Sinclair v. State

Citation278 Md. 243,363 A.2d 468
Decision Date14 September 1976
Docket NumberNo. 83,83
PartiesPhilippe A. SINCLAIR v. STATE of Maryland.
CourtCourt of Appeals of Maryland

Paul H. Spiller, Wilmington, Del. (Morton Richard Kimmel and Kimmel, Spiller & Bradley, Wilmington, Del., and Fred S. London, Baltimore, on the brief), for appellant.

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

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, * JJ.

DIGGES, Judge.

We granted certiorari to consider whether a state's attorney, consistent with this State's public policy and the due process to which an accused in a criminal cause is constitutionally entitled, may initiate or participate in a prosecution when he has a conflicting private interest in a civil matter. Although it is of great importance to the administration of the criminal justice system in this State, this exact question has not been previously addressed by this Court.

The defendant-petitioner, Philippe Andre Sinclair, was convicted by a jury in the Circuit Court for Caroline County (Wise, J.) on five counts of violating the Worthless Check Act, Maryland Code (1957, 1976 Repl.Vol.), Art. 27, § 142, and sentenced to serve a substantial term of imprisonment. In this Court, as he did in the Court of Special Appeals, Sinclair contends that the prosecutors who initiated his prosecution and represented the State at his trial had a conflict of interest which mandates reversal of his conviction. We conclude, for reasons which will be set out presently, that an evidentiary hearing is required in order to resolve the question raised by the petitioner; accordingly, we will remand the case to the trial court for that purpose.

For an understanding of the issue presented in this cause, we must set out in some detail the facts disclosed by the record. Underlying this entire dispute is The Great Oak Lodge, a hotel, restaurant and marina complex located on Fairlee Creek, an arm of the Chesapeake Bay, near Chestertown in Kent County, Maryland. The lodge, during the summer of 1973, was operated by the Sinwellan Corporation, of which Sinclair was the president. The record discloses that this resort, through its executive chef, frequently ordered meat from the Fulton Meat Packing Company, located in Massachusetts, and that pursuant to those orders Fulton shipped meat to the lodge by common carrier on a C.O.D. basis. On five separate occasions between July 13 and August 31, 1973, the lodge accepted meat sent by Fulton and in return presented the carrier with five separate corporate checks, totaling $14,046.88, signed by the petitioner. These checks, in due course, were received by Fulton, but when it attempted to cash them, each was returned by the drawee bank for insufficient funds. Fulton, on several occasions, contacted Sinclair with respect to these checks and was told by him to 'Redeposit them . . . they are all right.' Upon redeposit, however, the checks bounced again.

Subsequently, on November 9, 1973, the State's Attorney for Kent County, Richard R. Cooper, filed in the circuit court of that county a 20-count criminal information against Sinclair and the Sinwellan Corporation, charging them with false pretenses (Art. 27, § 140) and fraud (Art. 27, § 142) in connection with the five checks given to Fulton. After the defendants pleaded not guilty and elected a jury trial, the case, on January 22, 1974, was removed to the Circuit Court for Caroline County at the request of the state's attorney. Three days later the Deputy State's Attorney for Kent County, Basil Wadkovsky, filed a motion in the Caroline County court requesting a delay in the trial date which listed, in addition to other reasons, the following as a ground for granting the motion:

'That the Defendant has made certain allegations concerning the State's Attorney which has required the State's Attorney to request the Governor of the State of Maryland to appoint the Attorney General to prosecute these cases. That the Assistant Attorney General who has been tentatively assigned to handle the prosecution for the State is in trial in another county and will not be available to prosecute these cases for at least two (2) months. Attached please find a copy of (the state's attorney's) letter to Governor Mandel.' 1

As indicated, appended to the motion was a letter, dated January 24, 1974, from the state's attorney to the governor, the relevant portion of which reads:

'Kent County is involved in the prosecution of one Philippe Andre Sinclair and the Sinwellan Corporation, both of whom were indicated on October 30, 1973, in Kent County. The charges arose out of a transfer of Great Oak Lodge and Yacht Club.

'Certain events have transpired which have rendered me incapable of handling the prosecution. These events have been discussed with Clarence W. Sharp, Chief of the Criminal Division of the Attorney General's Office.

'I therefore, hereby request that the Attorney General's Office handle the prosecution of these cases.'

