State of Md. Deposit Ins. Fund Corp. v. Billman

• Decision Date: 17 October 1990
• Docket Number: No. 143,143
• Citation: 580 A.2d 1044,321 Md. 3
• Parties: STATE OF MARYLAND DEPOSIT INSURANCE FUND CORPORATION et al. v. Tom J. BILLMAN et al. Sept. Term 1989.
• Court: Maryland Court of Appeals

Page 3

321 Md. 3

580 A.2d 1044

STATE OF MARYLAND DEPOSIT INSURANCE FUND CORPORATION et al. v. Tom J. BILLMAN et al.

No. 143 Sept. Term 1989.

Court of Appeals of Maryland.

Oct. 17, 1990.

Neil J. Dilloff (Jonathan D. Smith, Kathleen A. Ellis, Timothy U. Sharpe, Piper & Marbury, J. Joseph Curran, Jr., Atty. Gen., Dennis M. Sweeney, Deputy Atty. Gen., all on brief), Baltimore, for petitioners.

John R. Fornaciari (Robert M. Disch, Eckert, Seamans, Cherin & Mellott, all on brief), Washington, D.C., for respondents.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS ^* and CHASANOW, JJ.

RODOWSKY, Judge.

In this case of corporate fiduciary disloyalty we examine, against the background of an original record that fills a van, whether prejudice resulted from jury access to, and presumed consideration of, certain documents not in evidence.

Petitioner, State of Maryland Deposit Insurance Fund Corporation (MDIF), prosecutes this action as receiver of Community Savings & Loan, Inc. (CSL), a Maryland chartered, capital stock savings and loan corporation. ¹ The action seeks money damages for breaches of the duties of loyalty and care owed to CSL, one of a galaxy of corporations and limited partnerships associated with Equity Programs Investment Corporation (EPIC). As this case comes to us, the roster of defendants contesting MDIF's claims has been reduced to the respondents, Tom J. Billman (Billman) and Crysopt Corporation (Crysopt). Billman was the founder of EPIC and a controlling principal in the EPIC group. Crysopt is a holding company wholly owned by Billman.

MDIF obtained a judgment on a jury verdict against Billman in excess of $112 million in compensatory damages. The jury found Crysopt jointly and severally liable with Billman for approximately $94 million of that amount.

This case was tried for sixty-nine days between May 18, 1988, when the jury was sworn, and October 6, 1988, when the jury returned its verdict on the sixth day of its deliberations. On October 5, after the jury had separated for the evening, a courtroom clerk found a box containing eighty-seven unadmitted documents in the jury room. Prior to trial these documents, along with all other potential documentary evidence, had been listed as possible exhibits by one or more parties and had been prenumbered with exhibit sticker labels. The vast majority of the eighty-seven unadmitted documents had been identified at trial, but had not been formally admitted into evidence. This was either because counsel did not formally offer an identified document or because an objection was sustained at the stage of the trial when the document was offered. Of these eighty-seven documents, twenty had been prenumbered by MDIF and sixty-seven by defendants. When the jury commenced deliberations these eighty-seven documents had been delivered into the jury room along with the 1,138 exhibits which had been admitted into evidence. The trial court denied respondents' motions for a mistrial and received the jury's verdict on compensatory damages.

On December 21, 1988, a United States magistrate in the District of Maryland, acting on the sworn complaint of a United States postal inspector, issued a warrant for Billman's arrest on mail fraud and related charges pursuant to 18 U.S.C. §§ 1341, 1343 (1984 & Supp.1990) and 2314 (1970 & Supp.1990), all arising out of Billman's activities in connection with the EPIC group. Issuance of that warrant, however, was kept secret until June 23, 1989. The Government has never been able to serve the warrant. Information obtained by the Government, including that derived from telephone wiretaps, demonstrated that Billman was no longer in the United States. On December 1, 1989, respondents, among others, were federally indicted on the same charges. Crysopt appeared through counsel. Billman has not appeared.

Shortly after return of the verdict, MDIF began efforts to collect the "judgment," and, continuously thereafter, it has vigorously pursued that objective. These efforts included court orders, served on Billman's counsel, for Billman's appearance on at least two separate occasions for examination in aid of execution. Billman never appeared, and the circuit court twice found respondents in contempt. Through their counsel respondents have countered MDIF's collection efforts with motions, appeals and successful applications for stays pending appeal.

Eventually, final judgment was entered in this case, and an appeal was perfected to the Court of Special Appeals. That court reversed and remanded for a new trial. Billman v. State of Maryland Deposit Ins. Fund Corp., 80 Md.App. 333, 563 A.2d 1110 (1989).

