Gordon v. State

Orth, J., delivered the opinion of the Court. MILTON GORDON, Attorney at Law, has been twice found guilty by his peers of the charge that on 8 Septem ²⁴⁷ ber 1966 and thence continually until 23 December 1966, he did “unlawfully embezzle from Raymond Francis Scholl, Jr., and Mary E. Scholl” the sum of $13,895.04, “in violation of Article 27, Section 129, of the Annotated Code of Maryland.” The judgment resulting from the conviction at the first trial in the Circuit Court for Somerset County was reversed upon direct appeal to this Court and the case remanded for a new trial. Gordon v. State, 5 Md. App. 291 , cert. denied, 252 Md. 730 . The judgment resulting from the conviction at the second trial in the Circuit Court for Montgomery County is now before us for review upon a direct appeal timely filed. 1 Gordon seeks to set aside his conviction at the second trial, claiming that the lower court erred in: (1) failing to rule on his motion to dismiss the indictment until after the conclusion of the trial; (2) denying his suggestion for removal; (3) denying his motion to sequester the jury; (4) permitting proof of other crimes; ²⁴⁸ (5) admitting certain records in evidence; (6) denying his motion for judgment of acquittal ; (7) instructing the jury (a) with respect to the money alleged to have been embezzled, as to: (i) ownership; (ii) possession; (b) as to agency.

(1) On 12 January 1971 Gordon filed a motion to dismiss the indictment. 2 The docket entries under date of 15 January read that upon hearing before Mathias, J. “ruling reserved until trial of the general issues”, that subsequently on that date the court ordered the words “ruling reserved” stricken and ordered that the motion to dismiss “be deferred for determination at the trial of the case.” On 18 January, according to the docket entries, a jury was sworn, Clapp, J. presiding. There immediately follow these entries, each under date of 18 January: “Defendant’s Motion for a mistrial and Motion granted and a mistrial declared and Jury dismissed by the Court.” “State’s Motion that the Court make a decision on defendant’s Motion to dismiss before Trial of this case.” The docket entries do not show that any action was taken by the court on this last motion. 3 The transcript in the record shows that the indictment came on for trial on 2 March in the Circuit Court for Montgomery County with Judge Clapp presiding. Prior to the selection of a jury the motion to dismiss was brought to the attention of the ²⁴⁹ court at a bench conference. The court said he had reserved his decision on 18 January when the matter was argued before him and “I want to reserve decision now so I will not rule on that at this time.” The trial proceeded.

The transcript ends with these words “(Whereupon, the jury retired to consider its verdict at 11:50 o’clock a.m. [on 3 March], returning with a verdict at 1:00 o’clock p.m.).” The transcript does not show any decision on the motion to dismiss. For what next happened regarding it we return to the docket entries: They read: “March 3, 1971 Verdict: Guilty March 3, 1971 Defendant’s Motion to dismiss Indictment, overruled.” Gordon does not question the authority of the court to order that the motion be deferred for determination at the trial of the general issue. Maryland Rule 725 d. Compare Rule 729 d.

But, he points out, the motion was not determined at the trial of the general issue as the Rule provides, but after the trial on the general issue. This, he argues, was not in accordance with the Rule and he claims the proper sanction for the violation is a reversal of the judgment. We do not see it that way. Assuming that the docket entries record the proceedings in the order of their occurrence, there was no ruling on the motion until after the verdict and the “trial” had ended. 4 The lower court was wrong in not announcing its determination of the motion during the trial of the general issue.

However, Rule 725 provides no sanction for its violation. We held in Saunders v. State, 8 Md. App. 143, 146-147 , following the dictate of the Court of Appeals in Brice v. State, 254 Md. 655 that in the absence of waiver, the failure to rule on a pretrial motion was error ²⁵⁰ requiring reversal. But in each of Saunders and Brice the motion in question was never ruled upon. Here it was ruled upon and from the record was the next action taken after the verdict.

It would seem that the failure to rule before the verdict was mere inadvertence. Gordon alleges no prejudice by the late ruling and we see none. Unlike either Saunders or Brice the propriety of the action on the motion was preserved for appellate review had Gordon desired to present the question. In the circumstance we feel the error was harmless and does not require reversal of the judgment.

(2) On 11 January 1971 Gordon filed an “Affidavit in Support of Suggestion of Removal.” Rules 542 and 738. The docket entries show it was heard before Mathias, J. on 12 January and denied. On 25 February 1971 Gordon filed a “Motion to Reconsider Affidavit of Removal.” It was heard by Clapp, J. on 2 March before the start of the trial. The only record before us on the matter is contained in the transcript of the proceedings. “MR.

