Couser v. State

• Citation: 36 Md.App. 485,374 A.2d 399
• Decision Date: 13 June 1977
• Docket Number: No. 1033,1033
• Parties: John H. COUSER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 485

36 Md.App. 485

374 A.2d 399

John H. COUSER v. STATE of Maryland.

No. 1033.

Court of Special Appeals of Maryland.

June 13, 1977.

Richard M. Karceski, Assigned Public Defender, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., and Ronald Owens, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before THOMPSON, MENCHINE and LOWE, JJ.

THOMPSON, Judge.

John H. Couser, the appellant, was convicted of possession of a controlled dangerous substance with intent to distribute by a jury in the Criminal Court of Baltimore, Judge Paul A. Dorf presiding. He was sentenced to twenty years imprisonment. On this appeal he raises the following seven questions:

"1. Did the trial court clearly abuse its discretion in refusing the Appellant's request for disclosure of the State's dossier on prospective jurors?

"2. Was the application supporting the State's request for the issuance of a search and seizure warrant defective and did its accompanying affidavit fail to demonstrate probable cause?

"3. Did the trial court clearly abuse its discretion in refusing to grant the Appellant a new trial based on newly discovered evidence?

"4. Was the Appellant denied his right to reject jurors of his choosing as a result of the State's failure to include the name of Sinceray Jones in its voir dire to the trial court?

"5. Did the trial court abuse its discretion in refusing to grant a mistrial, continuance or postponement when the state chose to call Miss Sinceray Jones to testify in its case in chief?

"6. Was the trial court's instruction to the jury on the issue of reasonable doubt clearly erroneous?

"7. Was the Appellant denied his right to a fair trial because of the cumulative effect of numerous errors which occurred during his trial?"

On April 13, 1976, members of the Baltimore City Narcotics Squad, armed with a search and seizure warrant, forced entry into Apartment No. 1405, 221 North Fremont Avenue, Baltimore City. Detective James Butts testified that upon entering the premises he went directly to the rear of the apartment and observed the appellant run from the bedroom door toward the bedroom window. At that time, he ordered the appellant to stop, apprehended and handcuffed him. The appellant was advised of the warrant and a search of the premises was conducted. As the result of this search, the following were seized: various aluminum packets of white powder which were determined to be an opium derivative, a blue plastic container inside of which were ten aluminum packets of white powder, a yellow plastic container with a large packet of white powder inside, glassine bags, measuring spoons, a sifter, and aluminum paper. The white powder was analyzed and determined to be heroin.

Sinceray Jones, a co-defendant, testified pursuant to a plea bargain with the State. She stated that on the day in question she resided at 221 North Fremont Avenue, Apartment 1405. It was the appellant's practice to store heroin in the apartment. Miss Jones would sell the heroin for the appellant from time to time. She testified that on April 13, 1976, she left her apartment at approximately 2:30 p. m. There was no heroin in the apartment at that time because she had sold the supply earlier that morning. She stated that all the drugs and paraphernalia recovered were the property of the appellant.

The appellant took the stand and admitted being on the premises at the time of the search, but stated that he was not aware that there were any drugs in the apartment.

I Discovery of State's Dossier on Jurors

The appellant's first allegation of error is that the trial court abused its discretion in refusing the appellant's request for disclosure of the State's dossier on prospective jurors. The record shows that during the jury selection defense counsel stated, "(T)he State's Attorneys are equipped with juror lists that give them sort of a scoreboard on how things have developed and I don't have it. I would ask the Court to allow me to have it." The State's Attorney replied that the list was the combined work product of the various members of the State's Attorney's office. The trial court stated:

"If we're going to force each person to show their work product and to sell them, I just don't think that's the purpose of allowing people to investigate on their own. As far as jurors are concerned. But the one exception as to a criminal record or with the exception if in fact the State is aware of the fact that any person is lying under oath. Then I think as an officer of the Court it's their duty to bring that out to the Court's attention. But I'm not going to ask that the records be sealed."

