McBurney v. State

• Decision Date: 23 March 1977
• Docket Number: No. 121,121
• Citation: 280 Md. 21,371 A.2d 129
• Parties: John J. McBURNEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 21

280 Md. 21

371 A.2d 129

John J. McBURNEY v. STATE of Maryland.

No. 121.

Court of Appeals of Maryland.

March 23, 1977.

James E. Kenkel, College Park (DePaul, Willoner & Kenkel, P. A., College Park, on the brief), for appellant.

Stephen B. Caplis, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and ROBERT F. SWEENEY (specially assigned), JJ.

ORTH, Judge.

The Grand Jury for Prince George's County returned an indictment against John J. McBurney, an attorney at law, presenting that he committed six offenses in that county. At a court trial in the Circuit Court for Prince George's County McBurney was found guilty under the second and third counts of the indictment, charging that he had violated the provisions of Maryland Code (1957, 1968 Repl. Vol., 1975 Cum.Supp.) Art. 10, § 44 concerning escrow funds of attorneys. ¹ He was sentenced to imprisonment for one year on each conviction, the sentences to run concurrently, and directed to pay the costs. An appeal was noted to the Court of Special Appeals. We issued a writ of certiorari before decision by that court.

I

The facts surrounding the indictment of McBurney are not disputed in material part. ² The Washington Suburban Sanitary Commission (WSSC) and the O'Connor Construction Company, Inc. (O'Connor) entered into a contract calling for O'Connor to install water and sewer lines to service a residential construction project for twenty-four homes being built by a Delaware corporation in Saddle Ridge near Potomac, Montgomery County. When the Delaware corporation failed to supply WSSC with required data, WSSC told O'Connor to cease work and move off the site. The holder of the construction loan on the paoject, Cameron-Brown Company (Cameron), located in North Carolina, bought in the property on foreclosure and assumed the rights of the sewer permits. Cameron and O'Connor agreed that if O'Connor would complete the installation of the water and sewer lines, Cameron would pay O'Connor $8,000 for the costs of suspending and then resuming the work, and $12,000 for costs of increased labor and materials. Pursuant to the agreement, Cameron sent its check for $8,000 to McBurney, as O'Connor's attorney, at his office in Oxon Hill, Prince George's County, with a cover letter authorizing him to release the funds to O'Connor when O'Connor began construction, which was defined in the letter as 'the day when substantial materials, equipment, and workmen are on the job and work is proceeding in a manner expected for a job of this magnitude.' It was for McBurney to determine when construction had begun as defined. McBurney acknowledged receipt of the funds by letter dated 5 February 1975 and promised to comply with the agreement.

McBurney had lived in Silver Spring, Montgomery County, since March 1973. He spent a substantial amount of time working on his law practice from his residence. The Statement of Facts reads: 'He would frequently dictate legal work into a cassette recorder and maintain regular contact with his office by telephone. He was often away from his office for periods of time as long as an entire week.' ³

McBurney held the $8,000 check in his briefcase for about a week. He then deposited it in a checking account in his name maintained at the Silver Spring Branch of the Maryland National Bank. The account was opened 12 November 1974 and closed 5 March 1976. It was not an account maintained solely for escrow funds of his clients. The monies in that account were used for other things, for example, his secretary's salary and other office expenses of various kinds.

O'Connor moved back on the job site in February 1975 and was told by WSSC that work could begin on 4 March. On 15 April WSSC issued a check to O'Connor in payment for work on the project completed 6 March. The project was substantially completed by 24 December 1975. ⁴

On 4 March 1975 while McBurney was on a business trip in Nevada he had a telephone conversation with John T. O'Connor (Tim), president of the O'Connor Construction Company, regarding the release of the $8,000. McBurney asked for a loan of the funds to be used by the mother of one of his secretaries for payment of an insurance premium on the mother's business, the Searchers Detective Agency. According to Tim, he told McBurney that he could not help him because he was in a bind himself and needed the money. McBurney's version was that the matter was left 'up in the air' and that Tim said they would discuss it when McBurney returned. Six days later McBurney and Tim met en route to an unrelated hearing, and discussed the $8,000. McBurney testified that although he understood O'Connor needed the money, he had impressed Tim 'that he was just as desperate to solve someone else's problems and that it was his impression that he could go ahead and write the check as previously discussed.' On 11 March 1975, McBurney, in Silver Spring, issued a check in the amount of $7,500 drawn against his Maryland National Bank account, payable to Searchers Detective Agency, noting on the face of the check 'loan'. The Agency was located in Silver Spring directly across from his residence, and he personally delivered the check to the Agency there. The issuance of the check reduced the balance in McBurney's account to less than $8,000.

