Ross v. State

330 A.2d 507, 24 Md. App. 246, 1975 Md. App. LEXIS 567

• Court: Court of Special Appeals of Maryland
• Decided: January 13, 1975
• Docket: 114, September Term, 1974
• Status: Published

Opinions

Gilbert, J.,

delivered the opinion of the Court. Moore, J., dissents and filed a dissenting opinion at page 260 infra.

The appellant, David Ross, and a codefendant, Clarence Johnson Marable, were jointly tried under separate indictments charging them with unlawful distribution of heroin, with possession and with conspiracy. A jury in the Criminal Court of Baltimore, presided over by Judge J. William Hinkel, convicted appellant of unlawful distribution. The jury, however, was unable to reach a verdict with respect to the charge of conspiracy against appellant or any of the charges against his codefendant. As to those offenses upon which the jury did not agree, the court declared a mistrial. Appellant was thereafter sentenced to a term of seven years.

Appellant assigns four reasons why the judgment should be reversed: (1) the trial court improperly answered in the negative a question from the jury as to whether, after resuming deliberations under the remaining counts, it was permissible to reconsider appellant’s conviction under the distribution count; (2) the evidence was insufficient to sustain a conviction; (3) the admission into evidence of testimony by an informer relating to past sales of narcotics in which he and appellant had participated constituted reversible error; (4) appellant was entrapped by the police through the agency of the informer.

The State’s case against appellant was presented through three witnesses — a paid informer for the federal Government, a detective from the Narcotics Unit of the Baltimore City Police Department detailed to the Drug Administration Task Force, and a Forensic Chemist with the Bureau of Narcotics and Dangerous Drugs.

Their combined testimony developed that on the evening of February 6, 1973, the informer, Stephen Brown, was working for federal agents in the vicinity of the 1500 block of Pennsylvania Avenue in Baltimore. Brown had twice been admitted to Patuxent Institution from which he was on parole. Released from Patuxent in February, 1972, he began his employment with federal narcotics agents in November, 1972. He testified that he had $150 of government funds in his possession and approached appellant, stating he wanted to “get a bundle of narcotics.” Appellant went into a nearby bar and the informer placed a telephone call to Detective Robert Murray. Appellant emerged from the bar with a cab driver who transported appellant and the informer to Catherine and Lombard Streets. The informer testified that during the trip he paid the entire $150 cash to appellant. The latter went into the residence of his codefendant, and the informer awaited his return. Detective Murray was in an unmarked car parked some 150 feet away. When appellant returned and delivered a package to the informer, appellant was arrested. The informer was placed in another vehicle. The package was later found to contain 25 glassine bags of heroin. The Forensic Chemist testified that the substance tested to 1.7%.

Both appellant and his codefendant testified in their own defense and both denied the alleged “buy.” Appellant testified on direct examination that he had been incarcerated with the informer in Hagerstown in 1962, and that he had heard Brown was an informer but “was not sure.” On cross-examination, it was established that although the appellant had prior convictions for larceny and unauthorized use, he had not been convicted for drug-related offenses. The codefendant had a record for larceny and possession of narcotics. He described himself as a “former addict.” The codefendant denied that, when the police went to his premises, he disposed of the $150 in the toilet. The money was never found.

I.

After deliberating for approximately three and one-half hours, during which there was a request to the court for a definition of circumstantial evidence, with which the court complied, the jury returned and the following transpired:

“THE CLERK: Members of the jury, have you agreed upon your verdicts?

THE JURY IN UNISON: Yes, we have.

THE CLERK: And who shall say for you?

THE JURY IN UNISON: Our foreman.

THE CLERK: Mr. Foreman, would you stand, please. How say you as to Indictment 17301335, is David Ross guilty of the matters wherein he stands indicted as to the First Count, possession with intent to distribute, guilty or not guilty?

THE FOREMAN: Guilty.

THE CLERK: How say you as to Indictment 17301337 charging conspiracy, guilty or not guilty?

THE FOREMAN: Haven’t reached a verdict.

THE COURT: Gentlemen, you have heard the statement by the foreman, the jury has agreed upon a verdict as to the First Count of the Indictment.

MR. HARRIS [defense counsel]: If your Honor please, I would ask that the jury be polled as to the First Count.” (Emphasis supplied).

