Pennington v. State

Orth, C. J., delivered the opinion of the Court. Officer Wiley Owens of the Baltimore City Police Department little knew on 16 August 1969 when he arrested Hershell Brooks Owens about 1:30 A.M. for violations of the traffic laws, which the Officer described as “operating [a vehicle] under the influence of alcohol, reckless driving and failure to identify himself after an accident,” 1 that a series of events was triggered which resulted in JACKSON D. PENNINGTON, a member of the Bar of Maryland, being convicted on 11 December 1972 at a bench trial in the Criminal Court of Baltimore, of the crimes of subornation of perjury, obstruction of justice, and bribery, and being sentenced to 6 months on each conviction, the sentences to run concurrently. 2 What happened after the arrest of H. B. Owens was brought out at Pennington’s trial. The State’s case was submitted on an agreed statement of facts: ²⁵⁶ “MR. BOLLINGER [Assistant State’s Attorney]: If Your Honor please, the statement of facts in this case would be as follows: The State would call as a witness Hershell B. Owens, 418 Hornell Street in Baltimore, 21224.

Mr. Owens would testify that at approximately 1:30 A.M. on Saturday, 16 August 1969, he was stopped at Pratt and Scott Streets in Baltimore, Maryland by Officer Wiley Owens of the Baltimore City Police Department. Now, Officer Owens, Hershell Owens would testify, is no relation to him. He was charged by Officer Owens with operating under the influence of alcohol, reckless driving and failure to identify himself after an accident, and he was taken to Central District lock up. On the morning of 17 August 1969 he would testify he retained the Defendant, Jackson D. Pennington, as his attorney, and he would identify Mr. Pennington before Your Honor as the attorney he retained.

He would state that Mr. Pennington arranged for his bond and that he was released. Thereafter the traffic case was postponed on several occasions, and Pennington, Defendant Pennington had asked for $300.00 for his services to represent him. This is basically the reason for so many postponements. Mr. Owens would testify he was having difficulties making payment^. $200.00 of the money he would testify was eventually paid by his mother.

On October 27th, 1969, Mr. Owens would testify, he was finally arrested on a bench warrant issued by the Honorable Judge Mary Arabian for failing to appear for trial. On 10 November, 1969 Mr. Owens appeared before the Honorable Harold Lewis in the Traffic Division of Municipal Court. He was represented by the Defendant, Attorney Pennington, testimony was taken from Officer Wiley Owens and Hershell B. Owens was found guilty of all three charges and was assessed $275.00 ²⁵⁷ in fines. The witness would also state, if Your Honor please, that these fines were eventually paid by Mr. Pennington, the Defendant.

Mr. Owens would further testify that he believed from his conversations with his attorney, Pennington, that the charges of operating under the influence and leaving the scene of an accident would be dismissed and he would probably be found guilty of the lesser offense of reckless operation. Hershell Owens would further relate his conversations with Attorney Pennington between August 16th, 1969 and November the 10th, 1969 relating to the arrangements and preparation of his case. Now, Mrs. Mamie Anne Newby — NEWBY — of 418 Hornell Street, Baltimore, Maryland, would testify she is the mother of Hershell B. Owens and between 16 August 1969 and 10 November 1969 she had several conversations with her son’s attorney, whom she would identify as the defendant, Jackson D. Pennington, and she paid him $200.00 of the $300.00 fee demanded by Mr. Pennington. The State would also call Clarence D. Vipperman — VIPPERMAN — who lives at 1402-J Browning Drive, Baltimore 21221.

He would testify that he is known by the nickname of Chuck and that during the month of December of 1968, while a member of the Baltimore City Police Department at that time, he became acquainted with the Defendant, Jackson Pennington. Between then and October of 1969 Pennington represented Mr. Vipperman in several civil matters, but he did not charge Vipperman a fee for his services. Mr. Vipperman would further testify that sometime during September or Early October of 1969 Mr. Vipperman had a telephone conversation with Defendant Pennington, during which Mr. Pennington asked if he, that is Vipperman, knew an Officer Owens of the Tactical Squad of the ²⁵⁸ Baltimore City Police Department. Mr. Vipperman said ‘no’.

Mr. Pennington asked if he knew anybody in Tactical, and Mr. Vipperman said he knew an individual by the name of Chip, who is Officer Vernon R. Steffe. The Defendant Pennington asked Mr. Vipperman to contact Steffe and to ask Steffe to get in touch with Officer Owens on Pennington’s behalf. Mr. Vipperman did contact Officer Steffe who agreed to contact Officer Wiley Owens. A short time later Pennington told Vipperman that Steffe had come to Pennington’s law office and picked up $200.00 in connection with the Owens case.

