Sinclair v. State

Morton, J., delivered the opinion of the Court. Davidson, J., dissents and filed a dissenting opinion at page 218 infra. The appellant, Philippe Andre Sinclair, was convicted by a jury sitting in the Circuit Court for Caroline County (Wise, J., presiding) on five separate charges (contained in an information) of violating the so-called Worthless Check Act, Code, Art. 27 § 142. A sentence of five years, with three years suspended, was imposed on the first conviction (count 3 of the information) and identical concurrent sentences were imposed on the remaining four convictions (counts 7, 11, 15 and 19 of the information).

The case had been removed from the Circuit Court for Kent County. In this appeal appellant raises a number of issues, in the first of which he contends that the evidence was legally insufficient to support a finding of guilt under Code, Art. 27 § 142. It appears from the record that the appellant was president of Sinwellan Corporation which operated a resort known as The Great Oak Lodge near Chestertown in Kent County, Maryland. On five separate occasions between ²⁰⁹ July 13, 1973, and August 31, 1973, checks signed by the appellant, drawn on several banks in varying amounts totaling over $10,000, made payable to Fulton Meat Packing Company (Fulton), were delivered to that company in payment for meats sold and delivered to The Great Oak Lodge.

Each of the five checks was presented to the appropriate bank by Fulton and each was returned with the notation “Insufficient Funds” and the further notation on several of the checks, “Check presented twice, please do not present again.” There was evidence that at the time of the trial below the checks still had not been honored or payment made to Fulton in lieu of the checks. In contending that the evidence was legally insufficient to sustain the convictions, it is particularly contended that there was no evidence to show that appellant intended to cheat and defraud Fulton or that he signed the dishonored checks; that there was no “evidence that proved insufficient funds”; and that there was a failure to prove delivery of the meats. Code, Art. 27 § 142, provides in part: “Every person who, with intent to cheat and defraud another, shall obtain money, credit, goods * * * or anything of value * * * by means of a check, draft or any other negotiable instrument of any kind drawn, whether by such person or by any other person, persons, firm or corporation, upon any bank * * * and the same be not paid upon presentation, shall be deemed to have obtained such money, credit, goods, services * * * or things of value by means of a false pretense. * * * The giving of the aforesaid worthless check, draft or negotiable instrument * * * shall be prima facie evidence of intent to cheat or defraud; provided that if such person shall be a bona fide resident of the State of Maryland and shall deposit with the drawee of such paper * * * within ten days thereafter funds sufficient to meet the same, with all costs and interest which may have accrued he shall not be prosecuted under this section, and no prosecution ²¹⁰ either by presentment, indictment or otherwise, shall be instituted or commenced until after the expiration of said period of ten days.” We cannot quarrel with appellant’s statement that under the statute, the “State mus; show that there was a representation of an existing fact made with intent to defraud, and that the operation: of such representation as a deception induced a transfer and the obtaining of the money or property by the person committing the fraud to the loss of another.” See League v. State, 1 Md. App. 681 . We cannot agree, however, that the State failed to meet its burden.

The credit manager of Fulton (whose principal place of business was in Massachusetts) testified that Fulton agreed to deliver meats to The Great Oak Lodge upon order of the chef and that the shipments were to be made by common carrier (motor freight) on a C.O.D. basis. The driver of the truck was specifically instructed not to deliver the meats until he had received payment, either by check or in cash. He further testified that each of the five checks was given to Fulton for meats “sold and delivered” to The Great Oak Lodge. According to the manager, on several occasions when the checks were returned unpaid, he talked with appellant who advised him “redeposit them and they are all right.” We think it perfectly clear, therefore, that Fulton was induced to part with its property in reliance upon the representation of appellant (which turned out to be a misrepresentation) that the checks were good.

The statute provides that the giving of a worthless check “shall be prima facie evidence of intent to cheat; or defraud.” The appellant not only failed to rebut the presumption by “making good” the checks within the ten days provided for in the statute, but the record indicates that the checks were still unpaid at the time of the trial below. Thus, rather than rebutting the statutory presumption, the appellant’s course of action would appear to have confirmed his intention to cheat and defraud. We find no merit in the contention that there was no proof of the delivery of the meats. There was the evidence that the ²¹¹ truck driver was not to make delivery until he had received a check in payment therefor and Fulton had five checks in its possession which the manager stated ostensibly represented payment for the delivered meats.

