Grohman v. State

Finan, J., delivered the opinion of the Court. The State’s Attorney for Prince George’s County filed a petition to adjudicate the appellant in contempt of court for divulging and selling testimony of the grand jury for Prince George’s County to a member of the public. An evidentiary hearing was held in the circuit court for that county on October 18, 1969, Digges, C.J., presiding. The appellant neither took the stand nor offered any evidence in his own behalf, but relied upon as his defense the doctrine of Purgation by Oath.

In his affidavit of purgation he stated facts purporting to explain, excuse, and justify his actions, including a delineation of events which he contends compel the conclusion that he was entrapped by police authorities. In a written memorandum and order of court, dated November 20, 1969, issued without the presence of the accused, the trial court found the appellant to be in contempt. On December 18, 1969, the appellant was brought into court at which time he was sentenced by the court to serve a period of three months in the county jail. The accused has appealed the judgment to this Court.

The appellant contends the trial court was in error: (1) in holding that he had not been entrapped and (2) in rendering its judgment of contempt out of the presence of the accused by way of a written order delivered to the appellant’s counsel through the United States mail. In the present case we are first confronted with an in limine question as to whether or not entrapment, a defense to a criminal charge, is available as a defense in ⁵⁵⁵ a criminal contempt proceeding. As Judge Hammond, now Chief Judge, observed in Sheets v. City of Hagerstown, 204 Md. 113, 120 , 102 A. 2d 734 (1954) : “* * * The line between civil and criminal contempt is often indistinct.” And, as was noted by this Court in In re Lee, 170 Md. 43, 47 , 183 A. 560 (1936) : “* * * In spite of verbiage used to designate them [contempt proceedings], they are ‘neither wholly civil nor criminal.’ Gompers v. Buck’s Stove Range Co., 221 U.S. 418 , 31 S. Ct. 492 , 55 L. Ed. 797 .” However, in view of what our predecessors said in Kelly v. Montebello Park Co., 141 Md. 194 , 118 A. 600 (1922), we view the present proceeding in the nature of a criminal contempt proceeding, as did the court below. In Montebello, supra, this Court quoted with approval the following language from Bessette v. W. B. Conkey Co., 194 U. S. 324 , 24 S. Ct. 685 , 48 L. Ed. 997 (1904) : “ ‘Proceedings for contempts are of two classes, those prosecuted to preserve the power and vindicate the dignity of the Courts and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the Court has found them to be entitled.

The former are criminal and punitive in their nature, and the government, the Courts and the people are interested in their prosecution. The latter are civil, remedial and coercive in their nature and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect and enforce.’ ” (emphasis supplied.) 141 Md. at 197 . The divulging of judicial secrets has long been regarded both by statute, as well as at common law, as an interference with the functioning of the courts and the ad ⁵⁵⁶ ministration of justice. Baltimore Radio Show, Inc. v. State, 193 Md. 300, 320 , 67 A. 2d 497 (1949), and In re Lee, supra.

As has become apparent from this discussion, we are of the opinion that the gravamen of this contempt is criminal in substance and although this is not a criminal proceeding, we can see no logical or fair reason why the defense of entrapment should not be available to one so accused. It is likewise clear from the opinion of the lower court that the trial judge assumed that such a defense could be relied upon by the accused. This then leads us to the consideration as to whether the evidence in the record supports the entrapment of the accused. In Baxter v. State, 223 Md. 495, 499 , 165 A. 2d 469 (1960), we stated: “The law in this State with respect to the defense of entrapment was restated in Ferraro v. State, 200 Md. 274 , 89 A. 2d 628 (1952), at p. 279 (by quoting from Callahan v. State, 163 Md. 298, 301 , 162 Atl. 856 [1932]) in this manner: ‘It is not objectionable for an officer of the law to lay a trap or unite with others to detect an offender.

The only effect would be to justify a more careful scrutiny of the evidence. Where the crime is not against the person nor the property of the instigator, it is not clear how, in the absence of special circumstances, the commission of a crime at the solicitation or procurement of another, although an officer of the law, makes the culprit any less guilty than if the criminal design had originated with the wrongdoer himself.’ ” In Baxter , Judge Horney writing for the Court commented on the fact that this Court in Ferraro v. State, 200 Md. 274 , 89 A. 2d 628 (1952) recognized that there were two divergent views held by respected authorities concerning the conditions under which entrapment should apply but that this Court had not expressed a preference ⁵⁵⁷ as to which of the views it favored. The divergent views referred to in both Baxter• and Ferraro were the views espoused by the majority of the Justices of the Supreme Court of the United States in Sorrells v. United States, 287 U. S. 435 (1932), Sherman v. United States, 356 U. S. 369 (1958), and Masciale v. United States, 356 U. S. 386 (1958), as contrasted with the view expressed in concurring opinions in Sorrells and Sherman and the dissent in Masciale . The Baxter case contains a lengthy footnote discussing these views which we would paraphrase by the statement that the majority opinion of the three Supreme Court cases adopted the “origin of interest” test, which allows the defense of entrapment only if the criminal act was “the product of the creative activity” of law enforcement officials.

In applying this test the court must make two inquiries: (1) whether there was an inducement on the part of the government officials and if so (2) whether the defendant showed any predisposition to commit the offense. The other criterion adopted by the concurring opinions in the Sorrells and Sherman cases and the dissent in Masciale based the defense of entrapment upon an objective test whereby the court considers only the nature of the police activity involved without reference to the predisposition of the particular defendant : “Thus police conduct which falls below standards to which common feeling responds for the proper use of governmental power would bar conviction.” Note, Entrapment. 73 Harv. L. Rev. 1333 ,1335 (1960). However, it was not until Simmons v. State, 8 Md. App. 355 , 259 A. 2d 814 (1969) that a clear cut expression of the view adopted by Maryland was made.

