Cason v. State, 925
| Decision Date | 01 September 1985 |
| Docket Number | No. 925,925 |
| Citation | 505 A.2d 919,66 Md.App. 757 |
| Parties | Robert J. CASON v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.
Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City, and Brian Murphy, Asst. State's Atty. for Baltimore City, Baltimore), on brief, for appellee.
Argued before BLOOM, KARWACKI and ROBERT M. BELL, JJ.
The seeds of this appeal were sown on December 13, 1984 when, after Robert J. Cason, appellant, having pled not guilty and elected to be tried by the court sitting without a jury, the trial judge granted, over the State's objection, appellant's request for a continuance.
The continuance was requested to permit the appellant to take a polygraph examination. The State's objection had several bases: (1) the timing of the request, there having already been several postponements granted; (2) the State did not agree to be bound by the results of the examination; and (3) the case was not the sort that would warrant a polygraph examination. The State expressed an additional concern:
Secondly, if you decide to do so, because a polygraph is not admissible by the Court of Appeals, whether we agree or disagree. They have so said it has not been admissible because it has not been determined scientifically reliable. I don't think this Court should be the one to hear the results of the polygraph in December, no matter what they are. I respectfully ask that if it is done, the case be sent to another judge if it is to be a court trial. That would be the State's position.
Appellant rejoined:
[The request that the court recuse itself in the event of a non-jury trial] is premature. So I ask that you not rule on that until Tuesday. Number two, this is no different than having the defendant tell you in open court that he has a polygraph test, the result favorable to him, and he'd like to get it admitted under special circumstances and lay a foundation for that. That has happened numerous times and no court has ever found that the author of that is prejudiced in any way. It is no different than you hearing a confession of the defendant which is inadmissible for technical reasons unrelated to its reliability. Throwing out the confession and then presiding in a court trial, and that procedure was approved in Hutchinson v. State after the Court of Special Appeals took a position typical to Mr. Murphy's position, which was reversed by the Court of Appeals. We see no problem with this at this juncture whatsoever and we ask the court to do it.
The court did do it, and, as to the State's request that it not hear the case if the case were tried non-jury, it said:
Mr. Brian Murphy, with respect to asking me to exclude myself in the event this test goes one way or another, I will wait until Tuesday to make that decision. Therefore this case is continued until Tuesday for that purpose....
As so often happens, the unexpected occurred. The unexpected in this case was that appellant flunked the polygraph examination. Thus when the case was called, appellant, not unexpectedly, moved that the judge who had so recently been urged not to do so, recuse himself. In support of the motion, appellant argued:
The background is that, Judge, the defense approached the court with a suggestion that this case could be resolved by the polygraph, and originally the State took a position against it, and has maintained that position. And one of the arguments the State made against approaching the court with this suggestion was that if it came out in favor of the defense, that the court would not be able to fairly officiate in the matter, because it would be influenced substantially by the polygraph test results. We took the position that the defendant was going to pass the test, and that in any event, you would not be susceptible to being influenced by the test. However the more we thought about it, especially in light of the results, the more we tend to agree now with the State that it is really unfair to both the court and the defendant to put the court in a position of having to preside over a court trial when the court has now been aware of the previous agreement, that the defendant has in fact failed a polygraph test.
The defendant does not have the option any longer of electing a jury trial, so there wouldn't be appearance of unfairness. He is locked into a court trial, and it is his belief, and he is asking me to argue this, Judge Ward, that this court could not compartmentalize the part--,
A position with which the State concurred:
I am, of course, an advocate of the State's position. I also want justice done. I would like to make sure--I don't know what the Court of Special Appeals or the Court of Appeals would do with this case if you decide that you cannot comparmentalize. I have no doubt you can. However, my problem would be that if the higher court would disagree with you in your ruling based upon their prior rulings, all we are going to do today is to take a temporary guilty or not guilty, whatever the case may be. Well, guilty. If it goes it goes up, and two years from now, when the court reverses, we will be back here before you or another Judge again. I want to see justice finally done today. That's another reason why I would join in Mr. Murphy's request you not hear it as a court trial knowing what you do.
The motion was denied.
Appellant next moved to change his election from court trial to a jury trial. He incorporated, as reasons for the motion, the same reasons he advanced in support of his motion for recusal. The State made no comment. This motion was also denied.
Other seeds were sown during the trial. The State produced testimony concerning the circumstances of the arrest. The arresting officer testified that, acting on a tip from an informant that heroin was being sold at that location, he went to the corner of Riggs Avenue and Calhoun Street in an unmarked vehicle. Upon arrival, he observed appellant, along with approximately seven other black males standing on the corner outside the Club Pisces. The officer "observed [appellant] holding in his hand a paper bag in one, and in the other hand he was removing a glassine packet of white powder substance from that bag, having conversation with other black males." Upon the approach of the police car, the other males moved away and appellant put the items in his pocket and went into the Club Pisces, where, in the vestibule just inside the front door, he was confronted by the officer and arrested. Having taken appellant outside and caused him to place his hands on the police car, the officer testified that, as he was removing his handcuffs, appellant turned, struck him in the chest, and started to run. Appellant was apprehended. The officer, assisted by another officer, handcuffed appellant after appellant had attempted to throw a brown bag, containing sixteen glassine bags of heroin, from his jacket pocket into a sewer hole. A search of appellant turned up $466.00.
Appellant's version substantially contradicted the officer's. He testified that he was driven to that corner by a mechanic friend, with whom he had been seeking auto parts for his car, and that as he was crossing the street the unmarked police car pulled up. When he entered the bar, an officer ran in after him, told him that he had seen appellant throw drugs on the ground, and informed him that he was under arrest. At that point, appellant said, he tussled with the officer because he was angry at being falsely accused. Appellant also denied possessing narcotics. He explained that the $466.00 recovered from him had been withdrawn from the bank on October 31 to pay for repairs to his car.
On cross-examination, appellant was asked if he knew how heroin is normally packaged, in bundles of 25, for resale on the streets. Appellant responded, "no". When he was asked if he had ever seen heroin, appellant responded "Of course". He was then asked if he used heroin; appellant responded "no". The following colloquy then occurred:
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Q. Mr. Cason, it is a fact that in 1972 in the Criminal Court of Baltimore City, you were convicted of two counts of possession of heroin?
MR. WILLIAM MURPHY: Objection.
Q. That is a fact; is it not?
THE COURT: Overruled. You may answer.
A. Yes.
Q. As a result of that conviction there and as a result of the fact you were a second offender, at that time you were sentenced to 16 years of prison. That is a fact; is it not?
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Q. Let me see if we understand this correctly. You used to sell heroin, but you don't sell heroin anymore. You didn't sell...
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