Spencer v. State

• Decision Date: 01 September 1987
• Docket Number: No. 1406,1406
• Citation: 543 A.2d 851,76 Md.App. 71
• Parties: David Wayne SPENCER v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 71

76 Md.App. 71

543 A.2d 851

David Wayne SPENCER v. STATE of Maryland.

No. 1406, Sept. Term, 1987.

Court of Special Appeals of Maryland.

July 11, 1988.

Laurie R. Gitajn, Assigned Public Defender, Rockville (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Christian J. Jensen, State's Atty. for Caroline County, Denton, on the brief), for appellee.

Argued before BISHOP, ALPERT, and ROBERT M. BELL, JJ.

ALPERT, Judge.

David Wayne Spencer, the appellant herein, was a driver for Williams' Refrigerated Southern Cold Storage (Williams). On September 5, 1985, Williams received 75 cases of frozen lobster tails. Williams was to hold the lobsters in refrigerated compartments for one week until a truck came to transport them to Michigan. The last time anyone remembered seeing the lobsters was on September 11. On September 12 someone at Williams discovered that the lobsters were missing. Evidence at trial showed that appellant, another man named Ben Holden, and numerous other employees worked in the warehouse area around the time the lobsters must have been stolen.

Witnesses presented the following circumstantial evidence to tie appellant to the theft. A former employee of the company testified that on September 16 he observed appellant and Ben Holden drive by his house, toward Denton, in a black El Camino with a U-Haul trailer attached. An employee of a U-Haul rental company in Denton testified that his company rented to appellant a U-Haul which appellant attached to a black Ford (that the employee thought was a Ranchero). A police officer testified that he examined a U-Haul rental agreement which contained David Spencer's name and driver's license number. Two employees of a dry ice company in Seaford, Delaware testified that appellant and another man bought dry ice to put in a U-Haul trailer. The witnesses said that the men had offered to sell them lobster. One of the men testified that he observed boxes in the trailer marked "Rock lobster tails." The witnesses also testified that the boxes in the trailer looked similar to boxes of lobster tails in a photograph that was shown to him on the witness stand. The photograph depicted boxes of lobster tails that came from the same company that had originally sent the lobster tails and that purported to be from the same lot number.

A search of the U-Haul trailer that was believed to be the one appellant rented revealed black strapping material that was similar in appearance to the strapping material that was wrapped around the sample boxes. The defense presented evidence from F.B.I. investigators, however, that there were significant differences in the composition, manufacturing process, and the tool marks, between the straps that were found in the U-Haul and the straps on the sample boxes.

A jury in the Circuit Court for Caroline County found appellant guilty of grand theft. He was sentenced to five years in the Maryland Division of Correction, with a recommendation that restitution be a condition of any parole.

Appellant then filed this appeal and raises the following questions for our review:

I. Did the trial court deny Appellant a fair trial by accusing Appellant's counsel of "sandbagging" in front of the jury, demanding that she provide an explanation to the jurors, and by recalling a State's witness as a court's witness sua sponte in connection with the accusation?

II. Did the court err in failing to grant Appellant's Motion for Judgment of Acquittal because the State failed to prove venue in Caroline County and jurisdiction in the State of Maryland?

III. Did the court err in instructing the the jury that "the defendant has the burden of giving a reasonable explanation of how the goods came into his possession"?

Because the trial judge's admonishment of defense counsel deprived appellant of his right to a fair trial, we shall reverse and remand for a new trial. We shall, however, also address appellant's second and third assignments of error for they may resurface at trial on remand.

I.

The State attempted to prove that appellant rented a U-Haul trailer from a business in Denton called "Good Ones." A trooper was permitted to testify over objection that he examined a rental receipt from Good Ones and that the receipt showed that David Spencer, the appellant, had rented a trailer from Good Ones. When the defense objected, the State and the judge immediately assumed that the defense was raising a Best Evidence objection. The State then proffered that the officer's recollection was the best evidence because "the records don't exist." The court then overruled the objection because "the State's Attorney has assured me, the original piece of paper, or copies of it are not available." Defense counsel then asked to approach the bench, and the request was immediately denied. Appellant's attorney then said: "Your Honor, even if it were available, it's not a business record ... nobody has testified about any records that were kept.... Mr. Lowell Goodman is the one who rented it, and there's nobody to testify as to who was there and who filled it out." (Emphasis added.) Thus, counsel was contending that the State had to establish that the records from which the trooper took notes were kept in the ordinary course of business before he could testify as to what he read in the records. The judge, incorrectly we believe, overruled her objection. In any event, the trooper testified that David Spencer rented the trailer.