The response of each juror sustained the verdict as announced by the foreman. The court then noted that, as to appellant, there remained only the conspiracy charge. Under both indictments the jury had been unable to reach a verdict on the culpability or non-culpability of the codefendant. Without any intervening objection, the jury was then given a version of the Allen ¹ charge and instructed to resume deliberations. Soon thereafter, the foreman sent out the question, “What does the term ‘judge the law’ mean? ”, to which the court responded. A short time later, the foreman transmitted another question: “Can a guilty determination be reversed at this point in the trial? ” The Court answered “No”. No objection was made by defense counsel. The jury later returned and indicated it was still unable to reach a verdict on the conspiracy charge or any charge against the codefendant.

Appellant contends that the court was wrong in instructing the jury it could not reverse its finding of guilty because “at no time was the jury hearkened.” He cites Givens v. State, 76 Md. 485, 25 A. 689 (1893) as establishing the rule that the jury must reaffirm its verdict by the procedure of hearkening before the verdict can properly be considered final. He concedes that, as with other instances of failure to object, a failure to object to the omission of the hearkening procedure results in a waiver of the trial defect, Glickman v. State, 190 Md. 516, 60 A. 2d 216 (1948); and that a jury poll “also serve[s] the purpose of verifying the unanimity of the jury verdict.” Appellant insists, nevertheless, that in “the totality of the circumstances” presented, the omission of hearkening deprived the jury verdict of finality, although the only “circumstance” he notes is that the jury later asked if it could change a guilty verdict.

We observe that no objection was made by defense counsel when the court indicated its intention to instruct the jury that it could not change its verdict. As a preliminary matter we must decide whether, even assuming plain error material to appellant’s rights, Md. Rule 756 g, we may take cognizance of the error in the absence of an objection. Ibid. Such a decision involves a determination of whether the putative error was one of commission or omission. Brown v. State, 14 Md. App. 415, 287 A. 2d 62, cert, denied 265 Md. 736 (1972). The transcript contains the following:

“THE COURT: The jury has sent out another question. It says, ‘Can a guilty determination be reversed at this point in the trial? The answer is ‘no.’

(The answer was sent to the jury, after which [the jury returned with its verdict].) ” (Emphasis supplied).

The Brown distinction between errors of commission and of omission in jury instructions is that in the former “the damage has been done,” or may well have been, so that corrective instructions would be of dubious value. Where nothing has been said to the jury on the point in issue, however, Brown construed Rule 756 g to impose an absolute burden upon the dissatisfied party to alert the court to the defect in its instructions. The error alleged here, had error indeed occurred, would have been one of commission.

In Brown we pointed out that even where there has been an error of commission, plain and material to the rights of the accused, that “the exercise of our discretion to correct it should be limited to those cases in which correction is necessary to serve the ends of fundamental fairness and substantial justice.” Since the finality of the verdict is a significant issue in this case we shall consider whether the court’s instruction to the jury that its verdict was final and irreversible was correct. We hold that it was for the reasons stated infra.

With some local variations in Maryland, the reply of the foreman as to whether the defendant is guilty or not guilty is noted by the clerk and recorded on the docket or upon such Other records as may be used preparatory to the completion of the formal docket entries. According to Hochheimer, Crimes and Criminal Procedure (1897), § 327, the formal mode for hearkening is as follows:

“Hearken to your verdict as the court hath recorded it. You say that A.B. is guilty (or not guilty) of the felony (or, treason) whereof he stands indicted: so you say all.”

The common law procedure is explained in Grant v. State, 33 Fla. 291, 14 So. 757 (1894) wherein the court said: In Maryland an accused has an absolute right to have the jury polled, a right of constitutional dimension insofar as it serves to assure him his right under the Maryland Constitution to be convicted only upon a unanimous verdict.² The only limitation upon the right is that it be exercised after the verdict and before the jury is discharged. Maloney v. State, 17 Md. App. 609, 304 A. 2d 260 (1973).

“By the common-law procedure,. . . the verdict of the jury was orally pronounced in open court, then recorded by the clerk, and affirmed by the jury, which was done by that officer saying to them to hearken to their verdict as recorded by the court, and repeating to them what had been taken down for record.”

