State v. Denisio

• Decision Date: 25 April 1974
• Docket Number: No. 891,891
• Citation: 318 A.2d 559,21 Md.App. 159
• Parties: STATE of Maryland v. Arthur Joseph DENISIO et al.
• Court: Court of Special Appeals of Maryland

Page 159

21 Md.App. 159

318 A.2d 559

STATE of Maryland v. Arthur Joseph DENISIO et al.

No. 891.

Court of Special Appeals of Maryland.

April 25, 1974.

James G. Klair, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty., Charles Ruppersberger and Joseph Laverghetta, Asst. State's Attys., for Baltimore County, on the brief, for appellant.

Russell J. White, Towson, with whom was Robert N. Dugan, Towson, on the brief, for appellees.

Argued before ORTH, C. J., MOORE, J., and HOWARD S. CHASANOW, Associate Judge of the District Court of Maryland for District 8.

ORTH, Chief Judge.

On 25 September 1972 a Commissioner of the District Court of Maryland issued twenty-nine arrest warrants on the sworn application of Corporal Paul A. Gillan of the Maryland State Police, charging divers violations of the gaming and lottery laws and conspiracy to commit them at various times during the period 10 August through 25 September 1972. Eighteen of the warrants commanded the arrest of Arthur Joseph Denisio; seven of them commanded the arrest of Thelma Denisio; four of them commanded the arrest of Albert Carmen Isella, Sr. The warrants were duly executed, and the actions were set for trial in the District Court of Maryland, District No. 8. See Courts and Judicial Proceedings Article (Courts Art.) § 4-301; Code, Art. 27, §§ 38, 240, 362. The accused filed motions to suppress all evidence obtained 'as a result of electronic interception or eavesdropping upon wire or oral communications in which they were participants, or telephone lines in which they had a proprietary or pecuniary interest, and to prohibit the introduction of any of the aforesaid interceptions or any of the fruits thereof, as evidence against them.' They claimed that the communications were unlawfully intercepted, asserting that the order of authorization under the authority of which the interceptions were made was 'insufficient on its face', and that, in any event, the interceptions were not made in conformity with the order.

The motions to suppress were heard on 13 March 1973 as a matter preliminary to trial. Disposition was held sub curia. On 7 June the motions were again argued, and disposition was again held in abeyance. On 21 June the District Court judge informed counsel by letter that he was granting the motions to suppress the evidence. On 3 July the State requested the court to reconsider its decision, noting that it had no evidence other than that obtained by the wiretaps. The matter was reargued on 28 September and the court indicated that its grant of the motion would stand. On 25 October the State filed a 'Petition to Dismiss Statement of Charges'. Feeling that the determination to suppress the evidence involved 'an area of extreme import and the controversy should not be left unresolved at the District Court level' and alleging that a unique point of law' was involved, representing 'a case of first impression in Maryland and must be settled and laid to rest by our appellate courts to avoid future conflicts such as the one presented to (the District Court)' and claiming that appellate consideration would benefit and aid 'the various law enforcement agencies in the State of Maryland', directing them 'to correct procedures', if the ruling was affirmed, the State requested the court to dismiss the arrest warrants because such action was 'the only procedural avenue in which the State would be able to take a proper appeal . . ..' ¹ By order of 9 November 1973 the District Court, affirming its grant of the motion to suppress the evidence, dismissed 'all charges and counts' against each of the accused. On 7 December 1973 the State noted an appeal to the Court of Special Appeals of Maryland. ² On 8 February 1974 appellees moved to dismiss the appeal and the State answered on 22 February. Briefs were submitted and the matter argued on 29 March pursuant to an order of this Court of 28 February.

Despite the overwhelming desirability of appellate review in the circumstances, not only with respect to the instant case, but for the future guidance of the lower courts and enforcement authorities, the propriety of the ruling of the District Court may not be scrutinized by the appellate courts of this State. The appellate jurisdiction of this Court is statutory, and the appeal sought here has no statutory authority.

The desperate attempts by the State to preserve the matter for appeal would have been obviated initially had the Maryland District Rules been observed. M.D.Rule 725 b provides: 'A motion before trial raising defenses or objections shall be determined at the trial of the general issue.' We deem this to be mandatory, prohibiting the determination of motions raising defenses and objections preliminary to the trial on the general issue. Our view is supported by the language of the Rule ³, by the general purposes of and the more abbreviated procedures provided for the District Court, and by the absence of Maryland District rules containing provisions comparable to those in Maryland Rules 725 d and 729. ⁴ Had the motion to suppress been determined at the trial of the general issue, the grant of it, resulting in the exclusion of the only evidence which, apparently, was available to the State to prove the charges, would have led inevitably to verdicts of acquittal, proscribing an appeal by the State in any event, and barring, under the constitutional prohibition against double jeopardy, another trial on the charges.

The prohibition against an appeal by the State in the circumstances here, however, is even more fundamental. As we have indicated, there is simply no authority for it, and this Court is without jurisdiction to entertain it. The State is given no right of appeal whatsoever from a decision of the District Court in the exercise of its jurisdiction in a criminal cause.

Title 12 of the Courts and Judicial Proceedings Article ⁵ dealing with appeals, certiorari, and certification of questions, carefully distinguishes between review of decisions of trial courts of general jurisdiction, which it places under subtitle 3, and review of decisions of the District Court, which it places under subtitle 4. There is no question but that the provisions of subtitle 3 apply only to trial courts of general jurisdiction, and that the provisions of subtitle 4 apply only to the District Court. Generally, only a defendant may appeal from judgment entered in a criminal case by a circuit court, ⁶ and only when the judgment is a final one, Courts Art. § 12-301. There is one exception to this general rule concerning a circuit court, and it is expressly limited. Courts Art. § 12-302(c) provides: 'In a criminal case, the state may appeal only from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition in a criminal case.' No such exception appears in subtitle 4 with respect to the District Court. Courts Art. § 12-401 makes clear at the onset that, although a party may appeal in a civil case, it is 'the defendant in a criminal case' who may appeal from a final judgment entered in ...