The State's Attorney then gave the court the names of several jurors that his information showed had prior criminal records. The appellant cites Britton v. United States, D.C.App., 350 A.2d 734 (1976); People v. Aldridge, 47 Mich.App. 639, 209 N.W.2d 796 (1973); Losavio v. Mayber, 178 Colo. 184, 496 P.2d 1032 (1972) and Commonwealth v Smith, 350 Mass. 600, 215 N.E.2d 897 (1966) for his contention that fundamental fairness required placing the defendant upon equal footing with the prosecutor by requiring the prosecutor's investigatory report upon prospective jurors be disclosed. In addition, he contends that it is the trial court and not the prosecutor that should control such decisions.

The State contends that the appellant waived his objection to the denial of his request for the use of the State's Attorney's dossier when he stated that the panel was acceptable to the defense, citing Glover, Robinson & Gilmore v. State, 273 Md. 448, 452, 330 A.2d 201 (1975) and Neusbaum v. State,156 Md. 149, 143 A. 872 (1928). We find the case of Tisdale v. State, 30 Md.App. 334, 353 A.2d 653 (1976), to be more directly on point. In that case we found that counsel's response that the jury ultimately selected was "acceptable" was merely obedient to the court's ruling and obviously not a withdrawal of the prior objection, timely made.

We note that the appellant filed no motion for discovery and inspection prior to trial under Md. Rule 728. Even if such a motion had been filed, the prosecutor's notes on prospective jurors is not a matter which is subject to disclosure under the rule. This basis alone has been held sufficient to deny a defendant's request for disclosure of a jury investigation report. Commonwealth v. Foster, 219 Pa.Super. 127, 280 A.2d 602 (1971). Society, however, wins not only when the guilty are convicted, but when criminal trials are fair; thus, literal compliance with Md. Rule 728 may not always satisfy the requirements of fundamental fairness. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Powell v. State, 16 Md.App. 685, 694, n. 1, 299 A.2d 454 (1973). Notes on prospective jurors do not fall within the confines of Brady v. Maryland, supra, because jury panel information is neither evidence nor is it material to the guilt or punishment of the accused. Britton v. United States, supra. Due process requires, however, that the entire criminal process be conducted without unfair prejudice to the accused. The State is required to provide an accused with an impartial jury under Art. 21 of the Maryland Declaration of Rights. The prosecutor is an arm of the executive branch of the government. Powell, supra, 16 Md.App. at 694, n. 1, 299 A.2d 454. It would be improper, for instance, for the prosecutor to withhold information which would reasonably reflect the inability of a juror to render an impartial verdict. Cf. Bristow v. State, 242 Md. 283, 219 A.2d 33 (1966). With this in mind we view the case at bar.

In assessing whether due process or fundamental fairness required the disclosure of the prosecutor's notes, we take cognizance of the fact that no intelligent concept of fairness has ever been advanced which would require the State to prepare a defendant's case or to furnish him with favorable evidence which is as easily accessible to him as to the State. State v. Crawford, Fla., 257 So.2d 898, 899 (1972). Where defense counsel has been insufficiently diligent in examining that which is available to him before the time for jury selection, the prosecution will not be required to come to his aid. People v. Heard, 58 Mich.App. 312, 227 N.W.2d 331, 334 (1975).

Another recognized restriction on discovery is the "work product" doctrine. This doctrine has been defined in the following manner:

"(a) Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the prosecuting attorney or members of his legal staff." American Bar Association Project on Standards for Criminal Justice: Standards Relating to Discovery and Procedures Before Trial, Standard 2.6 (Approved draft, 1970).

Where the notes of the prosecutor consist of ideas and notions on prospective jurors as the result of personal observations of himself and fellow prosecutors, the information would be protected by this work product exception. See People v. Heard, supra at 334.

It is within the discretionary power of the trial court to adjudge, if requested, whether or not any additional information sought by appellant is material and should be disclosed by the State. Alston v. State, 11 Md.App. 624, 628, 276 A.2d 225 (1971). It was within his power, therefore, to view the prosecutor's notes and determine whether or not due process or fundamental fairness required disclosure. He was informed by the Assistant State's Attorney that the dossier was comprised of an assessment by the staff of the State's Attorney's office of prospective jurors as a result of their comments under prior voir dire examination. The trial judge recognized that this information would come within the work product doctrine. Where there were no specific grounds alleged to...