Carey v. State

Melvin, J., delivered the opinion of the Court. The appellant, Alford Robus Carey, Jr., was found guilty of five counts of bribery (Md. Code Ann., Art. 27, § 23) and one count of extortion (Art. 27, § 562). His four day trial on these charges took place in December 1977, in the Circuit Court for Anne Arundel County before Judge E. Mackall Childs, presiding without a jury. After the completion of the trial on December 22, 1977, the judge took the case under advisement and on January 9, 1978, read and filed in open court a written 27% page “Memorandum of Opinion” that reviewed in detail the voluminous evidence and set forth the verdicts and reasons therefor.

Appellant was sentenced on February 27, 1978. In this appeal, the appellant does not contest the sufficiency of the evidence either as to his criminal agency or the corpus delicti of the crimes for which he was convicted. He presents five questions for our consideration. “1. Did the trial judge deny Appellant due process of law in failing to disqualify himself? ²⁴⁸ 2.

Did the trial court err in failing to dismiss the indictment as violative of a prior plea bargaining agreement? 3. Did the trial judge err in admitting testimony under the co-conspirator’s exception? 4. Did the trial judge err in refusing to strike unsupported opinion testimony? 5. Did the trial court err in convicting Appellant of bribery and extortion for the same act?” Our answer to each of the questions is “No.” The judgments of conviction will therefore be affirmed.

I Due Process Appellant argues that because Judge Childs did not accede to his request to disqualify himself, he was denied due process. He argues that prior to the trial on the merits the judge “exhibited prejudice toward both appellant and his counsel” and that the judge harbored “a preconceived determination of Appellant’s guilt” that deprived him “of a fair opportunity to present the issues and denied him the fair tribunal required by Due Process.” We note at the outset that with respect to the trial itself the appellant refers us to no comment, no ruling or any other evidence that would reflect the judge’s alleged predetermination of appellant’s guilt or that appellant was “denied a fair opportunity to present the issues.” We also note that appellant was afforded the opportunity to remove the case to another jurisdiction for trial and that although he had initially prayed a jury trial he subsequently — after the judge refused to disqualify himself — elected a court trial and did not take advantage of the judge’s offer to remove the case. We are not told by appellant why, if he was so concerned about the judge’s alleged bias, he did not elect one or both of these alternatives that were available to him. Where a defendant in a criminal case alleges prejudice or ²⁴⁹ bias as a ground for the judge to recuse himself, it is the defendant’s burden to show that the judge by his words or actions has demonstrated a hostile feeling or spirit of ill will against him or his counsel of such a character as might prevent the judge from giving him a fair trial.

See 46 Am. Jur. 2d, Judges, § 220 (1969). The burden borne by the defendant in this regard is a substantial one. This is so because of the “assumed proposition that judges are men of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence.” State v. Babb, 258 Md. 547, 550 , 267 A.2d 190 (1970).

See, also, State v. Hutchinson, 260 Md. 227 , 271 A.2d 641 (1970). The appellant has failed to meet that burden in the case before us. In ruling on the motion to disqualify himself, Judge Childs said: “This court has no disposition whatsoever as to Mr. Carey. I’ve never seen him before and couldn’t care less to whether he prevails or fails to do so in this particular case....

I take a completely dispassionate view of the outcome of Mr. Carey’s problems.... I think the testimony will stand on its own feet one way or the other; and frankly again I would reiterate that whether Mr. Carey is found guilty or innocent is no concern of mine. I expect to call it as I see it; and as of this point I see no reason whatsoever for disqualification.” (Emphasis added). Our review of the record, including Judge Childs’s detailed memorandum opinion at the close of the case, convinces us that the judge did exactly what he said he would do, i.e., “call it as I see it.” We are not persuaded that he did otherwise, as alleged by the appellant, merely because he had found the appellant’s co-defendant guilty in a prior non-jury trial.

Participation in prior legal proceedings involving related parties or issues is simply not grounds for a judge to recuse himself. United States v. Partin, 552 F.2d 621 (5th Cir. 1977); Laws and Dorman v. State, 7 Md. App. 84 , 253 A.2d 780 (1969). Nor are we persuaded otherwise by the fact that the judge acceded to the State’s suggestion to grant a defendant in ²⁵⁰ another case a new trial and accept a plea of nolo contendere whereby that defendant received a suspended sentence for obstruction of justice (rather than perjury) so he would be available to testify for the State in the on-going investigation of the public school construction program. Appellant argues that this action by the judge “actively assisted the State in its prosecution of him”.(We note, however,, that the would-be witness did not testify at appellant’s trial on the merits.

We also note that the action of the. judge in granting the defendant a new trial in the other case took place on June 1, 1977, weeks after the appellant’s originally scheduled trial date and after the State had made numerous attempts to bring the case to trial for which it was presumably fully prepared before June 1, 1977. It seems highly unlikely, therefore, that the judge’s action did in fact assist the State in its case against the appellant. Moreover, even assuming the judge thought that his action would be helpful in ferreting out the truth, this is not to be equated with disqualifying bias or prejudice likely to prevent a fair trial. See, United States v. Liddy, 166 U.S. App. D. C. 95, 509 F.2d 428 (1974), cert. denied, 420 U.S. 911 (1975); United States v. McCord, 166 U.S. App. D. C. 1, 509 F.2d 334 (1974), cert. denied, 421 U.S. 930 (1975); United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976); compare, In Re Murchison, 349 U.S. 133 , 75 S. Ct. 623 , 99 L. Ed. 942 (1955).

