Green v. State

Lowe, J., delivered the opinion of the Court. Prologue The continued existence of an elected official as an elected official depends not only upon his ability to “resist the temptations that daily beset him,” but also upon his ability to make it apparent that he has resisted them. Few, if any, elected officials have survived a long political life without some impugning of their motives. This, the public figure must be content to bear, 1 or alternatively, his defense can be ⁶⁸² to open himself to the "rigid scrutiny-of those who hold him suspect.

Indeed the temper nf the times compels one to endure 'even the proddings -of .the curious. 2 For a public official to do less would, justify the‘suspicions of his critics. The “era of openness” seems a recent manifestation of the public will. It =is not surprising that prosecution for obstruction of justice — the coverup crime — has become prevalent, if not fashionable, in these serious seventies. It is a crime that breeds on fear, and as such finds fertile fields among those dependent upon the public weal.

It is central among the crimes with which Samuel A. Green, Jr., State's Attorney for Baltimore County, was charged in a sixteen count indictment and convicted by a jury in the Circuit Court for Baltimore County. The indictment arose peripherally from an investigation of “allegations of corruption of public officials in connection with the'arrest, prosecution and escape of one John Edward [Liddie] Jones.” The Attorney General’s office conducted the investigation by authority of a;gub.ernatorial directive dated November 13, 1972 issued in accordance with Article V, § 3, of the Maryland Constitution. The incident which appellant was attempting to obscure arose from the dismissal of gambling charges erroneously placed against the owner of an ..automobile service station, one Kneass Harrington. Properly indignant that his wrongful arrest would remain a matter of public record-open to anyone’s perusal (see Md. Code, Art. 76A, supra), Mr. Harrington sought some means of expungement.

The Court of Appeals had not yet held that such authority lay in .the trial courts, John Doe v. Commdr., Wheaton Pol. Dept., 273 Md. 262 , and Mr. Harrington’s-pleas to at least two attorneys fell upon deaf ears. They knew of no procedure to procure expungement even of an arrest record. Mr. Harrington was, however, later put in contact with an investigator for, ;and confidant of, Mr. Green, namely Louis W. Irvin, whom Mir.. ⁶⁸³ Harrington had known previously.

At Mr. Irvin’s suggestion, Mr. Harrington wrote Mr. Green requesting the expungement of his arrest record. When Mr. Irvin again contacted Mr. Harrington, it was to collect the $750 for “legal” services involving the expungement. The evidence revealed that at Mr. Green’s suggestion the petition to expunge was, prepared and effectuated by Deputy State’s Attorney Stuart Hirsch, who after preparation obtained' an accommodation signature from Stephen Miles, a friend and attorney outside the State’s Attorney’s office. Some apprehension seems to. have arisen, in the State’s Attorney’s office when Mr. Harrington became aware and indignant that the FBI still maintained a record of his arrest; however, the real anxiety came with the Governor’s order for an investigation of the Liddie Jones case, in the vortex of which was Deputy State’s Attorney Hirsch.

Although the initial Jones' investigation was not focused on Mr. Green, the Governor’s directive to the Attorney General contained the unsettling, closing paragraph: “In the event your investigation of the above discloses acts or conduct in other areas which warrant further investigation,, grand jury action or prosecution,, you are hereby directed to. pursue the same, and you and' the members' of your staff designated by you shall have all of the same powers with respect thereto that have been conferred by me as to the above..” That mandate, and the. discontented rumblings of Mr. Harrington, supplemented perhaps by questionable authority to expunge at all (prior to John Doe, supra), awakened Mr. Green to the precariousness of his own position, inevitably to be subjected to the harsh light of investigation. Through Mr. Hirsch, he first attempted to have Stephen Miles create a Harrington file, nunc pro tunc. Failing; this he had his deputy solicit his. (Hirsch’s) father, also a lawyer, to< provide: an alternative cover.

