Maloney v. State

Orth, C. J., delivered the opinion of the Court. I The Motions to Dismiss the Indictments On 6 July 1971 the State’s Attorney for Charles County requested the Governor of Maryland to designate the ⁶¹³ Attorney General of Maryland to conduct an investigation into “an apparent substantial overpayment in State and County funds to school bus contractors in Charles County” and to handle any further proceedings growing out of such investigation. On 12 July the Governor wrote the Attorney General: “I have decided to comply with the request of the State’s Attorney. Therefore, in accordance with Article 5, Section 3, of the Maryland Constitution, I would appreciate it if you would conduct an investigation into this matter and institute any appropriate legal proceedings which may be warranted.” The result of the investigation by the Attorney General was a series of indictments charging the crimes of false pretenses and attempted false pretenses returned on 16 August by the Grand Jury for Charles County and filed in the Circuit Court for Charles County.

Nos. 3858, 3859 and 3860 charged ERNEST KELLER, the younger, (Keller). Nos. 3846, 3847 and 3848 charged THOMAS DENNIS MALONEY, the younger, (Maloney). Nos. 3849, 3850 and 3851 charged MALONEY ENTERPRISES, INCORPORATED (the Corporation). Motions to dismiss the indictments were filed, by Keller on 15 November, and by Maloney and the Corporation on 17 November.

The motions were heard by Mitchell, J. on 26 November and denied. Motions for rehearing were made on 1 December and denied on 6 December. The propriety of the denial of the motions to dismiss is before us. The motions were grounded on the appearance of two Assistant Attorneys General, Edward F. Borgerding and George A. Eichhorn, III, before the grand jurors concerning the matter of the alleged overcharges on which they were to pass, aiding the jurors in the examination of witnesses and advising them on questions of law.

There is no claim that they were present while the jurors were deliberating on the evidence or voting. It is not ⁶¹⁴ disputed that Borgerding and Eichhorn were duly appointed Assistant Attorneys General, that the Attorney General assigned them the duty of conducting an investigation and instituting appropriate legal proceedings .with regard to the matter designated by the Governor, and that, in performance of their assigned duty, they had attended the grand jury to aid in the examination of witnesses and advise it on questions of law. The query is whether they had the authority to do so. The Attorney General has constitutional authority to appoint such number of deputies and assistants as the General Assembly may from time to time by law prescribe.

Constitution of Maryland, Art. V, § 3. The General Assembly has authorized him to appoint certain designated assistants and “such additional assistants * * * as may from time to time be authorized in the budget.” Each of the assistants serves “during the pleasure of the Attorney General” and takes no oath of office. Code, Art. 32A, § 6. See Hammond v. Lancaster, 194 Md. 462 .

The Attorney General, however, is expressly authorized by Code, Art. 32A, § 6, “* * * to assign to them and each of them the performance, subject to his discretion and control of any of the duties required of him by law.” It follows, therefore, that Borgerding and Eichhorn could do, subject to the Attorney General’s discretion and control, whatever the Attorney General could do in regard to the matter concerning the bus contractors. The powers and duties of the Attorney General prescribed in Art. V, § 3 of the Constitution of Maryland include that “* * * whén required by the Governor * * *, he shall aid any State’s Attorney in prosecuting any suit or action brought by the State in any Court of this State, and he shall commence and prosecute or defend any suit or action in any of said Courts, on the part of the State, which * * * the Governor, acting according to law, shall direct to be commenced, prosecuted or defended * * The Governor, acting explicitly under this constitutional authority, directed the ⁶¹⁵ Attorney General, by a written, definitive request, to commence and prosecute any action appropriate to the matter of the alleged overpayment in State and County funds to school bus contractors in Charles County, and to aid the State’s Attorney for Charles County in any such action brought by the State. It is apparent that the investigation conducted by the Attorney General, through the two assistants, indicated that crimes had been committed. We find it to be clearly within the ambit of the constitutional provision that the authority of the Attorney General to “commence” an action includes his presence to attend the grand jury to aid in the examination of witnesses and advise on questions of law.

