Dean v. State

• Decision Date: 10 September 1981
• Docket Number: No. 119,119
• Citation: 291 Md. 198,434 A.2d 552
• Parties: Bruce Herbert DEAN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 198

291 Md. 198

434 A.2d 552

Bruce Herbert DEAN v. STATE of Maryland.

No. 119.

Court of Appeals of Maryland.

Sept. 10, 1981.

Gary W. Christopher, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DAVIDSON, Judge.

This case presents the question whether an order revoking probation must be reversed if it is based in part upon a conviction of a crime, committed during the probationary period, which is subsequently reversed on appeal.

On 20 April 1978, in the Circuit Court for Kent County, the petitioner, Bruce Herbert Dean (probationer), pleaded guilty to receiving stolen goods. On 22 June 1978, he was sentenced to a term of three years. Execution of the sentence, however, was suspended, and he was released on probation subject to certain general and special conditions, including a special condition that he "obey all laws."

On 27 February 1980, a probation revocation hearing was held. The sole violation alleged was that the probationer had violated the special condition of the probation order that required him to obey all laws.

At the probation revocation hearing, in response to a question from the trial court, counsel for the probationer stated that the probationer denied committing the alleged violation. The State presented two witnesses. The first witness was the probationer's supervising probation officer. He testified, among other things, that the probationer was placed on probation on 22 June 1978. The probation officer stated that on 18 December 1979 he filed a special report admitted into evidence, requesting that probation be revoked on the sole ground that the probationer had violated the special condition that he obey all laws. The probation officer identified a certified copy of a docket entry that indicated that on 16 November 1979 the probationer was convicted of kidnapping. The probation officer said that the kidnapping conviction was then pending on appeal to the Court of Special Appeals. The docket entry was admitted into evidence without objection.

The State's second witness was a police officer who had personally investigated the kidnapping case. Over the probationer's objection, on direct examination, the police officer, relying on statements made by the alleged victims and the probationer's codefendant, and not upon his own personal observations, recounted the underlying facts and circumstances surrounding the alleged kidnapping. Included was the fact that the alleged victims had stated that "Bruce Herbert Dean was the operator of the truck" utilized in the alleged kidnapping. In addition, the police officer made an in-court identification of the probationer. On cross-examination, the police officer admitted that he was not reading statements made by the alleged victims or codefendant but was paraphrasing their statements that varied in content. On redirect examination, the police officer stated that he had been sequestered at the kidnapping trial and, therefore, did not know whether the facts contained in the statements were the same as those testified to at the kidnapping trial.

The probationer elected not to testify. No other evidence was presented.

At the conclusion of the hearing, the trial court said:

"The Court believes that in considering whether one has violated his probation that it can consider the records of this court and other courts, as well as information that is developed and furnished to the probation department, and for the purpose of this hearing the Court is considering the testimony of (the police officer) as information which is furnished in connection with additional information furnished by the probation department. Although the conviction in Talbot County is on appeal, I think that I can consider that conviction as having established, at least to the satisfaction of the Court and the jury that Mr. Dean's conduct would amount to a violation of the law. Now that I have heard the facts on which the conviction is based, then I could draw a conclusion as to whether or not it is my belief that he did violate, or has violated the law. And he has violated the law in several respects.... So, from the additional evidence the Court has heard from the Probation Supervisor, the Probation Agent, and from the investigating officer the Court would find that this Defendant has violated Condition 4 of the Order of Probation passed June 22, 1978. That is, he has violated the laws of Maryland."

Thereafter, the trial court revoked probation and reimposed the three-year sentence.

The probationer appealed to the Court of Special Appeals. While this appeal was pending, the Court of Special Appeals reversed the probationer's conviction for kidnapping. Dean v. State, 46 Md.App. 536, 420 A.2d 288 (1980), cert. denied, --- Md. --- (1981). Thereafter, in an unreported opinion, the Court of Special Appeals specifically acknowledged the existence of the reversal but, nevertheless, affirmed the trial court's judgment revoking probation. Dean v. State, No. 155, September Term, 1980, filed 17 October 1980 (per curiam). In reaching this decision, the Court of Special Appeals reasoned that although sole reliance upon a judgment of conviction that is pending on appeal would be reversible error, here the evidence before the trial court "consisted of a mixture of both the fact of that 1979 Talbot County conviction and the testimony of the investigating officer in that case (whose) testimony, consisting in significant measure of the stories told to him by the crime victims, went directly to the issue of the (probationer's) criminal conduct." The Court of Special Appeals concluded that because "the two distinct predicates for (the trial court's) finding were significantly intermingled," the trial court 's judgment revoking probation should be affirmed.

The probationer filed a petition for a writ of certiorari that we granted. The State filed neither an answer nor a cross petition and, therefore, did not raise a question concerning the probationer's failure to object at trial to the introduction of the kidnapping conviction pending on appeal. Dempsey v. State, 277 Md. 134, 142-43, 355 A.2d 455, 459 (1976); Walston v. Sun Cab Co., 267 Md. 559, 569, 298 A.2d 391, 397 (1973). We shall reverse the...