Scott v. State

• Decision Date: 02 April 1965
• Docket Number: No. 244,244
• Citation: Scott v. State, 208 A.2d 575, 238 Md. 265 (Md. 1965)
• Parties: James E. SCOTT v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 265

238 Md. 265

208 A.2d 575

James E. SCOTT v.STATE of Maryland.

No. 244.

Court of Appeals of Maryland.

April 2, 1965.

Russell J. White, Baltimore (Richard K. Jacobsen, Baltimore, on the brief), for appellant.

R. Randolph Victor, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Charles E. Moylan, Jr. and Frank Cannizzaro, Jr., State's Atty. and Asst. State's Atty., respectively, for Baltimore City, on the brief), Baltimore, for appellee.

Before HAMMOND, HORNEY, MARBURY, OPPENHEIMER, and BARNES, JJ.

HAMMOND, Judge.

Acquitted by a jury of assault with intent to rape and assault, charged to have been committed while he was at liberty on probation after a conviction of robbery, the appellant Scott is aggrieved because the judge who sat in the robbery trial and granted probation, and who also presided at the subsequent jury trial on the assault charges, believed he had committed the assaults and revoked his probation.

On October 30, 1963, Scott pleaded guilty to robbery before Judge Harris.The admitted facts were that he attacked a woman late at night in a parking lot, striking her in the face with his fist, and seized her handbag.He was given three years.On December 23, 1963, Judge Harris, after receiving a probation report that Scott had a sound family and employment background and no prior criminal record, 'reluctantly acceded to the recommendation of the Probation Department,' suspended the balance of the sentence and placed him on probation for three years, subject to the conditions of probation customarily imposed in Baltimore (to which Scott agreed in writing) including the condition that the released person 'shall conduct himself in a law-abiding manner.'

On January 19, 1964, Scott was charged with assault with intent to rape a seventy-one year old woman and common assault upon her.Passersby came to the assistance of the victim, a Mrs. Grimes, and the assailant, becoming frightened, ran away, leaving his hat at the scene.Mrs. Grimes gave the hat to the police and after Scott had been arrested near the scene of the assault and taken to the police station, the arresting officer took the hat to Scott's home and, according to his official report, Scott's mother immediately identified it as her son's hat.Several days before the trial, which was held on April 14 and 15, 1964, Scott's lawyer advised the State's Attorney that the mother had recanted and that if called as a State's witness she would testify that she had never seen or identified the hat.Nevertheless, the State called the mother as its witness and attempted to claim surprise and impeach her testimony.Judge Harris ruled that this could not be done because the State had been put on notice before the trial of the mother's probable testimony.The State then proffered the testimony of the arresting police officer that he had shown the hat to Scott's mother and that she had identified it as her son's.Judge Harris refused to receive the proffered testimony on the ground that it would be hearsay.The jury acquitted Scott.

Thereafter, Judge Harris advised Scott's court-appointed lawyer, Mr. Russell White(who, upon designation of Judge Harris, has well represented Scott in this appeal), that he felt he must revoke Scott's probation because he was convinced by the facts, as to the identification of the hat, which the State was unable to get before the jury, that Scott had committed the assaults.The lawyer apparently then advised Scott of Judge Harris' views and intended action and, later in the day on which the jury acquitted Scott, he was brought before Judge Harris and the following colloquy took place:

'THE COURT: Mr. White, I have already talked to you concerning the action I am going to take in this case.Is there anything that you care to say before I give my reasons for---- 'MR. WHITE: Well, I don't know if I really have any standing, your Honor, having completed my services as court appointed attorney I wonder really whether I have any proper standing here at all.

'THE COURT: Well, you have shown a great interest in your assignment as counsel for Scott, and said that if I took any further action you would want to be present.That was the reason why I asked if you cared to say anything.

'MR. WHITE: Well, only what I said at the bench, your Honor, previously'(apparently a reference to the same contention and argument that is now made, that on the evidence before Judge Harris there could not be a revocation of probation for conduct amounting to a crime of which the jury had acquitted the probationer).