Apparently relying, at least in part, on those two documents, the defendants concluded that they were going to be prosecuted by someone other than Cooper and Wadkovsky. This belief, however, was shattered at a pretrial conference conducted on April 4, 1974, when Cooper indicated, for reasons undisclosed by the record, that he and Wadkovsky intended to try the case. The defendants' reaction was to file, on April 11, 1974, a motion to, among other things, dismiss the information as well as disqualify Cooper and Wadkovsky from further participation in the prosecution. Attached to the motion was both a copy of the previously-quoted letter of January 24, and an affidavit by Sinclair which asserted:

'(1) That the State's Attorney, Richard Cooper, and the Deputy State's Attorney, Basil Wadkovsky, hold themselves out as a partnership in the practice of law in Chestertown, Maryland;

(2) That Basil Wadkovsky is or has acted as attorney for the Maryland National Bank and such Bank holds a note against Frank and Ethel Russell and Great Oak Estates Realty, Inc.;

(3) That State's Attorney Cooper is or has been attorney for Carrol Tilley who holds a note against the Russells and Great Oak Resort & Yacht Club, Inc.

(4) That the defendant, Philippe A. Sinclair during 1972 and 1973 was involved (in negotiations for) the purchase of Great Oak Resort & Yacht Club, Inc., and Great Oak Estates Realty, Inc., and the lands of Frank and Ethel Russell.

(5) That State's Attorney Cooper and Deputy State's Attorney Wadkovsky attempted to sell the notes they held to the defendant Philippe A. Sinclair in July and August of 1973. The matter was not consummated and thereafter in October of 1973, State's Attorney Cooper made presentment to the Grand Jury of Kent County and issued informations which are the subject matter of the present criminal actions; and the Grand Jury returned indictments.

(6) That State's Attorney Cooper in October of 1973 prior to any presentment to the Grand Jury, informed the defendant Philippe A. Sinclair that if defendant filed an appeal in the civil action entitled Great Oak Resort & Yacht Club, Inc., et al. v. Sinclair, et al., that he, State's Attorney Cooper, would indict the defendant.

(7) The appeal was taken on October 29, 1973.

(8) The Grand Jury was called into special session on the day following the appeal of the civil action and indictments were returned.

(9) Previous to the appeal being filed on behalf of defendant Sinclair, the Grand Jury had been given presentments but had not returned any indictments.'

Although the two prosecutors did not controvert these allegations by way of counter-affidavits or otherwise, the trial judge, on April 17, 1974, denied the defendants' motion without a hearing, in pertinent part stating:

'The grounds for relief consist mostly of bald allegations. While it would appear therefrom that the State's Attorney and/or his deputy may have had or evinced an adverse or even antagonistic interest, there is nothing alleged or inferable that would indicate any conflict of interest or other posture which would in any way unduly prejudice the Defendants. The indictments represent action of the Grand Jury, rather than that of the prosecutor, and any improper motivation of the State's Attorney in filing presentments should be pursued civilly or tactially. In any adversary proceeding the opposing counsel must of necessity be hostile, and in the case of a prosecutor he could not perform competently otherwise, yet that does not necessarily indicate (a) ground for disqualification. Such seems to be the situation here.' 2

When the trial commenced on April 22, 1974, in Caroline County, the State, which was represented by Cooper and Wadkovsky, nol-prossed all of the counts against Sinwellan Corporation and all but five of the counts against Sinclair. After the prosecution had presented its case, the defense attempted, but was denied permission, to call Cooper as a witness; consequently, the defense made the following proffer as to what it expected to elicit from the state's attorney:

'The proffer which we wish to make concerns the fact that as to the check from the Maryland National Bank, there is a letter from Mr. Cooper on behalf of the Maryland National Bank, asking for payment of that money. The next proffer . . . deals with the fact that this is an information by Mr. Cooper, not an indictment. The thrust of all of these proffers which I will make and as I have indicated, are in connection with the conflict situation. The third one is that the Maryland Bar Association (Ethics) Committee is meeting tomorrow to set a date for a hearing as to whether or not there is a conflict. The next proffer regards comments made to the newspapers by Mr. Cooper, as well as to Mr. Sinclair, regarding to is either you or me. The next proffer concerns that Mr. Cooper represented Mr. and Mrs....

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