Erman v. State

Couch, J., delivered the opinion of the Court. Edward Stermer, president and majority stockholder of ⁶⁰⁸ the Mudge Paper Company (Mudge), was shot to death and robbed outside his office on the evening of December 16, 1976. Some two years later a grand jury separately indicted appellants Hassan Rifat Erman, the treasurer of Mudge, and Charles Edward Brent, charging them with murder, robbery, conspiracy and related counts. Following a joint jury trial in the Criminal Court of Baltimore, Erman was found guilty of murder in the first degree, use of a handgun in the commission of a crime of violence, and accessory before the fact to murder.

Brent was found guilty of murder in the first degree, robbery with a dangerous and deadly weapon, and two counts of use of a handgun in the commission of a crime of violence. Erman received a life sentence for the murder conviction, plus a concurrent fifteen years for the use of a handgun conviction; his accessory conviction was merged into the murder conviction. Brent was sentenced to life imprisonment for his murder conviction, and a fifteen year concurrent sentence for his other convictions. Both Erman and Brent have appealed, raising some issues common to each other and some that are applicable to each individually.

Those that are common to each appellant are: 1. Whether the trial court erred in granting the State’s motion to join the indictments against the appellants for trial; 2. Whether the trial court erred in denying appellants’ motions to sever; 3. Whether the trial court erred in refusing to require the production of prior statements and grand jury testimony of State’s witness Paul Katsus; 4.

Whether the trial court erred in admitting evidence of Erman’s financial condition; 5. Whether the trial court erred in admitting the testimony of Paul Katsus; (a) because he was a perjurer, (b) because the conspiracy counts had been dismissed, ⁶⁰⁹ (c) because of his violation of the sequestration order. 6. Sufficiency of the evidence. Issues raised by Erman only are: 1.

Whether Erman was denied his right to be present at every stage of the trial; 2. Whether the trial court erred in refusing to dismiss the indictments because of abuse of the Grand Jury process. Issues applicable to Brent only are: 1. Whether the trial court erred in denying his motion to suppress the statement of October 26, 1978; 2.

Whether the trial court erred in admitting certain alleged rebuttal testimony; 3. Violation of the "other crimes” evidence rule; 4. Whether the trial court erred in failing to submit the question of the voluntariness of the October 26, 1978 statement as well as other statements; 5. Whether there was error in denying his motion for mistrial following allegedly improper jury argument; 6.

Whether he was entitled to a private trial and a sequestered jury. The Facts Because of the nature of the issues raised a brief outline of the facts involved here will suffice, with additional facts supplied as necessary in our discussion of the issues. Shortly after Edward Stermer stepped outside the company’s building on December 16, 1976, en route to the company’s annual Christmas party, he was confronted by a male who proceeded to shoot him five times, causing his death. Appellant Erman had accompanied Stermer from the ⁶¹⁰ building but apparently had gone to his car and was not near Stermer during the shooting.

After some two years’ investigation, the focus thereof centered on Erman, appellant Brent, and one Paul Katsus; Katsus ultimately was immunized from prosecution by the State and testified for the prosecution. His testimony, Brent’s testimony, and other evidence offered by the State tended to show that Erman, who was living beyond his means and who could profit from Stermer’s death, engaged Brent, a longtime school friend of one of his sons, to kill Stermer; Brent is supposed to have enlisted the help of Katsus. Brent, however, said that he and Erman cancelled their plans for the killing and that he so advised Katsus. Katsus, on the other hand, denied being so told and said that he was nearby when Brent shot Stermer.

The jury, following a protracted trial, 1 2 found Erman and Brent guilty. Issues common to both appellants (1) and (2) State’s Motion to Join Separate Indictments For Trial and Appellants’ Motion to Sever (1) The State, having separately indicted the appellants and desiring to try them jointly, moved to join the indictments. This motion was opposed by the appellants, but was granted by Judge David Ross, Criminal Court of Baltimore. Brent focused his opposition to joinder on what he perceived as the more voluminous and protracted evidence to be presented against Erman.

