Pearson v. State

⁴⁶⁶ Orth, C. J., delivered the opinion of the Court. STATEMENT OF THE CASE Three criminal informations charging violations of the laws concerning controlled dangerous substances were filed in the Circuit Court for Prince George’s County against JON FREDERICK PEARSON, Deborah Lee Royston, Edward Robert Hicks, James Robert Collett and Fred James Raduazo. When the informations came on for trial, Hicks and Raduazo failed to appear. The State proceeded against Pearson, Royston and Collett.

The defense stated that the three informations arose out of “one search, one arrest, one incident which occurred on May 22nd, 1973.” The court, at the request of the defense, directed the State “to elect at this time which [information], you want to go forward on.” The State designated no. 13975, filed 14 December 1973, which charged possession on 22 May 1973 of a controlled dangerous substance,, MDA, by the 1st count and of controlled paraphernalia by the 2nd count. 1 Trial proceeded jointly as to Pearson, Royston and Collett under pleas of not guilty, Pearson and Royston before a jury and Collett before the court. A preliminary matter regarding the constitutional validity of a search and seizure was presented to the court. There was a plenary hearing out of the presence of the jury, 2 at the conclusion of which the judge found that the challenged evidence was not illegally obtained. He ruled: “This being accepted as a motion to dismiss in behalf of each of the present Defendants, Royston, Pearson and Collett, the motion to dismiss is denied.” 3 ⁴⁶⁷ The preliminary hearing on the validity of the search and seizure consumed most of the morning.

Upon its conclusion, the venire were brought in, were questioned on voir dire, and a jury was empanelled and sworn. The court then recessed for lunch. Collett and Pearson reacted in different ways to the ruling of the trial court. Collett changed his plea to guilty; 4 Pearson disappeared.

When the court convened after the luncheon recess, Pearson’s attorney asked to approach the bench. The transcript reads: “MR. HUGHES [George Hughes, Esq., Pearson’s Counsel]: May it please the Court, during the noon recess I had the opportunity to discuss possible plea bargaining with Mr. Palumbo, the State’s Attorney. As a result thereof I met my client in the hall at one fifteen, I think, maybe one ten and conveyed to him the topic of our plea bargaining and conversations.

I then turned my back for a few minutes and I looked around and my client was gone. I haven’t seen him since then. I don’t know whether he’s still in the building or not. I’d like the opportunity to go downstairs and check to see if he’s downstairs or any place in the building before we proceed.

THE COURT: I don’t see where that’s going to do any good to look for him. He knows better than that. He knew what time he was due back here. I don’t know what’s going on in this case, but I don’t like it.

All right. Is that all? MR. HUGHES: That’s all I have, Your Honor.” The court was of the opinion that in the circumstances the trial of Pearson could continue without Pearson’s presence.

A recess was granted to give counsel an opportunity to ⁴⁶⁸ research the question. When court reconvened forty-eight minutes later, defense counsel in response to the court’s inquiry, said that he had no further knowledge of Pearson’s whereabouts. The court noted that defense counsel represented “that he had discussed the case with the Defendant Jon Frederick Pearson during the luncheon recess and for no apparent reason at all the Defendant, when his Counsel had his back turned the Defendant disappeared and hasn’t shown since then.” The court said: “Now, the Court is going to rule that he has voluntarily absented himself for the trial. He’s in contempt of Court.

The Court rules that he is in contempt of Court for absconding, leaving during the recess. We would order a forthwith bench warrant issued for the Defendant at this time and we will direct that the State’s Attorney, the case be commenced right away in the absence of the Defendant since he’s done this voluntarily.” Defense counsel objected “because under Maryland Rule 775 . . . I can’t voluntarily waive his right to be present at all stages of the trial.” 5 The court replied: “We understand that it isn’t being done, but by him absenting himself the Court declares that he has done this on his own and he had a right to be here. If he elects not to be here, then he must bear the consequences, and the wheels of justice can’t be ⁴⁶⁹ stopped just because he happened to absent himself.

