Fraidin v. State

• Decision Date: 01 September 1989
• Docket Number: No. 1942,1942
• Citation: 85 Md.App. 231,583 A.2d 1065
• Parties: Jacob FRAIDIN v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 231

85 Md.App. 231

583 A.2d 1065

Jacob FRAIDIN v. STATE of Maryland.

No. 1942, Sept. Term, 1989.

Court of Special Appeals of Maryland.

Jan. 11, 1991.

Wilbur D. Preston, Jr. (H. Russell Smouse, Jack L.B. Gohn, Whiteford, Taylor & Preston, Howard L. Cardin and Cardin & Gitomer, on the brief), Baltimore, for appellant.

Gwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and William R. Hymes, State's Atty. for Howard County, Ellicott City, on the brief), for appellee.

Argued before MOYLAN, BISHOP and ALPERT, JJ.

MOYLAN, Judge.

The appellant, Jacob Fraidin (Fraidin), was convicted by a Howard County jury, presided over by Judge Cornelius F. Sybert, Jr., of theft. Upon this appeal, he raises, in effect, the following eight contentions:

1. That the evidence was not legally sufficient for Judge Sybert to submit the case to the jury;

2. That Judge Sybert erroneously admitted a court order from a collateral civil case removing Fraidin as a trustee;

3. That Judge Sybert erroneously admitted prejudicial evidence of events preceding the foreclosure proceeding that was the gravamen of the theft offense 4. That Judge Sybert erroneously denied him the opportunity to assert "claim-of-right" and "honest belief" defenses;

5. That Fraidin was denied his constitutional right to a speedy trial;

6. That Judge Raymond J. Kane, Jr. improperly failed to recuse himself from pretrial motions hearings;

7. That Judge Sybert erroneously denied his request for a bill of particulars; and

8. That Judge Sybert erroneously refused to give a jury instruction with respect to a prior inconsistent statement by a State's witness.

The Factual Background

To assess the legal sufficiency of the evidence to convict, and to consider several other contentions as well, it is necessary to set out in significant detail the tangled series of financial arrangements preceding and accompanying the alleged theft by deception that took place between September 7 and December 4, 1987. Although many of the factual issues were in strenuous dispute, the jury, after a five-day trial, was obviously persuaded by the State's version of events. Our appellate perspective, of course, is to look at that version of the evidence, and any inferences that can fairly be drawn therefrom, most favorable to the State's position.

Fraidin was a principal of Pacific Mortgage and Investment Group, Ltd. (Pacific), which held an $85,000 second mortgage on the property known as 10601 Faulkner Circle, Columbia, first owned for purposes here pertinent by Mr. and Mrs. Solomon Easterling (Easterlings). Although the Pacific mortgage obtained by the Easterlings purported to refinance a first mortgage held by Beneficial Mortgage Co. of Maryland (Beneficial), ¹ the money was actually placed in an escrow account ². No funds were ever disbursed to Beneficial to satisfy the Beneficial mortgage.

The Easterlings almost immediately elected to rescind the Pacific mortgage. ³ While it is not clear from the record whether their election was timely, we shall proceed as if the mortgage were not rescinded. The Easterlings behaved, however, as if they believed the Pacific mortgage had been rescinded and the Beneficial mortgage were still in effect. It is undisputed that the Easterlings never received the $2,496 in excess loan proceeds that would have been due them under a valid mortgage loan from Pacific, although the documents recorded in the land records show that they received the money. The Easterlings continued to make payments to Beneficial, but made no payments to Pacific. Approximately two years later, Fraidin nevertheless commenced foreclosure proceedings under the Pacific mortgage.

The foreclosure auction advertisement stated that the property was being sold " 'AS IS' ... subject ... to restrictions of record ... if any," and was read aloud by the auctioneer at the September 7, 1987 auction. Fraidin, however, told potential buyers that "Clear title is gonna pass today". Jonathan Scott (Scott), a home rehabilitation contractor, placed a successful bid of $112,500 and tendered his $10,000 certified check.

Land Title Research of Maryland, Inc. (Land Title), principally owned by Joseph Goldberg (Goldberg), issued Scott a title insurance binder, indicating that the Beneficial mortgage was unreleased of record. Patricia Horak (Horak), office manager of Land Title, called Fraidin to confirm her assumption, based on her title search, the refinance language of the Pacific mortgage, and the tax stamps, that the Beneficial mortgage had been paid off, and the failure to record a release was a mere clerical oversight. ⁴ Fraidin neither confirmed nor denied her conclusions. Nor did Fraidin correct her statement that she assumed that he, as the closing agent on the last financing, had the Beneficial release. He "agreed" to send Horak the Beneficial release.