There was testimony from eyewitnesses to the delivery of the meats on several occasions. Finally, there was the testimony of the appellant himself who told the credit manager of Fulton to “redeposit the checks,” a statement he would hardly have made in the absence of the delivery of the meats. With respect to proof of appellant’s signature, it is highly unlikely that appellant would advise the credit manager to redeposit the checks — “they are all right” — if they had not contained his signature as the drawer. Moreover, the jury had before it for comparison the checks themselves and the bank’s signature cards.

The issue of whether the checks were drawn by the appellant was for the jury and the members obviously concluded that it was his signature. The contention that there was no evidence to prove insufficient funds to pay the checks is patently frivolous. The evidence was overwhelming that they had not been paid. Thus, we find no merit in the appellant’s contention that the evidence was legally insufficient to support a finding of guilt under Code, Art. 27 § 142.

The appellant mounts a vigorous attack upon the validity of his convictions because “the State’s Attorney had a conflict of interest but prosecuted nevertheless * * It appears that on January 24, 1974, the state’s attorney wrote the following letter to the Governor of Maryland: “Dear Sir: Kent County is involved in the prosecution of one Philippe Andre Sinclair and the Sinwellan Corporation, both of whom were indicted on October 30, 1973, in Kent County. The charges arose out of a transfer of Great Oak Lodge and Yacht Club. Certain events have transpired which have rendered me incapable of handling the prosecution. ²¹² These events have been discussed with Clarence W. Sharp, Chief of the Criminal Division of the Attorney General’s Office. I, therefore, hereby request that the Attorney General’s Office handle the prosecution of these cases.

Thank you very much for your kind cooperation and consideration in this matter.” 1 At a pretrial conference held on April 4, 1974, appellant discovered that, notwithstanding the State’s previous motion to continue the case in order to permit its prosecution by an assistant attorney general, rather than by the state’s attorney, the state’s attorney himself was going to prosecute the case. On April 11, 1974, appellant filed a motion seeking, among other things, to disqualify the state’s attorney and the deputy state’s attorney from prosecuting the cases and to dismiss the cases because of a conflict of interest on the part of those officials. Attached to the motion was a sworn affidavit of appellant, dated April 11, 1974, which read in pertinent part as follows: “(1) That the State’s Attorney, Richard Cooper, and the Deputy State’s Attorney, Basil Wadkovsky, hold themselves out as a partnership in the practice of law in Chestertown, Maryland; (2) That Basil Wadkovsky is or has acted as attorney for the Maryland National Bank and such Bank holds a note against Frank and Ethel Russell and Great Oak Estates Realty, Inc.; (3) That State’s Attorney Cooper is or has been ²¹³ attorney for Carrol Tilley who holds a note against the Russells and Great Oaks Resort & Yacht Club, Inc.; (4) That the defendant, Philippe A. Sinclair during 1972 and 1973 was involved and negotiating with the purchase of Great Oak Resort & Yacht Club, Inc., and Great Oak Estates Realty, Inc., and the lands of Frank and Ethel Russell; (5) That State’s Attorney Cooper and Deputy State’s Attorney Wadkovsky attempted to sell the notes they held to the defendant Philippe A. Sinclair in July and August of 1973. The matter was not consummated and thereafter in October of 1973, State’s Attorney Cooper made presentment to the Grand Jury of Kent County and issued informations which are the subject matter of the present criminal actions; and the Grand Jury returned indictments; (6) That State’s Attorney Cooper in October of 1973 prior to any presentment to the Grand Jury, informed the defendant Philippe A. Sinclair that if defendant filed an appeal in the civil action entitled Great Oak Resort & Yacht Club, Inc., et al. v. Sinclair, et al., that he, State’s Attorney Cooper, would indict the defendant; (7) The appeal was taken on October 29,1973; (8) The Grand Jury was called into special session on the day following the appeal of the civil action and indictments were returned; (9) Previous to the appeal being filed on behalf of defendant Sinclair, the Grand Jury had been given presentments but had not returned any indictments.” A copy of the letter to the Governor of Maryland, dated January 24, 1974, from the state’s attorney, set forth above, was attached to the affidavit.

On April 17, 1974, Judge Wise, considering the motion to dismiss as one to grant appropriate relief before trial ²¹⁴ under Maryland Rule 725, entered an order, without a hearing, denying the motion. In the text preceding his order, Judge Wise stated, in part: “The grounds for relief consist mostly of bald allegations. While it would appear therefrom that the State’s Attorney and/or his Deputy may have had or evinced an adverse or even antagonistic interest, there is nothing alleged or inferable that would indicate any conflict of interest or other posture which would in any way unduly prejudice the defendant. The indictments represent action of the Grand Jury, rather than that of the prosecutor,[ 2 ] and any improper motivation of the State’s Attorney in filing presentments should be pursued civilly or tactically.

