Rosenberg v. State

• Decision Date: 10 May 1983
• Docket Number: No. 1388,1388
• Citation: 54 Md.App. 673,460 A.2d 617
• Parties: Howard Martin ROSENBERG v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 673

54 Md.App. 673

460 A.2d 617

Howard Martin ROSENBERG v. STATE of Maryland.

No. 1388.

Court of Special Appeals of Maryland.

May 10, 1983.

Fred R. Joseph, Hyattsville, with whom were Richard S. Schrager and Smith, Joseph, Greenwald & Laake, Hyattsville, on the brief, for appellant.

Diane G. Goldsmith, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Stephen J. Braun, State's Atty. for Charles County, and Leonard C. Collins, Jr., Asst. State's Atty. for Charles County, on the brief, for appellee.

Argued before GILBERT, C.J., and LOWE and BLOOM, JJ.

GILBERT, Chief Judge.

Preface

The remarkable thing about this appeal is the unorthodox manner in which the State sought to immunize one of two accused coconspirators, and the trial court's characterization of that procedure in which the coconspirator was acquitted as "not a trial on its merits." The other six issues raised in this Court by the appellant, Howard Martin Rosenberg, may properly be termed a foofarah.

The Facts

The Grand Jury for Charles County, Maryland, indicted appellant and Debbie Ann Inman for (1) "keeping a bawdy house" (a common law offense), (2) "maintaining [a] building for the purpose of prostitution" (Md.Ann.Code art. 27, § 15(a)), (3) conspiracy with Inman "and others" to maintain the bawdy house "for licentious sexual commerce" (common law conspiracy), (4) conspiracy with Inman "and others" to maintain a building for the purpose of prostitution (common law conspiracy), (5) conspiracy with Inman "and others to steal a Trader's License" (common law conspiracy), (6) conspiracy with Inman, a corporate officer, "to misrepresent fraudulently to the public the affairs of the corporation" (common law conspiracy).

On February 8, 1982, almost three months prior to trial, there was a hearing on a motion to suppress evidence seized on a search and seizure warrant. The basis of the motion was the allegation that there was a lack of probable cause for the issuance of the warrant. The hearing judge denied the motion.

Two and one-half months later, the day before the scheduled trial in the Circuit Court for Charles County, Debbie Ann Inman was arraigned on a criminal information in the District Court for Charles County. She was charged with the exact same offenses she and Rosenberg faced in the circuit court, except she was accused of "conspiring" to maintain a bawdy house, and "conspiring" to maintain a building for prostitution. No information is contained in the transcript of that proceeding as to the identity of the person or persons with whom Inman is alleged to have conspired.

In any event, the State requested that the district court judge dispose of the matter immediately. Inman, through counsel, waived her right to a jury trial. Without the entry of a plea of any sort, Inman was sworn and then questioned by the prosecutor. She related to the district court judge her involvement with Rosenberg in the operation of the corporation known as the "Body Boutique."

Ostensibly, Body Boutique was a place where, for a fee, persons could "sketch" nude females. Inman said that she and Rosenberg ran the business. He "told her to tell the girls [who were employed at the Boutique] to avoid solicitation. Acts of prostitution took place in the Body Boutique." Rosenberg "came down on Saturdays to collect the receipts."

According to one of the females who had been employed in the Body Boutique, she originally kept 50 percent of the earnings she collected for her sexual favors. She turned the other one-half in to the office. Later the split was changed so that the employees received but 40 percent and the "house" the balance.

The State then amended the charging documents by enlarging the time span embraced therein. The district court judge, after explaining to Inman her rights to a jury trial and accepting her waiver of that right, said: "The plea I take it is not guilty to each of the ...." Before he finished the sentence, Inman's counsel interrupted and stated: "This is correct Your Honor."

At that point the State called Joseph Stern, an employee of the Charles County Sheriff's Department. Mr. Stern was sworn, and he testified that he went to the premises occupied by the Body Boutique. Then the prosecutor's interrogation abruptly ceased. Defense counsel merely asked whether the premises were in Charles County. After an affirmative response, the defense concluded its "questioning" of the witness. The State rested its "case." The defense promptly moved for judgment of acquittal. Having nothing before him but Stern's mere words, the judge entered a "verdict of not guilty as to each count."

The next day Rosenberg proceeded to trial in the circuit court. ¹ Preliminarily, he moved to dismiss the conspiracy counts because of Inman's being found not guilty on those charges. His motion was denied. At the end of the case he renewed his motion. The trial judge observed that the only testimony about a conspiracy was that it was entered into with Inman and no one else. He granted the motion as to Counts 5 and 6, but denied it as to Counts 3 and 4, observing as we have said that the matter in the district court "was not a trial on its merits."

