Couser v. State

Thompson, J., delivered the opinion of the Court. John H. Couser, the appellant, was convicted of possession of a controlled dangerous substance with intent to distribute by a jury in the Criminal Court of Baltimore, Judge Paul A. Dorf presiding. He was sentenced to twenty years imprisonment. On this appeal he raises the following seven questions; “1.

Did the trial court clearly abuse its discretion in refusing the Appellant’s request for disclosure of the State’s dossier on prospective jurors? “2. Was the application supporting the State’s request for the issuance of a search and seizure warrant defective and did its accompanying affidavit fail to demonstrate probable cause? “8. Did the trial court clearly abuse its discretion ⁴⁸⁸ in refusing to grant the Appellant a new trial based on newly discovered evidence? “4. Was the Appellant denied his right to reject jurors of his choosing as a result of the State’s failure to include the name of Sinceray Jones in its voir dire to the trial court? “5.

Did the trial court abuse its discretion in refusing to grant a mistrial, continuance or postponement when the state chose to call Miss Sinceray Jones to testify in its case in chief? “6. Was the trial court’s instruction to the jury on the issue of reasonable doubt clearly erroneous? “7. Was the Appellant denied his right to a fair trial because of the cumulative effect of numerous errors which occurred during his trial?” On April 13, 1976, members of the Baltimore City Narcotics Squad, armed with a search and seizure warrant, forced entry into Apartment No. 1405, 221 North Fremont Avenue, Baltimore City. Detective James Butts testified that upon entering the premises he went directly to the rear of the apartment and observed the appellant run from the bedroom door toward the bedroom window.

At that time, he ordered the appellant to stop, apprehended and handcuffed him. The appellant was advised of the warrant and a search of the premises was conducted. As the result of this search, the following were seized: various aluminum packets of white powder which were determined to be an opium derivative, a blue plastic container inside of which were ten aluminum packets of white powder, a yellow plastic container with a large packet of white powder inside, glassine bags, measuring spoons, a sifter, and aluminum paper. The white powder was analyzed and determined to be heroin.

Sinceray Jones, a co-defendant, testified pursuant to a plea bargain with the State. She stated that on the day in question she resided at 221 North Fremont Avenue, Apartment 1405. It was the appellant’s practice to store heroin in the apartment. Miss Jones would sell the heroin for ⁴⁸⁹ the appellant from time to time.

She testified that on April 18, 1976, she left her apartment at approximately 2:80 p.m. There was no heroin in the apartment at that time because she had sold the supply earlier that morning. She stated that all the drugs and paraphernalia recovered were the property of the appellant. The appellant took the stand and admitted being on the premises at the time of the search, but stated that he was not aware that there were any drugs in the apartment.

I Discovery of State’s Dossier on Jurors The appellant’s first allegation of error is that the trial court abused its discretion in refusing the appellant’s request for disclosure of the State’s dossier on prospective jurors. The record shows that during the jury selection defense counsel stated, “[T]he State’s Attorneys are equipped with juror lists that give them sort of a scoreboard on how things have developed and I don’t have it. I would ask the Court to allow me to have it.” The State’s Attorney replied that the list was the combined work product of the various members of the State’s Attorney’s office. The trial court stated: “If we’re going to force each person to show their work product and to sell them, I just don’t think that’s the purpose of allowing people to investigate on their own.

As far as jurors are concerned. But the one exception as to a criminal record or with the exception if in fact the State is aware of the fact that any person is lying under oath. Then I think as an officer of the Court it’s their duty to bring that out to the Court’s attention. But I’m not going to ask that the records be sealed.” The State’s Attorney then gave the court the names of several jurors that his information showed had prior criminal records.

The appellant cites Britton v. United States, D.C. App., 350 A. 2d 734 (1976); People v. Aldridge, 47 Mich. App. 639 , 209 N.W.2d 796 (1973); Losavio v. Mayber, Colo., 496 P. 2d 1032 (1972) and Commonwealth v. ⁴⁹⁰ Smith, 350 Mass. 600, 215 N.E.2d 897 (1966) for his eontention that fundamental fairness required placing the defendant upon equal footing with the prosecutor by requiring the prosecutor’s investigatory report upon prospective jurors be disclosed. In addition, he contends that it is the trial court and not the prosecutor that should control such decisions. The State contends that the appellant waived his objection to the denial of his request for the use of the State’s Attorney’s dossier when he stated that the panel was acceptable to the defense, citing Glover, Robinson & Gilmore v. State, 273 Md. 448, 452 , 330 A. 2d 201 (1975) and Neusbaum v. State, 156 Md. 149 , 143 A. 872 (1928).