Appellant argues further that the trial judge’s determination “to hold his ruling on appellant’s pretrial motion to dismiss sub curia in order to thwart any interlocutory appeal and move the case immediately to trial” is another indication of the judge’s bias or prejudice. We see no merit whatsoever to this argument. As a belated additional ground for the motion to dismiss the charges against him, appellant claimed that his trial was barred on double jeopardy grounds. When the judge decided to hold the matter sub curia until after trial on the merits, appellant appealed to this Court.

It is true, of course, that denial of a motion to dismiss on double jeopardy grounds is immediately appealable, Neal v. State, 272 Md. 323 , 322 A.2d 887 (1974), and that failure to rule on a motion bottomed on those grounds before trial ²⁵¹ constitutes error, Claybrooks v. State, 36 Md. App. 295 , 374 A.2d 365 (1977). As it turned out in this case, however, trial on the merits did not take place until after the double jeopardy claim had been rejected by this Court. See Carey v. State, 37 Md. App. 689 , 379 A.2d 178 (1977), cert. denied December 5, 1977. In any event, Judge Childs’s initial determination to hold the matter sub curia until after trial, does not, in our opinion, form the basis for his disqualification. “... [N]o deduction of bias and prejudice may be made from adverse rulings by a judge, whether they are right or wrong.” 46 Am.

Jur. 2d, Judges, § 221 (1969). Finally, on the issue of disqualification, appellant argues that Judge Childs “exhibited hostility toward appellant’s counsel during the course of the proceedings”. Here, we are referred only to the fact that nearly four months before the trial of this case the judge had recused himself in an unrelated civil matter in which appellant’s counsel represented one of the parties. The judge explained on the record his reasons for the recusement.

While we agree that the record of pre-trial proceedings in this case does reflect a certain amount of mutual antipathy between the judge and defense counsel, we cannot say that so far as the judge was concerned there has been any showing of that degree of personal bias or prejudice toward defense counsel that would indicate the likelihood that the appellant would not receive a fair and impartial trial. “A judge may, with or without cause, cordially dislike and even distrust an attorney and yet be capable of doing exact justice towards his client.” Shakin v. Board of Medical Examiners, 254 Cal. App. 2d 102 , 62 Cal. Rptr. 274, 287 , 23 A.L.R. 3d 1398, 1415 (1967), app. dism’dand cert. denied, 390 U.S. 410 (1968). In sum, we conclude that none of the arguments advanced by the appellant, either alone or in combination, form the basis for holding that Judge Childs’s failure to disqualify himself denied the appellant due process of law.

II The Prior Plea Bargaining Agreement The appellant was indicted in the present case on August ²⁵² 30,1976. On November 15,1976, he filed a motion to dismiss the indictment alleging the violation of a plea bargaining agreement in a prior case in which he had pled guilty to forgery and false pretenses. The charges in the prior case arose out of appellant’s activities as Executive Director of the Interagency Committee on School Construction. They were unrelated to the charges in the present case.

See Carey v. State, 37 Md. App. at 694 . The appellant allegedly prepared and approved a false invoice in the amount of $22,105.19 dated November 1, 1978 for work that had not been performed by a sub-contractor. Through various machinations he received the proceeds and used them to pay his personal debts. On January 9, 1976, after protracted negotiations, he entered a guilty plea to the prior charges pursuant to a plea bargaining agreement.

The following language of the written agreement referring to the possibility of future prosecutions was ultimately agreed upon: “In closing, it is appropriate to place upon the record the precise limits of the State of Maryland’s agreement not to seek further indictments against Defendant Carey. This agreement extends only to the specific matters discussed in this exposition and to any other crimes based upon evidence already in the possession of and fully developed by the State of Maryland as of this date. To the extent then that such additional criminal acts of Defendant Carey might be developed in the continuation of this investigation the State has given no assurances to him and expressly reserves the right to seek indictments and to prosecute for such acts.” (Emphasis added.) Appellant contends that the State’s action in bringing the bribery and extortion charges after having entered into the plea bargain was a breach of the agreement and that the trial court erred in not granting his motion to dismiss the present indictment because of that breach. As we understand appellant’s argument, it is that because the State was investigating bribery and extortion charges in connection ²⁵³ with the school construction program at the time of the plea bargain, the State is barred by the agreement from bringing the present indictment.

As we see it, the only issues presented by the agreement are: 1) Does the present indictment cover “specific matters” set forth in the “exposition” at the prior trial?, and 2) Is the present indictment based upon evidence that was in the State’s possession and “fully developed” on January 9,1976, the date of the guilty plea? The appellant does not argue the first issue. He argues, however, that the second issue should be answered in the affirmative. The answer depends upon the factual evidence.

Both Judge Evans and Judge Childs, after extended hearings, determined the answer adversely to the appellant. Our review of the record leaves us unconvinced that these rulings were erroneous, much less clearly erroneous. We shall therefore not disturb