Goldsborough v. State

• Decision Date: 24 June 1971
• Docket Number: No. 544,544
• Citation: 12 Md.App. 346,278 A.2d 623
• Parties: George J. GOLDSBOROUGH, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 346

12 Md.App. 346

278 A.2d 623

George J. GOLDSBOROUGH, Jr. v. STATE of Maryland.

No. 544.

Court of Special Appeals of Maryland.

June 24, 1971.

George J. Goldsborough, Jr., Easton, for appellant.

Francis X. Pugh, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and John C. North, II, State's Atty. for Talbot County, on brief for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH and POWERS, JJ.

MURPHY, Chief Judge.

George J. Goldsborough, Jr., of the Maryland Bar, appeals from an order of Judge Harry E. Clark of the Circuit Court for Talbot County summarily finding him in direct criminal contempt of court for having, in the course of an opening statement to the jury in the criminal case of State v. Cole, made reference to an earlier acquittal of a codefendant by another jury in the same jurisdiction in the companion case of State v Schwaninger, which involved identical facts.

The pertinent background facts as disclosed by the record are these: As a result of an undercover investigation by the Maryland State Police, eight persons were arrested on January 13, 1970 and charged with unlawful possession of marihuana. They had been to a party at a private home; unknown to them, two undercover police agents were also present. One of the guests at the party-Charles Eveland-lighted a marihuana cigarette and thereafter circulated it among the other guests. One of the persons who smoked it was Diane Schwaninger; another was Francis Cole, Jr.

Diane Schwaninger was tried for unlawful possession of marihuana before a jury in the Circuit Court for Talbot County on June 16, 1970. Appellant Goldsborough defended her, and she was acquitted. Cole, also represented by Goldsborough, was next to be tried. In July, 1970, the State's Attorney applied to the court for an order excluding all Schwaninger jurors from sitting as jurors in the Cole case. The court indicated that it would grant the State's request, and Goldsborough's co-counsel was so informed at that time.

The Cole case came on for trial on August 27, 1970, at which time Goldsborough presented a written motion to the court in chambers to dismiss the indictment against Cole or stay the proceedings on the ground that by excluding all Schwaninger jurors from the jury panel in the Cole case, the court had violated the Maryland statutes pertaining to random jury selection and had in effect given the State an additional twelve peremptory challenges in excess of those permitted by Maryland Rule 746. Rejecting the motion, the court said:

'* * * The twelve jurors that were excluded from the panel were excused because they sat in a case where the facts were exactly the same as those in the case now pending before the Court. It was felt by the Court that it would be a great injustice to have these jurors sit in this case, in fact, an exercise in futility, for they would be almost honor bound to return a verdict of acquittal and, had the verdict of these twelve jurors been guilty, we would have accorded the defense the same right excluding them.'

The case then went to trial before the jury and the prosecutor made a brief opening statement outlining the facts which he expected to prove. He told the jury, among other things, that Charles Eveland, though not charged in the case, had lighted a marihuana cigarette and that Cole had smoked it.

The appellant then made his opening statement on Cole's behalf. He told the jury that the evidence would show that Cole had been invited to the party by an undercover police agent to watch television, no mention being made of marihuana; that once at the party, Eveland unexpectedly produced a marihuana cigarette which each person smoked, including the two police informers; and that Eveland had in fact been charged in the case and was the guilty party. Appellant told the jury that 'today's case only involves one of the persons at the party, as an earlier case involved another party, and that subsequent cases will involve some of the rest of the party'; that Cole's action in smoking the cigarette did not constitute the unlawful possession of marihuana; that the jury, as judges of law and fact, must be prepared to decide the legal question 'whether this transient circulating of a cigarette, this puff and pass transaction, constitutes possession as it is defined in the law.' Goldsborough concluded by saying that the defense would ask the jury:

'* * * to return a judgment of acquittal as to the defendant, as has already occurred in a previous case.' (Emphasis supplied.)

The prosecutor promptly objected, claiming that the reference to the prior acquittal was grossly improper. The court agreed and stated that it constituted grounds for a mistrial. The prosecutor then moved for a mistrial. The court responded:

'Your motion is granted. Stand up, Mr. Goldsborough. I hold you in contempt and summarily fine you $500.00, or stand committed until the fine is paid.'

