Pearlstein v. State

MOYLAN, Judge. The appellant, Allan H. Pearlstein, was one of the principal owners of the Old Court Savings and Loan, Inc. (Old Court). A Baltimore City Grand Jury charged him with six counts of theft. A Baltimore City jury, presided over by Judge Edward J. Angeletti, acquitted him on two of those counts but convicted him on the other four.

Judge Angeletti sentenced the appellant on each count to fifteen years of ⁵¹¹ imprisonment with all but eight years suspended, the sentences to be served concurrently. The appellant was ordered to pay a $1,000 fine on each count, to perform 2,000 hours of community service, and to make restitution to the Maryland Deposit Insurance Fund in the amount of $647,-786. Upon this appeal, the appellant raises eight contentions. Two of them deal with pre-trial matters: 1.

That Judge Angeletti erroneously refused to grant his motion for a change of venue; and 2. That Judge Angeletti erroneously refused to grant his request for a bill of particulars. One contention relates to the conduct of the trial itself: 3. That Judge Angeletti impermissibly injected himself into the trial proceedings by 1) cross-examining too aggressively a witness favorable to the appellant and 2) commenting, during the appellant’s testimony, upon the appellant’s financial acumen.

Three other contentions deal with jury instructions: 4. That Judge Angeletti erroneously refused to instruct the jury that it should apply a subjective rather than an objective standard in determining whether the appellant honestly believed he was entitled to the funds that he received; 5. That Judge Angeletti erroneously failed to instruct the jury that character evidence, in and of itself, may raise a reasonable doubt; and 6. That Judge Angeletti erroneously instructed the jury as to the elements of conspiracy.

The remaining two contentions challenge whether the evidence was legally sufficient to permit submitting the case to the jury: 7. That the evidence failed to establish that Old Court had an ownership interest in the specific funds identified in counts 1 and 2 of the indictment; and 8. That the evidence was not legally sufficient to support a verdict of guilty on any of the four theft counts. ⁵¹² The Pre-Trial Contentions The appellant contends that Judge Angeletti committed error when he turned down the appellant’s request for a change of venue. The claim that a fair trial in Baltimore was impossible because of the “massive and inherently prejudicial pre-trial publicity” is little more than a bald assertion.

Rather than developing the claim directly, the appellant incorporated by reference the Motion For A Continuance Because Of Pre-Trial Publicity filed by Jerome S. Cardin and the separate Motion for Continuance filed by Walter L. Otstot in their respective criminal cases. In both of those cases, we note that the defendants did not even urge the extreme remedy of a change of venue but only requested a continuance to allow the effect of pre-trial publicity to dissipate. We note, moreover, that the appellant’s trial was even later than those of Cardin or Otstot, allowing even more time for the dissipation of the effect of pre-trial publicity. To the possible retort that the intervening trials themselves may have generated a new round of publicity, we can only respond that there is no such evidence in the record before us.

In this case, Judge Angeletti conducted an exhaustive voir dire examination which extended over a period of three days. Counsel were permitted the individual examination of each venireman. Judge Angeletti liberally granted the appellant’s challenges for cause on the basis of possible prejudice or preconception caused by pre-trial publicity. Each of the jurors ultimately sworn to hear the case swore under oath that he could judge the appellant fairly and impartially based solely on the evidence adduced at trial.

The appellant responds in his reply brief that “this Court has recognized” that “a juror’s statement of impartiality should be given little weight when prejudicial pre-trial publicity has so saturated the community as to have created irreparable prejudice.” He cites Waine v. State, 37 Md. App. 222 , 377 A.2d 509 (1977), generally for that proposition of law. Our examination of Waine has revealed no such statement. Indeed, Waine was a case wherein we held that ⁵¹³ the trial judge did not abuse the wide discretion vested in him when he refused to order a change of venue notwithstanding widespread pre-trial publicity. In that case “at least two-thirds of the five panels of prospective jurors stated that they had heard of the case in the news media prior to the voir dire examination.” 37 Md.App. at 226 , 377 A.2d 509 .

