Johnson v. State

Smith, J., delivered the opinion of the Court. We shall here hold the Court of Special Appeals correctly determined that the provisions of former Maryland Rule 753 (now Rule 755) relative to sequestration of witnesses is mandatory and that there is no exception in it for a principal investigator. We shall further hold, however, that it erred in determining that a violation of Maryland Code (1957, 1971 Repl. Yol., 1974 Cum.

Supp.) Art. 27, § 230A (welfare fraud) merged into a violation of Code (1957, 1971 Repl. Vol., 1972 Cum. Supp.) Art. 27, § 140 (false pretenses), rather than vice versa. Appellant, Clarence Harris Johnson (Johnson), was convicted by a Baltimore City jury of false pretenses and welfare fraud and of conspiracy to commit those offenses.

At the beginning of the trial defense counsel moved for sequestration of witnesses. Rule 753, applicable to this proceeding, stated in pertinent part, “The court ... shall, upon the request of a party, order that the witnesses be excluded from the courtroom until called upon to testify,” with the only exception being for an expert witness “who is to render an opinion based on the testimony given at the trial____” 1 The presence of Detective John Heddinger at the counsel table was noted in the motion for sequestration. The trial judge inquired of the prosecutor as to whether ¹⁹⁸ Heddinger was “the principal investigator” in the case. When an affirmative response was received, he said: “Well, I think' they are entitled to keep the principal investigators in the courtroom with them.

That has been ruled on many times, that the principal investigator in the case, in this type of case, can remain in the courtroom.” The defense renewed its objection when Heddinger was called as a witness. The trial judge replied that since he understood Heddinger to be “the principal investigator in this case,” that “under the rules he [was] entitled to remain in the courtroom under all the cases that [he] kn[e]w of.” The Court of Special Appeals in an unreported opinion (No. 185, September Term, 1977, filed November 16, 1977) determined that although there was an error on sequestration, “the record discloses no prejudice.” It further held that the convictions of welfare fraud merged into those of false pretenses and thus reversed the welfare fraud convictions. 1. Sequestration In 6 J. Wigmore, Evidence § 1837 (J. Chadbourn Rev. 1976), it is stated at the beginning, “The expedient of separating a party’s witnesses, in order to detect falsehood by exposing inconsistencies, seems to have been early discovered and long practiced in various communities.” (Emphasis in original.) He said that “its age and universality have come to be more emphasized in our own legal annals because of the instance recorded and handed down in the apocryphal Scriptures,” referring to “[t]he story of Daniel’s judgment in Susanna’s case” as recorded in The History of Susanna, vv. 36-64 (Apocrypha). Such a procedure was set up by statewide rule in Maryland when our predecessors adopted General Rules of Practice and Procedure, Part Four I, Rule 8 effective January 1,1950.

See the explanation of the rule appearing in The Daily Record, December 19,1949. The practice was well known in Maryland, ¹⁹⁹ however. See, e.g., Jones v. State, 185 Md. 481, 487-89 , 45 A. 2d 350 (1946), and Parker v. State, 67 Md. 329 , 10 A. 219 (1887). Judge Horney pointed out for the Court in Swift v. State, 224 Md. 300, 306 , 167 A. 2d 762 (1961), that although under our prior rules the sequestration of witnesses rested within the discretion of the trial court, “the granting of a request to exclude witnesses is now obligatory and is no longer discretionary.” Accord, Brown v. State, 272 Md. 450, 477 , 325 A. 2d 557 (1974).

There simply is no provision in the rule for an exception for a principal investigator. 2 It therefore follows that the trial judge erred. ²⁰⁰ As Judge O’Donnell pointed out for the Court in Brown, 272 Md. at 477 , “[t]he purpose of the rule and its civil counterpart (now Maryland Rule 536) is to prevent a prospective witness from being taught or prompted by the testimony of another.” Accord, Burton v. State Roads Comm’n, 251 Md. 403, 404 , 247 A. 2d 718 (1968); State Roads v. Creswell, 235 Md. 220, 226 , 201 A. 2d 328 (1964); and Bulluck v. State, 219 Md. 67, 70-71 , 148 A. 2d 433 (1959). It is in that light that we must review this case to determine the effect of the error of the trial court. Under our holding in Dorsey v. State, 276 Md. 638, 659 , 350 A. 2d 665 (1976), reversal is mandated unless we determine the error to have been harmless beyond a reasonable doubt. This standard was refined in Ross v. State, 276 Md. 664 , 350 A. 2d 680 (1976), where Judge Levine said for the Court: “[W]e have just held that where the accused has demonstrated that error existed at trial, reversal of the conviction is required unless the state can show beyond a reasonable doubt that the error did not contribute to the conviction.

The essence of this test is the determination whether the cumulative effect of the properly admitted evidence so outweighs the prejudicial nature of the evidence erroneously admitted that there is no reasonable possibility that the decision of the finder of fact would have been different had the tainted evidence been excluded.” Id. at 674 . We have meticulously reviewed the evidence in this case. The agreed statement of facts submitted by the parties to this Court pursuant to Rule 828 g contains nothing more favorable to Johnson than that appearing in his brief in the Court of Special Appeals. Since, however, the statement of facts in his brief was prepared on his behalf and thus is presumed to contain everything favorable to his point of view, we shall make use of it freely in setting forth the gist of the evidence.

The State opened its case with a succession of witnesses from the Department of Social Services. Velma Rainey, manager of one of the offices of that agency, said that ²⁰¹ Johnson had worked at that agency for five years and since 1971 had been assigned to the income maintenance unit which authorizes payments for “clients,” the social worker term for welfare recipients. Applications for monetary assistance were made out by workers such as Johnson on behalf of a client. Applicant’s names are cleared through a central file system to make certain that the prospective client is not already receiving assistance.

During her testimony she was shown check delivery slips made out to “Helen Hooper” and “Ella Dove” which were marked for identification. Ruth Johnson said that she had been the supervisor of Johnson’s supervisor since 1974. She explained the procedure for “one time only” grants to a client, as distinguished from regular monthly payments which are mailed out. Marian Williams was Johnson’s supervisor beginning in 1974.

During her testimony certain payment authorizations were marked for identification. Anthony Bittings, an accountant, testified that he supervised a group of clerks who issued what they term as “payroll checks,” referring to checks to welfare recipients. He explained the regular checks and the one time only checks. He further explained a form by which a worker indicates whether checks are to be mailed or delivered.

Through him a group of cancelled checks were marked for identification. Carolyn Alexander, a clerk, testified that in 1974 she worked with a section of the Department of Social Services which handled lost or stolen checks. In the early part of 1975, at the request of Detective Heddinger, she removed from microfilm certain forms that were stored there, a payment authorization for Ella Dove and money requests for Helena Hooper, Eva Hairston, Carla Robinson, and Mattie Klease. These exhibits were admitted into evidence.

Sadie Vaughn, Johnson’s admitted accomplice, testified that she rented a room in her home to Johnson which he used occasionally, and that she and he “had these checks going,” an idea emanating from Johnson. She said some checks were brought by Johnson to the house, some were mailed there, and some were picked up by her in person. She cashed the checks at different branches of Union Trust Company, using ²⁰² identification supplied by Johnson. None of the checks were made out to her.

The money was divided between them. She was shown checks