Grohman v. State

• Decision Date: 26 June 1970
• Docket Number: No. 401,401
• Citation: 267 A.2d 193,258 Md. 552
• Parties: , 41 A.L.R.3d 406 William Joseph GROHMAN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 552

258 Md. 552

267 A.2d 193, 41 A.L.R.3d 406

William Joseph GROHMAN v. STATE of Maryland.

No. 401.

Court of Appeals of Maryland.

June 26, 1970.

Ronald A. Willoner, College Park (Robert B. Ostrom, College Park, on the brief), for appellant.

Gilbert Rosenthal, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, and Arthur A. Marshall, Jr., State's Atty., and James E. Kenkel, Asst. State's Atty., respectively for Prince George's County, Upper Marlboro, on the brief), for appellee.

Argued before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

FINAN, Judge.

The State's Attorney for Prince George's County filed a petition to adjudicate the appellant in contempt of court for divulging and selling testimony of the grand jury for Prince George's County to a member of the public. An evidentiary hearing was held in the circuit court for that county on October 13, 1969, Digges, C. J., presiding. The appellant neither took the stand nor offered any evidence in his own behalf, but relied upon as his defense the doctrine of Purgation by Oath. In his affidavit of purgation he stated facts purporting to explain, excuse, and justify his actions, including a delineation of events which he contends compel the conclusion that he was entrapped by police authorities. In a written memorandum and order of court, dated November 20, 1969, issued without the presence of the accused, the trial court found the appellant to be in contempt. On December 18, 1969, the appellant was brought into court at which time he was sentenced by the court to serve a period of three months in the county jail. The accused has appealed the judgment to this Court.

The appellant contends the trial court was in error: (1) in holding that he had not been entrapped and (2) in rendering its judgment of contempt out of the presence of the accused by way of a written order delivered to the appellant's counsel through the United States mail.

In the present case we are first confronted with an in limine question as to whether or not entrapment, a defense to a criminal charge, is available as a defense in a criminal contempt proceeding. As Judge Hammond, now Chief Judge, observed in Sheets v. City of Hagerstown, 204 Md. 113, 120, 102 A.2d 734, 736 (1954): * * * The line between civil and criminal contempt is often indistinct.' And, as was noted by this Court in In re Lee, 170 Md. 43, 47, 183 A. 560, 562 (1936): '* * * In spite of the verbiage used to designate them (contempt proceedings), they are 'neither wholly civil nor criminal.' Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A. (N.S.) 874.'

However, in view of what our predecessors said in Kelly v. Montebello Park Co., 141 Md. 194, 118 A. 600 (1922), we view the present proceeding in the nature of a criminal contempt proceeding, as did the court below. In Montebello, supra, this Court quoted with approval the following language from Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997 (1904):

"Proceedings for contempts are of two classes, those prosecuted to preserve the power and vindicate the dignity of the Courts and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the Court has found them to be entitled. The former are criminal and punitive in their nature, and the government, the Courts and the people are interested in their prosecution. The latter are civil, remedial and coercive in their nature, and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect and enforce." (Emphasis supplied.) 141 Md. at 197, 118 A. at 601.

The divulging of judicial secrets has long been regarded both by statute, as well as at common law, as an interference with the functioning of the courts and the administration of justice. Baltimore Radio Show, Inc. v. State, 193 Md. 300, 320, 67 A.2d 497 (1949), and In re Lee, supra.

As has become apparent from this discussion, we are of the opinion that the gravamen of this contempt is criminal in substance and although this is not a criminal proceeding, we can see no logical or fair reason why the defense of entrapment should not be available to one so accused. It is likewise clear from the opinion of the lower court that the trial judge assumed that such a defense could be relied upon by the accused. This then leads us to the consideration as to whether the evidence in the record supports the entrapment of the accused.