What Mr. Green did not know, but came to suspect, was that Mr. Hirsch was cooperating completely with the ⁶⁸⁴ investigators. He had become disenchanted with Mr. Green, at one time his idol, and admitted having developed a deep-seated resentment toward him. Beyond that, although offered no immunity, his cooperation would not go unnoticed in regard to his own investigation. As rumors increased, so too did Mr. Green’s trepidation.

The $750.00 cash payment by Mr. Harrington to Mr. Irvin was returned in like kind with an admission by Mr. Irvin that Mr. Harrington owed Mr. Green an expression of gratitude for his generosity. Unknown to the participants, this act was performed under police surveillance. When Mr. Hirsch’s investigatory involvement became more apparent, his denials of police participation to Messrs. Green and Irvin were met with threats of bodily harm and even death upon the confirmation of those suspicions.

The threats were not made good either when Louis Irvin was indicted, tried and convicted, see Irvin v. State, 23 Md. App. 457 , or when Mr. Green was indicted and tried in the Circuit Court for Baltimore County. He was convicted by a jury of misconduct in office, obstruction of justice, conspiracy and attempted subornation of perjury. The crux of Mr. Green’s crime was his effort to hide his office’s involvement in the Harrington arrest record expungement at a time when investigatory bodies were scrutinizing the activities of that office under a broad gubernatorial mandate. It was not necessary to prove that Mr. Green had profited by the expungement, nor even that an attempt to obtain expungement was or would have been a crime (see John Doe, supra).

By his wrongful attempts to mutate information sought by and for the grand jury, the crimes were complete: “The nature of the proceedings in which the witness [in this case, Mr. Hirsch] is to testify is immaterial on the question of the criminal character of acts designed to influence the testimony of a witness. . . .” F. Wharton, Criminal Law and Procedure (Anderson ed.) § 1281 at 629. ⁶⁸⁵ Had the information sought been the Sermon on the Mount, its deliberate mutation would nonetheless have been a crime. The Appeal Appellant raises ten questions alleging error. The answers for the most part are of a factual rather than legal nature which became obvious after a review of the four thousand page transcript. Explaining the answers in context accounts for the length to which we must go in responding.

For that reason related questions are treated together in an effort to curb our own verbosity. I. “Did the Court err in denying Appellant’s Motion to Compel Election as to Counts of the Indictment and permitting the jury to hear both the conspiracy concept charges and evidence of alleged substantive offenses simultaneously?” After reciting Md. Rule 735 to show that the court below could have ordered “an election or separate trials of counts,” appellant then quotes Wanzer v. State, 202 Md. 601 to indicate that the court should have, subject only to the “limitation . . . that Courts will guard against injustice.” Recognizing the improbability of success in appellate efforts to prove abuse of judicial discretion, appellant takes the more rigid view that he has a right to a trial of the substantive crimes, separate from a charge of conspiracy to commit those crimes. His argument seems to rely almost entirely upon a single sentence quoted from Wilson, Valentine and Nutter v. State, 8 Md. App. 653, 666 , cert. denied, 258 Md. 731 : “If the State chooses to prosecute an individual conspirator for a substantive crime, he is entitled to a separate trial on that substantive crime on demand, even though the substantive crime constitutes an overt act tending to establish the conspiracy.” ⁶⁸⁶ Appellant is not the first to utilize that language to assert such right, Mason, Taylor & Taylor v. State, 18 Md. App. 130 , cert. denied, 269 Md. 763 , 767; 416 U. S. 907 . There we said, as here we repeat: “Unfortunately for the appellant [s’] position, however, the quotation is lifted out of context.” In Valentine the Court was facing joinder of defendants, as well as joinder of multiple counts and indictments.

Some were related, some were not, although all of the defendants had been charged with a single conspiracy. In context, it is clear that the Court intended that the separate trial to which a conspirator had a right for substantive crimes, was restricted to those substantive crimes which the defendant had not conspired to commit. It would be foolhardy and purposeless to require as of right two trials — one for a crime committed and one for a conspiracy to commit the same crime. The prejudice appellant infers from joinder is based upon his belief that, had a severance been granted, he could have precluded the admission of a statement made to police officers by Louis Irvin since that statement, he contends, would not have been admissible except as “acts occurring during a continuing conspiracy.” Greenwald v. State, 221 Md. 245, 250 .

