Pearson v. State

• Decision Date: 03 November 1975
• Docket Number: No. 19,19
• Citation: 347 A.2d 239,28 Md.App. 464
• Parties: Jon Frederick PEARSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 464

28 Md.App. 464

347 A.2d 239

Jon Frederick PEARSON v. STATE of Maryland.

No. 19.

Court of Special Appeals of Maryland.

Nov. 3, 1975.

Samuel L. Serio, Assigned Public Defender, Bowie, for appellant.

Bernard A. Raum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur v. Marshall, Jr., State's Atty., for Prince George's County, and Richard Palumbo, Asst. State's Atty., for Prince George's County, on the brief, for appellee.

Argued before ORTH, C. J., and GILBERT and MOORE, JJ.

ORTH, Chief Judge.

STATEMENT OF THE CASE

Three criminal informations charging violations of the laws concerning controlled dangerous substances were filed in the Circuit Court for Prince George's County against JON FREDERICK PEARSON, Deborah Lee Royston, Edward Robert Hicks, James Robert Collett and Fred James Raduazo. When the informations came on for trial, Hicks and Raduazo failed to appear. The State proceeded against Pearson, Royston and Collett. The defense stated that the three informations arose out of 'one search, one arrest, one incident which occurred on May 22nd, 1973.' The court, at the request of the defense, directed the State 'to elect at this time which (information) you want to go forward on.' The State designated no. 13975, filed 14 December 1973, which charged possession on 22 May 1973 of a controlled dangerous substance, MDA, by the 1st count and of controlled paraphernalia by the 2nd count. ¹ Trial proceeded jointly as to Pearson, Royston and Collett under pleas of not guilty, Pearson and Royston before a jury and Collett before the court. A preliminary matter regarding the constitutional validity of a search and seizure was presented to the court. There was a plenary hearing out of the presence of the jury, ² at the conclusion of which the judge found that the challenged evidence was not illegally obtained. He ruled: 'This being accepted as a motion to dismiss in behalf of each of the present Defendants, Royston, Pearson and Collett, the motion to dismiss is denied.' ³

The preliminary hearing on the validity of the search and seizure consumed most of the morning. Upon its conclusion, the venire were brought in, were questioned on voir dire and a jury was empanelled and sworn. The court then recessed for lunch. Collett and Pearson reacted in different ways to the ruling of the trial court. Collett changed his plea to guilty; ⁴ Pearson disappeared.

When the court convened after the luncheon recess, Pearson's attorney asked to approach the bench. The transcript reads:

'MR. HUGHES (George Hughes, Esq., Pearson's Counsel): May it please the Court, during the noon recess I had the opportunity to discuss possible plea bargaining with Mr. Palumbo, the State's Attorney. As a result thereof I met my client in the hall at one fifteen, I think, maybe one ten and conveyed to him the topic of our plea bargaining and conversations. I then turned my back for a few minutes and I looked around and my client was gone. I havent's seen him since then. I don't know whether he's still in the building or not. I'd like the opportunity to go downstairs and check to see if he's downstairs or any place in the building before we proceed.

THE COURT: I don't see where that's going to do any good to look for him. He knows better than that. He knew what time he was due back here. I don't know what's going on in this case, but I don't like it. All right. Is that all?

MR. HUGHES: That's all I have, Your Honor.'

The court was of the opinion that in the circumstances the trial of Pearson could continue without Pearson's presence. A recess was granted to give counsel an opportunity to research the question. When court reconvened forty-eight minutes later, defense counsel in response to the court's inquiry, said that he had no further knowledge of Pearson's whereabouts. The court noted that defense counsel represented 'that he had discussed the case with the Defendant Jon Frederick Pearson during the luncheon recess and for no apparent reason at all the Defendant, when his Counsel had his back turned the Defendant disappeared and hasn't shown since then.' The court said:

'Now, the Court is going to rule that he has voluntarily absented himself from the trial. He's in contempt of Court. The Court rules that he is in contempt of Court for absonding, leaving during the recess. We would order a forthwith bench warrant issued for the Defendant at this time and we will direct that the State's Attorney, the case be commenced right away in the absence of the Defendant since he's done this voluntarily.'