Now, this, we would add to the statement of facts, Your Honor, would be denied by the Defendant, this latter part, that he had met with or that he told Vipperman there had been a meeting at his office at which $200.00 was picked up. It would also be part of the testimony of Clarence D. Vipperman, Your Honor, that this particular witness would testify he was separated from the Police Department as a result of his connection with the Defendant Pennington in this case, and that he, himself, was never charged with this particular crime or any connection with this crime. The State would then show through the testimony of Vernon R. Steffe — STEFFE — of 518 Wickham Road in Baltimore, 21229 — Mr. Steffe is here in Court, for the record. Would you stand up, please, Mr. Steffe?

Thank you. Mr. Steffe would testify that his nickname is Chip and that during September or early October, 1969, while he was a member of the Baltimore City Police Department, he was contacted by an officer known to him as Chuck, who is Clarence Vipperman, of Southeast District, and Mr. Vipperman asked him if he knew Officer Owens in Tactical. Steffe replied affirmatively. Vipperman said that the Attorney Pennington would get in touch with him.

During ²⁵⁹ the last part of October Pennington called Steffe at home and asked him to see if Officer Owens had anything personal against Hershell B. Owens; if not, Steffe was to suggest that perhaps Officer Owens could take it a little easy on Hershell Owens in court and it might be worth some money. Thereafter, at approximately 5:00 P.M. on October 31, 1969 Steffe met Officer Owens on the Tactical parking lot at a shift change. Officer Owens indicated that he had nothing personal against Hershell Owens and that his only interest was in getting the case to trial because it had been postponed so often. Later, on November the 3rd, 1969, Steffe informed Pennington that he had seen Officer Owens, and Pennington instructed him to come to his office on Lexington Street, and Pennington gave Steffe two $50.00 bills along with detailed instructions as to what Officer Owens was to do in court on the drunk driving case in order to justify the bribe money.

Pennington also gave Mr. Steffe two additional $50.00 bills for Steffe’s part in contacting Owens and being the intermediary in the scheme. After getting the money about 7:00 P.M., Mr. Steffe on November the 3rd, 1969 called Officer Owens at his home and said he wanted to come over. Steffe, accompanied by his wife, drove to Officer Owens’house, arriving around 7:30, and he was admitted without his wife. He went into the officer’s house by himself.

He was admitted to the officer’s house by a fellow officer, Officer Bobby Williams. Steffe related that Pennington said that Officer Owens was to withhold evidence. Steffe then placed the two $50.00 bills which Pennington had given him on the coffee table and left. The next witness the State would call would be Thelma J. Owens of 1913 E. 30th Street in Baltimore.

Mrs. Owens would testify that she is the wife of Officer Wiley Owens; that approximately at ²⁶⁰ 6:45 P.M. on the night of November the 3rd, 1969 she answered her home phone; that the caller identified himself as Chip and asked to speak to her husband, Officer Wiley Owens. She said that her husband had stepped out, but would be back shortly. A few minutes later the phone rang again and Officer Owens answered it. She heard her husband say, ‘There may be $100.00 in it for me.’ After her husband had concluded the conversation, she overheard him call his superior officer, Sergeant Regus Raffensberger and relate the previous conversation to him.

About 15 minutes later she would testify Officer Steffe arrived at the house. Officer Bobby Williams of the Tactical Squad was a guest in the Owens’ house, and he answered the door and admitted Steffe. She returned from the kitchen and observed her husband and Officer Steffe converse and heard Steffe say ‘It is close to Christmas time.’ With that, Steffe bent over the coffee table, placed something on it and when he straightened up she saw two $50.00 bills which had not been there before, and she wrote down the serial numbers of the bills after Steffe had left. Now, the State would then call Officer Bobby Williams of the Tactical Section of the Baltimore City Police Department at that time, and he would testify that at approximately 7:30 P.M. on 3 November,' 1969', he was a guest in the home of Officer and Mrs. Wiley Owens located at 1913 E. 30th Street.

