Kable v. State

Scanlan, J., delivered the opinion of the Court. Appellant, Ronald Joe Kable, a Mt. Rainier policeman, was charged on a criminal information with receiving a $250.00 bribe for the purpose of influencing him in the performance of his official duties. He was tried and convicted before a jury in the Circuit Court for Prince George’s County, Judge Perry G. Bowen presiding.

The appellant’s major contentions on appeal are: (1) that the evidence was insufficient to prove that the bribe was to influence him “in the performance of any of his official duties” as a municipal policeman; and (2) that the trial court’s instructions did not adequately advise the jury that it must find beyond a reasonable doubt that what the appellant did was part of his official duties. In addition, appellant argues: that he had a constitutional right to an indictment by a grand jury; that the trial court’s denial of his motion raising his alleged right to a grand jury was an appealable interlocutory order; that the trial court erred in denying his suggestion for removal on the grounds of prejudicial pre-trial publicity; and that the trial court improperly limited examination of witnesses. We conclude that each of these contentions must be resolved against the appellant. I THE BRIBE WAS OFFERED AND RECEIVED TO INFLUENCE THE APPELLANT IN THE PERFORMANCE OF OFFICIAL DUTIES The essential facts on which the charge of bribery was based are not in dispute.

They show that a Mr. Mercer ¹⁹ agreed to pay and did pay, and the appellant agreed to receive and did receive, $250.00 in return for the latter requesting the nolle prosequi of three quite serious motor vehicle offenses, one relating to leaving the scene of an accident after colliding with a police car. Mercer was acting for a third party, a Mr. Gines, the person charged with these traffic violations. After receiving the $250.00 bribe, appellant orally requested the Assistant State’s Attorney at Hyattsville to nol. pros, the traffic tickets. He then prepared, signed and submitted to the Assistant State’s Attorney an official form entitled “Request for Nolle Prosequi.” The form was prepared for use and signature by an “Arresting Officer.” Kable requested one of his subordinates who had issued one of the three traffic tickets received by Gines to sign the form also.

The reason which the appellant gave in recommending the nol. pros, was that the defendant “is waiting to go into the Army but is being held up because of these charges.” Appellant contends that in recommending the nol. pros. he was not performing “any of his official duties.” He maintains that the only authority to nol. pros, a traffic violation is vested in the office of the State’s Attorney and that any recommendation which an arresting officer might make is purely gratuitous and forms no part of the official duties of that officer. We disagree. Article 27, Section 23 of the Code (1970 Repl. Vol.) provides, in pertinent part, that: “If any person shall bribe . . . any officer ... of any . . . municipality ... or any . . . municipal corporation of this State ... in order to influence any such officer ... in the performance of any of his official duties; and if . . . any officer ... of any . . . municipality . . . or . . . any municipal corporation . . . shall demand or receive any bribe ... for the purpose of influencing him in the performance of his official duties, or for neglecting or failing to perform the same, every such person so brib ²⁰ ing or attempting to bribe any of such officers . . . and every such person so demanding or receiving any bribe . . . shall be deemed guilty of bribery . . . .” The precise issue before us is the proper interpretation of the words “official duties.” In the only reported Maryland case directly construing those words, the Court of Appeals held that a person who was unlawfully arrested by a police officer could not be convicted of bribing the officer to secure his subsequent release.

The Court reasoned that “the offense of bribing ... an officer exists only when such officer is in the performance of his official duties, and it would scarcely be contended that an officer was acting in the performance of any official duty in making an illegal arrest.” Sugarman v. State, 173 Md. 52, 56-7 , 195 A. 324 (1937). But see Soles v. State, 16 Md. App. 656 , footnote 8. Sugarman , however, represents only one end of the spectrum of a policeman’s duties, i.e., actions which a police officer is prohibited from undertaking and thus clearly beyond the scope of his official duties. As the Court of Appeals said in Sugarman , in such a case the officer “not only is not acting in the performance of official duties, but contrary to them . . . .” Id.

The case now before us, however, does not fall within the coverage of Sugarman . Here, the appellant had lawfully charged the driver of the automobile with traffic violations and his authority to recommend the nol. pros, of those violations, if not expressly a part of his officially prescribed duties, clearly was not “contrary to them.” Id. At the other end of the spectrum from the Sugarman situation are official actions and duties which are expressly authorized by statute, rule or regulation. However, lying between the two opposite poles of (1) duties or actions obviously prohibited and (2) official duties expressly prescribed or authorized, is a large area in which the determination of whether or not the action of a policeman is part of his official duties must depend on ²¹ the particular facts.

This is such a case. When the appellant requested the not. pros, he was not carrying out any official duty expressly specified in writing, nor was he doing something that he was prohibited from doing as a policeman. In United States v. Birdsall, 233 U. S. 223 (1913), the Supreme Court had occasion to discuss official actions falling within the undefined middle ground to which we have referred. In that case, employees of the Commissioner of Indian Affairs had been bribed to advise the Commissioner to recommend to the President that clemency should be granted to the person who had bribed them and who was under conviction of violating the liquor laws in the Indian country.