Without this concomitant authority, the mandate to “commence and prosecute” any action which the Governor shall direct “to be commenced and prosecuted” would be sterile indeed. We refuse to construe the constitutional provisions requiring the Attorney General to commence and prosecute an action so narrowly as to preclude him from presenting the case to a grand jury. Under the constitutional provisions the Attorney General became the prosecuting officer in the cases before us. We are in accord with the generally prevailing opinion that the prosecuting officer may, and it is his duty as well as his privilege, attend on the grand jurors with matters on which they are to pass, aid in the examination of witnesses, and give such general instructions as they may require, without, however, being present while the grand jury is deliberating on the evidence or voting on a matter under investigation. 4 Wharton’s Criminal Law and Procedure, § 1716 (1957).

See Grand Jury, 38 Am. Jur. 2d §§ 34-35; People v. Zara, 255 N.Y.S.2d 43 (1964). Because the Attorney General was authorized to so appear before the grand jurors, Borgerding and Eichhorn eould so appear. As we have concluded that the appearance of the Assistant Attorneys General before the Grand Jury for Charles County was authorized, their presence and participation had no adverse effect on the indictments returned.

We hold that ⁶¹⁶ the court below did not err in denying the motions to dismiss the indictments. Both of the Assistant Attorneys General, before attending the grand jurors, were appointed Special Assistant State’s Attorneys for Charles County and were administered the oath of that office. In view of our holding that their appearance before the Grand Jury as Assistant Attorneys General was authorized, we have no need to reach the question whether they were also so authorized in the capacity of Special Assistant State’s Attorneys. We take the view that appointments of them as Special Assistant State’s Attorneys were immaterial, and did not, in any event, render their appearance as Assistant Attorneys General improper.

II The Prosecution of Keller Polling the Jury Indictments Nos. 3858, 3859 and 3860, under which Keller was charged, were consolidated for trial. The trial was had before a jury in the Circuit Court for Charles County, commencing on 17 January 1972 and concluding on 21 January. At the close of all the evidence the State “abandoned” indictment No. 3858. The jury returned a verdict of guilty of obtaining (1st count of indictment 3860) and attempting to obtain (indictment 3859) certain monies from the Board of Education of Charles County (the Board) by a false pretense. 1 The transcript ⁶¹⁷ of the proceedings shows the circumstances surrounding the rendering of the verdicts and the discharge of the jury: “(Whereupon, at 10:00 o’clock p.m. the jury returned and announced their verdict in the criminal case 3859 of guilty and in Criminal No. 3860 announced the verdict of guilty, after which the jury was harkened to its verdict.) MR.

PERRIN [Defense Counsel] : Would Your Honor poll the jury? THE COURT: I think it is too late, Mr. Perrin. They have been harkened to their verdict. Mr. Ferrell [Official Court Reporter], did we find when we need the jury again?

THE REPORTER: Tuesday, Your Honor. THE COURT: Ladies and gentlemen of the jury, who are on the regular panel, I will ask you to come back on Tuesday. Those who were called especially on this case may be permanently excused. (Whereupon, after further discussion regarding bond, court was recessed at 10:07 o’clock p.m. from day to day.) ” On 31 January there was a hearing on Keller’s motion for a new trial.

At the hearing the trial judge said: “I think there can be no matter of the fact that as a matter of right under [Maryland Rule 758 d], the Defendant was entitled to have this jury polled. An obvious error on the part of the Court in ruling the way it did.” The court attempted to salvage the trial. 2 “I really cannot see any prejudice that could be done by polling the jury at this time as to their verdict.” Over the objection of Kgller, the court directed the Clerk to have the jury returned on 2 February. ⁶¹⁸ On 2 February at a conference in chambers, the court put “formally in the record that the objection [of Keller] to bring the jury back for the purpose of taking the poll of the jury is overruled.” Defense counsel then made a request: “Now, since they are coming back over my objection, I ask the Court before they are polled to ask them, I suppose it would be voir dire or whatever it may be, have they talked to anyone or read anything or anything about the case since they have been discharged and if they have been, I move that they not be polled because they cannot be legally and properly polled to protect the Defendant’s rights if they have been exposed to comments since they have been discharged.” The court refused the request: “Well, I will not grant that request because I propose to tell them that we merely want to determine whether the verdict as was announced by the Foreman on the night it was announced was their verdict and that we are not concerned with any second thoughts they may have had or anything they may have heard or read about the case since that time.” The “special panel” 3 entered the courtroom and resumed their seats in the jury box. The Clerk called the ⁶¹⁹ roll and ascertained that the twelve jurors composing the special panel of 21 January 1972 were present. The court addressed the jury: “Madam Foreman and ladies and gentlemen of the jury, first I want to apologize for bringing you out on this snowy, slushy morning.

