Baumgartner v. State

Lowe, J., delivered the opinion of the Court. Richard O. Baumgartner is the Sheriff of Frederick County. On July 6, 1973 he was convicted by a jury in the Circuit Court for Montgomery County of false pretenses, embezzlement and malfeasance in office. Judge Joseph M. Mathias imposed two concurrent two-year sentences for false pretenses and embezzlement and a sentence of twenty-five days in jail or a fine of $250 for malfeasance in office.

The sentences for false pretenses and embezzlement ²⁵³ were suspended upon eighteen months probation and restitution of funds to the County. Appellant submits eight assignments of error. The first two are interrelated and will be treated together, as will the third, fourth and sixth for the same reason. I and II JOINDER OF OFFENSES “The trial judge abused his discretion in refusing to order an election or separate trial of the alleged offenses.” “The joinder and trial of 32 counts in this case prejudiced and improperly limited the appellant’s Constitutional Rights.” The grand jury presentment contained thirty-two counts charging Sheriff Baumgartner with offenses committed from the time he took office in December, 1970 until June of 1972.

Judge Mathias denied a defense motion for an order requiring separate trials of the various counts or an election among them by the prosecution. During trial, Judge Mathias granted a motion for judgment of acquittal as to fourteen counts. The jury acquitted appellant of fifteen others and convicted him of three. Appellant contends that the court abused its discretion in refusing to order separate trials as to all counts or to compel the State to elect among them.

The gist of appellant’s argument appears to be that it is never proper to permit the joinder of offenses unless all of the offenses involve substantially the same facts, form part of the same transaction, and occur during a brief space of time. Md. Rule 716 a permits the joinder of two or more offenses in one indictment. To protect the legitimate interests of both sides, however, Md. Rule 735 provides that the court “ .. . may order an election or separate trials of counts ... or provide such other relief justice requires.” Whether or not to order separate trials is a matter within the sound discretion of the trial court. Jennings v. State, 8 Md. App. 312, 315 . ²⁵⁴ In his June 21, 1973 Memorandum Opinion and Order refusing to order separate trials, or a prosecutorial election, Judge Mathias found that the defendant would not be prejudiced by a joint trial, whereas it “would impose an unconscionable burden on the State and result in an unnecessary expenditure of money to try the defendant separately on these counts.” He ruled that the defendant would not be prejudiced because all the offenses charged were similar or related and all grew out of the defendant’s conduct as Sheriff of Frederick County.

We find no abuse of discretion in this ruling. The thirty-two counts of the presentment charged Sheriff Baumgartner with a series of acts, dating from his assumption of office, which taken together showed a common design to defraud the County or certain individuáis of money, services, or property and in so doing to misuse the trust reposed in him by reason of his office. He was accused of defrauding the Frederick County Commissioners between December, 1970 and June, 1972 by 1) misrepresenting personal telephone calls as official calls (Count 1); 2) purchasing beef steaks charged to the jail, but submitting bills indicating the purchase of stewing beef (Counts 2, 3, 4, 26, 27); 3) working, and assigning his deputies to work, during normal hours for private concerns for compensation, while submitting regular forty-hour and overtime pay vouchers (Counts 5, 6, 7, 8, 9, 10, 11, 12, 28, 29, 30, 31); 4) selling goods charged to the County to his deputies and one other individual, but failing to turn over the proceeds of these sales to the County (Counts 13, 14, 15); and 5) receiving compensation for transporting uniforms from Harrisburg, Pennsylvania to Frederick County in his official vehicle but failing to account for or turn over these monies to the County (Counts 16, 32). He was also charged with embezzling funds belonging to five individuals which he obtained at sheriff’s sales for which he collected unauthorized auction fees (Counts 17, 18, 19, 20, 21, 23, 24, 25).

Finally he was charged with permitting a prisoner to leave his custody without supervision for the purpose, among others, of painting the Sheriff’s house for which work the prisoner received no compensation. All but six charges ²⁵⁵ accuse the defendant of embezzling or obtaining funds by false pretenses from the same victim, the Frederick County Commissioners. Five of the remaining counts charge him with embezzlement by withholding from five individuals funds belonging to them which came into his possession by reason of his office. The final count alleges similar misconduct in permitting a prisoner to leave custody to work without compensation resulting in private gain to the Sheriff.

The appellant errs in contending that the court must require separate trials or elect among counts where the accusations do not arise from the same transaction. In Simmons v. State, 165 Md. 155 , the Court of Appeals approved the joinder of eighteen counts charging the defendant with larceny or obtaining funds by false pretenses from a bank in separate transactions over a nine-month period. It is also not necessary that all the offenses charged be committed against the same victim. In Jennings v. State, supra, this Court upheld the joinder of counts charging the defendant with the burglary of a dwelling and the breaking of a storehouse belonging to different individuals.