Md. Rule 758 d provides as follows:

“When a verdict is returned and before the jury is discharged it shall be polled at the request of a party or upon the court’s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberation or may be discharged.”

Prior to the effective date of Md. Rule 758 d, viz January 1, 1957, it was evidently thought necessary that the accused request a poll of the jury prior to the recording of the verdict and the hearkening of the jury. Thus in Ford v. State, 12 Md. 514, 546-547 (1859) the Court of Appeals said:

“ . . . [W]e here remark, that when the jury be asked if they have agreed on their verdict, and they respond that they have, and that their foreman shall say for them, and the foreman, speaking for the whole panel, find a proper verdict, and the same be recorded, the whole panel being called upon to hearken to it as the court hath recorded it, and no objection being made, either by any of the jury, or the counsel for the State or prisoner, then such proper verdict, as given through the foreman, is the verdict of the whole panel, and it is too late, after the record of it, under such circumstances, for any of them to alter or amend it; it is then too late to poll the panel.” (Emphasis supplied).

While it is now recognized that recordation of the verdict coupled with the hearkening of the jury is an adequate safeguard of the right to a unanimous verdict, it has never been the law in Maryland that hearkening is the prerequisite to an acceptable verdict where the jury has been polled. In other words it has not been doubted that polling is a fully commensurable substitute for hearkening. The point was made in Givens v. State, supra. There the Court, in holding that hearkening was a matter of substance not mere form, said that as a rule it could not be omitted. The Court, however, referred with approval to the language of a Virginia case “that until the assent of the jury is expressed in this way, or by a poll, the jury has a right to retract; and that the verdict is not perfected until after the jury has expressed their assent in one of these ways.” Commonwealth v. Gibson, 2 Va. Cas. 70. (Emphasis supplied).

The Court recognized in Givens that polling is the more particular means “to secure certainty and accuracy, and to enable the jury to correct a verdict, which they have mistaken, or which their foreman has improperly delivered,” but in the absence of a request for a poll the practice of hearkening must be followed. Under our practice the hearkening of a verdict is the traditional formality announcing the recording of the verdict. A jury poll has the same effect. The recording of the verdict is the act which signifies the removal of the subject matter from the jury’s province. Though the act of recording' is seemingly a ministerial function, it is a duty performed by the court through its clerk, who for this purpose serves as the court’s amanuensis.

The formalizing ceremony of “hearkening” is an alert to the jury to secure certainty and accuracy enabling them to correct any manifest mistake. Glickman v. State, supra.3 Hearkening also serves as an admonition to counsel and the litigants that such verdict “as the court hath recorded it” will no longer be subject to alteration or amendment. Ford v. State, supra. It is upon the perfection of that verdict expressed by the jurors’ assent either through their acquiescence by hearkening, or through individual consent by poll, that the jury’s right to retract that verdict is concluded. Givens v. State, supra.⁴

The last formal recorded act of the court in a jury case is the recording of the jury’s decision, attended with the traditional formalizing procedures which have become substantive rights. See Glickman v. State, supra at 525, citing Givens v. State, supra. For those present the formalities of polling signaled the conclusive nature of recording. This was the effect of perfecting the verdict as to Ross. When the judge expressed an intention to return the jury for further deliberations, appellant, as we have previously noted, interposed no objection.

Appellant acknowledges that he is clutching a slender reed in basing his claim of error on the omission of hearkening the verdict. Nevertheless, he urges that when the jury subsequently indicated second thoughts about its verdict, hearkening “would have afforded one final opportunity for the affirmance or disaffirmance of the unanimity of the jury’s verdict.” We reject appellant’s attempt to employ hearkening to defeat the finality of a verdict already conclusively certified by the poll of the jury. We observe that the failure of the clerk to hearken the verdict may well have been caused by the alacrity with which appellant’s trial counsel requested that the jury be polled.

Although we think the better practice dictates that the procedure employed by the trial court in the instant case be avoided, we, nevertheless, hold that the court did not err in instructing the jury that it could not reverse a guilty verdict that had been recorded after a poll. For reasons too obvious for discussion in the light of what we have said about the recording of a verdict, we find no merit in appellant’s tandem contention that the trial court should have declared a mistrial.

