Terrell v. State

• Decision Date: 04 January 1977
• Docket Number: No. 359,359
• Citation: 367 A.2d 95,34 Md.App. 418
• Parties: Iris Octava TERRELL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 418

34 Md.App. 418

367 A.2d 95

Iris Octava TERRELL v. STATE of Maryland.

No. 359.

Court of Special Appeals of Maryland.

Jan. 4, 1977.

Harriette Cohen, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Deborah K. Handel, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County, and William B. Spellbring, Jr., Asst. State's Atty. for Prince George's County, on the brief, for appellee.

Argued before MENCHINE, MASON and LISS, JJ.

LISS, Judge.

Iris Octava Terrell, the appellant herein, was indicted with Earl Hargrove, Ernest Bright and James Williams as a participant in a conspiracy which resulted in the murder of her husband, Willie Clyde Terrell. The first three counts of the indictment charged only the three men with murder, carrying a handgun and the use of a handgun in a crime of violence. The fourth count charged the appellant and the other three defendants with conspiring to murder Willie Clyde Terrell, and the fifth and sixth counts charged her with being an accessory before and after the fact to the murder of her husband who had died after receiving eleven gunshot wounds to various parts of his body. After some extended legal maneuvering the three men were called to trial. Bright and Williams withdrew the not guilty pleas previously filed by them and entered pleas of guilty to second degree murder; Hargrove withdrew his not guilty plea and entered a plea of guilty to first degree murder. The pleas were accepted; and after pre-sentence reports were obtained and evaluated by the trial court, sentences were imposed. After the imposition of the sentences the State entered nolle prosequis as to each of these defendants in the remaining counts of the indictment charging them with conspiracy to murder and the weapons charges.

The appellant was thereafter called to trial before a jury (Mathias, R. B., Judge, presiding) in the Circuit Court for Prince George's County. During the course of the trial Bright and Hargrove, appellant's alleged co-conspirators, testified as to conversations implicating her in a conspiracy to kill her husband. In addition, a witness, Morrisey, testified as to an alleged offer by the accused to pay him a certain sum of money if he would assist in killing her husband. The jury convicted the appellant of conspiracy to murder and of being an accessory before the fact. Sentence was imposed as to each conviction, and it is from these judgments that this appeal was filed.

The appellant offers four grounds upon which she rests her contention that the convictions against her should be reversed. The first contention is that the trial court erred in failing to rule on appellant's motion to dismiss the indictment against her until after the conclusion of trial. The appellant filed her motion to dismiss five days prior to trial. A hearing on the motion was held after the selection of a jury, but before the jury was sworn. At the conclusion of the hearing the trial judge announced that he was reserving his ruling on the motion. Our reading of the record makes it clear that the court intended to deny the motion, and that the purpose of the reservation of the ruling was to prevent an immediate appeal from the court's decision thereby aborting the trial. That this was the purpose of the legal shadowboxing is evidenced by the fact that counsel objected to the court's reservation of its ruling and moved the court for an immediate ruling on its objection. The trial judge responding, feint for feint, reserved ruling on that motion as well. The appellant renewed her motion to dismiss at the conclusion of the State's case and again at the conclusion of all the evidence. In denying the motions, the trial court indicated that it had earlier denied the same contentions stating, 'The (c)ourt previously had ruled on that in the motion to dismiss, and the motion requiring the (c)ourt to rule on the motion to dismiss, two motions.' It was not, however, until after the trial was concluded and sentence had been imposed that the trial judge caused the denial of the motions to be recorded in the docket entries. The appellant contends that this belated final ruling was tantamount to no ruling at all. We disagree.

This Court has recognized the dangers of piecemeal appellate review and has held that ruling on a motion to dismiss, in the exercise of the trial court's discretion, may be deferred for determination until the trial of the general issue, and that no appeal will lie except in those cases where the trial court denies an absolute constitutional right.

Maryland Rule 725 d expressly provides that a motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. We have held that no appeal lies from the exercise of the trial court's judgment in deferring a ruling on pretrial motions until the trial on the merits. Taylor v. State, 22 Md.App. 370, 323 A.2d 648 (1974); See also Neal v. State, 272 Md. 323, 322 A.2d 887 (1974); Pearlman v. State, 266 Md. 67, 172 A.2d 395 (1961); Harris v. State, 6 Md.App. 7, 249 A.2d 723 (1969), cert. denied, 255 Md. 741 (1969); Greathouse v. State, 5 Md.App. 675, 249 A.2d 207 (1969).