In Simmons , Judge Orth writing for the court entered into a comprehensive discussion of the salient Maryland cases on entrapment and brought further clarity to the matter with this statement: “* * * It appears that the Court of Appeals has expressly not adopted either of the two divergent views regarding entrapment. In Ferraro it ⁵⁵⁸ discussed at length the divergent views in the majority and concurring opinions in Sorrells but concluded: ‘We do not find it necessary to decide which, if any, of the divergent views of the defense of entrapment is law in Maryland.’ 200 Md. at 281 , 89 A. 2d at 631 . And see Baxter v. State, supra, at 499-500, 165 A. 2d 469 , quoting Ferraro . We feel it advisable now to adopt a test for the application of the rule regarding the defense of entrapment.

We believe that the view of the majority in Sorrells , restated in the majority opinions of Sherman v. United States, supra and Masciale v. United States, 356 U. S. 386 is the better one, and adopt it. We note that in Sherman , the Court said, 356 U.S. at 372, 78 S. Ct. at 820: ‘The intervening years have in no way detracted from the principles underlying [the Sorrells] decision.’ We think, at the least, the opinions of the Court of Appeals do not preclude its adoption. “We construe the opinion of the Court in Sorrells as enunciating what has been termed the ‘origin of interest’ test. This test was stated in substance by Judge Learned Hand in United States v. Sherman, 200 F. 2d 880 (2d Cir. 1952). Probing the aspect of inducement he concluded that in Sorrells ‘all the Court agreed as to the meaning of inducement: it was that someone employed for the purpose of the prosecution had induced the accused to commit the offense charged which he would not have otherwise committed. ❖ * ❖ ‘Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to com ⁵⁵⁹ mit the offence.

On the first question the accused has the burden; on the second the prosecution has it.’ The principles by which these questions of fact are to be determined by the courts were outlined in Sorrells . See 287 U.S. at 451 , 53 S. Ct. 210 . As stated in Sherman, 356 U.S. at 373 , 78 S. Ct. at 821 , they are: ‘On the one hand, at trial the accused may examine the conduct of the government agent; and on the other hand, the accused will be subjected to an ‘appropriate and searching inquiry into his own conduct and predisposition’ as bearing on his claim of innocence.’ Once the accused has met his burden by establishing that the police induced him to commit the offense charged, it does not necessarily follow that the State, to meet its burden of showing that the accused had a predisposition to commit the offense, must show that the police prior to the inducement, had a ‘reasonable suspicion’ that the accused was engaged in the commission of a crime or was about to be. It is clear that if the original suggestions or initiative had come from the accused this would not be necessary.

See Cornelius, The Lato of Search and Seizure (2d Ed.) § 75, p. 256. But contrary to Cornelius, who was discussing the point in the fame of reference of the test we have here adopted, even if the initiative had not come from the accused, we think that on the totality of the circumstance it may be shown that the accused was ‘ready and willing without persuasion’ and was ‘awaiting any propitious opportunity to commit the offense.’ As to this, reasonable suspicion that the accused was engaged or about to engage in the commission of an offense would be relevant and material but not essential. We find support for ⁵⁶⁰ our view in Smith v. State, 242 Md. 712 , 219 A. 2d 16 * * *.” The court in Simmons also characterized “reasonable suspicion” as being “more than mere suspicion but less than probable cause.” 8 Md. App. at 367 . Applying the principles of the law of entrapment as enunciated in Simmons , to the case at bar, we agree with the conclusion reached by Judge Digges in the lower court that the evidence does not support the defense of entrapment.

We think a recitation of the rather bizarre set of facts which gave rise to this action bears this out. On February 25, 1969, the State’s Attorney for Prince George’s County received information from a member of the Prince George’s County Bar that a member of the grand jury, whose name began with a “G” and who had a warrant outstanding against him for nonsupport, appeared interested in obtaining money for information on matters transpiring before that body. An Assistant State’s Attorney was briefed on the matter and he in turn consulted with the foreman of the grand jury. It should be added at this point that a check of the list of grand jurors showed that the appellant Grohman fell into the category of one whose name began with “G” and against whom there was an outstanding warrant for nonsupport.

The foreman of the grand jury and the Assistant State’s Attorney consulted with Judge Powers, who had delivered the original charge to the grand jury. Judge Powers suggested that the matter be investigated and at this juncture the Maryland State Police were called upon for assistance. Sergeant Mazzone of the Maryland State Police was assigned to the investigation and on March 6, 1969, telephoned the appellant’s home. Since the appellant was not at home, he spoke to the appellant’s wife.

He introduced himself as Tony Rinaldo and indicated that he wished to speak to the appellant in order to obtain certain information concerning the grand jury proceedings. The appellant was not at home when Sergeant Mazzone called back about an hour later and at this time he indicated to ⁵⁶¹ the wife that he was a gambler. Sergeant Mazzone finally contacted the appellant the following morning at which time he indicated that if the appellant would get him certain information about matters before the grand jury, it would be worth something to the appellant. The evidence is unclear as to who suggested the first meeting between them but we will assume that it was Sergeant Mazzone.

In any event, the appellant suggested the time and place and gave directions as to how to get there to the Sergeant. Because he had appeared already before the grand jury and was fearful that the appellant would recognize him, Sergeant Mazzone brought Trooper Warren Pitt of the Maryland State Police into the investigation. It is significant to note that Sergeant Mazzone and Trooper Pitt both testified at the evidentiary hearing. Pitt was to act as a “go-between” between Mazzone (“Tony”) and the appellant.

Pitt assumed the name “Vince.” Pitt was given $50 and told to meet the appellant. Pitt met the appellant, to whom he was represented as “Vince,” and said that “Tony” had