In determining whether a defendant will be prejudiced by the joint trial of several counts, “[t]here is no rigid rule, and the only limitation is that courts will guard against injustice.” Warner v. State, 202 Md. 601, 608 . 1 In the instant case, we agree with Judge Mathias that the defendant did not risk prejudice in the joint trial of all the charges against him. We believe that all of the offenses charged were of the same general nature, formed part of a general scheme of unlawful conduct and permitted the same mode of trial. Since the proof tending to show each one of the offenses charged showed a common scheme to appropriate public funds or services for personal gain, the proof of any one offense would be admissible in proving any other. Cf., Jennings v. State, supra, 316.

Judge Mathias’ refusal to ²⁵⁶ order separate trials or an election by the State was neither an abuse of discretion nor a denial of appellant’s constitutional rights. Ill, IV and VI EXCLUSION OF EVIDENCE — INSTRUCTIONS REGARDING DUTIES OF SHERIFFS — CONSTITUTIONALITY OF “SAFELYKEEP” “The trial judge was in error in excluding evidence of the customs of the Sheriffs of other Maryland counties.” “The instructions of the trial judge as to the customs and duties of a Maryland Sheriff were in error.” “Article 87, Section 45 of the Maryland Annotated Code is unconstitutionally vague.” The twenty-second count of the grand jury’s presentment charged Sheriff Baumgartner with malfeasance in office for permitting a prisoner to leave the jail unescorted and unsupervised during the two and a half month period he was awaiting sentence after pleading guilty to manslaughter. The appellant allowed the prisoner to leave the jail unsupervised, usually to work outside the jail but also to visit his parents at their home on at least three occasions. Lewis testified that he worked “ . . . outside the jail .. . and washed cars and everything, mowed the grass.” Lewis also testified that he had gone to the Sheriff’s home while a prisoner and “done caulking work for him . . . built cellar doors, put on some stuff and painted.” Under cross-examination, he recalled doing panelling in the court house and moving books in the library.

The prisoner always returned when expected and was present in court whenever required. Exclusion of Evidence During trial, appellant proffered the testimony of sheriffs of other Maryland Counties as to their permitting trusted ²⁵⁷ prisoners to work outside and unguarded. The court sustained an objection to that proffer saying: “ . .. These men [sheriffs] are in different counties.

The conditions are different. “It does seem to me that it is the wrong kind of evidence to help the jury decide whether or not the Sheriff of Frederick County in a careful and prudent manner performed his duties in a careful and prudent manner and discharge of his obligations as Sheriff.” Appellant responded that the evidence proffered was relevant to the jury’s understanding of Md. Code, Art. 87, § 45 which provides that “The sheriff shall safely keep all persons committed to his custody by lawful authority until such persons are discharged by due course of law.” The sheriffs whose testimony was proffered were from Allegany, Kent, Somerset and Washington Counties. The proffer was that these sheriffs would testify that it was their custom to allow prisoners awaiting trial to work in the Court House without supervision. Appellant argued that this practice was in accordance with a prisoner’s “... commitment... it says keep them and deliver them.” 2 We fail to see the relevance of this proffer for, as noted by the judge, “The conditions are different.” The proffer explicitly referred to prisoners in the other counties who were awaiting trial. Obviously, under such circumstances, the sheriff is bound by the explicit orders of the prisoner’s commitment.

The question before the court did not relate to a prisoner awaiting trial, but rather to one convicted upon his plea and awaiting sentence. ²⁵⁸ The indictment charged: “ .. . during the period between October 13, 1971 and December 22, 1971 . . . Richard O. Baumgartner, unlawfully and wilfully did permit one Richard Eugene Lewis, a convicted felon, to leave the jail unescorted and unsupervised contrary to his duty .. . .” (Emphasis added.) The docket entries relating to Richard Lewis indicate the court accepted his plea of guilty to Manslaughter on October 5, 1971 and that he was “ . . . remanded to the custody of the Frederick County authorities pending sentencing.” He was not sentenced until December 22, 1971. As a consequence, the proffered testimony of other sheriffs’ practices relating to prisoners under commitment awaiting trial was not relevant to the issue of a prisoner held after conviction. The test of admissibility is the connection of the fact to be proved •with the offense charged.