Defense counsel objected 'because under Maryland Rule 775 . . . I can't voluntarily waive his right to be present at all stages of the trial.' ⁵ The court replied:

'We understand that it isn't being done, but by him absenting himself the Court declares that he has done this on his own and he had a right to be here. If he elects not to be here, then he must bear the consequences, and the wheels of justice can't be stopped just because he happened to absent himself. We feel we can go ahead and we intend to go ahead.'

The court directed the Clerk to have the docket show that Pearson 'is held in contempt of Court for failure to appear after lunch . . . and also show the forthwith issuance of the bench warrant. . . .' The docket reads:

'5/7/74. Ordered by Judge Bowie; Mrs. Henning, Reporter, that Defendant Pearson be and is hereby adjudged in Contempt of Court for not appearing for trial after lunch and that Bench Warrant issue forthwith.

5/7/74 Bench Warrant issued.'

The trial proceeded. At the close of the State's case motions for judgment of acquittal were made and argued. The motion by Pearson was denied; the motion by Royston was granted. The judge thought that the jury were 'entitled to know what's been going on today', noting, 'You have been in your jury room most of the time.' He told the jury:

'The cast started out this morning when we had five co-defendants, two of them hadn't shown, so we started off with three, and then before we got off the ground with the trial one of the Defendants elected to plead guilty to a lesser charge, which left two, and then during the luncheon recess one of the Defendants, Mr. Hughes' client, just walked off, and the Court ruled that since the jury had been sworn a trial had started and he has an absolute right to be here present during his trial, but if he walks off, then we have a right to go ahead and try him in absentia, which is what we have done.'

When court reconvened the next morning, the judge, out of the presence of the jury, asked if Pearson had been found. The transcript reads:

'MR. HUGHES: Your Honor, as Defense Attorney and as an officer of the Court I went back to my office last night and I received a telephone call from Mr. Pearson.

THE COURT: From who?

MR. HUGHES: Mr. Pearson. I asked him why he had taken off, and he said he was in fear, that he didn't want to go to jail. I implored him to come here this morning and to stand and face this and not to stay away. He advised me that he would think about it, and that's the extent of the conversation.

THE COURT: He didn't say where he was or-

MR. HUGHES: No, sir. I don't know where he was.

THE COURT: And, of course, there is a bench warrant out from the Sheriff's Office.

MR. HUGHES: I told him that, Your Honor. I advised him of that. I told him there was a bench warrant out for him and that he would be summarily arrested and brought before the Court.

THE COURT: Did you tell him that the case went on yesterday and that we'd conclude it this morning?

MR. HUGHES: Yes, sir, I did.'

There followed a discussion regarding instructions. The jury were brought in. The defense rested and renewed its motion for judgment of acquittal. It was denied. The judge addressed the jury:

'Members of the jury, that puts us at the posture of the case where we were yesterday evening, and that was that the Defendant, Jon Frederick Pearson, as you recall, was present in the courtroom when we conducted the voir dire examination before you were selected as members of this panel. You were sworn, we recessed for lunch, and after consulting with his counsel, through no fault of Counsel at all, the Defendant walked off. We are told that he called his Counsel last night at his office and was advised by Counsel that the trial had gone on and that he would have an opportunity to put on his defense this morning. He said he'd think about it. Well, apparently he's thought about it and concluded that he still wants to voluntarily absent himself from the trial. While we are on this . . . Well, we'll reach that point again in a minute, members of the jury.'

He then proceeded with the charge, during which he again discussed the absence of Pearson:

'Now, members of the jury, had Mr. Pearson elected to stay here, he as any other Defendant has an absolute constitutional right not to take the stand. Remember, it's the burden of the State to prove the Defendant guilty beyond a reasonable doubt, it is not the burden of the Defendant to prove himself innocent. As we understand the law, if a Defendant elects to voluntarily absent himself from trial, the trial can proceed because he did this in a voluntary manner of his own judgment, knowing and being advised that he had an opportunity to be present at his own trial. The fact that he has elected not to be present at his trial, members of the jury, we would direct you not to hold this against him but to evaluate the evidence as you have heard it just as if he had been here during the time of the trial.'

At the conclusion of the charge, defense counsel expressly stated that there were no exceptions. The jury retired to deliberate. They returned in approximately an hour and rendered a verdict of guilty as to count 1 and not guilty as to court 2. The court referred the matter to the Division of Parole and Probation for a presentence investigation. It noted: 'The bond has already been revoked and there is an outstanding...