We feel we can go ahead and we intend to go ahead.” The court directed the Clerk to have the docket show that Pearson “is held in contempt of Court for failure to appear after lunch . .. and also show the forthwith issuance of the bench warrant. . . .” The docket reads: “5/7/74. Ordered by Judge Bowie; Mrs. Henning, Reporter, that Defendant Pearson be and is hereby adjudged in Contempt of Court for not appearing for trial after lunch and that Bench Warrant issue forthwith. 5/7/74 Bench Warrant issued.” The trial proceeded. At the close of the State’s case motions for judgment of acquittal were made and argued. The motion by Pearson was denied; the motion by Royston was granted.

The judge thought that the jury were “entitled to know what’s been going on today”, noting, “You have been in your jury room most of the time.” He told the jury: “The case started out this morning when we had five co-defendants, two of them hadn’t shown, so we started off with three, and then before we got off the ground with the trial one of the Defendants elected to plead guilty to a lesser charge, which left two, and then during the luncheon recess one of the Defendants, Mr. Hughes’ client, just walked off, and the Court ruled that since the jury had been sworn a trial had started and he has an absolute right to be here present during his trial, but if he walks off, then we have a right to go ahead and try him in absentia, which is what we have done.” When court reconvened the next morning, the judge, out of the presence of the jury, asked if Pearson had been found. The transcript reads: “MR. HUGHES: Your Honor, as Defense Attorney ⁴⁷⁰ and as an officer of the Court I went back to my office last night and I received a telephone call from Mr. Pearson. THE COURT: From who?

MR. HUGHES: Mr. Pearson. I asked him why he had taken off, and he said he was in fear, that he didn’t want to go to jail. I implored him to come here this morning and to stand and face this and not to stay away.

He advised me that he would think about it, and that’s the extent of the conversation. THE COURT: He didn’t say where he was or — MR. HUGHES: No, sir. I don’t know where he was.

THE COURT: And, of course, there is a bench warrant out from the Sheriff’s Office. MR. HUGHES: I told him that, Your Honor. I advised him of'that.

I told him there was a bench warrant out for him and' he would be summarily arrested and brought befo re the Court. THE' COURT: Did you tell him that the case-went on yesterday and that we’d conclude it this morning? MR. HUGHE'S: Yes, sir, I did.” There followed a discussion regarding instructions.

The jury were brought in. The defense- rested and renewed its motion for judgment of acquittal. It was denied. The judge addressed the jury: “Members, of the jury, that puts us at the-posture of the case where we were yesterday evening, and that was that the Defendant, Jon Frederick Pearson-,, as- you recall, was present in the courtroom when we conducted the voir dire examination, before you were selected as members of this panel.

You were sworn, we recessed for lunch, and after consulting with his counsel, through no fault of Counsel at all, the Defendant walked off. We are told that he called his Counsel ⁴⁷¹ last night at his office and was advised by Counsel that the trial had gone on and that he would have an opportunity to put on his defense this morning. He said he’d think about it. Well, apparently he’s thought about it and concluded that he still wants to voluntarily absent himself from the trial.

While we are on this ... Well, we’ll reach that point again in a minute, members of the jury.” He then proceeded with the charge, during which he again discussed the absence of Pea-son: “Now, members of the jury, had Mr. Pearson elected to stay here, he as any other Defendant has an absolute constitutional right not to take the stand. Remember, it’s the burden of the State to prove the Defendant guilty beyond a reasonable doubt, it is not the burden of the Defendant to prove himself innocent. As we understand the law, if a Defendant elects to voluntarily absent himself from trial, the trial can proceed because he did this in a voluntary manner of his own judgment, knowing and being advised that he had an opportunity to be present at his own trial.