There, as here, “[a]ny juror who revealed that that exposure might impair his ability to render a fair and impartial verdict was excused for cause.” Id. We said nothing in that case to indicate any skepticism with respect to or to cast any doubt upon a juror’s sworn response that, notwithstanding exposure to pre-trial publicity, he could render a fair and impartial verdict based only upon the trial evidence. We reiterated the general rules that the decision on removal “is one which rests within the trial court’s discretion” and that the “burden is on the appellant to show that he had been prejudiced by adverse publicity and that the voir dire examination of the prospective jurors, available to him, would not be adequate to assure him a fair and impartial trial.” Id. at 227 , 377 A.2d 509 . The voir dire examination in this case, moreover, revealed that most of the veniremen had never heard of the appellant.

The appellant complains that this is of little moment because the jurors had heard of the primary culprit associated with the Old Court Savings and Loan scandal, Jeffrey A. Levitt. The present claim of “guilt by association,” however, falls on unresponsive ears in that it was appellant’s counsel who characterized Levitt before the jury as “probably the most cunning, deceitful white-collar criminal ever.” In a case where the corpus delicti of theft, fraud, embezzlement, etc., could not plausibly be denied, the appellant sought to exculpate himself by laying all of the blame on Levitt. He portrayed himself as an innocent victim who had been duped, along with thousands of others, by relying on Levitt. Within the context of this particular trial defense, therefore, any pre-trial prejudice against Levitt, if there were such, would have served to reinforce ⁵¹⁴ rather than to blunt the appellant’s trial strategy.

We find no abuse of discretion. Equally without merit is the appellant’s claim that Judge Angeletti erroneously denied his request for a bill of particulars. The State in this case used the charging language authorized by Md.Ann.Code, Art. 27, § 344(a) (1957, 1984 Repl.Vol.) of the Consolidated Theft Statute. This, of course, has been deemed fully sufficient to charge the offense.

Whitehead v. State, 54 Md.App. 428 , 458 A.2d 905 (1983). The indictment advised the appellant of the dates of the alleged thefts, the specific dollar amounts allegedly stolen, the identities of the victims, and as to counts 1 and 2, a brief description of the theft to show that those counts pertained to the Aldrich and New York projects. More significantly, the State provided pre-trial discovery under Maryland Rule 4-263(b). As part of that discovery, the appellant was furnished with a list of witnesses the State intended to call and with each document the State intended to offer, in its case-in-chief.

The appellant was fully informed of what conduct of his was at issue, down to the specific checks that formed the State’s case. This information was in his hands more than five weeks before opening statements were made to the jury. When Judge Angeletti inquired as to the specific areas necessary for the appellant to prepare his defense, appellant’s counsel referred only to its desire to have the State elect the specific form of theft on which it would rely at trial. Judge Angeletti concluded that since the appellant was not disputing the receipt of money, and given the specificity of the indictment and the evidence provided through discovery, the appellant was fully on notice of the charges against him.

We agree. Examination and Comment by the Judge The appellant contends that Judge Angeletti committed reversible error when he strayed “beyond the line of impartiality over which a judge must not step,” Vandegrift ⁵¹⁵ v. State, 237 Md. 305, 311 , 206 A.2d 250 (1965), both in his examination of the witness Alan August and in his comment during the testimony of the appellant. We do not agree in either regard. Alan August was a New York developer who allegedly paid “kickbacks” to the appellant and others in return for Old Court’s financing of a hydro-electric plant in upstate New York of which August was a partner.