The basis for Erman’s objection was that there would be evidence presented against Brent which would not be admissible against him in a separate trial, and the likelihood of a Bruton 2 problem. This problem did not arise because Brent chose to testify. The thrust of the State’s ⁶¹¹ argument for joinder, simply stated, was that the appellants and the offenses could have been joined in a single charging document (see Md. Rule 745 a) and the evidence as to one would have been admissible against both. The record discloses that at the hearing on the motions to join indictments before Judge Ross the State advised the Court it intended to offer a statement given by appellant Brent which would be redacted so as to eliminate all "even closely incriminating statements made of the co-defendant [Erman].” No mention was made of the use of other witnesses who might give evidence admissible against Brent but not Erman; the argument of counsel for all parties focused on Brent’s statement.

Judge Ross filed a written memorandum wherein, on this issue, he stated: "Joinder of defendants for trial is favored for reasons of economy, of time and other resources of the court and witnesses, Lewis v. State, 235 Md. 588 (1963); Johnson v. State, 38 Md. App. 307 [sic] (1977); Peterson v. State, 15 Md. App. 478 (1972). Any risk of prejudice to the defendant Erman with respect to Brent’s statement can be avoided by deleting any reference to him. ABA Standards Relating to Joinder and Severance, § 2.3, Approved Draft, 1968. It is not at all clear that separate trials would result in a substantial saving of trial time for Brent.

In any event, that reason standing alone is not sufficient to warrant separate trials. ABA Standards Relating to Joinder and Severance, § 2.3 (b) Commentary, Approved Draft, 1968. The public interest in economic use of judicial resources is paramount absent some other risk of prejudice. None of the other grounds for separate trials alleged by the defendants were substantiated at the hearing.

The State’s motion to join all charges for trial is granted and defendants’ motions to sever are denied on the condition that either (1) Brent’s statement not be introduced into evidence or (2) a version of the statement from which all mention of Erman has ⁶¹² been excised in a manner which conceals the fact of excision be introduced. The State’s motion for appropriate relief is moot.” In Stevenson v. State, 43 Md. App. 120 , 403 A.2d 812 (1979), aff’d other grounds, 287 Md. 504 (1980), we pointed out that whether to allow a severance of defendants for trial lies in the sound discretion of the trial judge. Under the posture of the case when Judge Ross made his ruling we cannot say he abused his discretion, particularly since he took pains to try to alleviate any prejudice. (2) With respect to the second prong of the arguments of both appellants, that is the failure of the trial judge (Levin, J.) to have separated their trials when requested to do so many times during the trial itself (apparently some 25 to 35 times), we have more difficulty.

First, we note that Brent argues in his brief that he had moved for a severance and mistrial during the course of the trial itself. The State contends that he did no such thing, neither did he join in Erman’s motions. Brent has not provided us with any reference to the record where it would be reflected that he did so, and our review does not so indicate. As to Brent, therefore, we conclude he has waived any right to raise this issue.

Md. Rule 1085. As to Erman, it is abundantly clear that he frequently moved for a mistrial and severance during the course of the trial, all of which were denied, but in several instances (not all), the trial judge did instruct the jury that what they had heard was to be considered as to Brent only and not Erman. Some of the instances involved testimony of alleged criminality or misconduct on the part of Brent which in no way involved Erman; for example, Brent’s threats on people’s lives, his plan to kill one Stearck, shooting a neighbor’s dog, and shooting at the house of an acquaintance of his with whom he had had some trouble and for which he was charged with assault with intent to murder (subsequently dropped by the State). This evidence clearly would not have been admissible in a separate trial of Erman alone.

Further, in our view ⁶¹³ the character of the evidence was such as to be prejudicial to Erman. As a matter of fact, the trial judge recognized that Erman was being prejudiced, but not "improperly.” In any event, the trial judge commented that "to be consistent, Mr. Smouse [Erman’s counsel], I’m going to rule against you because if I have permitted this trial to be jointly tried so far, if you do have the right to cross-examine, I take the view that traditionally covers you.” We believe the trial judge abused his discretion. Before discussing the merits of this issue we think it appropriate to consider the general question of severance. Md. Rule 712 governs the joinder of offenses and defendants in the same charging document.