On cross-examination of the trooper, the defense produced a carbon copy of the rental receipt that appellant's counsel, at oral argument, stated was received by trial counsel sometime during the trooper's testimony. ¹ When counsel moved for admission of the rental agreement, the State objected and the court sustained the objection. The following colloquy then occurred between defense counsel and the judge:

[Defense Counsel]: We've heard a lot of talk about the best evidence Your Honor, and there it is.

THE COURT: Well, but [Defense Counsel], in all fairness ... why didn't you give Mr. Towers [who worked for Good Ones and was sometimes responsible for renting U-Haul trailers to customers] that and ask him if he could identify it, if that's what it was supposed to be ... I mean ... the witness is gone now, we could have all asked him this if we had it ... he was the one that could say, "No, that's ..."

[Defense Counsel]: I'm sure the Court does not mean to criticize my trial tactics in front of the jury.

THE COURT: I do. I think you sat there and sandbagged us to be frank about it, and I think the jury and I are entitled to know why.

[Defense Counsel]: May we approach the bench?

THE COURT: No ... obviously you can't introduce it through him, he can't identify it, but the person who could ... but if you want it in evidence, he objects ... I'll summons Mr. Towers back here today or tomorrow, and we'll put it in evidence through a person who can. Is that your problem ... that this witness [Asst. State's Att'y]: Certainly for today, and right now, Your Honor, certainly my problem is that it can't go through.

THE COURT: Well for whatever it's worth, I think the jury should see it, and you can't introduce it through a person who can't authenticate it, or identify it ... Mr. Towers could and he was here, and he could still be here ... he lives around Denton somewhere doesn't he? All right, we'll get him back in then ... so for present that's there, your objection is sustained, and I'll come back to it.

[Asst. State's Atty']: Thank you.

[Defense Counsel]: May we approach the bench?

THE COURT: No, but you can answer my question if you want ... otherwise, we'll just leave it there.

[Defense Counsel]: I would move for a mistrial Your Honor.

THE COURT: Denied ... next question.

[Defense Counsel]: I have no other questions.

A trial judge's position in the judicial process requires him or her to perform many functions. He must act upon objections, instruct the jury, insure that the trial is conducted in an orderly way and, in general, make sure that justice is done. See United States v. Hickman, 592 F.2d 931, 933 (6th Cir.1979). He must, however, discharge his duties in a "calmly judicial, dispassionate and impartial" manner. Id., citing Frantz v. United States, 62 F.2d 737, 739 (6th Cir.1933). This is imperative in order to protect the defendant's right to a fair trial inasmuch as the judge's position as the presiding judge gives him tremendous influence over the jury. Id.

It is, however, often difficult to second-guess the actions of a trial judge. As the Second Circuit noted in United States v. Weiss:

Judges, while expected to possess more than the average amount of self-restraint, are still only human. They do not possess limitless ability, once passion is aroused, to resist provocation.

491 F.2d 460, 468 (2d Cir.1974), U.S. cert. denied, 419 U.S. 833, 95 S.Ct. 58, 42 L.Ed.2d 59 (1974). Thus, courts have generally held that "misconduct by defense counsel may properly be taken into account ... in determining whether a defendant was prejudiced by the judge's response." United States v. Robinson, 635 F.2d 981, 985 (2d Cir.1980), U.S. cert. denied, 451 U.S. 992, 101 S.Ct. 2333, 68 L.Ed.2d 852 (1981). See also United States v. Pisani, 773 F.2d 397 (2d Cir.1985); United States v. Beaty, 722 F.2d 1090, 1093 (3d Cir.1983).

The question which we must answer, then, is whether, under the totality of the circumstances, the judge's behavior was "so prejudicial as to deprive defendant ... of a fair, as opposed to a perfect trial." See Beaty, 722 F.2d at 1093. As the Court of Appeals of this State explained in Bryant v. State, 207 Md. 565, 115 A.2d 502 (1955):

Unless there is some clear showing that the judge's statements influenced the jury against the defendant, the mere fact that the trial was conducted in an impatient and brusque way does not justify...