Wilson v. State, 8 Md. App. 653 . The trial judge who “is clothed with broad discretion in determining what evidence is relevant . . .” could see no relevant connection, nor can we. See 1 Wharton, Criminal Evidence, § 151. Beyond that, the custodial practices in the several counties differ markedly by virtue of local legislation enacted by the General Assembly.

Frederick County itself has a unique directive to the Sheriff regarding the employment of prisoners who have been convicted and sentenced. Three of the four counties included in the proffer have variants of that local legislation while the fourth is silent. Notwithstanding the fact that sheriffs are state not county officers, see Talbot County v. Carroll, 172 Md. 386, 387 , their respective duties do vary from county to county in accordance with such local statutory directives. The proffer contained no assurance that the county practices were governed by the same statutes or statutes similar to those directing the Frederick County Sheriff.

The evidentiary question decided by the judge was whether the proffered evidence tended to prove or disprove the crime charged. Baxter v. State, 223 Md. 495 . Without the ²⁵⁹ foundation of similarity of authorized practices the evidence could very well have been misleading rather than enlightening. “No precise and universal test of relevancy of evidence is furnished by law but the determination of whether or not particular evidence is relevant rests largely in the discretion of the trial court, which must be exercised according to the teachings of reason and judicial experience.” 31A C.J.S. Evidence, § 158. We see no abuse of that discretion.

The Instruction At the conclusion of the case, the court instructed the jury that a sheriff is a constitutional officer who shall exercise such powers and duties as are now or may hereafter be fixed by law. The judge then stated that the Legislature had enacted Md. Code, Art. 87, § 45 pursuant to th constitutional provision. After reading Section 45: “The sheriff shall safely keep all persons committed to his custody by lawful authority until such persons are discharged by due course of law,” he added; “It has long been established that the place where persons shall be kept is in jail and that the care and control of persons,, confined in the jail is the responsibility of the Sheriff unless changed by the Legislature. The Sheriff owes a duty to the public to safely keep the prisoners who are committed to his custody.” Appellant argues that, since the term “safely keep” in Art. 87, § 45 is not defined in that Section of the Code or in any other, the court’s instructions regarding the proper place for keeping prisoners misstated the law.

We do not agree. Even at common law it was a misdemeanor for a sheriff or jailor having lawful custody of a prisoner voluntarily or negligently to permit him to depart from the custody, no ²⁶⁰ matter how short a time the departure might be. Ex parte Shores, 195 F. Rep. 627, 630 (D.C. N.D. Iowa), citing 4 Blackstone, Commentaries, 129-130; see also Perkins, Criminal Law (2nd. Ed.), Ch. 5, pp. 500-501.

Moreover, the principal case interpreting what is now § 45 of Art. 87, Cocking v. Wade, 87 Md. 529 , explicitly contradicts appellant’s assertion. In Cocking v. Wade, supra, a mob took an accused murderer from a jail by force and lynched him. The prisoner’s heirs sued the sheriff for negligently failing to move the prisoner to safety when warned of the existence of public excitement about the prisoner. In interpreting the meaning of “safely keep” used in Art. 87, § 45 (then § 43), the court said that the place prisoners were to be kept was in jail — precisely where the decedent had been placed by the sheriff until he was removed by the lynch mob.

As a consequence, the court held the sheriff had not violated the standards of protection expected of him. Although this case interpreted the statute as it related to the safety of the prisoner, the court, in defining the sheriff’s duty, made it abundantly clear that for his failure to perform this or any other duty “... he was liable to be proceeded against criminally. His duty to keep safe the prisoner was not for the benefit of the prisoner; it was that he might be detained until discharged in due course of law....” The court’s reasoning was confined to one paragraph: “From a very early day the English law has contained provisions defining and regulating the rights and obligations of sheriffs in respect to the custody of persons charged with the commission of crime. As far back as the Statute of 14 Edward III, ch. 10, the right to the custody of the gaols was ‘rejoined’ to the sheriffs of the bailiwicks; and by the 5 Hen.

IV, it was ordained, that none be imprisoned by any justice of the peace, ‘but in the common gaol.’ In our own State, by statute passed in 1809, and now codified as section 16 of Article 42, no citizen committed to the custody of an officer for ²⁶¹ a criminal matter shall be removed from thence into the custody of another officer, unless by habeas corpus or other legal writ, except when the prisoner is delivered to a constable, or other inferior officer to be carried to some jail, or shall be removed from one place to another * * in order to his discharge or trial; or in case of sudden fire or infection, or other necessity, or, ‘&c. Mr. Alexander in his valuable work on the ‘British Statutes,’ remarks of this section that it is ‘intended to prevent