Duncan v. State
| Decision Date | 14 September 1977 |
| Docket Number | No. 1226,1226 |
| Parties | James Edward DUNCAN v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Robert Paul Mann, Towson, for appellant.
Russell J. White, Towson, filed amicus curiae brief for Joseph R. Suter.
Kathleen M. Sweeney, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Sandra A. O'Connor, State's Atty. for Baltimore County, Charles A. Ruppersberger, III, and David F. Mister, Asst. State's Attys., for Baltimore County, Towson, on the brief, for appellee.
Argued before GILBERT, C. J., and MENCHINE and MASON, JJ.
James Edward Duncan, a Baltimore County Police Officer, was convicted in a bench trial of the common law crime of misconduct in office. He received a suspended sentence of one year imprisonment and was placed on probation for eighteen months. In this appeal, he makes the following contentions: (1) that the evidence was legally insufficient to establish the offense charged; and (2) that prosecution was barred by the Statute of Limitations.
There was testimony by one Michael R. Mally that during 1970, when he was dating the daughter of Officer Duncan, the latter brought his attention to the fact that the officer had become aware from police wanted flyers that Mally was AWOL from the United States Army. Mally alleged that at that point Officer Duncan had declared that, "He would keep the flyer from being served on me if I . . . got him things when he asked me to obtain things for him." Mally then proceeded to detail a great many items of personal property acquired by Mally for Duncan. Mally said that the items had been obtained from fences or by the use of bad checks, and that the circumstances of his acquisition of the items were known to Duncan. Mally testified that he obtained the personal property for Duncan from before Christmas of 1970
The following excerpt from the cross-examination of Mally gave further amplification of his reasons for obtaining personal property for Duncan:
Duncan denied that he had received many of the articles of personalty allegedly delivered to him by Mally, but acknowledged receipt of the following items:
Mally's alleged
Date of source of
Item Transaction acquisition
------------------- ------------- ---------------
1. . 38 cal. Revolver Early 1971 From fence
2. Automobile Starter Summer 1972 " "
3. Coppertone Stove 1973 " "
4. Deer Meat ? Illegal hunting
5. Beef ? Bad checks
6. Washing Machine Summer 1974 " "
7. Multicolored Carpet Fall 1974 " "
8. Blue Shag Carpet Fall 1974 " "
9. Suede Coat December 1974 " "
For purposes of passing upon the legal sufficiency of the evidence we find it necessary to discuss only the above items.
Duncan acknowledged that the gun, the washing machine and the carpeting, all were new when acquired from Mally. He said he was aware that Mally had worked for a plumbing and heating firm; for the Bethlehem Steel Company, and for various marinas and knew that he had never worked in a retail store.
Duncan acknowledged that all of those new items had been obtained directly from Mally and never from a store. He said he never questioned the manner of Mally's acquisitions. His explanation for his failure to do so as to the four new items was as follows:
A Well, if you go to a gun store, a weapon of that caliber at the time was selling approximately for $75.00 to $80.00. And the gun, the pistol was brand new, and Michael told me where he had purchased it at, and he even told me he had the receipt at home, which I never verified. However, like I say, the fact is he wanted $50.00 for it. I said, fine. I checked the gun out first; it was not stolen. I give him the $50.00 on February 6th, 1971.
Q Again, where did Michael say he purchased the gun?
A Marvin's Gun Store in Essex.
Q You never checked with Marvin's Gun Store, did you?
A No. The boy stated he had a receipt.
Q Did you ever see the receipt?
A I wasn't buying it from Basin's, I was buying it from Michael mally.
A Because he's the one that gave me the price on the washing machine. I shopped around for washing machines, the wife and I, and there was a variance of prices, $25.00 to $30.00 difference.
Q Did you think that Michael Mally was a retailer or wholesaler in washing machines?
A No, sir, I didn't.
Q Did you wonder why Michael Mally was acting as a go-between between yourself and Basin's, when you knew the washing machine came from Basin's?
A No, I never questioned why.
Q You never asked Michael Mally how he could get you this discount?
A Well, he come to the house, and stated to my wife and myself that he seen the Carpet Fair truck out there, wanted to know if she needed any carpet. My wife said, why, Mike? He said, I got a friend I'm helping install carpets, and I'm sure I can get you a discount on the remnants. So at that time he said, do you have any specific color in mind? We said, well, we're sticking with the blue shag we just had installed by Carpet Fair.
Q So what did he say to you?
A He said, well, I'll check on it, and I'll get back with you in a day or two.
Q Did he say from whom he would get these rugs?
A Michael Mally.
Q Approximately when did this purchase take place, when did you actually get the carpeting from Michael Mally?
A I'd say about the last of May of 1974.
Q And how did a conversation come up between you was there a conversation between you and Michael Mally, previous to the purchase by you of some carpeting from Mally, was there a conversation?
A Michael Mally brought approximately a twelve by sixteen piece of indoor-outdoor multicolored carpeting to my home.
Q Did it just come in out of the blue, or had you previously had a conversation?
A I had no conversation with him prior to that. He had a folded rug, brought it over to my house, and asked me if I was interested in purchasing the carpet.
Q Did he say who he was getting it from?
A He said his mother and father was having their basement redone, and it was a piece left over.
Q Did you buy it then or later buy it at all?
Duncan denied knowledge that Mally had obtained the personalty from fences or by the use of bad checks. There was, however, testimony by a Maryland State Trooper that: "(Duncan) told me he received the property from Mally, that he knew that Mally was buying things with bad checks and selling them." A captain of Baltimore County Police confirmed that a statement to that effect had been made in his presence by Duncan.
Even in the absence of such an acknowledgement by Duncan, we are persuaded that the frequency of Mally's deliveries to Duncan and the variety of items delivered, would have alerted the most obtuse to have questioned Mally's source of supply and have led the most credulous to believe there was a strong probability of taint in their acquisition.
In Chester v. State, 32 Md.App. 593, 605, 363 A.2d 605, 612, (1976), cert. den., (1976), we cited with approval the following quotation from Perkins, Crim. Law 2d Ed. UTB, at 482-83:
...
To continue reading
Request your trial
-
Duncan v. State
...upon the conviction at a bench trial of James Edward Duncan, a police officer, for the crime of misconduct in office. Duncan v. State, 37 Md.App. 330, 377 A.2d 567 (1977). We reverse the judgment of the intermediate court because the prosecution of the offense of which Duncan was found guil......