Baxter v. State

• Decision Date: 18 November 1960
• Docket Number: No. 55,55
• Citation: 165 A.2d 469,223 Md. 495
• Parties: Harvey Paul BAXTER v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 495

223 Md. 495

165 A.2d 469

Harvey Paul BAXTER v. STATE of Maryland.

No. 55.

Court of Appeals of Maryland.

Nov. 18, 1960.

Lawrence B. Coshnear (Harold Buchman, Baltimore, on the brief), for appellant.

Joseph S. Kaufman, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Saul A. Harris and Charles E. Moylan, Jr., State's Atty. and Asst. State's Atty. of Baltimore City, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

Harvey Paul Baxter (the defendant) was tried by a jury on a four-count indictment charging him with violations of the narcotics law. The first and second counts charged him with possession and control of marijuana on September 14, 1959, and the third and fourth counts related the fact that the defendant was a second offender in that he had been previously convicted of possession and control of a narcotic on May 7, 1959. The jury returned a verdict of guilty. From the judgment entered thereon and the sentence imposed, this appeal was taken.

Besides the defendant, who was an itinerant musician, the other characters in this tragedy involving the use of narcotics are: Jean Askew, an unemployed model; Stanley Polakoff, the alleged informer, who, at the time was free on bail under fourteen indictments for violations of the narcotics law; and George Pompiano, a 'hi-fi' devotee, who had the apartment in Washington, D. C., which was the meeting place of the foursome. The four were well acquainted, and all had been or were narcotics users. The defendant had been discharged from the army as the result of a courtmarital for possession of marijuana, and, at the time the instant offense was committed, was on probation as the result of the May 7th conviction. He claimed that he had not used narcotics since June of 1958.

What transpired on September 13 and 14, 1959, according to the defendant, was substantially as follows: he had found the other three in the Pompiano apartment listening to a hi-fidelity phonograph. During the visit Polakoff informed the defendant that he had obtained some recordings at a discount, and offered to sell him a part of them. The defendant readily agreed and a meeting was arranged at 9 p. m. the following evening at a drive-in restaurant in Baltimore. The drive-in was to be only a meeting place since the defendant and Polakoff were to go elsewhere to look at the records. But coincidentally with the discussion with respect to the records, Polakoff requested the defendant to secure some marijuana for Askew. At first the defendant refused (and he claimed that he had refused the same request many times before). But when Polakoff displayed the arm of the model (presumably punctured with hypodermic needle marks) the defendant relented and agreed to try to procure some marijuana (a habit-forming but not addictive narcotic) to alleviate her suffering. It seems she was having withdrawal or 'kickoff' symptoms as the result of the cessation of the use of opium derivatives known as dilaudide and heroin. The defendant claims he did not know, at the time, where he was going to get the marijuana.

The model testified as to a conversation she had with Polakoff in front of the apartment after the meeting had broken up. According to her, Polakoff stated that he hated the defendant and was going to 'set him up.' At any rate, at 5 p. m. the next day (September 14), Polakoff went to the Baltimore Central Police Station and informed the police that there would be a delivery of marijuana to him at the drivein at nine o'clock that evening. While there is a conflict in the evidence as to who interrogated the informer, the record is clear that the police knew of the planned delivery before 6 p. m.

To return to the story of the defendant, he says he received a call at 6 p. m. from Pompiano asking him to drop by on his way home. He claimed he did not know why he was to stop, but when he arrived in front of the apartment at about 6:30, Pompiano placed a brown paper bag on the front seat of his automobile and told him to collect $50 and some dilaudide in exchange for the contents of the bag. Thus prepared, the defendant proceeded to the restaurant in Baltimore where he was arrested in the parking lot by Lieutenant Jacob Simonsen. The bag contained enough green marijuana for one hundred and forty cigarettes, and a partially smoked marijuana cigarette and a hypodermic needle were also discovered by the police in the automobile.

In his brief, the appellant makes two contentions: (i) that the trial court erred when it refused to direct a verdict of not guilty on the ground that entrapment had been established as a matter of law, and (ii) that the denial by the trial court of an opportunity to explore the whole relationship between Polakoff and the police was reversible error. Although there was no reference to the point in his brief, the defendant also argued in this Court (iii) that the introduction into evidence of the hypodermic needle was improper and prejudicial.

There was no evidence that Polakoff had previously been employed as an informer by the police department. Nor was it shown that he was ever paid anything for the information he supplied or that he was acting under a promise of leniency or immunity from further prosecution under the untried indictments against him.

(i)

The law in this State with respect to the defense of entrapment was restated in Ferraro v. State, 1952, 200 Md. 274, at page 279, 89 A.2d 628, at page 630 (by quoting from Callahan v. State, 1932, 163 Md. 298, 301, 162 A. 856) in this manner:

"It is not objectionable for an officer of the law to lay a trap or unite with others to detect an offender. The only effect would be to justify a more careful scrutiny of the evidence. Where the crime is not against the person nor the property of the instigator, it is not clear how, in the absence of special circumstances, the commission of a crime at the solicitation or procurement of another, although an officer of the law, makes the culprit any less guilty than if the criminal design had originated with the wrongdoer himself."

In the Ferraro case, the informer (John W. Heineman), after his arrest for accepting wagers on football games, decided--apparently without inducement--to help the police in apprehending the persons 'behind him' who were also engaged in violating the gaming laws. With marked money supplied by the police, the informer, having called and arranged meetings with the defendants (Ferraro and Patti) for the supposed purpose of delivering the day's wagers, met the defendants separately at the time and place arranged, while at the same time a police officer watched the transaction, and then immediately confronted the defendants and retrieved the marked money. In affirming the conviction of the defendants, we said at page 281 of 200 Md., at page 631 of 89 A.2d:

'We do not find it necessary to decide which, if any, of the divergent views ¹ of the defense of entrapment is law in Maryland. We think there is no evidence legally sufficient to support the defense of entrapment--on any accepted theory--certainly not to support a peremptory verdict of acquittal. If appellants' testimony were believed, there would be no guilt on their part and no entrapment. If their testimony is not believed, the activity of the police and their tool Heineman was 'permitted activity, frequently essential to the enforcement of the law' and had 'the appropriate object' of 'revealing the criminal design'. ² This activity was no more unlawful or improper than the use of decoy letters to trap mail thieves or users of the mail for...