the same Brown to whom reference is made in footnote 18 of the majority opinion.

. In State of Delaware v. Dickerson, 298 A. 2d 761, 765 (Del. 1972), Justice Herrmann pointed out that capital punishment was abolished in that state in 1958 and reinstated in 1961. Living as I do within a few miles of the Delaware line and being a subscriber to a Delaware daily newspaper, I well recall the public outcry against the abolition of the death sentence which led to its reinstatement.