Duncan v. State

Menchine, J., delivered the opinion of the Court. James Edward Duncan, a Baltimore County Police Officer, was convicted in a bench trial of the common law crime of misconduct in office. He received a suspended sentence of one year imprisonment and was placed on probation for eighteen months. In this appeal, he makes the following contentions: (1) that the evidence was legally insufficient to establish the offense charged; and (2i that prosecution was barred by the Statute of Limitations.

Sufficiency of the Evidence There was testimony by one Michael R. Mally that during 1970, when he was dating the daughter of Officer Duncan, the latter brought his attention to the fact that the officer had become aware from police wanted flyers that Mally was AWOL from the United States Army. Mally alleged that at that point Officer Duncan had declared that, “He would keep the flyer from being served on me if I . . . got him things when he asked me to obtain things for him.” Mally then proceeded to detail a great many items of personal property acquired by Mally for Duncan. Mally said that the items had been obtained from fences or by the use of bad checks, and that the circumstances of his acquisition of the items were known to Duncan. Mally testified that he obtained the personal property for Duncan from before Christmas of 1970 “all through . . . ’til I went to, just right before I went to jail.

January I think it was the 10th of 1975, and right up to about the week before I went to jail.” The following excerpt from the cross-examination of Mally gave further amplification of his reasons for obtaining personal property for Duncan: “Q You are suggesting to the court the reason why you did all these things for Duncan for little or no money is the fact that he was going to turn you in because you were AWOL? ³³² A Not just that. Among other things, he took care of me when I got arrested for other things, or he’d keep the police off my back in Baltimore County, until one State Trooper got down on me, and he stayed on me, and, you know, I guess you could say he finally got me, because I’m serving time now, but — . . . For that purpose, and among other things, you know, recommendation when I got arrested for other things, that I was going for my own recognizance, he’d keep the police off my back, he would keep the Check Squad off my back, him and [another officer]. And they did these things for me in turn for the things I did for them.” Duncan denied that he had received many of the articles of personalty allegedly delivered to him by Mally, but acknowledged receipt of the following items: Item Date of Mally’s alleged source Transaction of acquisition 1. .38 cal.

Revolver Early 1971 From fence 2. Automobile Starter Summer 1972 3. Coppertone Stove 1973 4. Deer Meat ?

Illegal hunting 5. Beef ? Bad checks 6. Washing Machine Summer 1974 7.

Multicolored Carpet Fall 1974 8. Blue Shag Carpet Fall 1974 9. Suede Coat December 1974 For purposes of passing upon the legal sufficiency of the evidence we find it necessary to discuss only the above items. Duncan acknowledged that the gun, the washing machine and the carpeting, all were new when acquired from Mally.

He said he was aware that Mally had worked for a plumbing and heating firm; for the Bethlehem Steel Company, and for ³³³ various marinas and knew that he had never worked in a retail store. Duncan acknowledged that all of those new items had been obtained directly from Mally and never from a store. He said he never questioned the manner of Mally’s acquisitions. His explanation for his failure to do so as to the four new items was as follows: The Gun “Q Why did you decide to purchase this revolver from Michael Mally as opposed to going to a gun store?

A Well, if you go to a gun store, a weapon of that caliber at the time was selling approximately for $75.00 to $80.00. And the gun, the pistol was brand new, and Michael toíd me where he had purchased it at, and he even told me he had the receipt at home, which I never verified. However, like I say, the fact is he wanted $50.00 for it. I said, fine.

I checked the gun out first; it was not stolen. I give him the $50.00 on February 6th, 1971. Q Again, where did Michael say he purchased the gun? A Marvin’s Gun Store in Essex.

Q You never checked with Marvin’s Gun Store, did you? A No. The boy stated he had a receipt. Q Did you ever see the receipt? A No, sir; I never asked him for it.” The Washing Machine “Q Why did you not go to Basin’s, and pay them the money, rather than pay it to Michael Mally?

A I wasn’t buying it from Basin’s, I was buying it from Michael Mally. Q Why? ³³⁴ A Because he’s the one that gave me the price on the washing machine. I shopped around for washing machines, the wife and I, and there was a variance of prices, $25.00 to $30.00 difference. Q Did you think that Michael Mally was a retailer or wholesaler in washing machines?

A No, sir, I didn’t. Q Did you wonder why Michael Mally was acting as a go-between between yourself and Basin’s, when you knew the washing machine came from Basin’s? A No, I never questioned why. Q You never asked Michael Mally how he could get you this discount?

A No, I didn’t.” Blue Shag Carpeting “Q So he came to your house? What was his reason for coming to the house at that time, if you know? A Well, he come to the house, and stated to my wife and myself that he seen the Carpet Fair truck out there, wanted to know if she needed any carpet. My wife said, why, Mike?

He said, I got a friend I’m helping install carpets, and I’m sure I can get you a discount on the remnants. So at that time he said, do you have any specific color in mind? We said, well, we’re sticking with the blue shag we just had installed by Carpet Fair. Q So what did he say to you?

A He said, well, I’ll check on it, and I’ll get back with you in a day or two. Q Did he say from whom he would get these rugs? ³³⁵ A No, other than the fact the fellow he was supposed to be working with installing carpeting.” Multicolor Carpeting “Q . . . From whom did you purchase such multicolored carpeting? A Michael Mally.

Q Approximately when did this purchase take place, when did you actually get the carpeting from Michael Mally? A I’d say about the last of May of 1974. Q And how did a conversation come up between you — was there a conversation between you and Michael Mally, previous to the purchase by you of some carpeting from Mally, was there a conversation? A Michael Mally brought approximately a twelve by sixteen piece of indoor-outdoor multicolored carpeting to my home.

