Wiseman v. State, 162

• Decision Date: 13 October 1987
• Docket Number: No. 162,162
• Citation: 531 A.2d 1311,72 Md.App. 605
• Parties: Mary Ellen WISEMAN v. STATE of Maryland. Sept. Term 1987.
• Court: Court of Special Appeals of Maryland

Page 605

72 Md.App. 605

531 A.2d 1311

Mary Ellen WISEMAN v. STATE of Maryland.

No. 162 Sept. Term 1987.

Court of Special Appeals of Maryland.

Oct. 13, 1987.

Michael R. Malloy, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

John S. Bainbridge, Jr., Asst. Atty. Gen., Baltimore (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Alexander Williams, Jr., State's Atty. for Prince George's County and Jay H. Creech, Asst. State's Atty. for Prince George's County, on brief, Upper Marlboro), for appellee.

Submitted before WILNER, KARWACKI and ROBERT M. BELL, JJ.

WILNER, Judge.

In Smith v. State, 64 Md.App. 625, 498 A.2d 284 (1985), a defendant was accused of violating the terms of her probation, in part by failing to report regularly to her probation agent as required. When arrested on that charge, she called the judge and explained to his law clerk that her failure to report was due to health problems--bleeding--connected with her pregnancy. Apparently skeptical, the judge had his clerk make an independent investigation of the matter.

When the case came on for hearing, the defendant again claimed, in testimony, that her failure to report was due to her medical condition. The State did not rebut that testimony, though afforded an opportunity to do so. Instead, on his own initiative, though without objection by the defendant, the judge called his law clerk to testify. "Recounting hearsay and sometimes double hearsay ... the clerk in substance said that Smith had not had bleeding problems connected with her pregnancy, and that the problems she had had were related to heroin abuse." Id., 629, 498 A.2d 284. Summarily denying the defendant's request to rebut that testimony, the judge expressed his disbelief of her defense and revoked her probation.

We reversed, and we did so in no uncertain terms. Responding first to the State's argument of non-preservation, we observed, at 632, 498 A.2d 284, that:

"In the final analysis, the question of whether to review an issue not raised and decided below is discretionary with the appellate court.... The Court of Appeals has observed that this discretion should be exercised in favor of review when the 'unobjected to error [is] compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.' .... We hold that this is such a case. For reasons we shall now discuss, Smith was denied the right to have her guilt or innocence of probation violation decided by an impartial tribunal. That right was fundamental to assure her a fair trial and its denial as shown by the record, was both extraordinary and exceptional."

Expounding further on the merits, we held, at 634:

"The effect of the communication here was egregious. It turned the judge from an impartial arbiter, bound to decide the case on the facts presented in open court, into an investigator for the prosecution. In short, our adversarial system was abandoned in favor of an inquisitorial one. The judge took it upon himself, through his clerk, to unearth information about a case he was to try. This eliminated any vestige of impartiality."

Smith was decided in October, 1985.

On April 23, 1986, appellant Mary Ellen Wiseman, who apparently had a history of alcohol abuse and driving while intoxicated, appeared in the Circuit Court for Prince George's County and pled guilty to one count of driving while intoxicated. She was sentenced to one year in prison, all but 26 days of which was suspended in favor of three years probation. In addition to the normal conditions attached to probation, including working regularly, Ms. Wiseman was obliged to complete a program at Jude House. She completed that program in August; indeed, her counselor wrote a glowing report of her progress, stating that she had been an exemplary role model for other clients and indicating that, with continued attendance at AA meetings, her prognosis for recovery from alcoholism was very good.

By October, Ms. Wiseman apparently lapsed into some bad habits, at least in the mind of her probation agent. In a letter to the court of October 27, 1986, the agent complained of a "negative attitude" on Ms. Wiseman's part, cited several incidents where the agent suspected that she had been drinking, and expressed his belief that Ms. Wiseman was in violation of her probation. That led to a hearing of some sort on December 31, 1986. A transcript of that proceeding is not in the record before us, and so we do not know what, if any, evidence was presented regarding Ms. Wiseman's compliance or noncompliance with the conditions of her probation. It appears that the court came to no final decision at that time but instead continued the case until January 21, 1987, and directed the probation agent to verify Ms. Wiseman's employment. We presume from what followed that the court was on the verge of revoking the probation but was reluctant to incarcerate Ms. Wiseman if, in fact, she was gainfully employed.

When Ms. Wiseman returned...