We note, however, that Greenwald at 254 itself refutes the very foundation of his prejudice argument: “It has been held that even though the indictment charges a substantive crime on a specified date but the proof shows that there was, in fact, a conspiracy to commit the substantive crime, the acts and declarations of one conspirator are admissible against the other, and the rules of evidence are the same as where conspiracy is expressly charged. 22 C. J. S. Criminal Law, Sec. 756b. The court so held in People v. Novotny (Ill.), 20 N.E.2d 34, 35 . There the indictment charged Novotny with maliciously damaging a building on September 8, 1937. The court said: ‘When, however, ⁶⁸⁷ the crime charged has been committed in pursuance of a conspiracy, even though the indictment does not charge conspiracy, it is competent to show that the erime committed was the result of a conspiracy and every act of the conspirators is admissible, even though the commission of other crimes is disclosed.’ See also Commonwealth v. Hancock (Super.

Ct. Pa.), 112 A. 2d 407, 410 , where the charge was of a substantive crime and the court held that since the defendants had been shown to have had a common intent, plan and design, the declarations of Miller, one conspirator, were admissible against the appellee Hancock. The opinion relied on Commonwealth v. Sheaffer (Super. Ct. Pa.), 23 A. 2d 215, 217 , in which various authorities to the same effect are set forth at some length. See also Coplin v. United States, (9th Cir.), 88 F. 2d 652 , cert. den., 301 U. S. 703 , 81 L. Ed. 1357 ; State v. Tennyson (Minn.), 2 N.W.2d 833, 837 .

This Court has indicated agreement with the other Courts to which we have referred.” II. “Did the Court err in admitting a typewritten copy of an alleged ‘corrected’ statement of Louis Irvin, an alleged co-conspirator, and did not require instead the playing of a tape recorded version of said statement, which was the ‘best evidence’ in the case?” 3 The typewritten statement of the co-conspirator, Louis Irvin, which was originally taken on a tape recording by the State Police, was introduced over appellant’s objection. 4 In ⁶⁸⁸ McGuire v. State, 200 Md. 601, 606 , the Court of Appeals assumed that a recording tape would have been the best evidence of certain conversations; thus, reasons appellant, he was entitled to the best. Beyond that, he points to prejudice in the jury’s inability to weigh voice inflection and intonation in determining the meaning of the statement. It is not contended upon this appeal that the transcripts are inaccurate or that the conversations which were recorded did not take place. See also Raimondi v. State, 265 Md. 229, 230 , cert. denied, 409 U. S. 948 .

In Forrester v. State, 224 Md. 337 , tapes were acknowledged as the best evidence of a conversation and as such were permitted introduction over appellant’s objection. The Court succinctly construed the rule to be applied: “The best evidence of which the case is capable must be produced, and secondary, or inferior evidence is only admissible after a proper foundation has been laid, showing good and sufficient reasons for the failure to produce the primary evidence.” Such foundation was laid and sufficient reasoning was produced for the substitution of the original tape. The State showed: 1. The transcription had been carefully prepared, ⁶⁸⁹ reviewed and corrected by a State Police Lieutenant and proffered the transcript as “a more understandable form than the tape would be.

The tape is kind of fast in parts and slow at parts.” 2. The original tape was evidence in the Irvin case, supra, then on appeal to this Court and even now pending on certiorari before the Court of Appeals. Although it could be removed by court order little purpose would be served by so doing. 3. A copy of that tape had been made and given to appellant.

Recording equipment was available even at trial for his use and he was free to use it for checking accuracy, cross-examination, introduction on his own behalf or any other purpose which was the basis of his original objection. We think this meets the test of Forrester although the practice followed in Raimondi of introducing both tape and transcripts for clarity and comparison is certainly preferable. The dilemma here, however, was whether to have the original tape remain with the Irvin case on appeal or introduce it at Mr. Green’s trial. Even a copy of the original tape would have been subject to a “best evidence” objection.

