Andresen v. State

• Decision Date: 10 January 1975
• Docket Number: No. 152,152
• Parties: Peter C. ANDRESEN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 128

24 Md.App. 128

331 A.2d 78

Peter C. ANDRESEN v. STATE of Maryland.

No. 152.

Court of Special Appeals of Maryland.

Jan. 10, 1975.

Certiorari Denied March 31, 1975.

Philip J. Hirschkop, Alexandria, Va., Peter C. Andresen, Kensington, and Frank W. Marsalek, Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County, Jeffrey Russell Werner, Asst. State's Atty. for Montgomery County and Robert S. Rothenhoefer, State's Atty. for Frederick County, on the brief, for appellee.

Argued before MORTON, MOYLAN and POWERS, JJ.

MOYLAN, Judge.

The appellant, Peter C. Andresen, is an attorney at law in Montgomery County specializing in the handling of real estate settlements. On November 1, 1972, an information was filed against him charging four counts of false pretenses. On November 16, 1972, he was indicted by the Montgomery County Grand Jury on 17 additional charges. The indictment and the information were consolidated for trial.

The Washington Post had run a series of investigative reports in the early part of 1972 exposing various 'kick-back' schemes, unnecessary charges to buyers and unethical relationships between lawyers, real estate brokers, title companies and developers that combined to plague the unsuspecting layman at real estate settlements. The series spurred bar association action in both the Maryland and Virginia suburbs of Washington. The Bi-County Fraud Unit under the joint auspices of the State's Attorneys Offices of Montgomery County and Prince George's County, launched a massive investigation into such practices. Because of extensive publicity arising out of all of these activities, the appellant's case was removed, upon his motion, to Frederick County for trial.

After a trial before a Frederick County jury, presided over by Judge Samuel W. Barrick, which lasted a week and one-half, and produced (with its pretrial motions) over 1500 pages of testimony, the appellant was convicted of three counts of fraudulent misappropriation by fiduciary in contravention of Art. 27, § 132, and of five counts of false pretenses. He received eight concurrent two-year sentences.

Upon this appeal, the appellant lays down a sweeping barrage of 28 assignments of error:

(1) That the counts in the indictment charging fraudulent misappropriation by a fiduciary failed to charge an offense;

(2) That the evidence was not legally sufficient to sustain the convictions for fraudulent misappropriation by a fiduciary;

(3) That the counts in both the indictment and the bill of information charging false pretenses failed to charge an offense;

(4) That the evidence was not legally sufficient to sustain the convictions for false pretenses;

(5) That certain physical evidence should have been suppressed because the search warrants were never admitted into evidence;

(6) That certain physical evidence should have been suppressed because the warrants were 'general' and violated the particularity requirement;

(7) That certain physical evidence should have been suppressed because the Plain View Doctrine should not have been applied;

(8) That certain physical evidence should have been suppressed because there was no probable cause for the issuance of the warrants (9) That certain physical evidence should have been suppressed because the so-called 'nexus' doctrine of Warden v. Hayden was misapplied;

(10) That certain physical evidence should have been suppressed because its seizure violated his Fifth Amendment right against compulsory self-incrimination;

(11) That the prosecutor's remarks in closing argument and in rebuttal argument were so prejudicial as to deny him a fair and impartial trial;

(12) That nineteen separate errors (to be more fully discussed hereinafter) were made in the course of the court's instructions to the jury;

(13) That the testimony of an alleged accomplice, Melvin L. Clark, lacked corroboration;

(14) That the court erred in admitting the testimony of Melvin L. Clark because his testimony was obtained by an 'illegal agreement';

(15) That the State knowingly used the perjured testimony of a witness, Norman Hecht;

(16) That the trial judge erred in not granting the appellant's motion for a continuance, thereby denying him both his right to a fair trial and to effective assistance of counsel;

(17) That the trial judge abused his discretion in denying the appellant's motion for a severance;

(18) That error was committed when an irrelevant transaction with Antonelli and Caniglia was admitted into evidence;

(19) That the admission of the testimony of the witness Carl Zentz amounted to reversible error;

(20) That the motions for judgment of acquittal should have been granted because of the 'best evidence rule' and because of the lack of expert testimony;

(21) That the appellant was erroneously denied his reservation of certain questions for the court en banc;

(22) That the admission into evidence of portions of the testimony of John C. Connally was reversible error (23) That the jury was coerced into reaching its verdict;

(24) That the appellant was denied genuine and effective assistance of counsel;

(25) That the court erred in denying the appellant's motions for judgment of acquittal;

(26) That the court abused its discretion in denying the motion for a new trial;

(27) That the sentence should be vacated; and

(28) That the misconduct of the prosecutor required reversal of the convictions.