The fact that he has elected not to be present at his trial, members of the jury, we would direct you not to hold this against him but to evaluate the evidence as you have heard it just as if he had been here during the time of the trial.” At the conclusion of the charge, defense counsel expressly stated that there were no exceptions. The jury retired to deliberate. They returned in approximately an hour and rendered a verdict of guilty as to count 1 and not guilty as to count 2. The court referred the matter to the Division of Parole and Probation for a presentence investigation.

It noted: “The bond has already been revoked and there is an outstanding bench warrant. That’s all we can do at the present time.” ⁴⁷² There are several docket entries thereafter concerning Pearson: “8-22-74. Stet. Bench Warrant to remain in effect as to Pearson... . 11-6-74 Return ‘Cepi’, filed 11-3-74.

(Pearson) 11-7-74 Continued for sentencing on November 12, 1974 before Judge Bowie (Pearson) . .. Motion by State to remove Pearson from Stet Docket. Motion granted.” Pearson showed up at the penalty stage of the trial on 12 November. Minor corrections were suggested by him with respect to information contained in the presentence investigation report, but, according to his counsel, as to the remaining portions of the report, Pearson found “nothing in there that is of error and no amendments or corrections are to be made.” The matter of Pearson’s absence at the trial was discussed: “MR.

KRAVETZ [Arthur A. Kravetz, Esq., Assistant State’s Attorney. He was not the prosecutor at the trial]: I beg your pardon, your Honor? THE COURT: Do you know anything about this? MR.

KRAVETZ: The only thing I know about the incident is that from reading the P.S.I. I understand he left court in the middle of the trial. THE COURT: Do you have any statement to say on behalf of the State’s Attorney’s office? MR. KRAVETZ: Yes, your Honor.

In regard to the behavior of the defendant and his prior criminal record, the State would have no alternative but to recommend the maximum period of incarceration in this case. THE COURT: Very well, Jon Frederick Pearson, would you stand up. You can have a seat Mr. Hughes. ⁴⁷³ Do you wish to say anything before we impose sentence in your case, in addition to — do you have anything else to add in addition to what we have read and heard and recall from the trial and recall about your absenting yourself, before we impose sentence in your case? You are here to be sentenced, you know, for what the jury found you guilty of, as well as the Court found you in contempt of Court for absenting yourself, and you must be sentenced for that today, too.

Do you have anything to add? JON FREDERICK PEARSON: I would just like to apologize to the Court for leaving like I did. I just felt it was a right thing to do at the time. I felt — THE COURT: Why?

JON FREDERICK PEARSON: Because I’m not guilty. One of the other defendants in the case was guilty, but he wanted — didn’t want to step forward and assume the responsibility. THE COURT: If that is so why didn’t you hang around and assert yourself and tell the jury what happened? JON FREDERICK PEARSON: Well, due to my past in the court — THE COURT: I see your past according to the record, but if you weren’t guilty it was incumbent upon you to stick around and convince the jury that you weren’t.

But to suggest to the Court that you were totally innocent of it is a little hard for the Court to visualize, in view of your actions in leaving right in the middle of the jury trial without explaining to the jury what your problem was. JON FREDERICK PEARSON: I understand that, your Honor. It’s just the fact that the last time I was before the Court I was innocent, too, you might say, and I spent eighteen months in jail before the Court of Appeals reviewed my case and it was ⁴⁷⁴ handed back to the Circuit Court before I was exonerated of the charges. Taking that in mind I just — I was just scared and didn’t want to go to jail.

I figured it was the best thing for me. But I don’t know. I went to Florida and stayed down there for a few months and I just got tired looking over m.y shoulder and decided to come back and take what the Court -deems necessary to give me. THE COURT: But Mr. Hughes related to the Court later, your attorney, that he had seen you up, I think, in the Adelphi area.

Isn’t that right, Mr. Hughes? MR. HUGHES: Riverdale area. THE COURT: Riverdale area.

When was that, sir, do you recall? MR. HUGHES: Sometime after the trial. THE COURT: Rather shortly after, wasn’t it?

MR. HUGHES: Yes, sir. THE COURT: Before the time set for sentencing? MR.

