Grabert v. State

Thompson, J., delivered the opinion of the Court. On June 15, 1973, Charles F. Grabert, appellant, was convicted for possessing and selling LSD on September 15, 1972 and for possessing and selling cocaine on June 30, 1972. Although the cases were not formally consolidated, they were consecutively tried on the same day before Judge Joseph A. Mattingly, sitting without a jury in the Circuit Court for St. Mary’s County. A single opinion covering both cases was filed.

Upon motion by the State, the appeals were formally consolidated in this Court. Both cases present the contention that the State unconstitutionally interfered with the appellant’s right to counsel at his respective trials. During the course of the trials, it developed that the appellant, along with four others including John Lawrence Orgel, an undercover agent working with St. Mary’s County Sheriff’s Office, were arrested on several marijuana charges which arose out of a raid on September 11, 1972. On September 12, the day after the raid, all of the defendants gathered in the office of attorney Charles A. Norris.

Mr. Orgel admitted going to Mr. Norris’s office pursuant to an agreement among the five to retain the same lawyer to represent them. Mr. Orgel further testified that he went to the office reluctantly and only to preserve his cover; and that he was not directed to go there by any official. Indeed, the statements of counsel show that when the intrusion was brought to th^, attention of the State’s Attorney all of the charges resulting from the marijuana raid were promptly dismissed. Mr. Orgel testified not only that he went to the office reluctantly but that he arrived late, stayed for only twenty minutes and left.

He did admit that while he was there there was some discussion as to the nature of the defense to the marijuana charges; but he testified affirmatively that no evidence was obtained from the conference that was used in the prosecution of the instant ⁴⁷³ cases. He testified, moreover, that the arrests and purchases in the present cases were not the result of any information obtained from his being in Mr. Norris’s office. No other witness testified concerning what transpired in Mr. Norris’s office. Other testimony in the case established that Mr. Grabert sold cocaine to Mr. Orgel on June 30, 1972; and that he sold LSD to Mr. Orgel and Cynthia Conley, another undercover agent, on September 15, 1972.

To support his argument that his right to counsel was unconstitutionally infringed, appellant relies on Caldwell v. United States, 92 U. S. App. D. C. 355, 205 F. 2d 879, 881 (1953) 1 and Coplon v. United States, 89 U. S. App. D. C. 103, 191 F. 2d 749, 759 (1951). In those cases, the appellants were awarded new trials on the basis that they had been denied the effective assistance of counsel and due process. In both cases, the government availed itself of information