Blondes v. State, 300

• Citation: 314 A.2d 746,19 Md.App. 714
• Decision Date: 11 February 1974
• Docket Number: No. 300,300
• Parties: Leonard Saul BLONDES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 714

19 Md.App. 714

314 A.2d 746

Leonard Saul BLONDES v. STATE of Maryland.

No. 300.

Court of Special Appeals of Maryland.

Feb. 11, 1974.

Joseph B. Simpson, Jr., Rockville, with whom were Vivian V Simpson, H. Algire McFaul, Joseph J. D'Erasmo, Simpson & Simpson, Rockville, on the brief, for appellant.

James G. Klair, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty., for Montgomery County, Reginald W. Bours, III, Deputy State's Atty. for Montgomery County and Thomas L. Craven, Sp. Pros., on the brief, for appellee.

Argued before ORTH, C. J., and MORTON and POWERS, JJ.

ORTH, Chief Judge.

Leonard Saul Blondes, a lawyer and a Montgomery County Delegate to the General Assembly of Maryland from 1962 to 1970, was charged, in the 1st and 2nd counts of indictment 12157, with violating Code, Art. 27, § 23, providing that it shall constitute the offense of bribery for 'any member of the General Assembly of Maryland * * * (to) demand or receive any bribe, fee, reward or testimonial for the purpose of influencing him in the performance of his official duties, or for neglecting or failing to perform the same.' ¹ On 9 December 1971 Blondes was found guilty under the 1st and 2nd counts at a bench trial in the Circuit Court for Montgomery County and the same day he was sentenced generally to pay a fine of $2,500 and costs. ²

On appeal to this Court we reversed the judgment. We found, under the Supreme Court's interpretation of legislative privilege as applied to Art. 10 of the Maryland Declaration of Rights and § 18 of Art. III of the Maryland Constitution, that substantive evidence of legislative acts performed by Blondes, introduced in evidence against him, over his objection, were inadmissible, and because not harmless, required a retrial, the provisions of § 50 of Article III not nullifying the Speech and Debate clauses insofar as a bribery prosecution of a member of the General Assembly was concerned. The trial court having erred in relying upon inadmissible substantive evidence of Blondes's legislative acts, we ordered a new trial purged of references to legislative acts prohibited by the legislative privilege. Blondes v. State, 16 Md.App. 165, 294 A.2d 661, decided 11 September 1972.

On 2 April 1973 Blondes filed a motion to dismiss the indictment. In reversing the judgment rendered at the first trial we construed § 50 of Art. III of the Maryland Constitution 'is a limited mandate providing for punishment of State legislators guilty of bribery if indictment and prosecution therefor can be accomplished without impinging on the legislative privilege by introducing evidence of legislative acts.' Blondes alleged that the indictment against him was found solely as a result of the Grand Jury's inquiry into his legislative motives, communications and acts as a member of the General Assembly of Maryland. He claimed that the 'inquiry is and was constitutionally prohibited and beyond the jurisdiction of the Grand Jury as a part of the judicial branch of the Government and, therefore, the Indictment so returned exceeded the jurisdiction of the Grand Jury and must be dismissed.' The State answered the motion on 4 April. It alleged that the indictment 'was based in part on, or returned in spite of, the voluntary testimony of the defendant himself as to his legislative motives, communications and acts,' the conclusion that the indictment was based 'solely' upon such evidence being 'totally speculative'. It claimed that if the indictment, returned by a legally constituted and unbiased grand jury, were valid on its face, it was enough to call for trial on the merits. It was aware, however, of the language in Blondes, and recognizing Blondes's 'own express desire not to be tried by indictment,' suggested that the court accept a Bill of Information in lieu of the challenged indictment. On 4 April 1973 the State filed an information. Its two counts were identical to the first two counts in indictment 12157. A hearing on the motion to dismiss the indictment was held the same day. Blondes argued that the indictment should be dismissed because it was returned on the basis of improper evidence. He pointed to the language in Blondes v. State, supra, above quoted, construing § 50 of Art. III 'as a limited mandate providing for punishment of State legislators guilty of bribery if indictment and prosecution therefor can be accomplished without impinging on the legislative privilege by introducing evidence of legislative acts.' The State, upon inquiry by the court, said that it intended to proceed to trial on the information and not on the indictment. The court suggested that the motion to dismiss the indictment was moot 'if the State is not going to try this case on the basis of the indictment but only on an information.' ³ It saw no reason, in the circumstances, to argue the indictment. It said to defense counsel: 'If the State doesn't call the indictment for trial, why must I make a disposition of the motion to dismiss nonexistent prosecution? The case is prosecuted on the information. * * * If your client were tried under the information and found not guilty, certainly that would be 'res adjudicata', I should think, as to the indictment, and if found guilty, he certainly could claim-you certainly could claim double jeopardy if the State ever tried to bring him on for trial under the indictment.' The defense agreed, but thought the indictment should be 'nol-prossed or withdrawn or dismissed, or some definitive kind of action taken in reference to the indictment.' The court opined that the disposition of the indictment was the option of the State's Attorney. The State suggested that Blondes be arraigned on the information and the case set for trial thereon. Blondes objected and the court agreed that the defense should have time to study the information before arraignment. Trial had been set for 10 April and the court said it was prepared to proceed on that date. It reserved ruling on the motion to dismiss the indictment.

