Richardson v. State

KARWACKI, Judge. Carl E. Richardson, the appellant, was convicted by a jury in the Circuit Court for Baltimore City (Bell, J.), of bribery and conspiracy to bribe, and he was sentenced to ten years imprisonment. In this Court the appellant contends that: 1. the evidence was insufficient to sustain his conviction; 2. the trial court erred in admitting certain evidence; and 3. the trial court erred in instructing the jury. The events giving rise to the appellant’s convictions are essentially undisputed.

On June 8, 1983, at approximately 8:15 a.m., Trent Favar, a clerk at the State Department of Vital Records (DVR), in a pre-arranged rendezvous, met on the street near Favar’s office with Charles Allen, a co-defendant of the appellant. Allen had been driven to the scene in an automobile owned and operated by the appellant. Allen and Favar walked around a corner while the ³²⁷ appellant waited in his parked vehicle. At that point, Allen handed Favar $300 in cash in exchange for six blank birth certificates and returned to the appellant’s car.

Unbeknown to the appellant and Allen, Favar had been equipped with a “body wire” which transmitted his conversation with Allen to police officers stationed nearby who had the meeting under surveillance. As soon as the transaction was completed the officers arrested Allen and the appellant. During a subsequent consensual search of the appellant’s automobile, a photocopy of a certificate of live birth with portions of the information obliterated was found in the trunk of the appellant’s automobile. The testimony of Favar and his supervisor, Randall Brooks, established that Favar had been a clerk for over three years at the DVR.

He was one of three people at the DVR with access to blank birth certificates. He and many other employees had access to the State Seal. One of Favar’s duties was to take applications for birth certificates, type the relevant information on the forms, and issue the certificates to the applicants. I. Sufficiency of the Evidence The appellant makes a two-pronged attack upon the sufficiency of the evidence to convict him of bribery and conspiracy to bribe.

First, he maintains that the evidence established that the act requested of Favar, to wit, the delivery of blank certificates of live birth, was outside of Favar’s official duties and thus, an element of the crime of bribery is lacking. Second, he contends that the evidence failed to demonstrate his participation in the crime. A. Scope of Favar’s Official Duties The appellant was convicted under Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 23, which states in pertinent part: If any person shall bribe or attempt to bribe any ... officer or employee of the State ... in order to influence any such officer or person in the performance of any of ³²⁸ his official duties ... every such person ... shall be deemed guilty of bribery. (Emphasis added).

In State v. Canova, 278 Md. 483 , 365 A.2d 988 (1976), the Court of Appeals reviewed the common law of bribery and its statutory and constitutional history in Maryland, and held that § 23 is “declaratory of the common law” with the exception not relevant here that only certain classes of public officials and employees may be the subjects of the bribes. Id. at 491, 365 A.2d 988 . Both under the statute and the common law it is essential for a conviction of bribery that the briber must make an attempt to influence the bribee in the performance of his “official,” “public” or “legal” duty. 1 In Kable v. State, 17 Md.App. 16 , 299 A.2d 493 , cert. denied, 268 Md. 750 (1973), we observed that, as of that time, there had been only one reported Maryland case directly constructing the words “official duties.” Id. at 20, 299 A.2d 493 . That case was Sugarman v. State, 173 Md. 52, 56-57 , 195 A. 324 (1937).

In Sugarman the defendant had been unlawfully arrested by a police officer. The Court opined that he could not be convicted of bribing the officer to secure his subsequent release. The Court explained: [T]he offense of bribing or attempting to bribe an officer exists only when such officer is in the performance of his official duties, and it would scarcely be contended that an officer was acting in the performance of any official duty in making an illegal arrest. Indeed, in such case, the officer not only is not acting in the performance of official duties, but contrary to them, for such conduct can only be regarded as a trespass against the person whom he illegally arrests.

To accept any other view would afford members of society no protection whatever against ³²⁹ an illegal arrest, merely because an officer entertained some suspicion as to their conduct. The authorities seem in accord that one illegally arrested may use any reasonable means to effect his escape, even to the extent of using such force as is reasonably necessary. 2 In Kable the defendant was a police officer who accepted $250 in return for his recommendation to the State’s Attorney that certain serious motor vehicle charges against a third person be nol prossed. We discussed the significance of Sugarman in the Kable opinion: Sugarman , however, represents only one end of the spectrum of a policeman’s duties, i.e., actions which a police officer is prohibited from undertaking and thus clearly beyond the scope of his official duties. As the ³³⁰ Court of Appeals said in Sugarman , in such a case the officer “not only is not acting in the performance of official duties, but contrary to them____” Id.