We find the case of Tisdale v. State, 30 Md. App. 334 , 353 A. 2d 653 (1976), to be more directly on point. In that case we found that counsel’s response that the jury ultimately selected was “acceptable” was merely obedient to the court’s ruling and obviously not a withdrawal of the prior objection, timely made. We note that the appellant filed no motion for discovery and inspection prior to trial under Md. Rule 728. Even if such a motion had been filed, the prosecutor’s notes on prospective jurors is not a matter which is subject to disclosure under the rule.

This basis alone has been held sufficient to deny a defendant’s request for disclosure of a jury investigation report. Commonwealth v. Foster, 219 Pa. Super, 127, 280 A. 2d 602 (1971). Society, however, wins not only when the guilty are convicted, but when criminal trials are fair; thus, literal compliance with Md. Rule 728 may not always satisfy the requirements of fundamental fairness.

Brady v. Maryland, 373 U. S. 83 , 83 S. Ct. 1194 , 10 L.Ed.2d 215 (1963); Powell v. State, 16 Md. App. 685, 694, n. 1 , 299 A. 2d 454 (1973). Notes on prospective jurors do not fall within the confines of Brady v. Maryland, supra, because jury panel information is neither evidence nor is it material to the guilt or punishment of the accused. Britton v. United States, supra. Due process requires, however, that the entire criminal process be conducted without unfair prejudice to the accused.

The State is required to provide an accused with an impartial jury under Art. 21 of the Maryland Declaration ⁴⁹¹ of Rights. The prosecutor is an. arm of the executive branch of the government. Powell, supra at 694, n. 1 . It would be improper, for instance, for the prosecutor to withhold information which would reasonably reflect the inability of a juror to render an impartial verdict.

Cf. Bristow v. State, 242 Md. 283 , 219 A. 2d 33 (1966). With this in mind we view the case at bar. In assessing whether due process or fundamental fairness required the disclosure of the prosecutor’s notes, we take cognizance of the fact that no intelligent concept of fairness has ever been advanced which would require the State to prepare a defendant’s case or to furnish him with favorable evidence which is as easily accessible to him as to the State.

State v. Crawford, Fla., 257 So. 2d 898, 899 (1972). Where defense counsel has been insufficiently diligent in examining that which is available to him before the time for jury selection, the prosecution will not be required to come to his aid. People v. Heard, 58 Mich. App. 312 , 227 N.W.2d 331, 334 (1975).

Another recognized restriction on discovery is the “work product” doctrine. This doctrine has been defined in the following manner: “(a) Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the prosecuting attorney or members of his legal staff.” American Bar Association Project on Standards for Criminal Justice: Standards Relating to Discovery and Procedures Before Trial, Standard 2.6 (Approved draft, 1970). Where the notes of the prosecutor consist of ideas and notions on prospective jurors as the result of personal observations of himself and fellow prosecutors, the information would be protected by this work product exception.

See People v. Heard, supra at 334. It is within the discretionary power of the trial court to adjudge, if requested, whether or not any additional ⁴⁹² information sought by appellant is material and should be disclosed by the State. Alston v. State, 11 Md. App. 624, 628 , 276 A. 2d 225 (1971). It was within his power, therefore, to view the prosecutor’s notes and determine whether or not due process or fundamental fairness required disclosure.

He was informed by the Assistant State’s Attorney that the dossier was comprised of an assessment by the staff of the State’s Attorney’s office of prospective jurors as a result of their comments under prior voir dire examination. The trial judge recognized that this information would come within the work product doctrine. Where there were no specific grounds alleged to strike a juror for cause, there was no need for the trial judge to inspect the prosecutor’s notes. People v. Brawley, 82 Cal.

