Green v. State

• Decision Date: 03 June 1981
• Docket Number: No. 836,836
• Citation: 49 Md.App. 1,430 A.2d 1122
• Parties: Walter GREEN, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 1

49 Md.App. 1

430 A.2d 1122

Walter GREEN, Jr. v. STATE of Maryland.

No. 836.

Court of Special Appeals of Maryland.

June 3, 1981.

Gary W. Christopher, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on the brief, for appellant.

Thomas P. Barbera, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland and John L. Norton, State's Atty. for Dorchester County on the brief, for appellee.

Argued before THOMPSON, MELVIN and WILNER, JJ.

MELVIN, Judge.

On November 21, 1979, a criminal information was filed in the Circuit Court for Dorchester County charging the appellant, Walter Green, Jr., with the theft of a lawn mower of the value of $300 or greater. Appellant was charged under Md.Code (1957, 1976 Repl.Vol., 1979 Cum.Supp.) Article 27, § 342. At a jury trial on February 4, 1980, appellant was found guilty of the charge and subsequently sentenced to ten years imprisonment.

Six questions are presented:

"1. Was it error to deny Appellant's challenge for cause of a juror who had been the victim of a similar larceny the week before the instant trial?

2. Did the court err in sustaining the State's objection to the cross-examination of an accomplice as to whether the accomplice was guilty of charges which were stetted in return for the testimony of the accomplice?

3. Did the court err in not ordering a new trial ex mero motu upon discovering, after rendition of the verdict but before judgment, the conflict of interest inherent in the prosecutor's prior criminal representation of the accused?

4. Was it error to deny Appellant's motion for judgment of acquittal where Appellant's conviction rested solely upon the uncorroborated testimony of an accomplice?

5. Did the court err in summarizing the evidence so as to highlight the State's case and inject the court's own view as to a crucial disputed fact?

6. Was it error to conduct the impaneling of the jury where the record fails to show that the Appellant was present or waived his right to be present?"

As we find no reversible error with respect to any of these questions, the judgment of conviction will be affirmed.

I

Appellant argues that it was reversible error for the trial court to refuse to strike for cause a potential juror whose store had been recently the object of a braking and entering and a larceny of goods worth approximately $450.00. The venireman had told the judge, however, that this experience would not affect her ability to render a fair and impartial verdict, that she had no prejudice against people charged with stealing, and that she accepted "the presumption that ... Green sits here innocent until proven guilty beyond a reasoning doubt." After the court refused to strike for cause, appellant's trial counsel exercised one of his peremptory challenges to remove the venireman from the jury. Thereafter, he used his remaining peremptory challenges and told the court he was "satisfied" with the panel. Under these circumstances, we see no reversible error. Garlitz v. State, 71 Md. 293, 301, 18 A. 39 (1889); see also McCree v. State, 33 Md.App. 82, 97-98, 363 A.2d 642 (1976).

II

Louis Addison had been charged as a codefendant in the theft of the lawn mower but pursuant to an agreement with the State the theft charge against him as well as an unrelated forgery charge in another county not involving the appellant had been placed upon the stet docket, in return for which Addison agreed to testify for the State in both cases. These facts were brought out by the prosecutor at the beginning of Addison's testimony on direct examination. On cross-examination by appellant's counsel, Addison repeated his understanding of the agreement. Referring to the stetted forgery charge in the other county, counsel then asked, "And are you guilty of that crime over there?" The following colloquy ensued:

"Q And are you guilty of that crime over there?

MR. NORTON (Prosecutor): Objection.

THE COURT: Why do you wish to ask a question of this nature?

MR. LENTZ (Defense Counsel): I think it's important to ascertain the reason this man is testifying in what incrimination or what crimes he may or may not being let off on. If in fact he's not guilty over there, being stetted or cooperating doesn't mean much. But, if in fact he's guilty over there, it means a lot towards this man.

THE COURT: You're asking him, this witness, for an in court admission. I don't know what the status is going to be eventually or ultimately to be like in Easton or Talbot County

MR. LENTZ: He said Queen Anne's.

THE COURT: I don't think he should be asked a question to incriminate himself to that extent whereby he gives an in court confession."