In any adversary proceeding the opposing counsel must of necessity be hostile, and in the case of a prosecutor he could not perform competently otherwise, yet that does not necessarily indicate ground for disqualification. Such seems to be the situation here.” The office of the state’s attorney is constitutionally created: “There shall be an attorney for the State in each county, and the City of Baltimore, to be styled The State’s Attorney, who shall be elected by the voters thereof * * Constitution of Maryland, Art. V, § 7. The state’s attorney is an official of the executive branch, Powell v. State, 16 Md. App. 685, 694-95, n. 1 , and serves as a state rather than a local officer, Valle v. Pressman, 229 Md. 591, 600 . “The State’s Attorney shall perform such duties * * * as shall be prescribed by law * * Constitution of Maryland, Art. V, § 9. In implementation of these constitutional provisions, Code, Art. 10 § 34 provides: “The State’s Attorney for each county and the City of Baltimore shall, in such county or city, prosecute and defend, on the part of the State, all cases in which the State may be interested.” The office of state’s attorney, being unknown to the common law, is possessed of ²¹⁵ no other powers than those prescribed by the Constitution and statutes of the State, Kilgour v. Evening Star Newspaper Co., 96 Md. 16, 29 ; Hawkins v. State, 81 Md. 306, 310 ; but these powers are nowhere enunciated and defined.

Wells v. Price, 183 Md. 443, 446 ; State v. Aquilla, 18 Md. App. 487, 493 , cert. denied, 269 Md. 755 . The responsibility for prosecuting criminal cases at the trial level devolves upon the state’s attorney by reason of his constitutional mandate as implemented by statute. Aquilla, supra, at 493 ; State v. Hunter, 10 Md. App. 300 , 305-06 n. 5, writ of certiorari dismissed as having been improvidently granted, 263 Md. 17 . In addition to the state’s attorney’s routine duties as a prosecutor, he has certain obligations to the public and to the criminal court. “He not only represents the State in the realm of law enforcement, but is also in a very special sense as officer of the court * * * so that * * * he has, impliedly, both the right and the duty to help give effect to the law and the judgments under it as pronounced by the Court.” Wells, supra, at 449 .

The state’s attorney is vested “with broad official discretion to institute and prosecute criminal causes.” Brack v. Wells, 184 Md. 86, 90 ; Aquilla, supra, at 494 ; Hunter, supra, at 305-06 n. 5. In Brack, supra, at 90 , the Court of Appeals said: “In such prosecutions of persons accused of crime, he must exercise a sound discretion to distinguish between the guilty and the innocent. He must be trusted with broad official discretion to institute and prosecute criminal causes, subject generally to judicial control. The office is one not purely ministerial, but involves the exercise of learning and discretion. 42 American Jurisprudence, p. 245.

As a general rule, whether the State’s Attorney does or does not institute a particular prosecution is a matter which rests in his discretion.” It is at once apparent, therefore, that a state’s attorney is an elected public official; holding a constitutional office; and a member of the executive branch of government. He can ²¹⁶ only be removed from office “for incompetency, wilful neglect of duty, or misdemeanor in office, on conviction in a Court of Law, or by a vote of two thirds of the Senate, on the recommendation of the Attorney General” (Constitution of Maryland, Art. V § 7); and he is entrusted “with broad official discretion to institute and prosecute criminal charges” (Brack, supra, at 90 ). That a state’s attorney should perform the duties of his office in a fair, impartial and objective manner is to state the obvious. {See American Bar Association Fair Standards of Criminal Justice.) The words; fair, impartial and objective — words readily understood generally — are somewhat difficult, on occasion, to define in terms of specific acts and conduct. All individuals, including state’s attorneys, are subject to degrees of emotion, prejudice, taste and innate predilection.

Thus, it is always possible that the course of conduct of a state’s attorney, as any other public official or private citizen, may be motivated by worthy or unworthy ideals. In appraising the conduct of a state’s attorney who is charged, as here, with having a conflict of interest of such proportions as to disqualify him from prosecuting a particular individual, we think the true measure or standard by which his conduct should be viewed is posed in the simple issue: Did his action in prosecuting the individual result in a denial of due process of law to that individual. Otherwise stated, was the prosecution of the accused so wanton, blatant and harassing as to deny the accused his fundamental right to a fair and impartial trial. In our.view, therefore, the hard core issue is whether the bringing of the prosecution resulted in the accused being denied his fundamental and constitutional right to the due process of law as that right is known to us in modern society.

