Irvin v. State

Gilbert, J., delivered the opinion of the Court. This appeal has arisen as a result of a directive dated ⁴⁵⁹ November 13, 1972 from Governor Marvin Mandel 1 to Attorney General Francis B. Burch in which the Attorney General was directed to conduct an investigation into “the allegations of corruption of public officials in connection with the arrest, pending prosecution and escape of one, John Edward Jones, from the Baltimore County jail, and to pursue any evidence of criminal violations or administrative irregularities resulting from your investigation.” During the course of the Attorney General’s inquiry the then Deputy State’s Attorney for Baltimore County, Stuart L. Iiirsch, furnished the Attorney General’s representatives and the Maryland State Police with “150 hours of tapes” concerning the operation of the Baltimore County State’s Attorney’s office. As a result of information supplied by Hirsch, an investigation focused upon what became known as “the Harrington case”. That case involved Kneass Harrington’s efforts to have a nol prossed indictment that charged violation of the gambling laws expunged from government records.

In order to accomplish his desire, Harrington contacted the appellant, Louis William Irvin, the chief investigator for the State’s Attorney’s office of Baltimore County. Irvin in turn talked to Hirsch, and, as a result of that conversation, Irvin delivered to Harrington a “Petition to Expunge”, which petition was drawn by Hirsch, but signed by another member of the bar, Stephen Luskin Miles, at Llirsch’s request. Irvin collected a “fee” of $750.00 from Harrington, all or part of which was turned over to Hirsch. An order on the petition was signed as a routine matter by a judge of the Circuit Court for Baltimore County on July 13,1972.

A Baltimore County police lieutenant, who was a friend of Harrington, noted that the records of the County police had ⁴⁶⁰ not been expunged, and the lieutenant made a complaint to Hirsch. Hirsch then wrote a letter to the County police in which he enclosed an attested copy of the order of expungement. In compliance with the order the Baltimore County police and the Maryland State police removed all records pertaining to Harrington’s arrest on the gambling violation. No expungement, however, was effected in the office of the Clerk of the Court of Baltimore County nor, apparently, in the office of the Federal Bureau of Investigation.

Irvin was indicted by the grand jury for Baltimore County in Indictment No. 46738 charging false pretense, bribery, extortion and misconduct in office. He was also indicted in Indictment No. 46739, a five count indictment charging obstruction of justice and misconduct in office, and in Indictment No. 46882 charging conspiracy to obstruct justice. Irvin moved to dismiss the indictments on the ground that they were procedurally defective. After a pretrial hearing Judge Robert E. Clapp, Jr. dismissed counts three and four of Indictment No. 46738, all counts of Indictment No. 46739 and Indictment No. 46882.

The State nol grossed counts one and two of Indictment No. 46738. On October 9, 1973 the State appealed the trial court’s dismissal of Indictments Nos. 46739 and 46882. Thereafter, on October 11,1973, while the appeal was pending, the State sought and obtained a new indictment against Irvin containing twelve counts. 2 The case commenced on October 31 and terminated on November 6, 1973. Irvin was found guilty of false pretense and two counts of conspiracy.

Following trial Irvin filed a “Motion for a New Trial” in which, inter alia, he suggested that the trial court lacked jurisdiction because of the pending appeal. His motion was denied and he received concurrent eighteen month sentences. The State then dismissed its appeal dated October 9,1973. ⁴⁶¹ In this Court Irvin contends: I. “After the State entered an appeal from the dismissal of certain counts in the original indictment[s] and then reindicted appellant on the same charges it could not proceed to trial on the latter indictment while the appeal on the first was still pending.” II. The evidence was insufficient to sustain a conviction of false pretense.

III

The evidence was insufficient to sustain a conviction of conspiracy.

IV

The trial judge erred in admitting statements of an alleged coconspirator into evidence. I. Md. Ann. Code, Cts. & Jud. Proc. Art., § 12-302 c (1974) provides: “In a criminal case, the state may appeal only from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition in a criminal case.” 3 Even in the absence of legislative authority the Court of Appeals has long held that the State could appeal a dismissal of an indictment.