The Howard County Circuit Court ratified the sale on November 20, 1987. At the December 4, 1987 settlement Fraidin signed a document stating that all the foreclosure proceeds were payable to him, without mention of any deduction for the Beneficial mortgage. Fraidin gave Scott a "trustee's deed," a type of deed lacking the customary title guarantees. On December 7, 1987, Land Title gave Fraidin, as trustee, a check in the amount of $104,064.96, which was deposited in an escrow account.

The Easterlings had stopped making mortgage payments to Beneficial in August 1987. In February 1988, as a consequence, Beneficial advised Scott and Goldberg of its intention to foreclose. Goldberg immediately telephoned Fraidin, protesting that the language of the Pacific mortgage and Fraidin's subsequent conduct had led both him and Land Title to believe that the Beneficial mortgage had, indeed, been satisfied. Fraidin hung up, telling Goldberg, "Get yourself an attorney." Goldberg contacted the State's Attorney.

On February 24, 1988, Fraidin was charged with the theft of over $300, a felony violation under Md.Code Ann. art. 27, § 342 (1957, 1987 Repl.Vol.). Beneficial filed a petition in civil court on March 4 seeking satisfaction of its mortgage and Fraidin's removal as trustee. Meanwhile, Scott made repairs on the house and sold it in April.

The civil hearing concerning the removal of Fraidin as trustee was set before Judge Raymond J. Kane, Jr. on June 6, 1988. Judge Kane recused himself, stating that there might be a conflict of interest in hearing a case wherein Goldberg, his first cousin, was a material witness. Judge Robert F. Fischer took over and adjourned the hearing until June 16 when it became apparent that the it could not be completed that day.

The criminal case, meanwhile, was set in the Howard County District Court for June 15. The State argued that the pending civil matter "may or may not have some bearing" on the criminal case and requested a postponement. Fraidin, representing himself, objected to a postponement, noting that he was not seeking "to delay the orderly flow of justice by requesting a jury trial or requesting any postponements." Judge James N. Vaughn granted the State's motion for a postponement with the caveat that no further postponements would be granted.

The criminal case was reset in the District Court for September 28, this time before Judge R. Russell Sadler. Judge Sadler ascertained that the appellant expressly waived his right to counsel under Maryland Rule 4-215, and wished to proceed pro se. He then informed Fraidin of his right to a jury trial and asked him to elect. Fraidin requested that he be allowed to make a preliminary motion first. The judge advised: "If you want to pray a jury trial, you will take your preliminary motion down to the Circuit Court. If you want a trial in this court, then I will hear your motion and we will proceed to trial." Fraidin elected a jury trial, but protested that the trial judge should have heard his motion in the interests of justice and conservation of court costs, and because it "violate[s] my Constitutional right under the 6th amendment."

In the parallel civil proceeding, Judge Fischer, finding that Fraidin had breached his duty of good faith or loyalty as a fiduciary, ordered him removed as trustee on November 23, 1988.

Judge Kane was scheduled to preside over the preliminary motions hearing in the criminal case on March 2, 1989. He again advised the parties that there might be a conflict of interest regarding Goldberg, his cousin, whose name was listed on the statement of charges. The State argued that although Goldberg might be a witness in the ultimate trial on the merits, no information concerning Goldberg would be adduced at the motions hearing. Fraidin, represented by counsel, indicated that he had no objection to Judge Kane's presiding.

Satisfied that the statement of charges set forth a crime, Judge Kane denied Fraidin's motion to dismiss the statement of charges. He also denied Fraidin's motion to dismiss for lack of speedy trial. On March 23, Fraidin filed a demand for particulars, which was denied on May 18 after a hearing.

The Circuit Court criminal trial, presided over by Judge Sybert, began on May 24, 1989. Fraidin moved in limine to exclude evidence concerning Judge Fischer's order removing him as trustee, as well as any information concerning the merits of the Beneficial or Pacific mortgages. Both motions were denied. The court noted that the State had agreed that it would not introduce the removal order unless the defense first raised the trusteeship issue as a defense. Fraidin declined to take the stand in his own defense. The jury returned a verdict of guilty.

Legal Sufficiency: The Standard of Review

The appellant's brief and especially his reply brief are almost strident in their outrage at the State's brief for putting a decidedly pro-prosecutorial "spin" or "twist" on evidence which was hotly disputed and subject to arguably diametric interpretations. On the issue of legal sufficiency, however, both the...