O'Connor was paid $8,000 plus $1,000 as interest a little over a year later, on 23 March 1976, following a meeting several days before at which Tim and his brother and two attorneys for McBurney were present. One of McBurney's attorneys testified that at the meeting he asked Tim whether McBurney had been authorized to use the money as a loan to the Agency. According to the attorney, Tim replied: 'No, that never happened that way. I never meant to make him a loan. But, if you take it in context, what we said and how we said it, I think he could have taken it that way.' The attorney further testified that with reference to a conversation between McBurney and Tim about the $8,000, Tim said 'at first I was pretty strong about I didn't want to lend him any money, and then I relented and I guess he could have thought it was okay to use the money, he could have thought it was a loan.' Tim denied telling the attorney that McBurney could have construed from what was said between Tim and McBurney that approval was given to make the loan or use the money. As a result of the payment of $9,000 O'Connor executed a release discharging McBurney from any claims and requesting that any proceeding initiated against him be dismissed, 'all matters having been completely resolved.'

II

As we have indicated, the crimes of which McBurney was convicted are proscribed by Maryland Code (1957, 1968 Repl. Vol.,1975 Cum.Supp.) Art. 10, § 44. Subsection (a) deals with the conduct of an attorney with respect to moneys entrusted to him. It requires that he deposit the moneys 'expeditiously' in an account maintained as a separate account for funds belonging to others in the absence of written instructions or court order to the contrary. It prohibits him from (1) commingling such funds with his own, and (2) using them for any purpose other than the purpose for which they were entrusted to him. Subsections (b) and (c) provide sanctions. An attorney who 'wilfully' violates the provisions of subsection (a) shall be proceeded against under applicable laws and rules for reprimand, suspension or disbarment, subsection (b), and in addition, be guilty of a misdemeanor, and on conviction be fined or imprisoned or both, as therein set out, subsection (c).

Counts two and three of the indictment charged that McBurney, 'an attorney entrusted with trust monies over the value of ($100)' had violated the prohibitive provisions of Art. 10, § 44. The second count presented that on or about 4 March 1975, 'at Prince George's County', he 'did use those monies for purposes other than the purpose for which such funds were entrusted to him.' The third count identified the funds as the 'property of O'Connor Construction Co.', and presented that between 31 January 1975 and 30 July 1975, 'at Prince George's County,' he 'did co-mingle those funds with his own.'

McBurney filed a pretrial motion to dismiss each count of the indictment because of improper venue. His point was that the counts allege that 'the acts necessary for the consummation of the crimes described therein were performed by (him) in Prince George's County, whereas, in truth of fact, any acts by (him) which the State alleges constitute criminal conduct took place entirely outside of Prince George's County and within the confines of Montgomery County.' He asserted: 'The Prince George's County Grand Jury has no authority to investigate and indict for crimes committed outside the body of their County.' He urged that requiring him to proceed on an indictment returned by a Grand Jury without authority denied him his right to due process and equal protection of law. The State opposed the motion on the ground that by the nature of the crimes they were committed in both counties so that 'venue lies equally in Prince George's County.'

At a hearing on the motion to dismiss, the State made a proffer of the evidence it intended to adduce. The trial court withheld its ruling. At the close of all the evidence it denied the motion because 'under the circumstances the proper venue has been laid for each of these charges . . ..' The court thought that the evidence indicated that McBurney maintained his place of business in Prince George's County and that all of his dealings in the matter, except on a few occasions while he was in Montgomery County or in Nevada, 'were held either by telephone or from this place of business. . . .' The court did not believe 'that one who maintains his place of business in a particular location and is engaged in a business such as an attorney or...