JAMES MILLER (Defense Counsel) : We also filed, if the Court please, a motion to reconsider the signing of our affidavit of removal which is still open. I do not desire to argue that any further other than what is contained in the motion. I will be glad to furnish a copy of the Washington Post newspaper article to which I refer. THE COURT: Gentlemen, as we discussed this matter also in chambers, my reaction in connection with removal, because of unfavorable newspaper publicity, that in certain cases it is the only thing to do, but in many cases the removal to another court means it brings it more forcible to the attention of the jurors than might be the existence here.

I would deny the motion to reconsider your suggestion of removal.” ²⁵¹ In his brief Gordon refers to the reasons for the declaration of a mistrial on 18 January 1971 and articles which appeared in the Washington Post on 19 January and 3 March and in the Wheaton News on a date not disclosed. None of these is a part of the record before us. In McLaughlin v. State, 3 Md. App. 515 we said, at 520: “The question of whether a non-capital criminal case should be removed to another jurisdiction is one which rests within the trial court’s discretion. Maryland Constitution, Art. IV, Sec. 8; Maryland Rules 542 (1) and 738 (b).

However, the trial court’s decision is reviewable on appeal for a determination of whether there has been an abuse of discretion. Seidman v. State, 230 Md. 305 , 187 A. 2d 109 (1962) ; Benton v. State, 1 Md. App. 647, 652 , 232 A. 2d 541 (1967).” See Cleveland v. State, 12 Md. App. 712, 716-717 . On the record here we cannot say that there was an abuse of judicial discretion in denying the suggestion to remove the case or the motion to reconsider the suggestion. And we observe that both this Court and the Court of Appeals have held that newspaper disclosures standing alone do not support a defendant’s suggestion that such disclosures deny him a fair trial.

Gray v. State, 224 Md. 308 , 316 and cases cited; McLaughlin v. State, supra, at 520-521. We hold there was no error in the denial of the suggestion to remove and the motion to reconsider. (3) On 2 March 1971 prior to the start of the trial Gordon moved to sequester the jury. 5 Filing the motion defense counsel said that the prosecutor had advised him there was a possibility that the case would be completed in one day and therefore the court may want to withhold ²⁵² ruling on the motion. The court said: “I will withhold ruling on your motion to sequester.

It will be moot if we finish in one day.” The docket entries show that subsequently the motion was “overruled.” According to the transcript, about 4:00 p.m. the court told the jury it would not be possible to complete the case that day and that the court would recess until the next day. It then said: “If you recall I asked you on voir dire examination about whether you were willing to abide by your oath, not to have any contact, discussion or knowledge from anyone or any media about this case. I call your attention to the fact that the Court is empowered in cases where there may be public interest in newspaper accounts and radio and television to sequester a jury, which means to keep you tonight; not permit you to go home and stay in various rooms until such time as you are called back. I have always been very reluctant to do that because I have a great deal of confidence in the integrity of jurors.

When they say they will conscientiously live up to their oath, they mean it. I feel that way about you ladies and gentlemen. I especially urge you, therefore, to remember the Court’s instruction not to discuss this case among yourselves, not to discuss it with anyone else. That includes wives, husbands, sweethearts and children; not to listen to the news media of any kind or to watch the news media of any kind, and to keep a completely open mind until you come back and your duties are concluded in this case.

I have every confidence that you will live up to it and when you do finally get around to reading the various media and listening to it on the television, you may be surprised in what you hear.” ²⁵³ The jury was excused. Gordon claims the denial of his motion compels reversal of the judgment. He urges that “the pretrial publicity as well as the newspaper articles on the day of the trial contained information which was not admitted at the trial, as well as information concerning appellant’s prior convictions in both Maryland and Florida.” Code, Art. 51, § 22 provides: “The jurors sworn to try a criminal action may, at any time before the submission of the case to the jury, in the discretion of the court, be permitted to separate or may be kept in charge of proper officers.” Both the Court of Appeals and this Court have abided by the rule that prejudice must be demonstrated and is not to be assumed merely from the fact of separation where there is a possibility of influence or contamination from outside contact. Veney v. Warden, 259 Md. 437, 443 ; Graef v. State, 1 Md. App. 161, 170 .

The record here does not disclose a demonstration of prejudice. Thus we conclude that the jurors adhered to the admonition of the trial court and that Gordon suffered no prejudice on account of the jury’s separation. Therefore there was no abuse of judicial discretion. We hold that the trial court did not err in the denial of the motion to sequester the jury.