Q Did it just come in out of the blue, or had you previously had a conversation? A I had no conversation with him prior to that. He had a folded rug, brought it over to my house, and asked me if I was interested in purchasing the carpet. Q Did he say who he was getting it from?

A He said his mother and father was having their basement redone, and it was a piece left over. Q Did you buy it then or later buy it at all? A He come back over that evening, and I paid him a hundred dollars for the carpeting.” The Suede Coat “Michael called me approximately 6:30, it was just dark, and he said, Mr. Jim, he said, I have a nice suede coat, would Miss Barb be able to use it? I ³³⁶ said, what do you mean, Mike?

He said, you know, Kathy and I split up, and I bought the coat in hopes of some reconciliation in giving Kathy the coat, and Kathy refuses to take the coat, and I’m stuck with it. I need some money. I said, how much are you talking about? He said, I’ll take $45.00 for it.

I said, where is the coat now? He said, I’m over home; I’ll meet you out front. Can you come over right now? I said yes.

I got in my automobile. I went over to his home. He met me in front of his home. He had this brown suede or rust-colored suede coat.

And I looked at the coat and the size, gave him the $45.00, left his house,.. ,” 1 Duncan denied knowledge that Mally had obtained the personalty from fences or by the use of bad checks. There was, however, testimony by a Maryland State Trooper that: “[Duncan] told me he received the property from Mally, that he knew that Mally was buying things with bad checks and selling them.” A captain of Baltimore County Police confirmed that a statement to that effect had been made in his presence by Duncan. Even in the absence of such an acknowledgement by Duncan, we are persuaded that the frequency of Mally’s deliveries to Duncan and the variety of items delivered, would have alerted the most obtuse to have questioned Mally’s source of supply and have led the most credulous to believe there was a strong probability of taint in their acquisition. In Chester v. State, 32 Md. App. 593, 605 , 363 A. 2d 605, 612 , (1976), cert.3den., 278 Md. 718 (1976), we cited with ³³⁷ approval the following quotation from Perkins, Crim.

Law 2d Ed.-UTB, at 482-83: “The prevention of outside influences tending toward corruption is not the only social interest in the official action of public officers. It is socially desirable, so far as reasonably possible, to insure that no public officer shall, in the exercise of the duties of his office or while acting under color of his office, (1) do any act which is wrongful in itself — malfeasance, (2) do any otherwise lawful act in a wrongful manner — misfeasance, or (3) omit to do any act which is required of him by the duties of his office — nonfeasance. And any corrupt violation by an officer in any of these three ways is a common-law misdemeanor known by some such name as ‘misconduct in office’ or ‘official misconduct.’ ” We commented that this common law offense is wide-ranging and comprehensive. That the offense has application to police officers is not open to doubt.

Hitzelberger v. State, 174 Md. 152 , 197 A. 605 (1938). We are persuaded that the trial judge reasonably could have concluded that the State had shown, beyond a reasonable doubt that the course followed by Duncan from before Christmas 1970 through January 1, 1975, was wrongful in itself and that it was pursued under color of his office. There was legally sufficient evidence to convict appellant of misconduct in office. Limitations The Annotated Code of Maryland, Cts. & Jud.

Proc. § 5-106 (1974) reads in pertinent part as follows: “§ 5-106. Prosecution for misdemeanor. (a) One year. — Except as provided by this section, a prosecution for a misdemeanor not made punishable by confinement in the penitentiary by ³³⁸ statute shall be instituted within one year after the offense was committed.” The above recodification of the Statute of Limitations on misdemeanors intended no change in the effect and meaning of the prior law (Md. Ann. Code Art. 57, § 11). McMorris v. State, 26 Md. App. 660, 665 , 338 A. 2d 912, 915 (1975), aff'd.

McMorris v. State, 277 Md. 62, 64 , 355 A. 2d 438, 439-440 (1976). The State acknowledges that the beginning of the prosecution in this case was the date of presentment — March 13, 1976 (State br. p. 7). The latest specific transaction between Duncan and Mally related to the suede coat delivered in the first or second week of December 1974. Mally also had stated, in general, non-specific terms, that his dealings with Duncan had continued until January 1975.

There is, accordingly, not a scintilla of evidence of any transaction between Duncan and Mally occurring within one year prior to the commencement of prosecution. The State contends, however, that misconduct in office is a “continuing offense,” prosecution for which is permissible without limitation, so long as the officer retained improperly obtained goods. We think that Hitzelberger v. State, supra, and Purviance v. State, 185 Md. 189 , 44 A. 2d 474 (1945), cited by the State as supportive of that contention, fail to do so. Hitzelberger and Purviance used the phrase “continuing offense” in the context of the admissibility of evidence, not in relationship to a statute of limitations.

Purviance makes this distinction crystal clear in the following language: “Article 57, Section 11 of the Code, 1939, forbids the commencement of a prosecution for the crime with which the defendant is here charged beyond the period of one year from the time of its commission. It does not forbid offering in evidence other facts which occurred a year before the commission of the offense charged if those acts have a natural tendency to establish the fact at ³³⁹ issue. Article 57, Section 11, supra, is a limitation against prosecution, not a limitation against the introduction of evidence of relevant acts or of crimes other than those for which the defendant is on trial.” 185 Md. at 198 , 44 A. 2d at 477-78 . There are, however, cases in which the continuing offense principle has been applied to charges of misconduct in office under circumstances similar to those existing here.

They are State v. McFeeley,