He admitted Officer Vernon Steffe to the premises and was present during the conversation between Officer Steffe and Officer Owens in the living room, during which Officer Steffe related he was acting on behalf of Attorney Pennington in the Hershell Owens drunk driving case. Steffe said that Pennington wanted Officer Owens to withhold essential evidence when he testified in court, 'and he indicated that Officer Owens would not be challenged for the omissions. ²⁶¹ At the end of the conversation, Officer Williams heard Steffe mention that it was near Christmas time. He observed Steffe remove two $50.00 bills from his jacket and place them on the coffee table just before leaving. Officer Williams was present minutes later when Sergeant Raffensberger arrived with Officer Lansey, and he observed Officer Smith of the Crime Laboratory photograph the money on the table, after which Officer Lansey recovered the money.

The State would call Sergeant Regus Raffensberger of the Tactical Section of the Baltimore City Police Department, and he would testify at approximately 7:00 P.M., on 3 November 1969, while he was on duty as Officer In Charge, he received a call from Officer Wiley Owens, reporting the substance of the telephone conversation which Owens had just received from Officer Vernon Steffe. Officer Owens advised Sergeant Raffensberger that Steffe was on his way to Owens’ home with $100.00 to give him in regard to a drunk driving case. Sergeant Raffensberger immediately notified Officer John Lansey of the Internal Investigation Division of the Baltimore City Police Department and arrangements were made to meet at the Owens’ home. At approximately 7:30 P.M. Sergeant Raffensberger called upon Officer Owens only to find out that Steffe had already arrived and the transaction was being viewed by Officer Bobby Williams.

At approximately 7:50 P.M. Sergeant Raffensberger, and Sergeant Francis Gutierrez met Officer Lansey and the three proceeded to the Owens’ home. There they recovered the two $50.00 bills from the coffee table where Steffe had placed them. Officer Robert Smith of the Crime Laboratory responded and photographed the bills in Sergeant Raffensberger’s presence, after which Officer Lansey took custody of them. [The photographs were received in evidence] ²⁶² The State would call, if Your Honor please, Officer Wiley Owens of the Baltimore City Police Department. For the record, Officer Owens is in the courtroom.

Would you stand up, please? Thank you. Now, Officer Owens, if Your Honor please, would testify he lives at 1913 E. 30th Street, and that he had arrested an individual by the name of Hershell B. Owens, no relation, at approximately 1:30 A.M. on August the 16th, 1969 for three traffic violations. If Your Honor please, we would offer as State’s Exhibit 2 the Summons, Book No. G 2834-29, which was issued by Officer Wiley Owens to Hershell Brooks Owens. [The summons was received in evidence] Officer Wiley Owens would further testify that the case was postponed in the Traffic Division of Municipal Court on several occasions, and on the 27th of October, 1969, the Honorable Mary Arabian issued a Bench Warrant for Hershell Owens’ arrest for failure to appear.

Officer Owens executed the warrant and Hershell Owens was remanded to City Jail to await trial which was scheduled for 10 November 1969. He would further testify at approximately 6:45 P.M. on Tuesday, 31 October 1969, Officer Owens was approached by Officer Vernon Steffe on the Tactical Division parking lot. Steffe advised Officer Owens that he was a friend of Hershell Owens’ family and he inquired whether Officer Owens had anything personal against Hershell Owens. Officer Owens replied that he did not, but he was anxious to dispose of the case because of the numerous postponements.

Steffe then indicated he would contact Officer Owens later after talking to Attorney Pennington in order to determine how best to handle the matter. At approximately 7:00 P.M. on Monday, 3 November, 1969, Officer Owens ²⁶³ would testify he received a telephone call at his home from Officer Steffe, who related that he had discussed the matter with Pennington and had been authorized to pay Officer Owens $100.00 in return for withholding evidence at Hershell Owens’ trial. Steffe concluded by saying that he would stop by Officer Owens’ house shortly to complete the arrangements. Immediately thereafter Officer Owens notified Sergeant Raffensberger of the telephone conversation with Steffe.

At approximately 7:30 P.M. on 3 November, 1969, Officer Steffe arrived at Officer Owens’ home. In the presence of Officer Bobby Williams, Steffe related that he had talked to Pennington who wanted Officer Owens to withhold essential evidence in the drunk driving case. Pennington further stated that he would make an arrangement in the case. Steffe then removed two $50.00 bills and placed them on the coffee table in front of Officer Owens, remarking that it was near Christmas time and he knew that Owens could use the money.