During the course of the trial in the circuit court, the State produced evidence that two men, with the knowledge of the county sheriff's office, participated in sexual intercourse and other sexual acts with women employed at the Body Boutique. Several officers of the sheriff's office related to the jury that police officers were offered "hand relief" in exchange for the sum of thirty dollars.

The jury convicted Rosenberg on all four remaining counts. He was sentenced to six months imprisonment on each count, but the sentences were to be served concurrently. Additionally, Rosenberg was fined $500 on each count, a total fine of $2,000.

We shall set forth under the respective issue raised such additional facts as may be necessary for a better understanding of the matter there discussed.

The Issues

Rosenberg presents a sextet of questions for our consideration, namely:

"1. Did the trial court err in denying appellant's motions for judgment of acquittal on Counts Three and Four of the indictment charging conspiracy?

2. Did the trial court err in denying appellant's request that the identity of two confidential informants referred to in the application for search and seizure warrant be disclosed?

3. Did the trial court err in denying appellant's motion to suppress physical evidence?

4. Did the trial court err in permitting the jury to consider the issue of appellant's guilt on Count One (keeping a bawdy house) and Count Two (maintaining a building for the purpose of prostitution) of the indictment?

5. Did the trial court err in denying appellant's motion to dismiss pursuant to Maryland Rule 711?

6. Did the trial court err in failing to require the State to more fully particularize the charges against the appellant as requested in his demand for a bill of particulars?"

I.

The crime of conspiracy may be defined as an agreement between two or more persons to accomplish or perform a criminal act or to accomplish or perform a lawful act in a criminal or unlawful manner. Gardner v. State, 286 Md. 520, 523, 408 A.2d 1317 (1979); State v. Buchanan, 5 H. & J. 259 (1821).

The Court of Appeals in Hurwitz v. State, 200 Md. 578, 92 A.2d 575, 581 (1952), declared flatly that "as one person alone cannot be guilty of conspiracy, when all but one conspirator are acquitted, conviction of the remaining conspirator cannot stand."

It has been held that a conviction of a conspirator will not be set aside because of the subsequent acquittal of his coconspirator, Gardner, supra; or because of the grant of immunity to a conspirator, Hurwitz, supra; or the death of the conspirator, State v. Davenport, 227 N.C. 475, 42 S.E.2d 686 (1947); or the identity of the coconspirator is unknown, Adams v. State, 202 Md. 455, 97 A.2d 281 (1953), rev'd on other grounds, sub nom Adams v. Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608 (1954); or the case against the coconspirator has been left untried, DeCamp v. United States, 56 App.D.C. 119, 10 F.2d 984 (1926); or that the coconspirator has been unapprehended, Rosenthal v. United States, 45 F.2d 1000 (8th Cir. 1930); or that the coconspirator was unindicted, United States v. Monroe, 164 F.2d 471 (2d Cir.1947).

In none of those cases, as Judge Cole observed in Gardner v. State, supra, 286 Md. at 525, 408 A.2d 1317, was there a "judicial determination of the guilt or innocence of the alleged co-conspirators, i.e., no adjudication on the merits...." Unlike Gardner, Hurwitz, Davenport, Adams, DeCamp, Rosenthal, and Monroe, there is, in the instant case, an acquittal at a judicial hearing. Inman, contrary to the circuit court judge's view, was tried on the merits of the criminal charges, including conspiracy, and she was found not guilty on each.

Why the State elected to proceed in the manner that it did in this case, eludes us, but whatever its reason, when it engineered Inman's acquittal prior to Rosenberg's trial on the conspiracy counts, it simultaneously, under the rule of consistency, acquitted Rosenberg of those charges. Patently, he could not conspire with himself. Since Inman was found not guilty of conspiring with Rosenberg, he had to be acquitted of conspiring with her. Gardner v. State, supra; Bloomer v. State, 48 Md. 521 (1878); United States v. Bruno, 333 F.Supp. 570 (E.D.Pa.1971). In Maryland a conviction of a conspirator will stand even though the coconspirator is subsequently acquitted, but the prior acquittal of a coconspirator mandates the acquittal of a subsequently tried conspirator. ²

It follows from what we have said that Rosenberg's convictions on the two conspiracy counts must be reversed.

II.

A review of the application for the warrant discloses that in addition to the two unidentified confidential informants, there is information from identified...