I especially apologize because you were brought back here today because of an error on my part. You will recall that you heard these cases against Mr. Keller, Ernest Keller, Jr., during the week of January 17 through the 21st, that you reached a verdict on the night of the 21st. The Foreman announced the verdict and then the Clerk went through the normal routine which is merely to say, repeated the verdict as announced by the Foreman and said to the rest of the members of the jury, so say you all. That is what is called harkening to the verdict.

I believe you then all sat down and you will recall Mr. Perrin, counsel for the Defendant, then asked for a poll of the jury and my decision was that it was too late. I find that I was in error on that decision, that used to be the rule but it is not any more. The jury should have been polled. The purpose of polling a jury is merely to determine whether or not the verdict as announced by the Foreman is the unanimous verdict of the members of the jury because, as you know, the verdict must be unanimous for a conviction in a criminal case.

So you were brought back today to have the Clerk poll you as to your verdict at the time it was given. We are not concerned with whether you have had second thoughts as to the verdict that was given on the night of January 21st. We will poll you as to your decision, your verdict, as of the time it was announced. ⁶²⁰ There were two cases as you will recall, one case No. 3860 charged Mr. Keller with false pretenses with respect to dealings with the Charles County Board of Education. The other case, No. 3859, charged him attempted false pretenses.

With that explanation I will ask the Clerk to now poll the jury.” The Clerk said: “Ladies and gentlemen, as your name is called will you please stand.” He called the name of the foreman and said: “Mrs. Colley, as Foreman of the special panel, you announced that the verdict of the jury in Case No. 3859 and 3860 was guilty in each case. Is that your verdict?” Mrs. Colley answered: “Yes.” He then called the name of the remaining jurors one by one, and as each juror stood the Clerk said: “The Foreman of the jury announced that the verdict of the jury in Case No. 3859 and 3860 was guilty in each case. Is that your verdict?” Each juror replied that it was. Thereupon the Clerk said: “Ladies and gentlemen, harken to your verdict as the Court had recorded it.

Your Foreman announced that the verdict of the jury in Criminal Cases 3859 and 3860 was guilty in each case and so say you all.” The court “permanently excused” the members of the special panel who were not “regular jurors” and excused the others until the next day. It is obvious that the trial judge, in refusing Keller’s request to have the jury polled, believed that the request was not timely made because the verdict had been hearkened. The Court of Appeals said in Ford v. State, 12 Md. 514 , 546-547: “And we here remark, that when the jury be asked if they have agreed on their verdict, and they respond that they have, and that their ⁶²¹ foreman shall say for them, and the foreman, speaking for the whole panel, find a proper verdict, and the same be recorded, the whole panel being called upon to hearken to it as the court hath recorded it, and no objection being made, either by any of the jury, or the counsel for the State or prisoner, then such proper verdict, as given through the foreman, is the verdict of the whole panel, and it is too late, after the record of it, under such circumstances, for any of them to alter or amend it; it is then too late to poll the panel.” See Hommer v. State, 85 Md. 562, 564 . Cf.

Williams v. State, 60 Md. 402 . This was clearly not the law, however, at the time of the trial of Keller, and had not been the law in any event since 1 January 1957, the effective date of Maryland Rule 758 d. 4 That Rule, subtitled, “Poll of Jury”, provides: “When a verdict is returned and before the jury is discharged it shall be polled at the request of a party or upon the court’s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberation or may be discharged.” Under the Rule the criterion for timeliness of the request to have the jury polled is not the hearkening of the jury and recordation of the verdict but the discharge of the jury from its consideration of the case. The trial judge, as he ultimately recognized, was wrong in refusing to grant Keller’s request.