Thereafter, the court filed its order and opinion as required by Maryland Rule P3 b. In it, the court gave a detailed recital of the facts, as heretofore set forth, and concluded that Goldsborough had made a 'wilful, intentional and deliberate effort * * * to subvert the Court's efforts to assure the State a fair, impartial and unprejudiced trial and was an open defiance of the Court's previous ruling,' (denying Goldsborough's motion to dismiss the indictment or stay the proceedings for improper jury composition). 'In other words,' the court said, 'Mr. Goldsborough, having been foiled in his attempt to pack the jury with jurors biased in favor of his client because of their acquittal of another subject under facts identical to those in the Cole case, was attempting to accomplish the same purpose by indicating to the Cole jury that in a previous case involving the same facts the jury had acquitted another guest at said party.' The court said that in holding appellant in contempt 'on account of the above quoted statement to the jury,' it was mindful of Maddox v. Maddox, 174 Md. 470, 199 A. 507, where the court said 'that the subtle defeat of an order of court is a contempt.' The court further held that 'by causing a mistrial, he (appellant) succeeded in thwarting at least temporarily the proper administration of justice and caused this County substantial unnecessary expense.'

Afforded an opportunity by the court to show cause, if he could, why the contempt conviction should not stand, appellant filed an affidavit of defense in which he stated that he had not 'knowingly' done anything 'which would reflect upon the court, interfere with the orderly process of the trial, or subvert justice.' He explained that he looked upon the Schwaninger jurors not as committed, but rather as enlightened jurors; that he felt the systematic exclusion of the Schwaninger jurors violated the statute but that once the court denied his motion, the point was preserved for appeal and was then forgotten. Goldsborough explained: 'No thought was given nor any conscious attempt made to subvert, subtly or otherwise, to defeat an order of the Court.' He stated that he was not aware that the court 'regarded its ruling on the challenge to the array to carry any implicit instructions with respect to the disposition of a prior case as opposed to the constitution of the present jury,' but thought the reasoning underlying the ruling involved only the matter of the disqualification of the Schwaninger jurors who the court said 'would be almost honor bound to return a verdict of acquittal.' In his affidavit, Goldsborough claimed that his opening statement was spontaneous and extemporaneous; that because the prosecutor in his opening statement may have left the impression with the jury that Cole was the only person charged, it was necessary to dispel this thought and indicate that others, including Eveland, whose degree of culpability was greater, had been charged; that he had discussed with his co-counsel the propriety of referring to the acquittal in the Schwaninger case and concluded that no case held such a reference to be improper; that because he intended to bring in all persons who had been at the party, including Schwaninger, he regarded it as inevitable that the fact of the earlier acquittal would come out in the evidence and, therefore, that it would be appropriate to preview it in the opening statement. He reasoned further that because there had been newspaper publicity showing the results of the marihuana prosecutions, it would be naive to assume that the jury was not knowledgeable, presumably about the prior acquittal. Goldsborough concluded his affidavit by emphasizing that he had given no conscious thought to the court's earlier ruling on his pretrial motion to dismiss when he made the statement concerning the previous acquittal; and that he believed that because consistency in jury verdicts was the 'hallmark of justice,' the Schwaninger acquittal compelled acquittal in the Cole case.

The court thereafter filed another opinion and final order. It found no reason in appellant's affidavit of defense justifying a change in its verdict finding him guilty of contempt, although it did reduce the amount of the fine imposed. The court said that whether it was right or wrong in excluding the Schwaninger jurors was not material; that any line of questioning at the Cole trial concerning the disposition of the Schwaninger case would have been highly improper; that the reference to Eveland in the prosecutor's opening statement did not justify Goldsborough from saying more than that Eveland had been charged, that he was the real culprit, and was himself awaiting trial. The court concluded that Goldsborough believed that 'he was adroit enough to get by with the prejudicial statement without provoking more than a mild reproof from the Court, which would not erase from the minds of the jurors the prejudice this statement would have created in favor of his client and therefore would be a...