Finally, although prejudice was speculatively alleged regarding voice intonations, there was no evidence thereof produced. If it were within appellant’s awareness he has not brought it within ours. Had it been so at trial he was free to overcome it with the duplicate tape given him by the State. No reason has been shown why Mr. Irvin’s appeal should have been jeopardized by removing evidence more crucial in its original state there than here.

We see no prejudice, we find no error. III. “Did the Court err in permitting the State to exploit the subject of Appellant’s alleged ‘sexual ⁶⁹⁰ misconduct’ despite a pretrial limiting order requested by the State that such testimony would not be admissible?

IV

Did the: Gowt err in denying Appellant’» Motion that the State be precluded from cross examining him (M ‘marital infidelity’ and ‘sexual misconduct’ in the event Appellant chose to take the stand in his own defense and testify fully concerning the allegations set forth in the Indictment? V. Was the Appellant afforded a full and complete opportunity to exercise his Fifth Amendment rights in making an intelligent election as to whether to testify in his own defense in light of the Court’s ruling that he could be cross examined on collateral, highly prejudicial matters of alleged ‘sexual misconduct’?

VI

Did the Trial Judge err in denying Appellant’s Motion for Mistrial after all evidence was in and State announced its intention to argue ‘sexual misconduct’ as a possible motive for the commission of the crime, after the State had assured the Court for weeks that its only theory of admissibility of said testimony was the bolstering of the credibility of their main witness, Stuart Hirsch?

VII

Did the Trial Judge err in ruling that the State could produce rebuttal testimony on the subject of alleged ‘sexual misconduct’ even though the Appellant produced no testimony which would have permitted such rebuttal?” ⁶⁹¹ That the emphasis given appellant’s sexual conduct was given by appellant himself is not only apparent from his brief, half of which is concerned therewith, but also from our careful reading of the twenty-two volumes of testimony. With but little exception, its relevance seems highly questionable in an obstruction of justice case. However, because appellant became inordinately preoccupied with the subject, a chain of relevancy for subsequent testimony was knitted link by slender link. All of the sexual conduct evidence was expressly and continually eschewed by the trial judge, but finally permitted at appellant’s instance.

Anticipating the emergence of that subject matter by reason of pretrial publicity, Judge Ross carefully advised counsel even before the jury was empanelled, to instruct their witnesses not to volunteer any information covering marital infidelity except in response to a direct and specific question. He admonished counsel themselves that “you may not mention marital infidelity in your opening statement or ask any questions concerning marital infidelity until you have persuaded me that there is some basis in fact for use of that to show or to impeach the witness at the trial other than on the ground that such misconduct is discrediting.” On the morning of the fifth day of the month long trial, Stuart Hirsch, the State’s key witness, was testifying to a visit in company with appellant to the office of a State Senator. Appellant had accused Mr. Hirsch of cooperating with the investigators and wanted to confront his denials with appellant’s source of information. The Senator had presumably heard accusations made by Hirsch to the State Police.

Hirsch testified that appellant drove him to Annapolis to face his accuser: “Mr. Green drove. It was his car. I asked him if we were going to see Senator Pine. I said, ‘What is in the statement that I was supposed to have given?’ He answered that I paid two thousand dollars for my deputy job, plus agreed to allow Mr. Green to use my apartment for sexual purposes. . . .” No objection was made to this testimony by appellant. ⁶⁹² After a brief dialogue between the witness and State’s Attorney, the State then pursued the question to ascertain whether the accusation attributed to Hirsch was true, to which appellant entered his first objection and, upon reflection, withdrew even that. “Q. Was the statement attributed to you by Senator Pine, in fact, true, sir?

MR. WHITE: Your Honor, I object. Well that’s all right, I withdraw the objection. Go ahead.