The question is whether, in the totality of the circumstances, the judge’s error requires reversal of the judgments. This inquiry embraces two interrelated matters: (1) the nature of the poll of the jury, and (2) the effect of the poll belatedly made over Keller’s objection. ⁶²² (1) The right to a trial by an impartial jury is guaranteed to an accused in all criminal prosecutions by both the federal constitution 5 and the Maryland Constitution. The constitution of this State goes a step beyond the federal constitutional right. It requires that the verdict of the jury be unanimous. 6 The Court of Appeals early found that an accused in a criminal prosecution is “entitled, as a matter of right, to a poll of the jury” and he may not be convicted, “except upon the concurrence of each juror.” 7 Williams v. State, supra, at 403.

See Givens v. State, 76 Md. 485, 488 . In Coby v. State, 225 Md. 293, 299 , the Court stated that “the defendant had the absolute right to poll the jury.” It noted that the effect of the polling of the jury is a means of establishing that the verdict was with the unanimous consent of the jurors. 8 We think that this absolute right of the accused to have the jury polled serves to assure him his constitutional ⁶²³ right to be convicted only upon the unanimous consent of the jury. To that extent, it is of constitutional dimension. 9 (2) Having found that the refusal of the trial judge to have the jury polled as requested wrongfully denied Keller an absolute right, we next consider whether the error was rendered harmless by the subsequent action of the court. “The wrongful denial of a demand or request for a poll of the jury, or the deprivation of the right to a poll by other wrongful action of the court, has generally been held to constitute prejudicial error, entitling the defendant to a new trial or a reversal of the conviction.” 5 Wharton’s Criminal Law and Procedure, § 2142 (1957); Anno: Accused’s Right to Poll of Jury, 49 A.L.R.2d § 9. In Commonwealth v. Martin, 109 A. 2d 325 (Pa. 1954), as in the case before us, the court denied the defendant’s request that the jury be polled for the reason that the request had come too late, but the request, in fact, was timely made.9 10 The court held, at 327: “The action of the court in such regard worked a denial of a right of the accused so fundamental as to require a re ⁶²⁴ trial even though, as clearly appears from the record, the trial was otherwise markedly free from error and the jury’s verdict was fully warranted by the evidence.

Yet, it is better that the case be tried again than that a precedent impairing a defendant’s right to a poll of the jury be engrafted on our criminal procedure.” Wharton states: “A wrongful denial of the demand or request may, however, be rendered harmless by other circumstances or by curative action.” 5 Wharton's Criminal Law and Procedure, § 2142. He cites as authority for this statement two cases, which are also relied on by the State, People v. Nichols, 62 Cal. 518 (1881) and Russell v. State, 68 Ga. 785 (1811). In Nichols , the California Penal Code required that the verdict of a jury be read before it was recorded and before the verdict was recorded, the jury could be polled at the request of either party. There was a palpable irregularity in the court’s refusing to have the verdict read before it was recorded, but after it was recorded the court directed the jury be polled.

The jury was polled, each answered that the verdict was his, and the jury was then discharged. The court held that the error did not compel reversal: “It seems to us that the right of polling was in effect and substantially accorded to the defendant.” 62 Cal. at 521 . In Russell , the defendant made timely request upon the rendering of the verdict to have the jury polled. Each juror was asked “Is this or not your verdict?” and replied in the affirmative except juror No. 3, whose name was not called.

The jurors were discharged and dispersed with the crowd, but none had gone past the outer door of the court when the attention of the court was called to the omission. The court reassembled the jury, directed the clerk to call the name of the No. 3 juror, which was done, and the court asked him “Is this or not your verdict?” which being answered “yes”, the verdict was recorded and the defendant sentenced. The Supreme Court of Georgia affirmed the judgment: “We recognize fully the legal right of the defendant to demand the polling of the jury in ⁶²⁵ all criminal cases, unless by his act or consent inconsistent with such right he has waived or surrendered it, and on demand made for the polling of a jury, the legality of such verdict is only completed by the poll. We further recognize it as true that when a jury has been discharged, and dispersed, and mingled with the crowd, it is too late to cure an omission to poll by re-assembling the jury for that purpose. . . .

