Smith v. State
| Decision Date | 12 April 1982 |
| Docket Number | No. 933,933 |
| Citation | 51 Md.App. 408,443 A.2d 985 |
| Parties | Marilyn D. SMITH v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Philip M. Andrews, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., John R. Salvatore, State's Atty. for Washington County and Mary Ann Day, Asst. State's Atty. for Washington County on the brief, for appellee.
Argued before MORTON and MOORE, JJ., and RICHARD M. POLLITT, Specially Assigned Judge.
It has been said frequently by humorists that one of the more often told falsehoods of modern times is "the check is in the mail". It is, by the very nature of such a statement, extremely difficult to prove its falsity by direct, positive evidence. As was done in this case, however, the falsity of such a statement is provable by circumstantial evidence.
On March 24, 1981, the appellant, Marilyn D. Smith, was convicted by a jury in the Circuit Court for Washington County (Wright, J.) of four counts of perjury. Concurrent sentences of two years confinement in the custody of the Division of Corrections were imposed on each count, the execution of the sentences suspended, and the appellant placed on probation. From those judgments she appealed to this Court.
Appellant raises five issues on appeal, as follows:
I. Does Maryland Rule 744 make an unconstitutional distinction by permitting an automatic right of removal in capital cases while requiring the showing that the suggestion of removal is based on reasonable grounds in non-capital cases?
II. Did the trial court abuse its discretion in denying removal in this case?
III. Did the trial court err in denying appellant's Motion for Judgment of Acquittal?
IV. Did the trial court err in refusing to dismiss the third and fourth counts of the indictment on the grounds of duplicity?
V. Did the trial court's instructions to the jury on verdict unanimity constitute plain error?
We shall answer all questions in the negative and affirm the judgments of the trial court.
The four counts of perjury listed in the indictment stem from testimony given by appellant on August 8 and 9, 1979, in an equity action filed against her by the Attorney General of Maryland. 1 The equity trial was the culmination of an investigation of citizen complaints to the Consumer Protection Division of the Attorney General's Office alleging, inter alia, that appellant had collected various sums of money from customers for furniture sold but never delivered and for which those customers were never given refunds. Two of the complaining witnesses in that action were Aubrey Berry and Mabel A. Farber.
Mr. Berry testified at the perjury trial that he had purchased a box spring and a reclining chair from appellant in 1978, for which his wife wrote a check for the full amount of $178.88. He never received either the furniture purchased or a refund from appellant. He had given substantially that Mrs. Farber testified at the perjury trial that she had purchased furniture from appellant in 1978, for which she paid $100.00 in cash and $171.90 by check. She too had received neither furniture nor refund from appellant, and she too had given substantially the same testimony in the equity case.
same testimony before both the Special Master and the Chancellor (Corderman, J.) in the equity trial.
The complete transcript of the equity trial was received in evidence, without objection, in the perjury trial.
Prior to the equity trial, both Berry and Farber had obtained judgments against appellant in the District Court of Maryland for Washington County. Certified copies of those judgments were received in evidence in the perjury trial. The Berry judgment was entered on November 21, 1978, and the Farber judgment was entered on October 13, 1978. Each of those documents shows that appellant was summoned by personal service but failed to appear and copies of both judgments were sent to her by the District Court. Both judgments remained unsatisfied at the time of the equity trial and at the time of the criminal trial.
It was established by Joseph Hamilton, Deputy Clerk of the Circuit Court for Washington County, that he had duly administered the oath to appellant on August 8, 1979, with the usual response.
Lucille Mowen, Court Reporter for Judge Corderman, testified that she had transcribed the proceedings in Equity No. 32,108. She then read into the record the various statements made under oath by appellant which gave rise to the charges of perjury.
The testimony of Mowen and the transcript indicate that when questioned by her own attorney at the equity trial about the refund to Berry, appellant responded, "I did return to him the money on February the 3rd." When questioned by the Assistant Attorney General on cross-examination, appellant similarly responded, "... I sent him a check on February the 3rd...". The Assistant Attorney General again probed this point when he later asked, "And you have sent Mr. Berry a check for $178.88?" Appellant responded After her Motion for Judgment of Acquittal was denied, appellant testified in her own defense. She recalled testifying at the equity trial and stated that she did so to the "best of (her) memory." Appellant testified at the perjury trial "to the best of (her) recollection", she paid both Berry and Farber. She went on to state that she never intended to tell an untruth or to lie. She noted that she had never received the cancelled checks that she said she had sent to Berry and Farber. Before the close of her testimony, she again asserted that she had never told a "wilfull untruth or misrepresentation". On cross-examination, appellant had difficulty remembering the specifics, e.g. account number, etc., of her checking account, but again asserted that she had paid Berry and Farber. Appellant called as defense witness Robert Hyssong, delivery supervisor at the Hagerstown Post Office, to testify about the daily mail flow there and a number of witnesses to testify as to appellant's character.
"Right." When questioned by her own attorney about a refund to Farber, appellant stated, When questioned about the Farber refund on cross-examination, she again replied, "We sent it February the 3rd, too." The State contends that each of appellant's representations made on direct and cross-examination constitutes a separate offense of perjury.
Further facts will be supplied as the need arises.
Appellant first contends that Maryland Rule 744 is unconstitutional in that it draws a distinction between removal in capital and non-capital cases. 2 Appellant argues Judge (later Chief Judge) Gilbert, writing for this Court in Gibson, Tate & Austin v. State, 17 Md.App. 246, 300 A.2d 692 (1973), set forth the rationale for the distinction between the removal provisions when he stated at 257-258:
that the distinction between the automatic removal provision in capital cases and the conditional removal provision in non-capital cases is an unconstitutional deprivation of her right to be tried by an impartial jury. Removal in a non-capital case is conditioned upon a showing that the accused cannot receive a fair trial in that particular jurisdiction. Rule 744 implements the provisions of Article IV, Section 8 of the Constitution of Maryland. That provision has been analyzed by several Maryland cases.
Similarly, Judge Eldridge, writing for the Court of Appeals in Johnson v. State, 271 Md. 189, 315 A.2d 524 (1974), stated, at p. 194, 315 A.2d 524
The rationale set forth above is just as applicable to Rule 744. While some prejudice might be inherent in any capital offense, it is not necessarily present in a non-capital offense. The trial court's function is to examine the accused's suggestion of removal to see whether there are reasonable grounds for it. That Rule 744 grants the judge the power and discretion to do so does not deprive a defendant the right to a trial by an impartial jury.
Appellant next alleges that the trial judge abused his discretion by refusing to grant a change of venue. The record discloses that on June 9, 1980, appellant filed a motion for removal on the basis of pretrial publicity. A hearing on the motion was held on July 15, 1980 before Judge John P. Corderman. Appellant testified she had seen people on the street who had called her a "crook" and that she had received "very nasty" phone calls since the equity trial. Also introduced at the hearing were newspaper articles about the equity trial and subsequent indictment for perjury. Included among the former was an article wherein the presiding judge at the equity trial likened appellant to a "barracuda, lying in waiting (sic) for some poor, unsuspecting fish to swim by and be devoured." He went on to state that "(t) here was testimony from 20 consumers who swam by the door and were so devoured." 3
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