Comi v. State, 128

• Decision Date: 11 June 1953
• Docket Number: No. 128,128
• Parties: COMI v. STATE.
• Court: Maryland Court of Appeals

Page 472

202 Md. 472

97 A.2d 129

COMI v. STATE.

No. 128.

Court of Appeals of Maryland.

June 11, 1953.

William C. Walsh and Joseph Allen, Baltimore (Henry M. Siegel and Joseph Rosenthal, Baltimore, on the brief), for appellant.

Kenneth C. Proctor, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., Anselm Sodaro, State's Atty., J. Harold Grady and Theodore C. Waters, Jr., Asst. State's Attys., Baltimore, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from a judgment and sentence of seven years and fine of $2,000 entered upon a jury's verdict in a prosecution for conspiracy to violate the lottery laws. The sufficiency of the evidence is not challenged but it is contended that the court erred in a number of rulings in the course of the trial.

The indictment charged that during the period from January 1, 1950 through January 17, 1952, the appellant unlawfully conspired with Leo Quattroche, Anthony Astarita, Alexander Astarita, Thomas Murray, Washington Bragg, Norman Brown, and other persons unknown, to violate the lottery laws. The State produced testimony from Leo Quattroche and Alexander Astarita that they had worked for the defendant and written numbers for him. There was testimony that Anthony Astarita wrote numbers with his brother, but both denied that Anthony had any direct dealings with Comi as backer. The State also produced testimony from the respective wives of Leo Quattroche and Anthony Astarita, and the brother of Mrs. Quattroche, that Louis Comi had promised to pay the fines imposed upon the alleged co-conspirators for previous convictions of violations of the lottery laws, as well as their legal expenses, and that the wives received payments for support while their husbands were in jail.

In his opening statement to the jury the State's Attorney had described Thomas Murray as his 'star witness' and emphasized the importance of his testimony. After the testimony of the Quattroches and Astaritas had been concluded, the State's Attorney, in the presence of the jury, asked the Court's indulgence because 'we have been put in a position where this Thomas Murray, our star witness has disappeared. He left home yesterday morning * * *.' At this point the defendant's counsel objected 'to any statement being made before the jury.' A conference was then held out of the hearing of the jury. It was agreed that the State might call Murray as a witness if he appeared during the course of the trial.

Officer Baker testified that Murray had been arrested and convicted on a lottery charge on October 18, 1951 and sentenced to nine months in the House of Correction and to pay a fine of $1,000. The State then produced Washington Bragg, who testified that in July 1951 he accompanied Murray on a trip to a shore near Essex. Murray told him he had to deliver a package of money to Louis Comi. However, he testified he was unable to identify Comi in the courtroom, and that he did not see Comi at the shore, and did not know where the place was, as it was dark. The court refused to strike out the testimony at that time, stating that he would 'let it in subject to be followed up.' The State then produced Sanford Gibson, who testified the defendant gave him a roll of bills with which to pay Murray's fine on May 10, 1952, and that the defendant drove him to the city jail to obtain Murray's release. When Murray came out and saw Comi in the car, he refused to enter it. The State also proved through court officials that Gibson paid Murray's fine.

The next morning, a news item in the Baltimore Sun, under the headline 'Comi Trial 'Star Witness' Missing', stated that among the developments was 'Disappearance of the State's 'star witness', a man who gave testimony against Comi before the grand jury and who later returned to jail rather than accept freedom given him when Comi paid his $1000.00 fine imposed on a lottery charge.' This publication was brought to the court's attention and was the basis for a motion declaring a mistrial, which the court overruled.

The defense then produced 21 character witnesses. The first witness, J. Milton Mauer, testified that he knew the reputation of the defendant for truth and veracity in the neighborhood where he resided, and that it was good. Defense counsel then announced that the defendant had been convicted of pandering some years ago (in 1937) and asked the witness: 'Knowing that, would that change your opinion?' The witness said it would not. On cross-examination, the State's Attorney after some questions about the pandering conviction asked: 'Did you know that Mr. Comi was arrested and charged with conspiracy to violate the lottery laws in October, 1943?' The witness answered: 'No.' Defense counsel stated: 'We object to that and move that be stricken unless he has a conviction.' The State's Attorney remarked: 'Of course, it is not a conviction.' The court remarked: 'This goes to his character', and overruled the objection. The State's Attorney then inquired, without objection: 'Does that fact change your evaluation of his character?' The witness answered: 'No.' The State's Attorney then asked: 'Did you know he was charged with maintaining a lottery in January of 1942, and tried in court?' Over objection, the witness replied: 'No, that wouldn't change my mind, the only thing I knew about that is what little I read in the paper.' The State's Attorney also put a similar question as to a lottery charge on November 18, 1940. These same questions were put to other witnesses, in cross-examination. Defense counsel then proceeded, in calling succeeding character witnesses, to ask them concerning these lottery charges. A typical instance was in the case of Frank Tagliaferri, where defense counsel stated: 'I think he was arrested a couple of times, two or three times, for lottery, and dismissed, about eight or ten years ago; would that change your opinion of his reputation for truth and veracity?' The witness replied: 'Not as I know the gentleman.'

The appellant then took the stand. He testified he had never been in the lottery business. He denied the accusations of the State's witnesses, which he ascribed to attempted blackmail following the conviction of his brother, Johnny Comi, on lottery and conspiracy charges in the State and federal courts. His testimony was corroborated to some extent by the testimony of three witnesses. He admitted he had been convicted of pandering and other prior offenses. He testified he had not been convicted of any crime since 1937

At the conclusion of the defendant's case the court granted a motion to strike out Bragg's testimony, on the ground that no link had been shown between Murray and the defendant as to the store incident in 1951. Over objection, the court limited the time for argument to the jury to one hour and fifteen minutes a side. In the midst of the defense argument, Thomas Murray appeared in court. The argument was suspended, and conference was held with the court. Defense counsel insisted that the State call him as its witness; the State declined. Defense counsel then obtained permission to question Murray in the presence of the State's Attorney. After questioning, they called him as a defense witness. Murray testified he had never received a summons to appear and had been at home on the two days before the trial began. He further testified that he had never seen the defendant, and had never worked for him. ...