In State v. Buchanan, 5 Harr. & J. 317, 9 Am. Dec. 534 (1821), it is stated: “ . . . [T]here is no sufficient reason why the state should not be entitled to a writ of error in a criminal case. It is perhaps a right that should be seldom exercised, and never for the purpose of oppression, or without necessity; which can rarely, and it is supposed would never happen, and would not be tolerated by public feeling. But as the state ⁴⁶² has no interest in the punishment of an offender, except for the purpose of general justice connected with the public welfare, no such abuse is to be apprehended; ...” The Court, in State v. Wade, 55 Md. 39 (1880), addressed itself to the finality of a dismissal of an indictment.

It said: “ . . . The record shows that the indictment was quashed by the court below upon the motion of the defendant. That was a final termination of the prosecution upon the particular indictment, and the defendant was necessarily discharged from all further proceedings thereon. Whether the State may proceed on another indictment would depend upon the action of a future grand jury.” (Emphasis supplied).

The Court also held in State v. Hodges, 55 Md. 127 (1880) that: “ . . . [T]he judgment in quashing an indictment is a final judgment. There can be no further proceedings upon the indictment, and although the prisoner may be held to bail to await the further action of the grand jury,' yet so far as the pending indictment is concerned, he is entitled to his discharge.” (Emphasis supplied). More recently, this Court in Raimondi v. State, 8 Md. App. 468, 261 A. 2d 40 (1970), speaking through Chief Judge Murphy, opined at 475: “The Court of Appeals has held that the perfecting of an appeal brings the subject matter thereof within the exclusive jurisdiction of the appellate court and suspends the authority of the lower court over it during the pendency of the appeal; that the lower court lacks jurisdiction to take any further action in the case with respect to the subject matter of the appeal until the receipt of the mandate of the appellate court, after the appeal has been heard and decided.” (Emphasis supplied). ⁴⁶³ Appellant argues that the effect of Raimondi is that “if an appeal is filed from what is considered to be a final order — such as an order dismissing indictments — the lower court does lose jurisdiction to proceed further until the appeal has been heard.” As we read Raimondi in the light of Wade and Hodges, supra, when the State appeals the dismissal of an indictment, the trial court loses jurisdiction over that particular indictment. It does not, however, lose the jurisdiction to try the accused on a subsequent indictment even though the subsequent indictment arises from the same facts.

When Chief Judge Murphy, in Raimondi , referred to the fact that the trial court lacked “jurisdiction to take any further action in the case with respect to the subject matter of the appeal” (Emphasis supplied), he obviously was referring to the particular indictment upon which the appeal was pending. 4 Although the appellant has referred us to a number of cases arising in other jurisdictions, 5 we do not find them persuasive because the law of Maryland, since Wade and Hodges, supra, is to the contrary. 6 In Maryland the State may either appeal the dismissal of an indictment or seek a new indictment or both so long as the State’s action is not deemed to be oppressive and thus a possible violation of due process of law. In sum, the State must act in good faith. ⁴⁶⁴ We hold that the Circuit Court for Baltimore County was not divested of jurisdiction to try the appellant on a new indictment notwithstanding the State’s appeal from a dismissal of prior indictments arising out of the same facts.

II

We turn now to appellant’s second contention. Md. Ann. Code art. 27, § 140 provides in pertinent part: “Any person who shall by any false pretense obtain from any other person any chattel, money or valuable security, with intent to defraud any person of the same, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be punished by fine and imprisonment, or by confinement in the penitentiary for not less than two years nor more than ten years, as the court shall award; provided always, that if upon the trial of any person charged with such misdemeanor it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny or robbery, he shall not by reason thereof be entitled to be acquitted of such misdemeanor; and no person tried upon such misdemeanor shall be afterwards liable for larceny or robbery upon the same facts; and provided also, that a mere promise for future payment, though not intended to be performed, shall not be sufficient to authorize a conviction under this section.” This Court, in Polisher v. State, 11 Md. App. 555 , 276 A. 2d 102 (1971), cert. denied 262 Md. 749 (1971), cert. denied 404 U. S. 984 , 92 S. Ct. 449 , 30 L.Ed.2d 368 (1971), set forth the elements of the crime of false pretense. We said: “. . . [T] he crime is committed when a person: 1) by making a false representation of a past or existing fact; ⁴⁶⁵ 2) with intent to defraud; and 3) knowledge of its falsity; 4) obtains any chattel, money or valuable security from another; 5) who relies on the false representation; 6) to his detriment.” Harrington testified that the appellant advised him to write a letter to the State’s Attorney requesting expungement of Harrington’s record. He did so and thereafter appellant came to see him.

