MORTON, J., delivered the opinion of the Court.
A Carroll County grand jury returned an indictment charging the appellant, Daniel Lee Chadderton, with first degree murder. Thereafter, the State's Attorney for Carroll County filed a "Notice of Intention to Seek Sentence of Death," asserting that appellant murdered Mary Ruth Myers pursuant "to an agreement or contract for remuneration or the promise of remuneration to commit the murder." Subsequently, the state's attorney filed a "Suggestion for Removal" on the ground that "the State cannot have a fair and impartial trial in the Circuit Court for Carroll County...." Over appellant's objection, the case was removed to the Circuit Court for Garrett County.
After a trial before a jury in the Circuit Court for Garrett County (Thayer, J., presiding), the appellant was convicted of first degree murder. Because the jury was unable to agree that the death sentence should be imposed, the appellant was sentenced to life imprisonment.
In this appeal appellant raises six issues:
In the course of selecting the jury, the trial judge, over appellant's objection, excused for cause all prospective jurors who announced that they had conscientious scruples against capital punishment. A typical question addressed to the prospective jurors went: "Do you feel so strongly about the imposition of the death penalty that your attitude would prevent you from making an impartial decision on the issue of guilt or not?" If the individual answered "Yes," he or she was excused from serving on the jury.
The appellant contends that the course followed by the trial judge denied him the right to a properly selected jury. In making this argument, the appellant recognizes that the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510 (1968), rehearing denied, Witherspoon v. Illinois, 393 U.S. 898 (1968), approved the method of jury selection followed by the trial judge below, at least for the selection of jurors participating in the guilt or innocence phase of the trial as distinguished from the sentencing stage of the proceedings.
Appellant first asserts that he "was denied the right to a jury drawn from a fair cross-section of the community, as that concept has developed in Supreme Court cases decided since Witherspoon." The appellant cites Duren v. Missouri, 439 U.S. 357 (1979), Ballew v. Georgia, 435 U.S. 223 (1978), and Taylor v. Louisiana, 419 U.S. 522 (1975), in support of his assertion. In our view, appellant's reliance upon these cases to support his argument is simply misplaced.
Ballew stands solely for the proposition that a trial on criminal charges before a five member jury deprives an accused of a right to trial by jury guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
The holding in Witherspoon v. Illinois, supra, is not considered or even mentioned by name in Ballew, Taylor, or Duren. That these cases could somehow be said to overrule Witherspoon, as contended by appellant, is beyond rational comprehension. We have been referred to no case and we have found none which could be said to modify the Witherspoon holding or even suggest that it does not state the law regarding jury selection as it stands today.
In Witherspoon, the petitioner had argued that there is "`competent scientific evidence that death-qualified jurors are partial to the prosecution on the issue of guilt or innocence.'" 391 U.S. at 517. The Supreme Court disposed of this assertion by stating that
Counsel for appellant sets out in his brief various studies
Relying primarily upon Article 20 of the Maryland Declaration of Rights, appellant contends that he "was constitutionally entitled to be tried in Carroll County, where the offense was committed"; and that it was error to remove the case to Garrett County upon the suggestion of the State's Attorney for Carroll County that the state "cannot have a fair and impartial trial in the Circuit Court for Carroll County and requests that this case be transmitted for trial to another court having jurisdiction." Article 20 of the Maryland Declaration of Rights provides:
Appellant argues that "[t]here is no ambiguity in the language
In Stewart v. State, 21 Md.App. 346 (1974), aff'd, 275 Md. 258 (1975), in an opinion authored by the late Judge C. Awdry Thompson, reference was made to a law review article, W. Blume, The Place of Trial of Criminal Causes, 43 Mich.L.Rev. 59, 60 (1944). Judge Thompson stated:
Appellant recognizes the existence of Article IV, Sec. 8 of the Constitution of Maryland, but asserts that it only "appears to give the State the right of removal in capital cases." It is clear, however, that the provisions of Article IV, Sec. 8, go far deeper than simply giving an appearance of the state's right of removal in capital cases. Paragraph (b) of that article provides:
As long ago as 1888, the Court of Appeals announced in McMillan v. State, 68 Md. 307, 309-310:
Appellant says that even if it is assumed that the state may have a right of removal in a capital case, it cannot be exercised unless the state makes "an adequate showing of cause." While this argument may have a somewhat appealing underpinning, it simply does not comport with the prevailing law in Maryland. In Brack v. State, 187 Md. 542, 544 (1947), it was stated:
He went on to say, at 257:
We find no merit in appellant's third contention that "[t]he trial court erred in failing to strike a prospective juror for cause." The contention is based upon the following colloquy between the trial judge and a prospective juror:
Whatever ambiguity appears in the prospective juror's answers to the trial judge's questions, as alleged by appellant, was eliminated by the prospective juror when he answered "Yes, sir" to the judge's question: "Are you willing to accept that it must be beyond a reasonable doubt?" The trial judge was entitled to believe the prospective juror's answer. Accordingly, there was no basis for excluding the prospective juror for cause.
Likewise, we cannot find any merit in the contention that "[t]he trial court erred in permitting the State to impeach and bolster the credibility of its own witnesses." Appellant argues that
The trial tactic employed by the prosecuting attorney was undoubtedly annoying to defense counsel because, as appellate counsel says, "the information would have been, or in fact was, elicited by defense counsel on cross-examination." "Trial courts have, and may exercise, the widest discretion in the conduct of a trial, and that discretion may not be disturbed unless it is clearly abused." Tobias v. State, 37 Md.App. 605, 616 (1977). We see no abuse of the trial judge's discretion in permitting the prosecuting attorney to conduct his examination of the state's witnesses in the manner he employed.
Appellant complains that the trial judge erred in excluding evidence of his good character. The complaint apparently is based upon a question asked of a twelve year old witness who was the son of Tina Myers, a witness for the state who had been granted immunity from prosecution of the crime of murder for which the appellant was being tried. The boy had previously testified that his mother had told him that she had often lied. When the boy was asked what he thought of appellant, he was not permitted to express an opinion.
Md. Cts. & Jud. Proc. Code Ann., Sec. 9-115, requires "that for a character witness to give evidence based on personal opinion, he must have an `adequate basis for forming an opinion as to another person's character....'" Durkin v. State, 284 Md. 445, 446 (1979). In Durkin it was said, at 452: "Implicit in the language [of the statute] is the requirement that the trial judge determine that the character witness have a proper foundation for his opinion before it is admitted into evidence." The Court went on to say, at 453: "[M]uch deference will be paid to his determination, and it will be overturned on appeal only if there is a clear abuse of discretion."
Finally, appellant's counsel contends "[a]t Appellant's request, it is submitted that in the present case the evidence was legally insufficient."
In State v. Rusk, 289 Md. 230, 240 (1981), the test for determining the legal sufficiency of the evidence to sustain a conviction was delineated:
Appellant's trial was conducted from April 19 through May 10, 1982. It would serve no useful purpose to set out in this opinion all the evidence produced at his trial. We have carefully reviewed the trial record in this case and have no
Judgment affirmed; costs to be paid by appellant.