Rptr. 161 , 461 P. 2d 361, 370 (1969). The trial judge was careful to inform the prosecutor that if he was aware of any criminal record of one of the prospective jurors or that they were lying under oath, then those facts must be disclosed. This is in accord with the holdings in some states. See Losavio v. Mayber, supra; Robertson v. State, Fla.

App., 262 So. 2d 692 (1972). The prosecutor revealed that information which he had concerning the criminal record of any of the prospective jurors. We see no denial of appellant’s right to due process. The other cases cited by the appellant are inapposite.

People v. Aldridge, supra, was overruled by People v. Stinson, 58 Mich. App. 243 , 227 N.W.2d 303 (1975). In People v. Stinson, supra at 310 the Michigan Court noted that Commonwealth v. Smith, supra, which unlike the case at bar dealt with the use of police investigation of prospective jurors, relied on by the appellant, said that while the information gathered by the police should be available to both sides, the subject could appropriately be dealt with in a rule of court. Absent any indication that the jury which was impaneled was prejudiced against the appellant, the court did not err in denying the motion for disclosure of the investigative report.

We hold, in the case at bar, that absent any showing that the accused was denied an impartial jury, and that any of the dossier was otherwise discoverable, the trial judge did not err in denying the request for the ⁴⁹³ disclosure of the prosecutor’s dossier on prospective jurors. See 78 A.L.R.2d 309 . II Search Warrant Appellant’s second contention is that the application for the issuance of the search and seizure warrant was defective because it failed to state the address of the premises to be searched. He alleges that while the affidavit supporting the application sufficiently identified the place, the judge may not look behind the application when issuing a warrant for the search of a person or place.

Md. Code, Art. 27, § 551 (a) states that a judge may issue a search warrant when it is shown by written application, signed and sworn to by the applicant, accompanied by an affidavit containing facts within the personal knowledge of the affiant, that there is probable cause to believe that a crime is being committed by an individual or on a certain premises and the evidence of the crime is upon that person or within that place to be searched. See also Buckner v. State, 11 Md. App. 55, 61 , 272 A. 2d 828 (1971). The applicant for the warrant presented the judge a partially filled out sworn application (police department form No. 67/188) which also stated: “And that the facts tending to establish grounds for issuance of Search Warrant are set forth in the Affidavit(s) attached thereto and made a part hereof.” The affidavit attached thereto supplied the blanks in the application when it commenced by stating: “Affidavit in support of a Search and Seizure Warrant for the below described persons, place and vehicle. Sinceray Ann Jones, a female negro, born 6/28/58, police I.D. 5Y9538, (Youth custody number).

John Henry Couser, male negro, born 9/4/33, police I.D. No. 76-611. The premises known as 221 N. Freemont (sic) Avenue, APT. 1405, described as a multi-dwelling, highrise complex building. A late model OLDSMOBILE temp. reg. M78553, green in color.” The trial judge then issued the warrant particularly describing the persons, place and vehicle as set out in the ⁴⁹⁴ affidavit.

The trial judge must consider both the application and the affidavit when considering whether there was probable cause to issue the warrant. In this situation, the affidavit was specifically incorporated by reference and became part of the application in regard to the persons, premises and vehicle to be searched. The issuing judge was sufficiently informed by the applicant that the warrant was to include the premises in question. The warrant issued by the judge sufficiently described the premises and thus could not be considered a “general warrant.” Frey v. State, 3 Md. App. 38, 47 , 237 A. 2d 774 (1968), held a warrant valid even though it lacked a description of the place to be searched, where the affidavit which described the premises was incorporated by reference.

As the affidavit can supply the missing gap in a warrant, we hold that it can also supply the missing gaps in the application for the warrant. See also Giles v. State, 10 Md. App. 593, 597 , 271 A. 2d 766 (1970), and Harris and Schmitt v. State, 17 Md. App. 484 , 302 A. 2d 655 (1973). III New Trial Following his conviction, appellant made a timely motion for a new trial. One of the grounds argued at the hearing in support of his motion was that the appellant had received a letter from Sinceray Jones after the conclusion of his trial which stated as follows: “John, I really don’t know how you feel about me at the present but I only did what I thought was the right thing to do.

I had no choice. They said if I testify against you that all my charges would be dropped and I had a possession they gave me probation and a drug program. I feel that why both of us go to jail. It wasn’t yours.

But I never would tell