Thus, the issue before us cannot be disposed of by a simple finding that the state’s attorney for Kent County had a conflict of interest insofar as the appellant is concerned, and we make no judgment on the finding of the trial judge in this respect. We look to the broader issue of due process and, measured by that standard, we cannot find a shred of evidence in the record before us to indicate in any way that ²¹⁷ the appellant was denied his right to a fair and impartial trial. That the appellant’s prosecution may have resulted from reprehensible conduct by the state’s attorney or may have been motivated by ill will or personal prejudice toward the appellant on the part of the state’s attorney, does not alter the simple, crystal-clear fact that on the record before us the convictions suffered by the appellant were the result of his being accorded a fair trial by an impartial judge and jury. Under these circumstances, we find no merit in the contention that the appellant’s convictions should be reversed because “the State’s Attorney had a conflict of interest but prosecuted nevertheless * * *.” 3 The appellant next contends that “The Court’s prejudicial remarks during the trial coupled with error in the instructions to the jury necessitates reversal of the conviction[s].” He also asserts that “The trial court aided the prosecution * * We have carefully scrutinized the record and find no substance to these contentions.

It is the responsibility of a trial judge to insure that the trial of an accused proceeds in a fair, orderly and expeditious manner. See Douglas v. State, 9 Md. App. 647, 655 . Judge Wise did just this and we see no prejudice to the rights of the appellant in the conduct of the trial. A review of the instructions to the jury demonstrates that they contained a clear and correct statement of the law of the case.

We find no error. Finally, appellant asserts that he “attempted to demonstrate that $20,000.00 was on deposit with the Maryland Title and Guaranty Company and that [he] would have used these funds [to make good] * * * the five checks, but for the fact that he was under Court order not to use them.” We agree with the trial judge that such evidence was entirely irrelevant and we find no error in its exclusion. Judgments affirmed; costs to be paid by appellant. . In his brief appellant appended, as Exhibit “A,” the letter dated January 24, 1974 from the state’s attorney to the Governor, the text of which was set forth above.

This document was placed in the record by the state’s attorney as an attachment to a motion for continuance. Appellant also appended, as Exhibit “B,” a document dated May 20, 1974, from the state’s attorney to appellant’s attorney. This document, written after the trial ended, does not appear in the record in the case. In its brief the State made a motion iie recipiatur and a motion to strike Exhibits “A” and “B” from appellant’s brief.

The motion is denied with respect to Exhibit “A,” which the State itself made a part of the record in this case. It is granted with respect to Exhibit “B.” . The judgments of conviction which are the subject of this appeal were based on charges contained in an information. Maryland Rule 708. .

We have reviewed the cases from other jurisdictions cited by appellant and find them to be unpersuasive or inapposite. ²¹⁸ Davidson, J., dissenting: This is a sequel to Sinclair v. State, 1 which depicts the persistent efforts of a State’s Attorney to protect the citizens of Kent County from criminal activity. These cases concern the activities of Philippe Andre Sinclair, the appellant (Sinclair), who, as president of the Sinwellan Corporation, leased and operated a marina and resort known as “The Great Oak Lodge” situate near Chestertown in Kent County, Maryland. The initial case arose when Sinclair became unable to pay the salary of one of his employees and for goods and services rendered the Great Oak Lodge by a television repair business. On 9 October 1973 in the Circuit Court for Kent County, a jury, presided over by Judge James A. Wise, convicted Sinclair and the Sinwellan Corporation of violating Maryland Code (1957, 1971 Repl.

Vol.) Art. 27, § 144, “Obtaining money ... by check or other negotiable instrument with intent to stop payment.” Accordingly, Sinclair was sentenced to six months imprisonment with three months of the sentence to be suspended upon a making of restitution. The corporation was fined $1,000 which fine was suspended. On 15 October 1973 in the Circuit Court for Kent County, a jury, with Judge Wise again presiding, convicted Sinclair and the Sinwellan Corporation of violating Art. 27, § 142, “Obtaining money ... by bad check.” Sinclair was sentenced to a consecutive six month term of imprisonment. The corporation was again fined $1,000 which fine was suspended.

