Ross v. State
| Decision Date | 13 January 1975 |
| Docket Number | No. 114,114 |
| Citation | 24 Md.App. 246,330 A.2d 507 |
| Parties | David ROSS v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
John M. Morse, Assigned Public Defender, Baltimore, for appellant.
George A. Eichhorn, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., James L. Bundy, Asst. Atty. Gen., Milton B. Allen, State's Atty., for Baltimore City and Frank A. Sauer, Asst. State's Atty., for Baltimore City, on the brief, for appellee.
Argued before MORTON, GILBERT and MOORE, JJ.
The appellant, David Ross, and a codefendant, Clarence Johnson Marable, were jointly tried under separate indictments charging them with unlawful distribution of heroin, with possession and with conspiracy. A jury in the Criminal Court of Baltimore, presided over by Judge J. William Hinkel, convicted appellant of unlawful distribution. The jury, however, was unable to reach a verdict with respect to the charge of conspiracy against appellant or any of the charges against his codefendant. As to those offenses upon which the jury did not agree, the court declared a mistrial. Appellant was thereafter sentenced to a term of seven years.
Appellant assigns four reasons why the judgment should be reversed: (1) the trial court improperly answered in the negative a question from the jury as to whether, after resuming deliberations under the remaining counts, it was permissible to reconsider appellant's conviction under the distribution count; (2) the evidence was insufficient to sustain a conviction; (3) the admission into evidence of testimony by an informer relating to past sales of narcotics in which he and appellant had participated constituted reversible error; (4) appellant was entrapped by the police through the agency of the informer.
The State's case against appellant was presented through three witness-a paid informer for the federal Government, a detective from the Narcotics Unit of the Baltimore City Police Department detailed to the Drug Administration Task Force, and a Forensic Chemist with the Bureau of Narcotics and Dangerous Drugs.
Their combined testimony developed that on the evening of February 6, 1973, the informer, Stephen Brown, was working for federal agents in the vicinity of the 1500 block of Pennsylvania Avenue in Baltimore. Brown had twice been admitted to Patuxent Institution from which he was on parole. Released from Patuxent in February, 1972, he began his employment with federal narcotics agents in November, 1972. He testified that he had $150 of government funds in his possession and approached appellant, stating he wanted to 'get a bundle of narcotics.' Appellant went into a nearby bar and the informer placed a telephone call to Detective Robert Murray. Appellant emerged from the bar with a cab driver who transported appellant and the informer to Catherine and Lombard Streets. The informer testified that during the trip he paid the entire $150 cash to appellant. The latter went into the residence of his codefendant, and the informer awaited his return. Detective Murray was in an unmarked car parked some 150 feet away. When appellant returned and delivered a package to the informer, appellant was arrested. The informer was placed in another vehicle. The package was later found to contain 25 glassine bags of heroin. The Forensic Chemist testified that the substance tested to 1.7%.
Both appellant and his codefendant testified in their own defense and both denied the alleged 'buy.' Appellant testified on direct examination that he had been incarcerated with the informer in Hagerstown in 1962, and that he had heard Brown was an informer but 'was not sure.' On cross-examination, it was established that although the appellant had prior convictions for larceny and unauthorized use, he had not been convicted for drug-related offenses. The codefendant had a record for larceny and possession of narcotics. He described himself as a 'former addict.' The codefendant denied that, when the police went to his premises, he disposed of the $150 in the toilet. The money was never found.
After deliberating for approximately three and one-half hours, during which there was a request to the court for a definition of circumstantial evidence, with which the court complied, the jury returned and the following transpired:
MR. HARRIS (defense counsel): If your Honor please, I would ask that the jury be polled as to the First Count.' (Emphasis supplied).
The response of each juror sustained the verdict as announced by the foreman. The court then noted that, as to appellant, there remained only the conspiracy charge. Under both indictments the jury had been unable to reach a verdict on the culpability or non-culpability of the codefendant. Without any intervening objection, the jury was then given a version of the Allen 1 charge and instructed to resume deliberations. Soon thereafter, the foreman sent out the question, 'What does the term 'judge the law' mean?', to which the court responded. A short time later, the foreman transmitted another question: 'Can a guilty determination be reversed at this point in the trial?' The Court answered 'No'. No objection was made by defense counsel. The jury later returned and indicated it was still unable to reach a verdict on the conspiracy charge or any charge against the codefendant.
Appellant contends that the court was wrong in instructing the jury it could not reverse its finding of guilty because 'at no time was the jury hearkened.' He cites Givens v. State, 76 Md. 485, 25 A. 689 (1893) as establishing the rule that the jury must reaffirm its verdict by the procedure of hearkening before the verdict can properly be considered final. He concedes that, as with other instances of failure to object, a failure to object to the omission of the hearkening procedure results in a waiver of the trial defect, Glickman v. State, 190 Md. 516, 60 A.2d 216 (1948); and that a jury poll 'also serve(s) the purpose of verifying the unanimity of the jury verdict.' Appellant insists, nevertheless, that in 'the totality of the circumstances' presented, the omission of hearkening deprived the jury verdict of finality, although the only 'circumstance' he notes is that the jury later asked if it could change a guilty verdict.
We observe that no objection was made by defense counsel when the court indicated its intention to instruct the jury that it could not change its verdict. As a preliminary matter we must decide whether, even assuming plain error material to appellant's rights, Md. Rule 756 g, we may take cognizance of the error in the absence of an objection. ibid. Such a decision involves a determination of whether the putative error was one of commission or omission. Brown v. State, 14 Md.App. 415, 287 A.2d 62, cert. denied 265 Md. 736 (1972). The transcript contains the following:
'THE COURT: The jury has sent out another question. It says, 'Can a guilty determination be reversed at this point in the trial? The answer is 'no.'
(The answer was sent to the jury, after which (the jury returned with its verdict).)' (Emphasis supplied).
The Brown distinction between errors of commission and of omission in jury instructions is that in the former 'the damage has been done,' or may well have been, so that corrective instructions would be of dobious value. Where nothing has been said to the jury on the point in issue, however, Brown construed Rule 756 g to impose an absolute burden upon the dissatisfied party to alert the court to the defect in its instructions. The error alleged here, had error indeed occurred, would have been one of commission.
In Brown we pointed out that even where there has been an error of commission, plain and material to the rights of the accused, that 'the exercise of our discretion to correct it should be limited to those cases in which correction is necessary to serve the ends of fundamental fairness and substantial justice.' Since the finality of the verdict is a significant issue in this case we shall consider whether the court's instruction to the jury that is verdict was final and irreversible was correct. We hold that it was for the reasons stated infra.
With some local variations in Maryland, the reply of the foreman as to whether the defendant is guilty or not guilty is noted by the clerk and recorded on the docket or upon such other records as may be used preparatory to the completion of the formal docket entries. According to Hochheimer, Crimes and Criminal Procedure (1897), § 327, the formal mode for hearkening is as follows:
The common law procedure is explained in Grant v. State, 33 Fla. 291, 14 So. 757 (1894) wherein the court said:
'By the common-law procedure, . . . the verdict of the jury was orally pronounced in open court, then recorded by the clerk, and affirmed by the jury, which was done by that officer saying to them to hearken to their verdict as recorded by the court, and repeating to them what had been taken down for record.'
In Maryland an accused has an absolute right to have the jury polled a right of constitutional dimension insofar as it...
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