Mazer v. State

Brune, C. J., delivered the opinion of the Court. The defendant-appellant, Mazer, was convicted on a charge of pandering in a jury trial in the Criminal Court of Baltimore. He was sentenced to imprisonment and appeals. In his brief he raises five contentions in somewhat different order from that in which we state them below.

These are (a) that the trial court erred in not granting a postponement of the trial; (b) that the ⁴³ State’s sole witness, a prostitute, was an accomplice and hence that he could not be convicted on her uncorroborated testimony; (c) that the trial court erred in failing to caution the jury as to the amount of credence to be placed in the uncorroborated testimony of that witness; (d) that evidence of commissions paid on drinks, which involved violations of another law, should not have been admitted; and (e) that the evidence was insufficient to sustain the conviction. He also. raised on oral argument a further question, that of a variance between the allegation of the indictment that the name of the woman concerned was unknown to the grand jury and evidence that she had appeared before it, which will be separately treated. Mazer was the cashier of the Oasis Night Club in a district of Baltimore often known as “The Block.” He at times was the acting manager and frequently worked behind one of the bars. The State’s only witness, whose real name is Elaine Eckhardt, and whose professional or stage name is Kim Standlee, and who was generally referred to by that name during the trial, was employed at the Oasis from September 9 to December 2, 1960, as an “exotic dancer” (to adopt a possibly over-elegant term from the appellant’s brief) for two performances a night, six days a week, at a salary of approximately $100 a week.

At times while at the Oasis and when not engaged in her work as an “exotic dancer,” she would sit and drink with male customers. She was allowed to testify over objection that she was paid commissions on drinks. She testified that on a number of occasions, not exceeding ten, she had left the night club before her first scheduled performance to meet a male customer at some other place for purposes of prostitution, that on each such occasion she paid Mazer $20.00 in order to avoid her salary being docked, and that after leaving the club for such a purpose she would not return later the same night. She testified that there was no discussion between herself and Mazer with regard to the amount to be paid and that there was never any discussion between them as to her purpose in leaving.

Mazer denied ever having received any money at any time from Miss Standlee. Miss Standlee was granted immunity by the State. Mazer’s trial was one of a series of cases based upon indict ⁴⁴ ments returned following a grand jury investigation of “The Block.” His motion for a continuance was based upon extensive and allegedly unfavorable publicity growing out of two other “Block” trials, involving one Salsbury, the proprietor of the Oasis, where Mazer was employed. He filed as exhibits in support of his motion a number of newspaper clippings concerning the Salsbury cases, but did not see fit to reprint them or any part of them in the appendix to his brief.

They are included in the record and some statements concerning them appear in comments of the trial court contained in appendices to Mazer’s and the State’s briefs, some of which were made in a conference with counsel out of the presence of the prospective jurors, and some in addressing the prospective jurors in the course of examining them on the voir dire. The two Salsbury cases were tried within a period of approximately two weeks before the opening of the Mazer trial. In the first, Salsbury was indicted with Mazer for conspiracy to violate the pandering laws; Salsbury was tried separately and was acquitted on a directed verdict. Mazer’s name was mentioned fairly extensively in reports of that trial.

In the second case Salsbury was charged in a six-count indictment, which does not appear in the present record. A verdict was directed in his favor on one count (described as charging lewdness and assignation), he was found guilty by a jury on a charge of maintaining a disorderly house and was found not guilty on the other four counts. The trial judge during the conference with counsel expressed the view that the general effect of the publicity relating to the conspiracy charge in which Mazer was named as his co-conspirator and on which the court had directed a verdict of not guilty could not have created any public prejudice against Mazer, that the effect of the publicity attendant upon both Salsbury trials was favorable, rather than otherwise, to Mazer at the time of the latter’s trial and that “the climate is now [as] favorable as it ever will be for the defendant * * * Mazer, insofar as his trial is concerned.” The trial judge, after reading all of the newspaper clippings submitted, denied the motion and proceeded to the empanelling of the jury. None of the talesmen had sat in any of the prior “Block” cases and none had been offered for challenge by either side in any of them. ⁴⁵ In addressing the prospective jurors, the trial judge prefaced his remarks by stating that Mazer was charged with the crime of pandering, that the case was one of a series of cases growing out of the then recent grand jury “Block” investigation, and that these cases had “attracted considerable public interest and have been rather thoroughly covered in the local press, on radio and on television.” He next referred specifically to the two Salsbury trials and stated that they had “attracted a fair amount, perhaps a considerable amount of publicity.” The judge then inquired, assuming that the talesmen had read or heard some of the details of those trials, whether any of them felt that “the press, radio or television coverages of the previous trials will preclude you from giving a fair and impartial trial to either the State or the Defense” in Mazer’s case, and continued: “If so please raise your right hand and identify yourself.” He then added, “I see no hands.” The court’s next inquiry was whether any prospective juror had formed or expressed any opinion as to the guilt or innocence of Mazer.