The case concluded when both of the judgments were reversed. Sinclair and Sinwellan Corporation, supra. This case arose when Sinclair became unable to pay for some meat used in the lodge’s restaurant. On 9 November 1973 in the Circuit Court for Kent County, Richard R. Cooper, State’s Attorney for Kent County (Cooper), filed a 20 count information charging both Sinclair and the Sinwellan Corporation with violations on five separate ²¹⁹ occasions of Art. 27, § 140, “Obtaining money .. . under false pretenses,” and Art. 27, § 142.

On 22 January 1974 Judge George B. Rasin, Jr., granted a motion for removal, filed by Cooper, and removed the case for trial to Caroline County. On 25 January 1974 Basil Wadkovsky, Deputy State’s Attorney for Kent County (Wadkovsky), filed a motion for a continuance based upon, among other things, the fact: “3. That the Defendant has made certain allegations concerning the State’s Attorney which has required the State’s Attorney to request the Governor of the State of Maryland to appoint the Attorney General to prosecute these cases. That the Assistant Attorney General who has been tentatively assigned to handle the prosecution for the State is in trial in another county and will not be available to prosecute these cases for at least two (2) months.

Attached please find a copy of my [sic] letter to Governor Mandel.” The attached letter, from Richard R. Cooper, State’s Attorney, to the Honorable Marvin Mandel, Governor, dated 24 January 1974, indicated that “certain events” had transpired which had rendered Cooper “incapable of handling the prosecution” and requested that “the Attorney General’s office handle the prosecution of these cases.” 2 Sinclair’s discovery at a pretrial conference on 4 April 1974, that Cooper himself was going to prosecute the cases 3 ²²⁰ was followed on 11 April 1974 by Sinclair’s motion seeking, among other things, to disqualify State’s Attorney Cooper and Deputy State’s Attorney Wadkovsky from prosecuting the cases, and to dismiss the cases because of a conflict of interest on the part of those officials. Attached to the motion was Sinclair’s sworn affidavit in which he stated that indictments and informations against him were issued and filed only after he refused to purchase certain notes representing the indebtedness of the owners of the Yacht Club to Cooper’s and Wadkovsky’s private clients, and after he ignored Cooper’s and Wadkovsky’s threats of criminal prosecution in the event that he filed an appeal from a civil judgment against him and in favor of the owners of the Yacht Club. A copy of the letter dated 24 January 1974, from Cooper, was also attached. On 17 April 1974, Judge Wise, without a hearing, denied the motion.

According to the docket entries on 22 April 1974 the State’s motion to nol pros alii counts except numbers three, seven, eleven, fifteen and nineteen of the information, was granted. A jury trial then proceeded on that date solely on those five counts, each of which involved a charge against Sinclair for a violation of Art. 27, § 142 on five distinct occasions. At the conclusion of the trial the jury found Sinclair guilty of all five counts. Cooper, indicating that he hoped “the Court doesn’t consider this as being in any [way] vindictive, as I have been accused,” then asked that the pretrial bond of $95,500.00 be discontinued.

Judge Wise continued bail and released Sinclair, remarking that “$95,000.00 is ample for about any offense” and that there had been no previous problem with Sinclair’s appearances for trial. On 4 June 1974 Judge Wise sentenced Sinclair, on each of the five counts, to a term of five years imprisonment, three years of which were to be suspended, with all of the sentences to run concurrently. Other criminal charges pending against Sinclair remained to be tried. ²²¹ On appeal Sinclair raises eight grounds for reversal. I agree with the majority that seven of Sinclair’s contentions are without merit.

Unlike my colleagues, however, I believe that there was evidence presented which, if believed, would create the appearance of a conflict of interest on the part of Cooper and Wadkovsky and that such circumstances would necessitate reversal and remand for further proceedings. The majority recognizes that the State’s Attorney is vested with broad official discretion to institute and prosecute criminal causes but, despite its quotation from Brack v. Wells, 184 Md. 86, 90 , 40 A. 2d 319, 321 (1944), makes no mention of the fact that the exercise of that discretion is subject to judicial control. A quotation from Brack, supra, fuller than that provided by the majority, states as follows: “By the Constitution of Maryland, Article 5, Section 9, the State’s Attorney shall perform such duties as may by law be prescribed. By Section 33 of Article 10 of the Code, 1939, that officer is required to ‘prosecute and defend, on the part of the State, all cases in which the State may be interested.’ In such prosecutions of persons accused of crime, he must exercise a sound discretion to distinguish between the guilty and the innocent.

He must be trusted with broad official discretion to institute and prosecute criminal causes, subject generally to judicial control. The office is one not purely ministerial, but involves the exercise of learning and discretion. 42 American Jurisprudence, p. 245. As a general rule, whether the State’s