Erman v. State
| Decision Date | 10 September 1981 |
| Docket Number | No. 1601,1601 |
| Citation | 49 Md.App. 605,434 A.2d 1030 |
| Parties | Hassan Rifat ERMAN & Charles Edward Brent a/k/a Anthony Perro v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
H. Russell Smouse and Howard L. Cardin, Baltimore, for appellant, erman.
Clarence W. Sharp, Assigned Public Defender, Annapolis, for appellant, Brent.
Alexander L. Cummings, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William A. Swisher, State's Atty., for Baltimore City, Harvey Greenberg and Gary Bernstein, Asst. State's Attys., for Baltimore City on the brief, for appellee.
Argued before MORTON, MOORE and COUCH, JJ.
Edward Stermer, president and majority stockholder of the Mudge Paper Company (Mudge), was shot to death and robbed outside his office on the evening of December 16, 1976. Some two years later a grand jury separately indicted appellants Hassan Rifat Erman, the treasurer of Mudge, and Charles Edward Brent, charging them with murder, robbery, conspiracy and related counts. Following a joint jury trial in the Criminal Court of Baltimore, Erman was found guilty of murder in the first degree, use of a handgun in the commission of a crime of violence, and accessory before the fact to murder. Brent was found guilty of murder in the first degree, robbery with a dangerous and deadly weapon, and two counts of use of a handgun in the commission of a crime of violence. Erman received a life sentence for the murder conviction, plus a concurrent fifteen years for the use of a handgun conviction; his accessory conviction was merged into the murder conviction. Brent was sentenced to life imprisonment for his murder conviction, and a fifteen year concurrent sentence for his other convictions. Both Erman and Brent have appealed, raising some issues common to each other and some that are applicable to each individually. Those that are common to each appellant are:
1. Whether the trial court erred in granting the State's motion to join the indictments against the appellants for trial;
2. Whether the trial court erred in denying appellants' motions to sever;
3. Whether the trial court erred in refusing to require the production of prior statements and grand jury testimony of State's witness Paul Katsus;
4. Whether the trial court erred in admitting evidence of Erman's financial condition;
5. Whether the trial court erred in admitting the testimony of Paul Katsus;
(a) because he was a perjurer,
(b) because the conspiracy counts had been dismissed (c) because of his violation of the sequestration order.
6. Sufficiency of the evidence.
Issues raised by Erman only are:
1. Whether Erman was denied his right to be present at every stage of the trial;
2. Whether the trial court erred in refusing to dismiss the indictments because of abuse of the Grand Jury process.
Issues applicable to Brent only are:
1. Whether the trial court erred in denying his motion to suppress the statement of October 26, 1978;
2. Whether the trial court erred in admitting certain alleged rebuttal testimony;
3. Violation of the "other crimes" evidence rule;
4. Whether the trial court erred in failing to submit the question of the voluntariness of the October 26, 1978 statement as well as other statements;
5. Whether there was error in denying his motion for mistrial following allegedly improper jury argument.
6. Whether he was entitled to a private trial and a sequestered jury.
Because of the nature of the issues raised a brief outline of the facts involved here will suffice, with additional facts supplied as necessary in our discussion of the issues.
Shortly after Edward Stermer stepped outside the company's building on December 16, 1976, en route to the company's annual Christmas party, he was confronted by a male who proceeded to shoot him five times, causing his death. Appellant Erman had accompanied Stermer from the building but apparently had gone to his car and was not near Stermer during the shooting. After some two years' investigation, the focus thereof centered on Erman, appellant Brent, and one Paul Katsus; Katsus ultimately was immunized from prosecution by the State and testified for the prosecution. His testimony, Brent's testimony, and other evidence offered by the State tended to show that Erman, who was living beyond his means and who could profit from Stermer's death, engaged Brent, a longtime school friend of one of his sons, to kill Stermer; Brent is supposed to have enlisted the help of Katsus. Brent, however, said that he and Erman cancelled their plans for the killing and that he so advised Katsus. Katsus, on the other hand, denied being so told and said that he was nearby when Brent shot Stermer. The jury, following a protracted trial, 1 found Erman and Brent guilty.
Issues common to both appellants
(1) and (2)
State's Motion to Join Separate Indictments For Trial and
Appellants' Motion to Sever
(1)
The State, having separately indicted the appellants and desiring to try them jointly, moved to join the indictments. This motion was opposed by the appellants, but was granted by Judge David Ross, Criminal Court of Baltimore. Brent focused his opposition to joinder on what he perceived as the more voluminous and protracted evidence to be presented against Erman. The basis for Erman's objection was that there would be evidence presented against Brent which would not be admissible against him in a separate trial, and the likelihood of a Bruton 2 problem. This problem did not arise because Brent chose to testify. The thrust of the State's argument for joinder, simply stated, was that the appellants and the offenses could have been joined in a single charging document (see Md. Rule 745 a) and the evidence as to one would have been admissible against both. The record discloses that at the hearing on the motions to join indictments before Judge Ross the State advised the Court it intended to offer a statement given by appellant Brent which would be redacted so as to eliminate all "even closely incriminating statements made of the co-defendant (Erman)." No mention was made of the use of other witnesses who might give evidence admissible against Brent but not Erman; the argument of counsel for all parties focused on Brent's statement. Judge Ross filed a written memorandum wherein, on this issue, he stated:
In Stevenson v. State, 43 Md.App. 120, 403 A.2d 812 (1979), aff'd other grounds, 287 Md. 504, 413 A.2d 1340 (1980), we pointed out that whether to allow a severance of defendants for trial lies in the sound discretion of the trial judge. Under the posture of the case when Judge Ross made his ruling we cannot say he abused his discretion, particularly since he took pains to try to alleviate any prejudice.
(2)
With respect to the second prong of the arguments of both appellants, that is the failure of the trial judge (Levin, J.) to have separated their trials when requested to do so many times during the trial itself (apparently some 25 to 35 times), we have more difficulty. First, we note that Brent argues in his brief that he had moved for a severance and mistrial during the course of the trial itself. The State contends that he did no such thing, neither did he join in Erman's motions. Brent has not provided us with any reference to the record where it would be reflected that he did so, and our review does not so indicate. As to Brent, therefore, we conclude he has waived any right to raise this issue. Md. Rule 1085.
As to Erman, it is abundantly clear that he frequently moved for a mistrial and severance during the course of the trial, all of which were denied, but in several instances (not all), the trial judge did instruct the jury that what they had heard was to be considered as to Brent only and not Erman. Some of the instances involved testimony of alleged criminality or misconduct on the part of Brent which in no way involved Erman; for example, Brent's threats on people's lives, his plan to kill one Stearck, shooting a neighbor's dog, and shooting at the house of an acquaintance of his with whom he had had some trouble and for which he was charged with assault with intent to murder (subsequently dropped by the State). This evidence clearly would not have been admissible in a separate trial of Erman alone. Further, in our view the character of the evidence was such as to be prejudicial to Erman. As a matter of fact, the trial judge recognized that Erman was being prejudiced, but not "improperly." In any event, the trial judge commented that "to be consistent, Mr....
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