1. Adequacy of Fraudulent Misappropriation Charges

We have no difficulty in upholding the facial sufficiency of the charges of fraudulent misappropriation by a fiduciary. Art. 27, § 132, provides, in pertinent part:

'If any . . . trustee . . . or any other fiduciary shall fraudulently and wilfully appropriate to any use and purpose not in the due and lawful execution of his trust, any money or any other thing of value which may come into his hands as such . . . trustee . . . or in any other fiduciary capacity . . . he shall be deemed guilty of embezzlement . . ..'

The three counts charging fraudulent misappropriation, varying from each other only as to date and name of victim, each contained the following critical predicate clause:

'. . . did unlawfully, while acting in the capacity of a trustee and fiduciary, embezzle and fraudulently and wilfully appropriate to a use and purpose not in the due and lawful execution of his trust for and on behalf of Seth L. Warfield and Ruey Warfield, the sum of two thousand dollars ($2,000.00) current money, of the value of two thousand dollars ($2,000.00) current money, of the goods, chattels, monies and property of Seth L. Warfield and Ruey Warfield, in violation of Article 27, Section 132 of the Annotated Code of Maryland . . ..'

Shorn of convoluted verbiage and 'scatter-shot' case citation, the kernel of this contention stands naked as a bald allegation. The appellant does successfully build an appellate launching pad, but then fails to get off the pad. In neither pretrial motions nor the trial upon the merits did the appellant attack these counts in terms of their facial adequacy. He points out correctly, however, that where the issue is the alleged failure of an indictment to charge an offense, the question is of jurisdictional dimension and is subject to appellate review even though not raised below. Phenious v. State, 11 Md.App. 385, 274 A.2d 658. Ironically, having established his right to raise the contention for the first time at the appellate level, the appellant then fails further to contend. In any event, it is clear that the counts were drawn precisely in the languate of § 132 and did, therefore, adequately charge the relevant offenses.

The appellant veers off on another tack, not dealing with the facial adequacy of the charges as such but seizing upon their employment of the verb 'embezzle.' With a brace of non sequiturs, he reasons that the use of the verb 'embezzle' in charging violations of § 132 transforms the offenses into more classic embezzlements under § 129, and that his acquittal of companion counts drawn under § 129 operates as res judicata, barring convictions upon the counts now under review. He is guilty of both bad logic and bad law.

With respect to each of three sets of victims, the appellant was charged, with the all-inclusive caution typically shown by thorough charging documents, with (1) larceny after trust, (2) garden-variety embezzlement and (3) fraudulent misappropriation by a fiduciary. The trial judge instructed the jury as to the elements of these at-times complementary and at-times overlapping offenses. He advised them that although the appellant might be found guilty of one of these offenses with respect to each transaction, he should not be found guilty of two or three related offenses arising out of a single incident. He left it to the jury to pick the offense most applicable to the facts as found by them. When, therefore, the jury returned verdicts of guilty on the three counts charging fraudulent misappropriation by a fiduciary, they appropriately refrained from judicial 'overkill' by remaining silent as to the charges of larceny after trust and classic embezzlement. Out of our law aimed at preventing double jeopardy emerges the principle that the silence of a jury as to a particular count is the equivalent of a verdict of not guilty as to that count. That very necessary fiction, salutary enough in guarding against double jeopardy, cannot, however, by a leap of logic, be deemed to be an explicit and positive verdict operating as a res judicata acquittal on a companion charge. The logic, sound enough for one purpose, has no applicability to the other purpose. A technical acquittal, based upon a jury's restraint in not piling on multiple convictions or alternatively upon the subsuming of lesser-included charges into a greater, does not carry with it the logical implications of an affirmative acquittal...