A. That was not completely accurate, no, sir. . . . I paid Mr. Green one thousand dollars and agreed to let him use my apartment.” If it was not then apparent that appellant made a tactical decision to seize upon the answer as opening a whole new vista to him, it became obvious as the trial progressed. Not only did appellant decline any corrective action in the nature of a motion to strike or an offered clarifying instruction when he later broached the subject out of the jury’s hearing, but he pressed for and finally received the right to cross-examine Hirsch extensively upon all aspects of his out-of-court accusations of Mr. Green’s sexual predelictions, peccadilloes, peculiarities and even “perversions.” Like the King of Epirus, however, appellant had gained a victory at too great a loss. 5 The principle of admissibility argued was that Mr. Hirsch’s credibility was crucial and subject to attack. Appellant attempted to discredit Mr. Hirsch by exposing what he viewed as inherently unbelievable out-of-court statements publicly and privately made regarding this phase of Mr. Green’s life.

The questions he asked were exhaustively detailed and explored every episode. He hoped to reveal the viciousness of Mr. Hirsch’s attacks by demonstrating the absurdity of the extremes to which he ⁶⁹³ would go. His technique was a form of impeachment by showing bias or, as Professor Wigmore phrases it, by “indicating [the witness’s] disposition or habit or general scheme to make false charges or claim,s.” 3 Wigmore, Evidence (3d ed.) § 963 at 520. The cross-examination regarded accusations by Hirsch which ran the sexual gamut from long affairs to short affairs, local and interstate.

It included Hirsch’s accusations of appellant’s predelictions toward peculiar sexual activities which deviated not only from the conventional, but also from the peculiar, entailing the use of condiments and dessert toppings, if Hirsch was to be believed. Suffice to say the attack on Hirsch’s credibility was not necessarily for naught. Ridicule can be devastating and the more so when the ridiculous is admitted. The State thereupon faced substantial diminution of the credibility of its sole witness, with whom its case would stand or fall.

The jury could well have seen Mr. Hirsch as an emotionally unstable man (he had admitted himself to a mental hospital) heaping expressions of vituperation on an employer he now resented, and concluded that his sexual accusations of appellant, a family man, were preposterous. The State had but one course to follow if it hoped to prevail and that was to bolster the faltering witness. It elected to do so by proving the probability of those seemingly preposterous sexual exploits. Mr. Hirsch had testified on cross-examination that he had accused Mr. Green of giving a paramour a color T.V., only to repossess and sell it to another deputy at a profit, after a parting of the ways.

He admitted to repeating an obscenely rhymed verse setting forth what was expected of secretarial applicants, which verse and office standards he attributed to Mr. Green. In addition to the use of his own apartment by Mr. Green for sexual cavorting, he admitted that he spoke of other clandestine rendezvous such as rooms at vacation resorts during conventions, retained by others but used by Mr. Green. In the long journey toward rehabilitation the State ⁶⁹⁴ traveled three paths. First, on redirect examination the State asked Mr. Hirsch to name names, times and places for the events described.

The State then established the sources upon which Mr. Hirsch relied for the out-of-court stories he admitted having told. These sources included braggadocio by Mr. Green, personal observations of criminatory circumstances, and conversations with Mr. Green’s participants. The second step toward instituting respectability for Mr. Hirsch was the production of corroborative witnesses during rebuttal. The State called the man whom Hirsch had named as retaining a room at Ocean City used by appellant and a female friend.

Then the State produced the female friend. Subsequently, it produced the color T.V. merchandiser and an office secretary and recipient of the color T.V., to substantiate the story of appellant’s aborted affaire de coeur. The third recuperative effort was the State’s reply to appellant’s motion in limine, which asked that the State be precluded from cross-examining appellant regarding sexual misconduct, in the event he chose to take the stand. The short answer to appellant’s assertion that the court’s denial was error (Question IV) lay in the denial itself and its accompanying explanation.

Although the court lamented the insertion of sex from the beginning, it decided that since appellant had used it to attack Mr. Hirsch’s credibility “it has become an issue in the case through the history we have discussed, and it is now relevant in respect to Hirsch’s credibility, ... to the extent that it has been opened in that area. . . .” He continued by explaining “that the only area [the State] could go into on that, on the sex basis ... is where it relates to Hirsch’s testimony.” In declining to grant the motion in limine absolutely, the court stated that it would have to rule on the propriety of each question asked. That ruling