MDIF moved that respondents' appeals be dismissed, contending that the intermediate appellate court should not entertain a fugitive's appeal from a civil judgment which was based upon the same course of conduct that had given rise to the criminal charges. The Court of Special Appeals acknowledged that it had applied this " 'Fugitive Appeal Doctrine' " in some unreported decisions dismissing appeals in criminal cases, id. at 345, 563 A.2d at 1116, but the court declined, absent any decision from this Court, to extend the doctrine to the facts here. MDIF also argued that respondents' appeal should be dismissed because of their repeated failure to comply with direct orders of the circuit court relating to discovery in aid of execution. Viewing the latter contention as one addressed to its discretion, and noting the lack of personal service on Billman, the Court of Special Appeals declined to dismiss. Id. at 346, 563 A.2d at 1117.

Respondents raised multiple issues in the Court of Special Appeals, but that court found it necessary to address only the trial court's denial of respondents' motion for mistrial. The Court of Special Appeals held "that whenever materials, documents, or matters not in evidence are, nevertheless, present in the jury room and examined by the jury, prejudice to the parties is presumed. The failure of the trial judge to declare a mistrial in the instant case constitutes reversible error." Id. at 345, 563 A.2d at 1116.

On MDIF's petition we issued the writ of certiorari to review the intermediate appellate court's denial of MDIF's motion to dismiss the appeal and the reversal of the circuit court's denial of respondents' motion for mistrial.

We shall state additional facts throughout this opinion to the extent necessary to explain the resolution of the issue under consideration.

I

Although this Court has never previously had occasion to consider the "Fugitive Appeal Doctrine," it is widely recognized that an appellate court may dismiss the direct appeal from a criminal conviction brought on behalf of one who is a fugitive at the time of dismissal. At one time the Supreme Court of the United States removed fugitive cases from its active docket, and they remained in a procedural limbo until further order. See Eisler v. United States, 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897 (1949); Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854 (1887); Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876). Now the Court dismisses cases involving fugitive parties. See Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); Eisler v. United States, 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542 (1949) (per curiam) (memorandum decision). The Court has also sustained, against an equal protection challenge, the dismissal, authorized by a Texas statute, of the direct criminal appeal of a prisoner who had escaped but who was reapprehended two days later. See Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (per curiam), reh'g denied, 421 U.S. 921, 95 S.Ct. 1589, 43 L.Ed.2d 790 (1975). ²

There is considerable state authority supporting dismissal of a direct criminal appeal brought on behalf of a fugitive. See Ex parte Subel, 541 So.2d 15, 16 (Ala.1989); People v. Anderson, 39 Colo.App. 497, 498, 566 P.2d 1369, 1369 (1977); State v. Leslie, 166 Conn. 393, 394, 349 A.2d 843, 844 (1974); Redden v. State, 418 A.2d 996, 997 (Del.1980); Jones v. State, 362 So.2d 149, 149 (Fla.Dist.Ct.App.1978); Yates v. Brown, 235 Ga. 391, 392, 219 S.E.2d 729, 731 (1975) (per curiam); Evolga v. State, 519 N.E.2d 532, 534 (Ind.1988); Weser v. State, 224 Kan. 272, 273, 579 P.2d 1214, 1215 (1978); Harris v. Commonwealth, 311 Ky. 429, 429, 224 S.W.2d 427, 427-28 (1949); Commonwealth v. Simon, 391 Mass. 1010, 1010, 461 N.E.2d 758, 759 (1984); Wheeler v. State, 249 So.2d 652, 652 (Miss.1971); Stradford v. State, 787 S.W.2d 832, 833 (Mo.App.1990); Arvey v. State, 94 Nev. 566, 567, 583 P.2d 1086, 1087 (1978); State v. Rogers, 90 N.J. 187, 189, 447 A.2d 537, 539 (1982); People v. Parmaklidis, 38 N.Y.2d 1005, 1005, 348 N.E.2d 918, 918, 384 N.Y.S.2d 442, 442 (1976); Prock v. State, 569 P.2d 473, 474 (Okla.Crim.App.1977); Commonwealth v. Passaro, 504 Pa. 611, 615, 476 A.2d 346, 348 (1984); Lamb v. State, 293 S.C. 174, 175, 359 S.E.2d 282, 283 (1987) (per curiam); Bradford v. State, 184 Tenn. 694, 699, 202 S.W.2d 647, 649 (1947); Ex parte Reid, 581 S.W.2d 686, 689 (Tex.Crim.App.1979); Hardy v. Morris, 636 P.2d 473, 474 (Utah 1981); State v. Bono, 103 Wis.2d 654, 655, 309 N.W.2d 400, 400 (1981).

There have been dismissals of direct criminal appeals by persons who had escaped, and been recaptured before final judgment was entered, and thus were in custody throughout the pendency of their appeals. See United States v. London, 723 F.2d 1538 (11th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2684, 81 L.Ed.2d 878 (1984) (escape and recapture during trial); United States v. Holmes, 680 F.2d 1372 (11th Cir.1982) (per curiam), cert. denied, 460 U.S. 1015, 103 S.Ct. 1259, 75 L.Ed.2d 486 (1983) (escape and recapture after finding of guilty and before sentence). On the other hand, direct criminal appeals have been allowed where the convicted person who fled after verdict and before sentence had been a...