Judge Harris then said:

'I will not comment on the verdict of the jury.But, I do know that there was certain proffered evidence, and important evidence, which the jury did not hear, and which it could not hear under the rules of evidence.I can not help but believe, in my own mind, that regardless of the technical rules of evidence which apparently resulted in the verdict of not guilty, plus the skill of your counsel, that you actually did commit this one act, the assault with which you were charged in two counts, I can not fulfill my obligation to the public by allowing you to go free, having this knowledge in my mind that the jury could not hear,'

and sent Scott back to the Maryland Institution for Men to serve the two years and eight months remaining of the three-year sentence which had been imposed on October 30, 1963.

Scott wrote Judge Harris, asking why his probation had been revoked after the jury had acquitted him and, in reply, received an answer which set out in detail what has been set out above, and said 'I was faced with the situation of having a jury find you legally not guilty of the two assault charges when, based upon information known to me but which could not be made known to the jury, it seemed certain to me that you were Mrs. Grimes' assailant.When I considered the fact that you had committed and had pleaded guilty to a fairly similar violent offense only several months prior to the one which occurred in January of 1964, and the fact that I had information which clearly indicated that you were Mrs. Grimes' assailant, I felt that I could not continue your probation.In my opinion, your actions (as known to me) violated the 'good conduct' condition of your probation; and in fact, I believe you to be a threat to the safety of the public.

'I hope that this letter fully answers your letter to me of April 15, asking the reasons why I revoked your probation.'

He concluded by advising Scott that he would treat his letter as an order for appeal, and that he had appointed Mr. White as his lawyer.

On the stage of this Court, before the background we have portrayed, Scott relies on these propositions:

1.It was an illegal--perhaps unconstitutional--abuse of discretion for Judge Harris to revoke his probation, on hearsay evidence, which had properly been excluded from the jury in the trial on the assault charges, but which had persuaded the judge that he was guilty of conduct of which he had been acquitted;

2.The manner in which the probation was revoked violated the requirements of procedural due process.

We had occasion recently in Edwardsen v. State, 220 Md. 82, 151 A.2d 132, to review substantive and procedural facets and requirements of revocation of probation.Judge Henderson, speaking for the Court, said that a proceeding leading to a revocation of suspension of sentence and probation is informal in character and not subject to the limitations and restrictions upon a trial on a charge of crime, which requires proof beyond a reasonable doubt in order to convict, citing Jett v. Superintendent, 209 Md. 633, 640, 120 A.2d 580;Manning v. United States, 161 F.2d 827(5th Cir.), cert. den.332 U.S. 792, 68 S.Ct. 102, 92 L.Ed. 374; and Mutter, Probation in the Criminal Court of Baltimore City, 17 Md.L.Rev. 309, 316.

Manning, which was relied on in Edwardsen, summed up the law (similar later cases, such as Yates v. United States, 308 F.2d 737(10th Cir.), andBroadus v. United States, 317 F.2d 212(5th Cir.) have agreed) by saying, in the language of Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266, that (at p. 829 of 161 F.2d):

'* * * a proceeding for revocation of probation is not one of formal procedure 'either with respect to notice or specification of charges or a trial upon charges.The question is simply whether there has been an abuse of discretion and is to be determined in accordance with familiar principles governing the exercise of judicial discretion."

As to the nature of the proof upon which the Court may act, Manning said (p. 829 of 161 F.2d):

'But proof sufficient to support a criminal conviction is not required to support a judge's discretionary order revoking probation.A judge in such proceeding need not have evidence that would establish beyond a reasonable doubt guilt of criminal offenses.All that is required is that the evidence and the facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation.'

Judge Henderson agreed in Edwardsen that the critical inquiry in testing the correctness of a revocation of probation is whether there was an abuse of discretion below, saying (at p. 88 of 220 Md., p. 135 of 151 A.2d):

'Swan v. State, 200 Md. 420, 425, 90 A.2d 690, was a case involving the striking out of a suspended sentence for violation of the conditions of probation, after hearing.It was held that an appeal would lie, at least to determine whether the trial court abused its discretion or placed an erroneous construction on the conditions of the probation.Abuse of discretion may be found if the trial court acts arbitrarily or capriciously.Burns v. United States, 287 U.S. 216, 222, 53 S.Ct. 154, 77 L.Ed. 266.'

See alsoColeman v. State, 231 Md. 220, 222, 189 A.2d 616.

In considering the requirement of a hearing, we said in Edwardsen(p. 88 of 220 Md., p. 135 of 151 A.2d...