Minutes later, within minutes after Steffe left, Sergeant Raffensberger and Officer Lansey arrived at the Owens’ home, the money was photographed by Officer Smith of the Crime Laboratory and was then recovered by Officer Lansey. The next morning, 4 November, 1969, Officer Owens in company with Officer Bobby Williams, Sergeant James Colvin, Sergeant Raffensberger, Officer Edwin Carter and Officer John Lansey reported the incident to the State’s Attorney’s Office to Assistant State’s Attorney Robert Stewart. Between 9:10 A.M. and 11:02 A.M. on 10 November, 1969, Officer Owens conversed with Attorney Pennington outside of the courtroom of the traffic court. Officer Owens first described to Pennington the circumstances surrounding the arrest of Hershell Owens.

Pennington then ²⁶⁴ instructed Officer Owens on what his testimony should be, directing him to withhold certain words, facts and physical evidence in order to weaken the State’s case. Pennington admitted that he had seen Officer Steffe on Saturday and that he arranged for Steffe to give the money to Officer Owens. Pennington further instructed Owens to tell the Judge that he had misplaced his folder which contained the description of Hershell Owens’ behavior and appearance at the time of arrest, and Pennington gave detailed instructions on what Officer Owens was to say and omit. Officer Owens then entered the courtroom.

He would testify he spoke briefly with Hershell Owens and then the case was called for trial. Officer Owens under the observation of Officers Bobby Williams and Edwin Carter testified truthfully about the case, and Pennington argued for his client, after which Judge Lewis found Hershell Owens guilty of all three charges. The State would then call, if Your Honor please, the Honorable Harold Lewis, who is presently a Judge of the District Court of Baltimore City, and in November of 1969 was sitting as a Judge on the Municipal Court of Baltimore City in the Traffic Section, and he would testify about the events of the trial between the State and Hershell B. Owens before him on the morning of November the 10th, 1969, stating that he tried the case of Hershell Owens and found the defendant guilty based on the evidence before him. That, if Your Honor please, would be the State’s case in chief.” At the insistence of defense counsel the statement was supplemented to include that Steffe would further testify that he was no longer with the Baltimore City Police Department and that although there had been no previous ²⁶⁵ disposition of the cases against him, the State had promised him “in return for his truthful testimony in this regard that he would not be prosecuted, although he was indicted.” Defense counsel also requested that the statement include that H. B. Owens appealed from the judgments entered against him in the Municipal Court.

The appeal came up after Pennington had been indicted, and the State “nol prossed the case.” The State objected to including the fact of “the nol pros ... of the de novo case on appeal ... as being irrelevant to the case before Your Honor.” The trial court overruled the objection. On direct appeal from the judgments entered against him, Pennington contends that the trial court erred: I in denying motions to dismiss the indictments, and II in failing to consider his contentions of prosecutorial misconduct. I THE MOTIONS TO DISMISS THE INDICTMENTS On 16 March 1972 Pennington filed a motion to dismiss the indictments, grounded on the interception and recording of oral communications. There was a hearing on the motion before Liss, J. on 27 March 1972.

The decision was held sub curia. On 13 October 1972 the motion was denied. When the case came on for trial before Sodaro, J., Pennington renewed his motion to dismiss. Upon consideration of memoranda submitted and argument of counsel, the motion was denied by the trial judge.

(1) The Use of Electron ic De vices What the evidence presented at the trial by the agreed statement of facts did not reflect was that on the morning of 10 November 1969, when the case against H. B. Owens was scheduled for trial in the Traffic Court, Officer Owens was ²⁶⁶ “wired”. An electronic transmitter and receiver and recording system were concealed on his person. Conversations between him and other persons had before, during and after the trial, covering a period commencing 9:10 A.M. and terminating 11:02 A.M., were recorded by means of these electronic devices. 3 The Constitutional Question Generally, a constitutional right is involved in the interception of wire and oral communications. Conversation is within the ambit of fourth amendment protection and the use of electronic, mechanical or other devices to capture it is a “search” within the meaning of that amendment.

Berger v. New York, 388 U. S. 41, 51 . See Katz v. United, States, 389 U. S. 347 ; Osborn v. United States, 385 U. S. 323 . We do not believe, however, that in the circumstances here, the use of the electronic devices was an unreasonable search in the constitutional sense. In Lopez v. United States, 373 U. S. 427 , Davis, an internal revenue agent, entered Lopez’s office with Lopez’s consent and by use of a concealed electronic device, carried in and taken out by him, recorded their conversation.