See Wilson v. State, 4 Md. App. 192, 195-201 , cert. denied, 251 Md. 753 , cert. denied, 394 U. S. 975 , 89 S. Ct. 1467 . (4) and (6) The evidence adduced at the first trial and in the trial on remand was in all material aspects the same. Gordon complains on this appeal that the court erred in permitting proof of other crimes. The “other crimes” referred to the misuse of escrow funds other than those of the Scholls as admitted by Gordon according to the testimony of one Benjamin Dulaney.

Gordon concedes that “had the State been able to establish a prima facie case of guilt of the offense charged in the indictment that the testimony of Dulaney would have been admissible under one or more exceptions to the general rule” which ²⁵⁴ is that evidence of a distinct substantive offense cannot be admitted in support of another offense. MacEwen v. State, 194 Md. 492, 500-501 . In so conceding, Gordon accepts our ruling in Gordon primus at 306-307 that the challenged evidence was not inadmissible per se and narrows his reason for the claim of inadmissibility, arguing that absent the establishment of a prima facie guilt of his embezzlement of the Scholl funds, such evidence could not be properly introduced. He alleges that the requisite prima facie proof of guilt was not established.

The short answer is that we find it was established. Therefore we hold that the lower court did not err in permitting proof of other crimes. We find that there was prima facie evidence of Gordon’s guilt because the evidence in law was sufficient to sustain his conviction of the offense charged. In other words the evidence adduced showed directly or supported a rational inference of the facts to be proved, from which the jury could be properly convinced, beyond a reasonable doubt, that Gordon embezzled money from the Scholls as charged.

We so found in Gordon primus in ruling that the trial court there did not err in denying a motion for judgment of acquittal, 5 Md. App. at 301-306 , and, the evidence being not materially different here, there is no reason to depart from that ruling. Gordon argues now that there was insufficient proof that he had “actual possession of the money alleged to have been embezzled.” We found in Gordon primus that Gordon was the Scholls’ agent “who received ‘for or in the name or on account of’ the Scholls the money to cover the Emigrant indebtedness — money which the proof showed he personally thereafter fraudulently embezzled.” Id., at 305 . We so find here and conclude that the jury could properly determine therefore that Gordon had such possession of the funds as is contemplated by the statute. 6 Cf. Loker v. State, 250 Md. 677 . ²⁵⁵ Gordon also claims that there was no evidence to show directly or support a rational inference that he fraudulently embezzled any funds of the Scholls.

The funds alleged to have been embezzled were received by Gordon to pay off a first mortgage or trust outstanding on property the Scholls had purchased. On 8 September 1966 the funds were deposited in the real estate escrow account of the Gordon & Myers law firm in the State National Bank. As shown by the bank’s ledger sheets, there was a credit balance of $271,465.34 in the account on 9 September. On 24 October there was a deficit of $23,193.14 and from that date, with the exception of several days the latter part of October, the account was overdrawn.

When the account was closed on 23 December there was a deficit of $8,147.11. The lien on the property purchased by the Scholls was never released. 7 We think it a rational inference from this evidence that the Scholls’ funds had been stolen. We hold that the lower court did not err in denying the motion for judgment of acquittal. (5) Gordon questions the admissibility of State’s Exhibits Nos. 5A, 5B, 6A, 6B, 7, 8, 10A and 10B.

He alleges their admission violated the “shop book” rule as it now exists in Maryland because a proper foundation had not been laid. Code, Art. 35, § 59 provides that any record or a photostatic or photographic reproduction thereof, made as a record of any transaction shall be admissible in evi ²⁵⁶ dence in proof of said transaction if (1) made in the regular course of business, and (2) it was the regular course of business to make such record or reproduction, at the time of said transaction or within a reasonable time thereafter. Photostatic or photographic reproductions of such admissible documents, photostated or photographed at a later time shall likewise be so admissible if photostated or photographed in the regular course of business in good faith and without an intent to defraud. “All other circumstances of the making of such writing or record, or photostatic or photographic reproductions thereof, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight, but not the admissibility thereof.” See Hyman v. State, 4 Md. App. 636, 641-642 . The rule is that business records may be introduced, even though hearsay in nature, when the entry meets the test of “necessity and circumstantial guaranty of trustworthiness.” Burroughs Int’l.

Co. v. Datronics, 254 Md. 327, 347-348 . As to Exhibits 5A, 5B, 6A, 6B, 7 and 8, Stanley Frank Miller, Jr., comptroller for Bogley, Hasting, Mahoney and Lebling (Bogley), mortgage bankers, through whom the Scholls had arranged the financing on their property, testified that 5A, the first page, and 5B, the second page, was a form sent out by the firm’s “closing department”. He worked in the accounting and mortgage servicing departments but identified the