DiNatale v. State

Orth, J., delivered the opinion of the Court. ■ Thomas Anthony DiNatale (appellant) was found guilty of violation of the narcotics laws by a jury in the Circuit Court for Baltimore County. Under indictment No. 35328 he was convicted of possession of marijuana (1st count), control of marijuana (2nd count), and sale of marijuana (3rd count), the offenses occurring on 1 October 1968. Under indictment No. 35329 he was convicted of the possession of marijuana (1st count) and control of marijuana (2nd count), the offenses occurring on 7 October 1968. A general sentence of 5 years was ⁴⁵⁷ imposed on the convictions under each indictment, the sentences to run concurrently.

CONTENTIONS Appellant contends that: I. The lower court erred in denying a motion for a separate trial on each indictment.

II

As to the offenses of 1 October 1968, he was entrapped.

III

As to the offenses of 7 October 1968, evidence was obtained by an unreasonable search and seizure.

IV

The lower court erred in not granting a con- tinuance. THE MOTION FOR SEPARATE TRIALS Prior to trial appellant filed a motion that each indictment be separately tried “since defendant believes he will be prejudiced if such cases are tried together.” Maryland Rule 716a provides that two or more offenses may be charged in the same indictment in a separate count for each offense. Rule 734 provides that the court may order two or more indictments to be tried together if the offenses and the defendants, if there be more than one, could have been joined in a single indictment. Rule 735 provides that if it appears that an accused or the State will be prejudiced by a joinder of offenses or of defendants in an indictment, or by joinder of trial together, the court may order an election or separate trials of counts, grant separate trials of defendants or provide such other relief justice requires.

A motion under Rule 735 may be made only before the jury is sworn, as was here done, or, where trial by jury is waived, before any evidence is received. Here there was only one defendant and, under Rule 716a the offenses could have been charged in one indictment in a separate count for each offense. Since the offenses could have been joined in a single indictment, Rule 734 permitted the court to order that the two indictments ⁴⁵⁸ be tried together. And we find no error in the denial of the motion for á separate trial under each indictment since it did not appear that appellant would be prejudiced by a joinder by trial together.

The record does not disclose that any evidence as to prejudice to the defendant was produced. On the issue the court was advised that “as a result of dealings between the police, or an informer and the defendant on October 1, 1968, a warrant for his arrest was obtained. He was arrested on October 7, 1968” and upon a search incident to the arrest marijuana was found in his possession. In McLaughlin v. State, 3 Md. App. 515, at 522 , we found no error in the joinder of trial together of three indictments since the offenses were of the same general nature, formed part of the development pf the same transaction, and permitted the same mode of trial.

And we believe that even had separate trials been granted, evidence adduced as to either the crimes of 1 October or 7 October would have been admissible in proving the other. See Wood v. State, 191 Md. 658, 664 ; Bryant v. State, 207 Md. 565, 586 ; Jennings’v. State, 8 Md. App. 312 (1969). Whether or not to order separate trials was within the sound discretion of the trial court, and we find no abuse of discretion here. See Wanzer v. State, 202 Md. 601 .

As noted in Jennings we think Rule 735 conforms in substance with the common law rule discussed and applied in Wanzer . ENTRAPMENT Appellant’s defense at trial as to the offenses alleged to have been committed on 1 October 1968 was that he did not possess, control or sell marijuana on that date. The defense of entrapment was not made. The point not being tried and decided below, it is not before us.

Rule 1085. In any event we think it clear on the evidence adduced that appellant was not entrapped. As appellant summarized' the evidence, a Maryland State Trooper testified that while working undercover in.- investigating violations of the narcotics laws,, he asked appellant on 1 Oc ⁴⁵⁹ tober if he had any marijuana for sale and that appellant agreed “to sell me four nickel bags which would be $20.00.” Appellant left the area in his car and returned about 10 or 15 minutes later. The Trooper got in the car and the sale was made to him while they drove around on some back roads.

We discussed the defense of entrapment in Simmons v. State, 8 Md. App. 355 (1969). Applying the test adopted in Simmons we see no inducement on the part of the police for appellant to commit the crimes alleged as occurring on 1 October and, even assuming such inducement, we believe the evidence was sufficient to show that appellant was ready and willing to commit them without persuasion. In short, the criminal