At that time appellant told Harrington that appellant had talked the matter over with the State’s Attorney, and the State’s Attorney had “suggested that it would cost me $750.00 to have an expungement of (sic) legal fees done for this problem and [appellant] suggested that he would stop by and pick up the fee.” Harrington stated that appellant again visited him and gave him three papers to read from Stephen Miles, in State v. Kneass Harrington. Harrington “signed the paper at the bottom”. Harrington related to the court that he had a conversation with Irvin about Miles and that Irvin told him “Miles was at one time a Clerk of the Court and that this is who he had gotten to help my matter — in my matter.” Harrington believed that the money was going to be turned over to Miles as a legal fee for expunging Harrington’s criminal record. After a police lieutenant, who was a friend of Harrington, discovered that the record had not been expunged in the Baltimore County police headquarters, the lieutenant met with Irvin and Stuart Hirsch.

The officer complained that Miles had not had the record expunged despite the fact that Miles had been paid $750.00. The lieutenant asked if Miles had in fact been paid the money, and Irvin replied, “Certainly.” The lieutenant then threatened that if the matter were not cleared up within ninety days, he would go to the Bar Association. Hirsch told him to “calm down” and that he, Hirsch, would “take care of it and we will get back to your Mr. Harrington.” Harrington subsequently received a letter, on the stationery of the State’s Attorney’s office, signed by Stuart Hirsch as Deputy ⁴⁶⁶ State’s Attorney and, it indicated that Harrington’s record had, in fa.ct, been expunged. The gist of the appellant’s argument, that the testimony does not support a conviction for false pretense, is that there was no intent by Irvin to defraud Harrington, and that Harrington received that for which he paid, videlicet, an expungement of the records.

Appellant strenuously argues that this case lacks the “feel” of false pretense, but we do not share that lack of feeling. Judge Clapp determined from the evidence that Hirsch and Irvin discussed the situation and that Hirsch advised Irvin “that there would be a payment required of $750.00 to get the record expunged.” The judge found: “ . . . [W]hen Mr. Irvin returned from vacation on July the 17th, 1972, he and Mr. Hirsch discussed this matter and Mr. Hirsch advised Mr. Irvin that it had been signed and everything was taken care of and to go and get [the] money. . . . Mr. Irvin called Mr. Harrington, told him what the fee would be and Mr. Harrington . . . had the money ready when Mr. Irvin arrived. I think Mr. Irvin knew that Stephen Miles had signed this petition, although Mr. Irvin denied that he ever knew about it until much later in 1973, but in any event, I think Mr. Irvin did tell Mr. Harrington at the time that Mr. Miles was the attorney that he had gotten to put this matter through because Mr. Miles had this prior experience of a clerk, whether it was in the State’s Attorney’s office or Clerk of the Court, I can’t really tell from the evidence and it really doesn’t matter.

Now, I find that Mr. Harrington . . . [relied] ... on this representation and on the representation that this paper would accomplish what he desired, the expungement of the records in Baltimore County and with the F.B.I., and he paid the money to Mr. Irvin. I find further as a fact that Mr. Irvin and Mr. ⁴⁶⁷ Hirsch each received all or a part of this money; I can’t tell which. I find further as a fact that they each knew that this was not a fee to go to Stephen Miles. I find further as a fact that later on in the summer Detective Scott discussed with Mr. Irvin why nothing had been done although a fee had been paid and Mr. Irvin said, we are working on it.” (Emphasis supplied).

In a non-jury trial the credibility of the witnesses and the weight of the evidence is a matter for the trial judge to determine, and his findings will only be disturbed on appeal where they are found to be clearly erroneous. Md. Rule 1086. Applying the elements of Polisher v. State, supra, to the instant case, we conclude that Judge Clapp was not clearly erroneous, and that the testimony adduced by the State was sufficient to support a finding of guilt of false pretense.

III

Irvin makes a two-pronged attack on his convictions for conspiracy to obstruct justice. First, he denies that the alleged conspiratorial meetings of January 12, 1973 and January 23, 1973 occurred. Second, he charges that the record is devoid of corroboration of the testimony of the coconspirator, Hirsch. We need not discuss the first prong of appellant’s contention because it involves a question of adjudging the credibility of the witnesses which is a matter for the trial court.

Md. Rule 1086. The second prong, however, requires discussion. We said in Price v. State, 4 Md. App. 701 , 244 A. 2d 900 (1968): “In Maryland, as generally, the gist of a conspiracy is the entering into of the illegal scheme or design, and once