The right to poll a jury is a legal one and the refusal is error. . . . But, conceding these propositions to be true, has not the accused had his full legal rights accorded to him as to polling the jury, under the facts of this case? Here, eleven jurors are inquired of as to their consent to the verdict, and acquiesce therein by their answer. They are discharged, but before any had gone beyond the outer door, and while the juror, who had not been questioned, continued in the presence of the court, the retiring jurors who had already answered, were recalled, placed in the box and the omitted juror required to reply as the others had previously done, to the questions propounded.

We cannot imagine how this mere inadvertence, so promptly corrected on being discovered, could possibly have affected the result to the prisoner, but on the other hand, he had accorded to him substantially his right of polling, and thus verifying the verdict rendered. It is not to be understood that the enforcement of the criminal law is to be thwarted or evaded by mere slight irregularities in the procedures of courts if its forms have been substantially complied with, and it is apparent from the facts, that in these slight irregularities the defendant has been denied no legal right to a fair and impartial trial. The criminal law of our state has, in tenderness to the life ⁶²⁶ and liberty of the citizen accused of crime, thrown around him every safeguard to secure him a public, speedy and impartial hearing, according to the forms of law, and when these have been substantially accorded him and none denied him, let him therewith be content to atone in its penalties for its infraction by him. We conclude that the ground complained of here scarce amounts to a slight irregularity— none such, at least, as in our opinion calls for correction on our part by awarding a new trial.

We rest this judgment, affirming the judge below upon the distinct ground that the juror who had not been polled had remained in presence of the court unaffected by his discharge or his surroundings.” 68 Ga. 788 -789. Nichols and Russell are readily distinguishable from the case before us. In Nichols the jury had not been discharged. In Russell , eleven of the jurors had been polled before the jury was discharged, the juror who had not been polled remained in the presence of the court until he was polled and was found to be unaffected by his discharge or his surroundings.

Neither case is authority for what the trial court did here. The Keller jury was discharged and the jurors dispersed before any juror had been polled. They were not reassembled until some 12 days later. The short of it is that at the time they were reassembled they no longer constituted a jury to be polled because they had been discharged and dispersed.

One of the objects in polling the jury is to enable a juror to correct a verdict about which, on further consideration, he has doubt, and to declare in open court his judgment in praesenti. The fact that a juror had voted for the verdict returned does not preclude him from repudiating the verdict upon the poll of the jury. Ordinarily, the polling of the jury is the only way to determine the adherence of the jurors to the verdict. 5 Wharton’s Criminal Law and Procedure, § 2142 (1957). ⁶²⁷ What the procedure followed by the trial court amounted to was to obtain an unsworn statement from each juror almost two weeks after the jury was discharged that he agreed to the verdict. This was not enough to cure the lack of a timely poll and we find that the error in refusing to have the jury timely polled was not cured by the subsequent action of the court.

The effect was that Keller was effectively denied his absolute right to have the jury polled and to have each juror assent to the verdict. The Court of Appeals decided in 1893 that the right to have the jury polled should be continued and not changed, and that upon a denial of the right, the judgment must be reversed and a new trial awarded. Givens v. State, supra, at 488. We do not find that the Court of Appeals has departed from this view.

We reverse the judgments against Keller with the grant of a new trial. Ill Keller presents seven other questions for appellate review. As we have reversed the judgments we need consider only that one claiming that the indictments are invalid because it is material to a retrial. Keller contends that indictments 3859 and 3860 are invalid because each presents that the offense charged, attempted false pretenses in 3859 and false pretenses in 3860, was committed from 1 September 1970 to 30 June 1971.

He urges that this is vague, ambiguous and duplicitous because it charges more than one offense in one count. He supports the contention with Stearns v. State, 81 Md. 341 , and State of Maine v. Smith, 61 Me. 386 (1872). We see nothing vague and ambiguous about the indictments. In each the crime is designated, the time during which it was committed alleged,