In Baxter v. State, 223 Md. 495, 499, 165 A.2d 469, 471 (1960), we stated:

'The law in this State with respect to the defense of entrapment was restated in Ferraro v. State, 1952, 200 Md. 274, at page 279, 89 A.2d 628, at page 630 (1952), (by quoting from Callahan v. State, 1932, 163 Md. 298, 301, 162 A. 856 (1932)) in this manner:

'It is not objectionable for an officer of the law to lay a trap or unite with others to detect an offender. The only effect would be to justify a more careful scrutiny of the evidence. Where the crime is not against the person nor the property of the instigator, it is not clear show, in the absence of special circumstances, the commission of a crime at the solicitation or procurement of another, although an officer of the law, makes the culprit any less guilty than if the criminal design had originated with the wrongdoer himself. * * *"

In Baxter, Judge Horney writing for the Court commented on the fact that this Court in Ferraro v. State, 200 Md. 274, 89 A.2d 628 (1952) recognized that there were two divergent views held by respected authorities concerning the conditions under which entrapment should apply but that this Court had not expressed a preference as to which of the views it favored. The divergent views referred to in both Baxter and Ferraro were the view espoused by the majority of the Justices of the Supreme Court of the United States in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), and Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958), as contrasted with the view expressed in concurring opinions in Sorrells and Sherman and the dissent in Masciale. The Baxter case contains a lengthy footnote discussing these views which we would paraphrase by the statement that the majority opinion of the three Supreme Court cases adopted the 'origin of interest' test, which allows the defense of entrapment only if the criminal act was 'the product of the creative activity' of law enforcement officials. In applying this test the court must make two inquiries: (1) whether there was an inducement on the part of the government officials and if so (2) whether the defendant showed any predisposition to commit the offense. The other criterion adopted by the concurring opinions in the Sorrells and Sherman cases and the dissent in Masciale based the defense of entrapment upon an objective test whereby the court considers only the nature of the police activity involved without reference to the predisposition of the particular defendant: 'Thus police conduct which falls below standards to which common feeling responds for the proper use of governmental power would bar conviction.' Note, Entrapment, 73 Harv.L.Rev. 1333, 1335 (1960).

However, it was not until Simmons v. State, 8 Md.App. 355, 259 A.2d 814 (1969) that a clear cut expression of the view adopted by Maryland was made. In Simmons, Judge Orth writing for the court entered into a comprehensive discussion of the salient Maryland cases on entrapment and brought further clarity to the matter with this statement:

'* * * It appears that the Court of Appeals has expressly not adopted either of the two divergent views regarding entrapment. In Ferraro it discussed at length the divergent views in the majority and concurring opinions in Sorrells but concluded: 'We do not find it necessary to decide which, if any, of the divergent views of the defense of entrapment is law in Maryland.' 200 Md. at 281, 89 A.2d at 631. And see Baxter v. State, supra, 223 Md. at 499-500, 165 A.2d 469, quoting Ferraro. We feel it advisable now to adopt a test for the application of the rule regarding the defense of entrapment. We believe that the view of the majority opinions of Sherman v. United States, supra, and Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 is the better one, and adopt it. We note that in Sherman, the Court said, 356 U.S. at 372, 78 S.Ct. at 820: 'The intervening years have in no way detracted from the principles underlying (the Sorrells) decision.' We think, at the least, the opinions of the Court of Appeals do not preclude its adoption.

'We construe the opinion of the Court in Sorrells as enunciating what has been termed the 'origin of interest' test. This test was stated in substance by Judge Learned Hand in United States v. Sherman, 200 F.2d 880 (2d Cir. 1952). Probing the aspect of inducement he concluded that in Sorrells 'all the Court agreed as to the meaning of inducement: it was that someone employed for the purpose of the prosecution had induced the accused to commit the offense charged which he would not have otherwise committed.

'Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offence charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first question the accused has the burden; on the second the prosecution has it.'

The principles by which these questions of fact are to be determined by the courts were outlined in Sorrells. See 287 U.S. at 451, 53 S.Ct. 210. As stated in Sherman, 356 U.S. at...