In Gordon v. State, 14 Md.App. 245, 286 A.2d 833 (1972), we had before us a similar set of facts. In that case the trial court, according to the docket entries, entered its verdict of guilty and then ruled on the defendant's motion to dismiss. We said at page 249, 286 A.2d at 837:

'(H)e points out, the general motion was not determined at the trial of the general issue as the Rule provides, but after the trial on the general issue. This, he argues, was not in accordance with the Rule and he claims the proper sanction for the violation is a reversal of the judgment. We do not see it that way. Assuming that the docket entries record the proceedings in the order of their occurrence, there was no ruling on the motion until after the verdict and the 'trial' had ended. The lower court was wrong in not announcing its determination of the motion during the trial of the general issue. However, Rule 725 provides no sanction for its violation.' (Footnote omitted).

We distinguish Gordon, supra, from Brice v. State, 254 Md. 655, 255 A.2d 28 (1969), and Saunders v. State, 8 Md.App. 143, 258 A.2d 776 (1969), where it was held that in the absence of waiver the failure to rule on a pretrial motion was error requiring reversal.

We find no prejudice from the late ruling in this case and therefore no merit to appellant's contention.

As her second assignment of error the appellant contends that the trial court should have granted appellant's motion to dismiss the conspiracy indictment against her because the entry of nolle prosequis on the conspiracy charges against all of her alleged co-conspirators mandated the dismissal of the conspiracy charge against her. It is, of course, true that the crime of conspiracy cannot be committed by one person alone. The gravamen of the crime is the unlawful agreement between two or more persons. This does not mean, however, that more than one conspirator must be convicted or prosecuted. Hurwitz v. State, 200 Md. 578, 92 A.2d 575 (1952). It is only essential to show that at least two persons had a meeting of the minds-a unity of design and purpose-to accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means, Wilson v. State, 8 Md.App. 653, 262 A.2d 91 (1970).

In Regle v. State, 9 Md.App. 346, 264 A.2d 119 (1970), we said at page 351, 264 A.2d at page 122;

'(I)t is the well settled general rule that one defendant in a prosecution for conspiracy cannot be convicted where all of his alleged co-conspirators, be they one or more, have been acquitted or discharged under circumstances that amount to an acquittal. Hocheimer on Criminal Law (Second Edition) Section 290; Clark and Marshall, Section 9.07; Wharton's, Section 91; Perkins, p. 533. The validity of the general rule has been consistently recognized by the Court of Appeals. See State v. Buchanan, 5 H & J 317; Bloomer v. State, (48 Md. 251); Hurwitz v. State, 200 Md. 578, 92 A.2d 575.'

The issue then is whether, under the existing factual situation, all of the appellant's co-conspirators have been either acquitted or, in the alternative, discharged under circumstances which amount to an acquittal. The appellant urges that the acceptance of the guilty pleas to murder and the subsequent entry of nolle prosequis as to all of the remaining counts of the indictment charging the conspiracy as to all the co-conspirators, except the appellant, precluded her prosecution for the alleged conspiracy.

The Court of Appeals in Blondes v. State, 273 Md. 435, 443, 330 A.2d 169, 173 (1975), in reversing this Court ¹ stated the common law principle to be 'that the entry of a nolle prosequi, without the defendant's consent, and after jeopardy has attached, operates as an acquittal and precludes further prosecution for the same offense.' (Citations omitted; emphasis supplied). The Court continued 'where a nolle prosequi is entered before jeopardy attaches, the State is only precluded from prosecuting the defendant further under that indictment, but the defendant may be proceeded against for the same offense by another indictment or information.' (Citations omitted).

In Regle v. State, supra, 9 Md.App. at pages 352-353, 264 A.2d at page 123, we stated the law to be as follows:

'(W)hile the cases are generally divided on the question whether the entry of a nolle prosequi as to one of two alleged conspirators compels an acquittal of the remaining conspirator, the better reasoned view would appear to support the proposition that it does not, at least where the nolle prosequi was not entered without the co-conspirator's consent after the trial had begun (which then would...