During both direct and cross-examination, August was, in our judgment, evasive and conveniently “forgetful” about several key business decisions involving Old Court. We hold that Judge Angeletti was well within his legitimate prerogative in firmly but unemotionally attempting to pin the witness down with respect to these decisions. Our reading of the examination does not support the appellant’s characterization of that examination as “demanding ... belligerent and ... sarcastic.” He did not, as in Vandegrift, warn the witness of the penalties of perjury or, as in Brown v. State, 220 Md. 29 , 150 A.2d 895 (1959), phrase his questions in a sarcastic fashion. The questioning rather strikes us as a legitimate effort to sharpen the issues and clarify difficult points for the jury.

In Cardin v. State, 73 Md.App. 200 , 533 A.2d 928 (1987), we dealt with a very similar instance of questioning by the same trial judge of another of the defendants in the series of prosecutions involving the business activities of Old Court. The analysis by Judge Bloom of the propriety of the trial judge’s examination there is equally controlling here: “The form and language of the questions themselves do not indicate any error or abuse of judicial discretion. The judge’s questions of Cardin followed a long trial on complicated issues involving charges of complex white collar crimes. It was within the judge’s discretion to elicit for the benefit of the jury the basic differences between an incorporated law firm and a solo practice, particularly with respect to billing and receiving fees, even if it had the effect of pointing out discrepancies in Cardin’s testimony.

Certainly, Cardin was given an adequate chance to respond, and his attorney also had an ⁵¹⁶ opportunity to ask him questions and elicit additional exculpatory explanations from him. In summary, the court’s interrogation of Cardin does not on its face reveal any display of partiality in the judge. The judge in this case, unlike the judge in Vandegrift, did not warn the witness, in front of the jury, of the penalties of perjury; and unlike the trial judge in Brown , he did not use words that tended to display sarcasm or a disbelief of the witness’s testimony.” 73 Md.App. at 232 , 533 A.2d 928 . In this case as well, counsel for both sides were afforded the opportunity for further questions in light of the court’s examination of the witness.

We note, moreover, that Alan August was a witness called not by the appellant but by the State. The jury was instructed, at the appellant’s request, that the State vouched for August’s credibility. The appellant also complains about a single brief statement made by Judge Angeletti during the course of the examination of the appellant himself. Judge Angeletti commented that the appellant was very familiar with the intricacies of banking and finance.

That seems to us to have been an astute assessment. Our short answer to the contention is that the appellant made no objection and there is nothing, therefore, preserved for appellate review. Md. Rule 1085. In reply brief, the appellant correctly points out that in certain extraordinary or compelling circumstances, it would lie within our discretion to take notice of a judicial comment even absent a timely objection.

Elmer v. State, 239 Md. 1, 9 , 209 A.2d 776 (1965). It is enough to note that there is nothing here that remotely disposes us so to exercise extraordinary discretion. Jury Instructions: “Good Faith Claim of Right" and “Honest Belief’ Defenses The appellant complains that Judge Angeletti refused to give requested instructions on the two statutory ⁵¹⁷ defenses of “good faith claim of right” and “honest belief.” These defenses are spelled out in Md.Ann.Code, Art. 27, §§ 343(c)(1) and (2). Instead of giving the instructions in the form requested by the appellant, Judge Angeletti read verbatim from the language of the statutory provision itself.

Our disposition has been made simple for us by Cardin v. State, supra, which dealt with precisely the same issue. We adopt the holding in that case as it was expressed by Judge Bloom, at 73 Md.App. at 219 , 533 A.2d 928 : “The trial judge refused to give instructions requested by Cardin defining two statutory defenses: ‘good faith claim of right,’ Md.Ann.Code art. 27, § 343(c)(1) (1982 Repl.Vol.), and ‘honest belief,’ Md.Ann.Code art. 27, § 343(c)(2) (1982 Repl.Vol.). Instead of giving the instruction submitted by Cardin, the trial judge instructed the jury on these defenses by reading verbatim the language of art. 27, § 343(c). We believe that was sufficient; the statutory language was not so technical or complicated as to confuse the jury, but instead was quite straightforward and lucid.” Jury