The case now before us, however, does not fall within the coverage of Sugarman . Here, the appellant had lawfully charged the driver of the automobile with traffic violations and his authority to recommend the nol. pros, of those violations, if not expressly a part of his officially prescribed duties, clearly was not “contrary to them.” Id. At the other end of the spectrum from the Sugarman situation are official actions and duties which are expressly authorized by statute, rule or regulation. However, lying between the two opposite poles of (1) duties or actions obviously prohibited and (2) official duties expressly prescribed or authorized, is a large area in which the determination of whether or not the action of a policeman is part of his official duties must depend on the particular facts.

This is such a case. When the appellant requested the nol. pros, he was not carrying out any official duty expressly specified in writing, nor was he doing something that he was prohibited from doing as a policeman. Kable, 17 Md.App. at 20 , 299 A.2d 493 . We also discussed the import of the United States Supreme Court case of United States v. Birdsall which added some flesh to the bare bones of the words “official action”: In United States v. Birdsall, 233 U.S. 223 , 34 S.Ct. 512 , 58 L.Ed. 930 (1913), the Supreme Court had occasion to discuss official actions falling within the undefined middle ground to which we have referred.

In that case, employees of the Commissioner of Indian Affairs had been bribed to advise the Commissioner to recommend to the President that clemency should be granted to the person who had bribed them and who was under conviction of violating the liquor laws in the Indian country. In the course of its opinion, the Court said: “To constitute it official action, it was not necessary that it should be prescribed by statute; it was suffi ³³¹ dent that it was governed by a lawful requirement of the Department under whose authority the officer was acting____ Nor was it necessary that the requirement should be prescribed by a written rule or regulation. It might also be found in an established usage which constituted the common law of the Department and fixed the duties of those engaged in its activities____ In numerous instances, duties not completely defined by written rules are clearly established by settled practice, and action taken in the course of their performance must be regarded as within the provisions of the above mentioned statutes against bribery.” Id. at 230-31, 34 S.Ct. at 514-15 (emphasis added). Kable, 17 Md.App. at 21 , 299 A.2d 493 .

In upholding the police officer’s conviction of bribery in Kable we stated: In concluding that the appellant was acting within his “official duties” in recommending that the State’s Attorney nol. pros, traffic violations, we “have given the statutory definition of bribery a construction broad enough to cover cases,” such as this one, “where a public official has accepted a bribe to act corruptly in a matter to which he bears some official relation, though the act itself may be technically beyond his official powers or duties.” Id. at 22 , quoting People v. Lafaro, 250 N.Y. 336 , 165 N.E. 518, 520 (1929) (emphasis added). We believe that the facts of the case sub judice, as in Kable , fall somewhere between the two poles described in Kable, supra. Favar was one of only three people with access to the blank birth certificates. His official duties essentially consisted of delivering those certificates complete with relevant information to applicants properly entitled to them.

Indeed, Md.Code (1982), § 4-226 of the Health — General Article specifically prohibited Favar from failing to execute and deliver a certificate when the applicant was entitled to it under that statute. The appellant and his co-conspirator paid $300 in order to have Favar ³³² deliver to them blank certificates. Although this would be a violation of Favar’s duties as an employee at the DVR, it clearly bore a relation to his official duties. If the appellant had offered the money for Favar to complete the certificates with incorrect information while he was acting in his official capacity at the vital records office, the crime of bribery would have been committed.

We see no valid distinction merely because the act requested of Favar was that he deliver the certificates in blank. The appellant argues that because the act requested of Favar was a breach of his duties as an employee, and perhaps, a criminal violation, it was outside the scope of his official duties and, therefore, no conviction for bribery can flow from that request. We do not read Sugarman that broadly. We find support for our position in numerous cases from Maryland and our sister jurisdictions.

Of primary importance is the Kable decision itself. It is clearly illegal for a police officer to act out of a motive of