In the course of its opinion, the Court said: “To constitute it official action, it was not necessary that it should be prescribed by statute; it was sufficient that it was governed by a lawful requirement of the Department under whose authority the officer was acting . . . .Nor was it necessary that the requirement should be prescribed by a written rule or regulation. It might also be found in an established usage which constituted the common law of the Department and fixed the duties of those engaged in its activities ... .In numerous instances, duties not completely defined by written rules are clearly established by settled practice, and action taken in the course of their performance must be regarded as within the provisions of the above mentioned statutes against bribery.” Id. at 230-31 (emphasis added). We believe the rationale of the Birdsall case is applicable here. The “official duties of a police officer are . . . many and varied, extending from the enforcement of traffic laws to the prevention and detection of . . . crimes in all categories . . . .” Cunningham v. State, 190 Md. 578, 580 , 59 A. 2d 337 (1948). ²² The evidence shows that the State’s Attorney’s Office in Prince George’s County has had a practice for some time whereby police officers recommend the nol. pros, of traffic violations to the State’s Attorney.

The practice is evidenced by an official form prepared for use by arresting officers in recommending a nol. pros. It was this form which the appellant signed and submitted to the Assistant State’s Attorney. Among the primary duties of the municipal and county police departments of Maryland is the enforcement of traffic regulations. Policemen aid in their enforcement by detecting violations, collecting evidence and appearing as witnesses for the prosecution.

We do not believe that it could be maintained that it is not an official duty of a police officer to be a witness in a case which he instigates by issuing a summons. If the officer takes money to forego that duty, clearly he is guilty of bribery under the statute. Here, the appellant was not paid to absent himself when the cases were called for trial; he was bribed to obtain a nol. pros. The only thing he could do, which he did, was to recommend a nol. pros., proceeding through channels and on the official form provided for that purpose.

In concluding that the appellant was acting within his “official duties” in recommending that the State’s Attorney nol. pros, traffic violations, we “have given the statutory definition of bribery a construction broad enough to cover cases,” such as this one, “where a public official has accepted a bribe to act corruptly in a matter to which he bears some official relation, though the act itself may be technically beyond his official powers or duties.” People v. Lafaro, 250 N. Y. 336 , 165 N. E. 518, 520 (1929). Thus, while the actual decision to nol. pros. a traffic violation is one which rests with the State’s Attorney of Prince George’s County, the right of a police officer in that County to recommend the nol. pros, of traffic cases in which he brought the original charges must be considered a responsibility implicitly authorized by custom and circumstance, amounting to an official ²³ practice and, consequently, one of his “official duties” within the language of Article 27, Section 23 of the Code. II THE INSTRUCTIONS WERE PROPER Appellant claims error in that portion of the trial court’s instructions advising the jury on the issue of whether the appellant was acting within “official duties” when he requested the State’s Attorney to nol. pros, the traffic violations. The relevant portion of Judge Bowen’s charge reads: “The defendant in this case is charged with one offense: that is, of receiving a bribe.

The elements of that offense are relatively simple: There must be an offer of something of value to a public officer or official with the intention that this thing of value influenced him in the performance of his official duties, and the thing of value must be received by the public official with the intention that by receiving it he will be influenced in the performance of his public duty. “The evidence in this case, or one line of evidence in this case, tends to disclose that the defendant in this case was a police officer in one of the municipalities here in Prince George’s County and that in his capacity as a police officer a member of the public in his jurisdiction offered $250 in money — which the Court instructs you if you find that to be so meets the definition the law requires of a thing of value —that this offer was made with the intention that this officer should turn in a report to the State’s Attorney that would cause traffic tickets to be nol-prossed or otherwise disposed of without a trial, without a record for the person accused, and that the officer received this money ²⁴ and thereafter did, in the course of his official capacity, make a report to the State’s Attorney which requested that these charges be nolprossed. If you find beyond a reasonable doubt that these events occurred and that these facts are the facts, then the Court instructs you in an advisory capacity that these elements satisfy the Maryland law for receiving a bribe. “Now, if you find anywhere along the line that the evidence satisfies you that the person who received the money was not a public officer, that he did not receive it with the intention of influencing his official actions as such an officer or that no money was received, then, of course, he is to be found not guilty because all of those elements are necessary to the offense charged.” Appellant objected to the instructions at trial, arguing that they did not adequately advise the jury that it must find beyond a reasonable doubt that what Officer Kable did was part of his official duties. In essence, he maintains that the jury might have interpreted the instructions to mean that “the court believes and the court instructs it is, in fact, an official duty” which he performed when he requested that the State’s Attorney not prosecute the traffic charges. We do not read the instruction that way.

In Shotkosky v. State, 8 Md. App. 492, 508-9 , 261 A. 2d 171 (1970), we set out the general rule concerning review of jury instructions: “It is not necessary for this Court to decide that the instructions as given were the clearest of all possible instructions. It is sufficient that the instructions taken as a whole correctly stated the law.” The instructions challenged in this case satisfy the standard referred to in Shotkosky . The first paragraph quoted above sets out the elements of bribery. Judge Bowen followed this portion of his instruction with a conclusionary summary of what the ²⁵ evidence