II

We also find no merit in appellant’s contentions relative to the alleged insufficiency of the evidence and entrapment. His challenge to the sufficiency of the evidence is two-fold. He asserts first that Officer Murray failed to exercise the now familiar precautions of searching the informer before and after the controlled purchase. This argument, however, is directed toward the weight, not the sufficiency, of the evidence. Weight of the evidence is a matter to be determined by the trier of fact. Hill v. State, 6 Md. App. 555, 252 A. 2d 259 (1969); Williams v. State, 5 Md. App. 450, 247 A. 2d 731 (1968). The second aspect of appellant’s attack on the evidence takes the form of an assertion that the judge should not have allowed the jury to determine appellant’s guilt or innocence based largely upon the testimony of Mr. Brown, “[a]n admitted criminal, an indefinite parolee from Patuxent Institution, a hireling whose very pay depended on the number of arrests he precipitated, . .and an inherently dishonest witness. Such an argument goes to Brown’s credibility and is for the trier of fact to adjudge. Bailey v. State, 16 Md. App. 83, 294 A. 2d 123 (1972); Ritter v. Danbury, 15 Md. App. 309, 290 A. 2d 173 (1973); Colburn v. Colburn, 15 Md. App. 503, 292 A. 2d 121 (1972). The test of the sufficiency of evidence is whether it directly shows or supports a rational inference of the facts to be proved, from which the trier of facts could fairly be convinced, beyond a reasonable doubt of the defendant’s guilt of the offense charged, Robinson v. State, 17 Md. App. 451, 302 A. 2d 659 (1973); Gatewood v. State, 15 Md. App. 450, 291 A. 2d 688 (1972). The evidence in the instant case is sufficient to sustain the conviction.

In this Court appellant argues that Mr. Brown was effectively an accomplice and, therefore, in order to sustain appellant’s conviction the State must have corroborated Brown’s testimony. This contention was not raised in the trial court and thus it is not before us. Md. Rule 1085. Even if we were to assume that corroboration were required, the record discloses that the corroboration has been furnished in the form of Detective Murray’s testimony.

Appellant contends that he was entrapped by the activity of the police or their agents. He raises the point for the first time in this appeal. The defense of entrapment was neither argued by appellant when he moved for a judgment of acquittal, nor when he renewed that motion. Moreover, he neither asked for an instruction on the law of entrapment nor excepted to the court’s instructions as given. Not having been raised and decided by the trial court, the issue of whether appellant was entrapped is not before us. Md. Rule 1085. Assuming arguendo that the issue is properly presented, we have no hesitancy in holding that the appellant was not entrapped. See Schuman v. State, 19 Md. App. 400, 311 A. 2d 460 (1973); Hignut v. State, 17 Md. App. 399, 303 A. 2d 173 (1973); Byrd v. State, 16 Md. App. 391, 297 A. 2d 312 (1972); Rettman v. State, 15 Md. App. 666, 292 A. 2d 107 (1972), cert, denied September 19, 1972; Simmons v. State, 8 Md. App. 355, 259 A. 2d 814 (1969).

Ill

Appellant also contends that reversible error was committed by the trial court in permitting testimony by the informer, Stephen Brown, relating to past sales of narcotics in which the informer and the appellant were mutually engaged. The record reveals that on direct examination Mr. Brown was interrogated by the State as follows:

“Q Now, prior to this night in question, did you know this person referred to as Breather? [i.e., appellant.]

A Yes, sir.

Q And how long had you known this person prior to this night in question?

A Since 1958, around 1958.

Q How would you characterize your acquaintanceship with Breather?

MR. HARRIS [defense counsel]: Objection.

THE COURT: Sustained.

Q BY MR. SAUER [Assistant State’s Attorney]: How would you say you knew him then?

MR. HARRIS: Objection.

THE COURT: Sustained.

Q BY MR. SAUER: Would you tell us what, if any, contact you had had with Breather from 1958 up to the date in question, February 6, 1973? [Emphasis supplied].

MR. HARRIS: Objection.

THE COURT: On what grounds?

MR. HARRIS: I think it is leading, number one, Your Honor; and, I don’t see that it has any bearing at all on the events of February 6, 1973. [Emphasis supplied],

THE COURT: They are superior [conspiracy] charges in the Indictment, and events prior to that may be relevant, and the form of the question, I believe, is not leading. You can answer the question.

A We use [sic] to work together selling narcotics.”