The Court was not long detained by the claim that Davis should not be permitted to testify about the conversation, ²⁶⁷ finding that Davis was not guilty of an unlawful invasion of Lopez’s office simply because his apparent willingness to accept a bribe was not real. The Court said, at 438: “The only evidence obtained consisted of statements made by Lopez to Davis, statements which Lopez knew full well could be used against him by Davis if he wished. We decline to hold that whenever an offer of a bribe is made in private, and the offeree does not intend to accept, that offer is a constitutionally protected communication.” The Court then considered the constitutional claim that the fourth amendment constitutional rights of Lopez were violated by the recording of the conversation, noting that the claim emerged in its proper perspective once it was plain that Davis could properly testify about his conversation. We think the language of the Court significant. “Indeed this case involves no ‘eavesdropping’ whatever in any proper sense of that term.

The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government’s own agent was a participant and which that agent was fully entitled to disclose. And the device was not planted by means of an unlawful physical invasion of petitioner’s premises under circumstances which would violate the Fourth Amendment. It was carried in and out by an agent who was there with petitioner’s assent, and it neither saw nor heard more than the agent himself. * * * Stripped to its essentials, petitioner’s argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeachment.

For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a ²⁶⁸ bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.” At 439. In reaching the conclusion that the evidence was properly admissible, the Court, at 438, referred to On Lee v. United States, 343 U. S. 747 . The Court observed, at 440: “When we look for the overriding considerations that might require the exclusion of the highly useful evidence involved here, we find nothing.

There has been no invasion of constitutionally protected rights, and no violation of federal law or rules of procedure. Indeed, there has not even been any electronic eavesdropping on a private conversation which government agents could not otherwise have overheard. There has, in short, been no act of any kind which could justify the creation of an exclusionary rule.” We reject any suggestion that On Lee and Lopez are no longer viable in light of Katz v. United States, supra. We are in complete accord with the opinion announcing the judgment of the Court in United States v. White, 401 U. S. 745 , decided 5 April 1971. 4 The opinion noted that Katz finally swept away the physical trespass doctrines, overruling Olmstead v. United States, 277 U. S. 438 , and Goldman v. United States, 316 U. S. 129 . 5 And to the extent ²⁶⁹ that On Lee rejected claims of a fourth amendment violation because the informer had not trespassed when he entered the defendant’s premises, it cannot survive Katz .

But, said the opinion in White , at 750, the Court in On Lee “announced a second and independent ground for its decision; for it went on to say that overruling Olmstead and Goldman would be of no aid to On Lee since he ‘was talking confidentially and indiscreetly with one he trusted, and he was overheard. * * * It would be a dubious service to the genuine liberties protected by the Fourth Amendment to make them bedfellows with spurious liberties improvised by farfetched analogies which would liken eavesdropping on a conversation, with the connivance of one of the parties, to an unreasonable search or seizure. We find no violation of the Fourth Amendment here.’ 343 U. S. at 753-754 , 72 S. Ct. at 972 . We see no indication in Katz that the Court meant to disturb that understanding of the Fourth Amendment or to disturb the result reached in the On Lee case, nor are we now inclined to overturn this view of the Fourth Amendment.’’ We think the comments which follow at 751-753 in the opinion are so apropos to the question before us as to warrant setting them out verbatim; “Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. Hoffa v. United States, 385 U. S. [293] at 300-303, 87 S. Ct., at 412-414.

For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment wThich simultaneously transmits the conversations either to recording equipment located ²⁷⁰ elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks. Our problem is not what the privacy expectations of particular defendants in particular situations may be or the extent to which they may in fact have relied on the discretion of their companions.

Very probably, individual defendants neither know nor suspect that their colleagues have gone or will go to the police or are carrying recorders or transmitters. Otherwise, conversation would cease and our problem with these encounters would be nonexistent or far different from those now- before us. Our problem in terms of the principles announced in Katz , is what expectations of privacy are constitutionally ‘justifiable’ — what expectations the Fourth Amendment will protect in the absence of a warrant. So far; the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoffa and Lewis. [v. United States, 385 U. S. 206 ] If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case.

See Lopez v. United States, 373 U. S. 427 , 83 S. Ct. 1381 , 10 L.Ed.2d 462 (1963). ²⁷¹ Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would distinguish between probable informers on the one hand and probable informers with transmitters on the other.

Given the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that the defendant’s utterances would be substantially different or his sense of security any less if he also thought it possible that the suspected colleague is wired for sound. At least there is no persuasive evidence that the difference in this respect between the electronically equipped and the unequipped agent is substantial enough to require discrete constitutional recognition, particularly under the Fourth Amendment which is ruled by fluid concepts of ‘reasonableness’.” The opinion, at 753, set out another rationale for the conclusion reached: “Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony.

Considerations like these obviously do ²⁷² not favor the