HUGHES: Yes, sir. THE COURT: Okay. He couldn’t convince you that you were wrong either, is that right? JON FREDERICK PEARSON: That’s correct, your Honor.

I gave this a lot of thought before I left and I don’t ■know — I guess I did the wrong thing, but at the time it seemed like I was doing the right thing. All I could think about was wanting to be free for a while and it got to me after a while. I figured the best thing to do is come back to Maryland and get it over with, which I should have done before this. But I have been there so many times before in jail that my head wasn’t really clear at the time.

THE COURT: Very well. Of course, not only did the jury find you guilty of Count 1, thé maximum sentence for which is four years or $25,000 fine, or ⁴⁷⁵ both, but then, of course, the Court on the day of trial, on May 7th, 1974, for the record, when you failed to show up after lunch, we found you in contempt of Court for not appearing for trial after lunch. As to Count 1, we think that whether or not you are guilty has been determined by the jury. It then becomes the Court’s duty to sentence you.

I believe, Mr. Sheriff, he has been in since November the 3rd, is that it? THE DEPUTY SHERIFF: Yes, sir. THE COURT: Are there any other periods of incarceration, Mr. Hughes, for this offense? He was on bond up until that time?

MR. HUGHES: Yes, sir, that is correct. THE COURT: Madam Clerk, have the docket show the defendant is sentenced to the jurisdiction of the Division of Corrections for the period of four years commencing November the 3rd, 1974, as to Count 1. Then as to the contempt on May 7th, have the docket show the defendant is sentenced to the jurisdiction of the Division of Corrections for the period of two years, to be consecutive to that just imposed on Count 1.

You are cautioned that you have thirty days from today in which to appeal your case, thirty days from today in which to ask for a review of sentence, and ninety days from today to ask for a reconsideration of sentence.” Pearson tried all three. On 3 December 1974 he requested a reduction of sentence. The same day it was denied by order of the court accompanied by a memorandum. On 6 December he noted the appeal which is now before us.

On 9 December he moved for a review of sentence. A review panel was assigned on 9 December, and on 28 February 1975 it ordered that the sentence remain unchanged. There is left the determination of the direct appeal. ⁴⁷⁶ The appeal was noted “from the verdict and sentence of November 12, 1974.” We take this to mean from the judgment on the substantive offense and from the judgment on the matter of contempt. Courts Art. § 12-301 and § 12-304 (a).

Pearson presents four contentions. Two of them go to the substantive crime, and two concern the contempt judgment. THE JUDGMENT ON THE SUBSTANTIVE CRIME Pearson urges that the judge committed reversible error in informing the jury, (1) of his absence at trial, and (2) of the guilty plea of the co-defendant, Collett, to a lesser charge. They may be disposed of summarily.

The short answer is that no timely objection or exception was made to the remarks now challenged. Their propriety is not properly before us. Maryland Rule 554; Levine v. Rendler, 272 Md. 1 (1974); Montgomery Ward & Co. v. McFarland, 21 Md. App. 501 (1974); Podolski v. Sibley, 12 Md. App. 642 (1971). In any event, we think the jury were entitled to know what happened with respect to Collett, who was being jointly tried with Pearson with no objection noted.

We also think they were entitled to know why Pearson disappeared during the course of the trial. We point out that the judge carefully pointed out that the jury were not to hold Pearson’s absence against him and cautioned that they were “to evaluate the evidence as you have heard it just as if he had been here during the time of the trial.” The contentions presented afford no reason to reverse the judgment of conviction and sentence under the 1st count of information no. 13975. It is affirmed. THE JUDGMENT ON THE CONTEMPT OF COURT We shall discuss the contentions concerning the judgment as to contempt of court as best we are able to understand them.