We perceive no reversible error. "The allowance or disallowance of certain questions on cross-examination normally rests within the sound discretion of the trial

judge." Kable v. State, 17 Md.App. 16, 30-31, 299 A.2d 493 (1971), cert. denied, 268 Md. 750 (1973). We find no abuse of discretion or arbitrary curtailment of the extent of cross-examination upon the proper subject of the reasons for the witnesses testifying for the State. Cf. Johnson and Walters v. State, 30 Md.App. 512, 515-516, 352 A.2d 371, cert. denied, 278 Md. 738 (1976).

III

After the jury announced its verdict on February 4, 1980, the prosecutor, in argument on the issue of bond pending sentence, told the court that he had represented appellant when he was convicted over two years earlier of petty larceny. Despite appellant's failure to raise the issue at trial, on his motion for new trial (heard and denied February 15, 1980), or at the time of sentencing (April 7, 1980), he now argues that the trial court erred "in not ordering a new trial ex mero motu upon discovering ... the conflict of interest inherent in the prosecutor's prior criminal representation of the accused." Appellant urges us to correct what he calls the "plain error" by reversing his conviction. As we see no "plain error", we decline to do so.

The mere fact that as a private attorney the prosecutor had once represented appellant in an unrelated case did not, standing alone, result in a conflict of interest such as to disqualify that attorney from acting as prosecutor in the instant case. On the record before us, there is no claim or indication that at the time the instant charge was brought against appellant there existed any attorney-client relationship between him and the prosecutor, either with respect to the totally unrelated case more than two years before or any other matter. Nor is there any claim or indication that in investigating or prosecuting the present case the prosecutor made use of any confidential information he may have received from the appellant in the prior case. In short, we perceive no error to be corrected, "plain" or otherwise. See 31 A.L.R.3rd 953, and cases there cited.

IV

Appellant contends that his conviction "rested solely upon the uncorroborated testimony of accomplices" and, therefore, the court erred in denying his motion for judgment of acquittal made at the close of the evidence. The State concedes that one of its witnesses, Louis Addison, was an accomplice and that appellant's conviction could not rest upon his testimony alone unless corroborated by independent evidence tending either to identify the appellant with the perpetrators of the crime or to show the participation of the appellant in the crime itself. Brown v. State, 241 Md. 271, 378 A.2d 1104 (1977). Appellant does not argue that other witnesses did not corroborate Addison's testimony. He argues only that these other witnesses were also accomplices and, therefore, could not serve the corroborating function. The short answer to the argument is that the other witnesses, Sylvester Bolden and his wife, Ida Mae Bolden, were not shown to be accomplices. Consequently, their testimony properly corroborated that of Addison.

V

Appellant next contends that in its instructions to the jury the trial court violated Maryland Rule 757c. That Rule provides in part that "the court may make such summation of or reference to the evidence as may be appropriate in order to present clearly to the jury the issues to be decided by them." Appellant argues that in summarizing the evidence the trial court unfairly highlighted the State's case and "inject(ed) the court's own view as to a crucial disputed fact." There is no merit to the argument.

The record shows that several State witnesses identified from pictures the stolen lawn mower that was in appellant's possession shortly after its theft from the owner the owner himself being one of those witnesses. There was some disagreement, however, between the witnesses as to the color of the lawn mower. Appellant, therefore, contends that

it was unfair for the court to tell the jury that, "Each of the witnesses, as you recall, saw the pictures and identified the tractor (lawn mower) as being the same tractor." As this is what happened, we see nothing unfair about the statement. Moreover, the court further mentioned to the jury the color discrepancy and said: "Without my making too many comments on the color of this machine that was allegedly stolen from Ernest Elliott, I'm gong to leave the testimony as you understand it to be from the various witnesses, that testimony concerning this machine." Furthermore, the court in substance also told the jury, as required by Rule 757c, "that they are the sole judges of the facts and that it is their function to determine the weight of the evidence and the credibility to be given to any witness." Rule 757c. We perceive no violation of the Rule.

VI

Appellant's final contention is that because he was not present at three bench conferences, all at the request of appellant's counsel, during the impaneling of the jury the judgment of conviction must be reversed.

The first bench conference occurred at the beginning of the voir dire examination. The record shows the following:

"THE COURT: Ladies and...