It is provided in Md. Rule 522 d:

“Objection to Evidence

1. When grounds must be stated. Unless requested by the court it is not necessary to state the grounds for objections to evidence.”

This rule had as its primary purpose the simplification of procedure by abolishing “unnecessary and outmoded formalities,” thus saving time and expense in trials. Elmer v. State, 239 Md. 1, 209 A. 2d 776 (1965). Rule 522 has been made applicable to criminal trials by Rule 725f. The Court of Appeals has held in Wilt v. Wilt, 242 Md. 129, 218 A. 2d 180 (1966), that even though it is not necessary to state the grounds for objection to evidence, when counsel is requested by the trial court to articulate the reasons for that objection, he should state all his reasons for objecting. If in articulating the reasons for the objection counsel omits to state a particular ground, he is ordinarily regarded as having waived any basis not so stated.

In the instant case the question to which objection was made embraced the period 1958 to February 6, 1973. As such, it was utterly lacking in specificity, and it theoretically, at least, encompassed every social or business contact between the parties for that period of time. The question was objected to on the ground that it was (1) leading and (2) did not have “any bearing at all on the events of February 6, 1973.” Patently, the question was not leading. We interpret the second stated reason to be grounded upon irrelevancy. The question was simply not objectionable for either of the reasons assigned by appellant. While it is true that the question dealt with a time frame of fifteen years, it did include within its ambit the crucial date of the alleged offense, and events occuring on that date were certainly relevant to the case then at trial. Further, the question included within its purview relatively recent contacts. Moreover, the question was relevant because the trier of fact must base its judgment on the truth or falsity of the testimony, in part, upon the nature of the relationship between the informer, Brown, and the appellant. The question under attack, while admittedly over-broad in scope, nevertheless, would have appeared to the trial judge to have been designed to demonstrate that relationship.

1 Wharton’s Criminal Evidence (13th. ed. C. Torcia 1972) § 254 states:

“In a prosecution for the sale of narcotics, evidence of other sales is admissible to show intent or guilty knowledge. . .

See also the cases collected in Annot. “Admissibility in prosecution for illegal sales of narcotics of evidence of other sales” 93 A.L.R.2d 1097 et seq. (1964).

In Robinson v. United States, 366 F. 2d 575, (10th Cir. 1966), Judge Hill writing for the court said:

“Of course, the general rule is that evidence of another and independent crime is not admissible against an accused; but a recognized exception to that rule is that evidence of other crimes committed by an accused is admissible if such evidence tends to establish a common scheme, system, plan or design on the part of the accused, where it is so related to the crime charged, that it may serve to establish the crime charged or to establish an intent or a motive in the mind of the accused to commit the crime charged. Certainly, all of the crimes charged and the other crimes shown by the questioned evidence were crimes of a similar nature, that is, crimes involving traffic in illegal drugs. This evidence did tend to establish a common scheme, plan and design on the part of the accused and was related to the crimes charged. It did give the jury additional evidence from which it could find intent. . . and ascertain the state of mind of the accused. ...”

As in Robinson, supra, the testimony elicited by the challenged question tended to establish “a common scheme, plan and design on the part of the accused” and was “related to the crime charged.”

Judgment affirmed.

1 . The term is derived from Allen v. United States, 164 U. S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896) although the charge itself apparently originated in Commonwealth v. Tuey, 8 Cush. 1 (Mass. 1851).

2 . Constitution of Maryland, Declaration of Rights Art. 21.

3 . In Glickman, the jury also returned one verdict and was permitted to deliberate upon a second indictment. The initial verdict was merely reported. It was not perfected by either of the traditional procedures prior to the second deliberation. The initial verdict was not conclusive, nor was the subsequent deliberation dependent upon the conclusion of the initial verdict, had the former been perfected.

4 . Givens, supra, deals at some length with the importance of matters of form and tradition. It is well worth remembering the significance and reasons for certain established “juridical forms.” Each is supported by-reasons of justice and propriety which are now regarded as matters of substance. Givens gives especial credence to “ .. . forms adopted in criminal trials . .. inasmuch as they have a strong tendency, by their solemnity to impress upon all who are engaged in it, the interesting and highly responsible nature and character of the duties which devolve on them respectively.” Givens, supra at 486.