The difficulty is that the delineation of the argument in the brief seems not to follow the question as presented, and the discussion thereon appears somewhat foreign to both. Pearson asks: ⁴⁷⁷ “Is the absenting of oneself from the trial of his case a contempt of court punishable by incarceration? ” He heads the argument under this question thus: “The absenting of oneself from the trial of his case is not a direct contempt of court.” The argument which follows may be fairly summarized in the language of the brief: “At the point in time when the trial judge held appellant in contempt of court, there was no positive indication that appellant had voluntarily absented himself, and the court was obliged to explore the matter more fully before determining that appellant ‘is in contempt of court for absconding, leaving during the recess.’ ” These actually pose several different points. Pearson also asks: “Did the trial judge have the power to sentence appellant to two years incarceration for contempt of court for absenting himself from the trial without first determining whether or not the absenting was voluntary, or otherwise affording appellant a hearing on the contempt charge? ” He heads the argument under this question thus: “The trial judge did not have the power to find the appellant in contempt of court and to incarcerate him for an additional two years for the unindicted crime of contempt of court.” He argues that “absenting oneself from the trial of his criminal case is not a disruption of the court proceeding which, in this case, proceeded smoothly without the defendant. Nor is this absenting an attack on the dignity of the court. . . .” He refers to Courts Art. § 1-202; Code, art. 26, § 4; Maryland Rule P. He claims failure to follow required procedures, denial of a jury trial, and lack of due ⁴⁷⁸ process.

He invokes the fifth and sixth amendments to the Constitution of the United States and article 21 of the Declaration of Rights, Constitution of Maryland. The Appeal Courts Art. § 12-304 (a) provides: “Scope of Review. — Any person may appeal from any order or judgment passed to preserve the power or vindicate the dignity of the court and adjudging him in contempt of court, including an interlocutory order, remedial in nature, adjudging any person in contempt, whether or not a party to the action.” In Ex Parte General News Bureau, 162 Md. 643 (1932), the Court construed this statute as it formerly appeared. 6 It said, at 648, that the law “contemplated appeals on records showing defenses interposed in the court by which the judgment in contempt was rendered.” Upon the finding below that Pearson was in contempt, defense counsel interposed an objection. It may have been that he was objecting only to proceeding with the trial without Pearson, but that is so intertwined with the contempt proceeding that we shall consider it as a challenge to the summary finding of contempt, sufficient to preserve the propriety of the court’s action thereon for our review. 7 ⁴⁷⁹ The Law Relating to Contempt of Court Courts Art. § 1-202 (a) declares: “A court may exercise the power to punish for contempt of court or to compel compliance with its commands in the manner prescribed by the Maryland Rules or Maryland District Rules.” The Revisor’s note gives an elucidating glimpse into the enactment of the statute. Code, art. 26, § 4, which was repealed by Acts 1973, 1st Sp.

Sess., ch. 2. § 2, effective 1 January 1974, under the heading “Contempt of Court”, provided that “The power of the several courts of the State to issue attachments and inflict summary punishments for contempt of courts shall not be construed to extend to any cases except the following: [designating seven punishable acts].” The note refers to this statute: “Article 26, § 4 purports to limit the power of a court to inflict summary punishment for contempt. One of its earliest versions seems to have been ch. 450, Laws of 1853. In Ex parte Maulsby, 13 Md. 625 (1859) the Court of Appeals held that courts had inherent power to punish for contempt by summary conviction. It went on to say that the Act of 1853 did not confer jurisdiction, but was merely declaratory of the common law.

Later decisions indicate that the list of punishable acts in Article 26, § 4 is not limiting on the courts, and also is not all-inclusive as a statement of the common law; Weaver v. State, 244 Md. 640 (1966). Moreover, it would be unconstitutional for the legislature to attempt to strip the courts of their inherent contempt power; Baltimore Radio Show v. State, 193 Md. 300 (1949). It is clear that Article 26, § 4 refers only to direct contempts, but the legislature has not attempted to define the limits of constructive contempt, even if it has the power to do so; Hitzelberger v. State, 173 Md. 435 (1938). ⁴⁸⁰ The line of