Upon motion made by Blondes and hearing had on 5 April, the court, Mathias, J., entered an order removing the case from the trial calendar for 10 April and assigned it for trial in the Circuit Court for Montgomery County on 7 May before Prendergast, J., all motions to be filed on or before 18 April. On 18 April Blondes filed a motion to dismiss the information. The motion alleged that the information had been filed for the sole benefit of the State without request by Blondes so as 'to deprive the defendant of the benefit of the ruling of the Court of Special Appeals in limiting the evidence properly to be offered upon a retrial and to avoid a ruling on the defendant's Motions to Dismiss the Indictment and to Inspect the Grand Jury Minutes.' ⁴ Blondes claimed that the State had elected to abandon prosecution under the indictment and by so doing the commencement of prosecution under the information would place him twice in jeopardy and deny him due process of law. He further averred that the filing of the information was in violation of Maryland Rules 708 and 709.

The case came on for trial on 7 May 1973. The State declared that it was going to call the criminal information for trial. Defense counsel said that if that were the State's election, he would like it to dispose of the indictment. The court thought the motion to dismiss the information should be next considered and heard from counsel on that motion. The defense argued that the prohibition against double jeopardy precluded trial on the information. The remand for a new trial contemplated trial on the indictment and if that is abandoned the prosecution is abandoned. The defense also argued that the filing of the information violated Rules 708 and 709 in that an information could not be filed for a penitentiary misdemeanor without the consent of the accused. After extensive argument, the State proposed, in order 'to expedite these proceedings and to simplify the considerations before the court' that it 'enter a nolle prosequi to both of the remaining counts in the indictment only; namely, the first and second counts, and may the record reflect that this action is being taken prior to the time when the indictment or any other charge was called for trial, but at any rate, pursuant to the provisions of Maryland Rule 711, I would enter a nolle prosequi to the indictment.' After further discussion, the State requested that 'the court arraign the Defendant on the information, that the Court reserve its ruling at this time as to the motion to dismiss the information and that the court proceed with trial.' The court heard further from defense counsel and thereupon said with respect to the motion to dismiss the information: 'I am not persuaded that I should grant that motion, and I overrule it.' It gave at length its reasons therefor and concluded: 'At any rate, I can always reconsider before the trial is concluded, but my disposition is, and I do rule that the motion to dismiss the criminal information is overruled.' The defense requested and was granted a short recess. When court reconvened, defense counsel presented another point on the motion which he had not pressed in argument but had set out in the written motion-that the information was based on the same evidence produced before the Grand Jury that returned the indictment and that it was the result of Blondes's 'legislative motives and so forth.' The court agreed that the point had not been abandoned. Defense counsel then raised another point: 'I would suggest to the court and urge that the nolle as to the indictment in this case, which is in the identical words as the information in the case, and each of those filed in the same criminal proceedings, Your Honor, would be tantamount to a nolle of the information.' The court did not think so. The court inquired if all the discovery had been disposed of or if there were anything 'you think you should...