It is specifically provided in section b. of the rule that: "Two or more defendants, whether principals or accessories, may be charged in the same charging document if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. The defendants may be charged in one or more counts together or separately and it is not necessary to charge all the defendants in each count.” In order to avoid prejudice by the joinder for trial of counts, charging documents or defendants, Md. Rule 745 c provides that: "... the court may, upon its own motion or the motion of any party, order separate trials of counts, charging documents or defendants, or grant any other relief justice requires.” Under the terms of Md. Rule 736 a motion to sever defendants or offenses for trial is made a mandatory motion, required to be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 except when discovery is furnished on an issue which is the subject of the motion, then the motion may be filed within five days after ⁶¹⁴ the discovery is furnished. Rule 736 a also provides that a motion for joint or separate trial of defendants or offenses not raised in accordance with the rule is waived, unless the court, for good cause shown, orders otherwise. Thus it would appear that a motion for severance of defendants, made during trial, may, for good cause shown, be considered by the court, although this may be arguable.

In any event, it is not the label put on the motion, whether one for severance or mistrial, that counts. As Judge Lowe stated for the Court in Wise v. State, 47 Md. App. 656, 671 , 425 A.2d 652 (1981), when discussing an alleged distinction between a motion for severance and one for a mistrial in a double jeopardy context: "The fragrance is not affected by what we call the flower. The distinction does not turn upon the label applied by the trial judge. The critical question is whether the order contemplates an end of all prosecution of the defendant for the offense charged.

Lee v. United States, 432 U.S. 23, 30 (1977).” In our view what is important is what standard must the trial judge use when confronted, in trial, with such a motion. We conclude that, as Rule 745 contemplates, there must be prejudice to a defendant when joined for trial with another defendant and that this prejudice must be such as to prevent him from receiving a fair trial before he is entitled to a severance or a mistrial. The late Judge O’Donnell, in speaking for the Court of Appeals in Wilhelm v. State, 272 Md. 404, 429 , 326 A.2d 707 (1974), in pertinent part stated: "A request for a mistrial in a criminal case is addressed to the sound discretion of the trial court and the exercise of its discretion, in a case involving a question of prejudice which might infringe upon the right of the defendant to a fair trial, is reviewable on appeal to determine whether or not there has been an abuse of that discretion by the trial court in denying the mistrial. Basiliko v. State. 212 Md. 248 . 260-61, 129 A.2d 375 , 381 ⁶¹⁵ (1957).

The decision by the trial court in the exercise of its discretion denying a mistrial will not be reversed on appeal unless it is clear that there has been prejudice to the defendant. ... if: The trial court, in the exercise of its discretion, should declare a mistrial only where there is 'manifest necessity for the act,’ Cornish v. State, 272 Md. 312 , 322 A.2d 880 ; it should never be granted for light and transitory reasons which do not result in any real prejudice to the accused. (Citation omitted).” It is basic that an accused is entitled to a fair trial although not to a perfect one. Burkett v. State, 21 Md. App. 438, 443 , 319 A.2d 845 (1974). We also recognize that the giving of a curative instruction often will overcome any prejudice to a co-defendant.

When, however, as here, the instances of the need to so instruct the jury are many, the effectiveness of such instructions may very well diminish to the point of becoming meaningless. In Shingleton v. State, 39 Md. App. 527 , 387 A.2d 1134 (1978), we recognized that inadmissible evidence could have a spill-over effect on a co-defendant which could make it difficult for a jury "to separate the wheat from the chaff.” Chief Judge Gilbert, writing for the Court in Shingleton , went on to state: "The judge’s declination to sever the cases, he asserts, denied him a fair and impartial trial. We agree with Bechtel, and we add that at oral argument, the State submitted that 'there are no Maryland cases which would justify joinder in this case.’ The State did, however, urge us to adopt the view of federal courts and hold the joinder to be permissible. In order to follow that course, we would have to overrule our holding in Wilson v. State, 8 Md. App. 653 , 262 A.2d 91 (1970), and ignore the decisions of the Court of Appeals in McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977); rev’g 33 ⁶¹⁶ Md. App. 280, 364 A.2d 116 (1976); McChan v. State, 238 Md. 149 , 207 A.2d 632 (1965); and Lewis v. State, 235 Md. 588 , 202 A.2d 370 (1964).

We possess neither the inclination to overrule Wilson nor the power to ignore, thus implicitly overruling McKnight, McChan, and Lewis.” Id. at 544. See also Day v. State, 196 Md. 384 , 76 A.2d 729 (1950) and Ellerba v. State, 41 Md. App. 712 , 398 A.2d 1250 (1979), cert. den. 285 Md. 729 . In the instant case, the type of evidence as to Brent only which caused the trial judge to instruct the jury repeatedly, seems to us to have been increasingly prejudicial to Erman, particularly as the number of incidents grew. In short, we view the cumulative effect of such evidence as denying Erman a fair trial.