Again, if so, a show of hands was called for; and again none was raised. The third and fourth inquiries, which the court stated were substantially the same as the previous questions, were somewhat more specific and were directed to the defense contention that the prospective jurors might have discussed the case with other members of their panels or might have heard discussion of such cases by other jurors. The court mentioned these possibilities and inquired (a) whether assuming that the prospective jurors had heard or participated in such discussions any of them felt that they could not give a fair and impartial trial to each side and (b) assuming that they had heard or overheard some discussion of cases, whether any of them had formed or expressed an opinion as to the guilt or innocence of Mazer. A show of hands was called for as to each of these inquiries, and again none was raised.

The trial judge then inquired if the questions which he had asked were clear to the prospective jurors and whether there was anything with regard thereto that any of them would like to have clarified. No question having been asked and no request for clarification having been made, the court asked: “Are there any other questions counsel would like the Court to propound.” Counsel for the defendant and for the State each answered “No.” ⁴⁶ The granting or refusal of a continuance is ordinarily within the discretion of the trial court and we find no abuse of discretion here. A similar question involving a suggestion for removal was recently before us in another case growing out of the same grand jury investigation. See Seidman v. State, 230 Md. 305, 324-25 , 187 A. 2d 109, 120-21 .

We think that the Seidman case and the cases therein cited are controlling here. We may add that the examination of the prospective jurors on their voir dire went directly to the chief ground relied upon by the defendant. It developed no sign of prejudice. Even though we might not fully share the views of the learned trial judge with regard to the effect as to the appellant of the publicity attendant upon the Salsbury trials, we think that the court’s questioning of jurors on the voir dire was sufficient to protect the defendant’s right to a fair trial before an impartial jury.

We note that the defendant’s counsel considered the questions asked adequate. In addition, Salsbury’s acquittal by a jury on four of the five counts submitted to the jury a few days before in itself strongly negatives that publicity attendant upon the “Block” cases created such a public state of mind as to prevent a fair trial for a “Block” character, specifically one closely associated with Salsbury, as the appellant was. We find no abuse of the trial court’s discretion in denying the appellant’s motion for a continuance. The appellant’s second contention is that the woman engaged in prostitution, from whose earnings he was charged with receiving money, was an accomplice and that her testimony therefore required corroboration.

The same contention was made on behalf of the appellant in the Seidman case. It was extensively reviewed and rejected there because the women involved were held not to be accomplices of the alleged panderer. The Seidman case is controlling on this question in the present case, and we accordingly hold that the woman here involved was not an accomplice of the appellant. The appellant’s third contention, for which he cited Meno v. State, 117 Md. 435, at 438 , 83 A. 759 , is that the jury should have been cautioned by the trial judge as to the amount of credence to be placed in the testimony of the State’s witness, Miss Standlee.

Though the language of the Meno case is not en ⁴⁷ tirely clear we are certainly not prepared to accept the appellant’s interpretation of it as requiring a cautionary instruction where the witness has some relationship to the offense, but is not an accomplice. None of the cases cited in Meno goes so far as to support such a proposition. There was no suggestion in Bassoff v. State, 208 Md. 643 , 119 A. 2d 917 , which cited Meno (at p. 654 of 208 Md.), that Meno held as the appellant contends. We find it unnecessary, however, to pursue the matter to a final conclusion.

A sufficient answer to this contention of the