The argument for a joint trial —judicial economy — has merit. Nevertheless, this must always be balanced against the prejudice to a defendant, State v. Jones, 284 Md. 232, 238 , 395 A.2d 1182 (1979). In addition to the claim of prejudice, Erman contends that his defense was antagonistic to that of Brent and this alone was justification for severance. See Day v. State, supra, where the hostile positions of co-defendants were recognized as a valid reason requiring severance of their trials.

Inasmuch as Erman did not testify at trial, we are not altogether certain that this argument has validity. Nevertheless, hostile positions appear to have existed, and this, coupled with what seems to us to be clearly prejudicial evidence being placed before the jury, prevented Erman from securing a fair trial. In short, it is our view that there was manifest necessity for separating the trials of the defendants as the incidences of prejudice to Erman grew. Accordingly, as to Brent we perceive no error here, but as to Erman we must vacate his conviction and remand for a new trial as to him only.

(3) Grand Jury Testimony of Katsus Prior to trial both appellants moved to compel the disclo ⁶¹⁷ sure of the grand jury testimony of State’s witness Paul Katsus, who had made two appearances before them. The record discloses that the State admitted Katsus gave testimony in his second appearance inconsistent with that given in his first appearance. It was also proffered by the State that Katsus would testify consistently with his testimony given at his second appearance. The State then offered to produce the first appearance testimony, but declined with respect to the second.

Judge Ross denied appellants’ motions. A second pre-trial motion for the same material was denied. A third motion was made before trial by Erman alone, in which a request was made for any statements Katsus may have made to the police or anyone. This, too, was denied.

At the beginning of the trial Erman again renewed his motion for grand jury testimony disclosure, and again it was denied. Further, after Katsus had testified on direct examination, both appellants again renewed their previous motions for the grand jury testimony and again the judge denied the motions. Our reading of the record indicates that it was the grand jury testimony appellants really wanted and at no time did either appellant seek any written statements. While Judge Levin did not have the testimony of Katsus’s second appearance before the grand jury at the time of trial when he made his ruling, he did have such testimony at the hearing of the motion for a new trial.

At that time, he advised the parties that he had read the testimony and other than in two minor areas, he found no inconsistency between that testimony and Katsus’s trial testimony. We, too, have examined this grand jury testimony and find that it is substantially in accord with Katsus’s trial testimony. Appellants argue that on the authority of Carr v. State, 284 Md. 455 , 397 A.2d 606 (1979), and Leonard v. State, 46 Md. App. 631 , 421 A.2d 85 (1980), aff'd 290 Md. 295 , 429 A.2d 538 (1981), they were entitled to the grand jury testimony. Neither Carr nor Leonard concerned the disclosure, at trial, of a witness’s prior grand jury testimony.

In Silbert v. State, 12 Md. App. 516 , 280 A.2d 55 (1971), however, this Court did indicate that upon the showing of a "particularized need,” there would be justification for a discreet ⁶¹⁸ and limited lifting of the grand jury secrecy rule to allow the use of the grand jury transcript at trial to impeach a witness, to refresh his recollection, or to test his credibility. More recently, however, the Court of Appeals observed: "Attorney disciplinary proceedings before an Inquiry Panel upon a complaint that an attorney has committed an act of misconduct are similar in purpose to the accusatory proceedings conducted by a grand jury. (Citation omitted). It is true, of course, that in a proper case an accused may, at trial, be afforded access to grand jury minutes for purposes of cross-examination or impeachment if he demonstrates a 'particularized need’ for disclosure.” (Citations omitted).

Attorney Griev. Comm’n. v. Strathen, 287 Md. 111 at 117 (1980). We need not decide, under the facts and circumstances of this case, whether there was a "particularized need” shown, or indeed what would constitute such a need; nor need we decide whether, "particularized need” being shown, the trial judge here erred in denying the request for Katsus’s testimony on his second appearance before the grand jury. This is so because even assuming error was committed, in our view such error was harmless.

The State’s proffer of consistency was confirmed by the trial judge and our own independent examination of the involved statement persuades us that any discrepancy was minor indeed. Furthermore, not to be overlooked was the fact that the jury was well aware that Katsus’s first grand jury testimony was truly inconsistent with that given by Katsus at trial. Accordingly, we find no reversible error in the trial judge’s ruling on this issue. (4) Admission of Evidence of Erman’s Financial Condition (a) Erman’s contention Although, as seen above, we have vacated Erman’s con ⁶¹⁹ victions, we have also remanded for a new trial as to him.

In the event of a new trial it is probable this issue will again rise; thus, for the benefit of the trial court, we shall address the issue. The State’s theory of its case against Erman was that he had a financial need, saw a way to gain financially if the president, Stermer, and the vice-president, Shields, of the Mudge Paper Company, were to die. This was so because Erman had stock in the company, which would have enhanced value upon the deaths of either the president or vice-president due to a company stock buy back agreement financed by key-man insurance. Thus, the State reasoned, Erman had a motive to see to the death of either.

To show the alleged financial need-gain theory, it was necessary to show Erman’s financial condition. This was accomplished basically by showing what he had, what he earned, what he spent, and what he owed. The end result was that the jury had before it evidence that Erman was living well beyond his means, although Erman’s evidence tended to show otherwise. Erman argues that in trials for non-speculative crimes evidence of financial condition is inadmissible, gleaning support from Williams v. State, 15 Md. App. 320 , 290 A.2d 542 (1972).

While it is true that we said in Williams , at 330, "The prosecution is not ordinarily permitted to refer to financial matters where they are collateral to an issue in the case,” we also pointed out that there were several exceptions to the rule. We also made clear that the issue was one left to the sound discretion of the trial judge. In our view the evidence of financial need-gain was relevant to the issue of motive, and we find no error in its admission. (b) Brent’s contention Brent complains that he suffered prejudice through the use of evidence against Erman of his financial condition.

As explained above in our discussion of issues (1) and (2), we ⁶²⁰ believe Brent has waived his right of review because he has referred us to no record reference where he moved for a severance or mistrial during trial. In any event, we find no abuse of discretion by the trial court here. (5) Trial testimony of Katsus On appeal both Erman and Brent contend that the trial court erred in admitting into evidence the testimony of an accomplice, Paul Katsus. The appellants support their contention by arguing that: (a) Katsus’s possible commission of perjury before the grand jury rendered him incompetent as a trial witness; (b) The dismissal of conspiracy charges against the appellants barred the use of the co-conspirator exception to the hearsay rule as justification for admitting Katsus’s testimony; and (c) Katsus’s violation of the sequestration order warranted the striking of his testimony.

(a) Perjury Issue During a pre-trial hearing on the appellants’ motion to compel disclosure of Katsus’s grand jury testimony, the State conceded that Katsus had twice testified before the grand jury, and that his second grand jury testimony materially contradicted his previous testimony. The trial court was informed that Katsus’s trial testimony would be consistent with his testimony at his second grand jury appearance. The State called Katsus as a trial witness. After he was sworn, but before he testified, both appellants objected to his testimony on the grounds that he was not a competent witness.

The appellants jointly moved that Katsus not be ⁶²¹ permitted to testify because he was "an admitted perjurer” even though the State had not "... prosecuted him for it.” The court denied this motion. Katsus had received immunity from prosecution for any peijury which he may have committed before the grand jury. Appellant Brent contends that this grant of immunity from prosecution "only magnifies the possibilities for further perjury and should not be condoned as a vehicle for exploitation of the untruthful testimony.” The law concerning the competency of a peijurious witness is set forth in Md. Cts. & Jud. Proc.

Code Ann. § 9-104, which provides that a person convicted of peijury may not testify. Appellant Brent submits that Katsus’s "admission of peijury” should have the "same effect” as a peijury conviction. Similarly, appellant Erman suggests that we "extend the application” of § 9-104 to include persons "who indeed are guilty of peijury whether or not the State seeks to formally charge and convict them.” In effect, what is here being suggested is that we judicially extend a legislative pronouncement, i.e., extend § 9-104 beyond its clear language. This we may not do.

As Judge Powers stated in Dept. of Natural Resources v. Adams, 37 Md. App. 165, 173 , 377 A.2d 500 (1977): "A court may not add to a statute by judicial construction, nor lightly read into a statute by implication, a provision which the legislature did not see fit to include. Department v.