Smith v. State

Pollitt, J., delivered the opinion of the Court. It has been said frequently by humorists that one of the more often told falsehoods of modern times is "the check is in the mail”. It is, by the very nature of such a statement, extremely difficult to prove its falsity by direct, positive evidence. As was done in this case, however, the falsity of such a statement is provable by circumstantial evidence.

On March 24, 1981, the appellant, Marilyn D. Smith, was convicted by a jury in the Circuit Court for Washington County (Wright, J.) of four counts of perjury. Concurrent sentences of two years confinement in the custody of the Division of Corrections were imposed on each count, the execution of the sentences suspended, and the appellant placed on probation. From those judgments she appealed to this Court. ⁴¹⁰ Appellant raises five issues on appeal, as follows: I. Does Maryland Rule 744 make an unconstitutional distinction by permitting an automatic right of removal in capital cases while requiring the showing that the suggestion of removal is based on reasonable grounds in non-capital cases?

II

Did the trial court abuse its discretion in denying removal in this case?

III

Did the trial court err in denying appellant’s Motion for Judgment of Acquittal?

IV

Did the trial court err in refusing to dismiss the third and fourth counts of the indictment on the grounds of duplicity? V. Did the trial court’s instructions to the jury on verdict unanimity constitute plain error? We shall answer all questions in the negative and affirm the judgments of the trial court. The four counts of peijury listed in the indictment stem from testimony given by appellant on August 8 and 9, 1979, in an equity action filed against her by the Attorney General of Maryland. 1 The equity trial was the culmination of an investigation of citizen complaints to the Consumer Protection Division of the Attorney General’s Office alleging, inter alia, that appellant had collected various sums of money from customers for furniture sold but never delivered and for which those customers were never given refunds.

Two of the complaining witnesses in that action were Aubrey Berry and Mabel A. Farber. Mr. Berry testified at the perjury trial that he had purchased a box spring and a reclining chair from appellant in 1978, for which his wife wrote a check for the full amount of $178.88. He never received either the furniture purchased or a refund from appellant. He had given substantially that ⁴¹¹ same testimony before both the Special Master and the Chancellor (Corderman, J.) in the equity trial.

Mrs. Farber testified at the peijury trial that she had purchased furniture from appellant in 1978, for which she paid $100.00 in cash and $171.90 by check. She too had received neither furniture nor refund from appellant, and she too had given substantially the same testimony in the equity case. The complete transcript of the equity trial was received in evidence, without objection, in the peijury trial. Prior to the equity trial, both Berry and Farber had obtained judgments against appellant in the District Court of Maryland for Washington County.

Certified copies of those judgments were received in evidence in the peijury trial. The Berry judgment was entered on November 21, 1978, and the Farber judgment was entered on October 13, 1978. Each of those documents shows that appellant was summoned by personal service but failed to appear and copies of both judgments were sent to her by the District Court. Both judgments remained unsatisfied at the time of the equity trial and at the time of the criminal trial.

It was established by Joseph Hamilton, Deputy Clerk of the Circuit Court for Washington County, that he had duly administered the oath to appellant on August 8, 1979, with the usual response. Lucille Mowen, Court Reporter for Judge Corderman, testified that she had transcribed the proceedings in Equity No. 32,108. She then read into the record the various statements made under oath by appellant which gave rise to the charges of peijury. The testimony of Mowen and the transcript indicate that when questioned by her own attorney at the equity trial about the refund to Berry, appellant responded, "I did return to him the money on February the 3rd.” When questioned by the Assistant Attorney General on cross-examination, appellant similarly responded, "...

I sent him a check on February the 3rd...”. The Assistant Attorney General again probed this point when he later asked, "And you have sent Mr. Berry a check for $178.88?” Appellant responded, ⁴¹² "Right.” When questioned by her own attorney about a refund to Farber, appellant stated, "We sent her a check on February the 3rd. Whether she used it or not, I don’t know.” When questioned about the Farber refund on cross-examination, she again replied, "We sent it February the 3rd, too.” The State contends that each of appellant’s representations made on direct and cross-examination constitutes a separate offense of perjury. After her Motion for Judgment of Acquittal was denied, appellant testified in her own defense.

She recalled testifying at the equity trial and stated that she did so to the "best of (her) memory.” Appellant testified at the peijury trial "to the best of (her) recollection”, she paid both Berry and Farber. She went on to state that she never intended to tell an untruth or to lie. She noted that she had never received the cancelled checks that she said she had sent to Berry and Farber. Before the close of her testimony, she again asserted that she had never told a "wilful untruth or misrepresentation”.

On cross-examination, appellant had difficulty remembering the specifics, e.g. account number, etc., of her checking account, but again asserted that she had paid Berry and Farber. Appellant called as defense witnesses Robert Hyssong, delivery supervisor at the Hagerstown Post Office, to testify about the daily mail flow there and a number of witnesses to testify as to appellant’s character. Further facts will be supplied as the need arises. ISSUE I Appellant first contends that Maryland Rule 744 is unconstitutional in that it draws a distinction between removal in capital and non-capital cases. 2 Appellant argues ⁴¹³ that the distinction between the automatic removal provision in capital cases and the conditional removal provision in non-capital cases is an unconstitutional deprivation of her right to be tried by an impartial jury.

Removal in a non-capital case is conditioned upon a showing that the accused cannot receive a fair trial in that particular jurisdiction. Rule 744 implements the provisions of Article IV, Section 8 of the Constitution of Maryland. That provision has been analyzed by several Maryland cases. Judge (later Chief Judge) Gilbert, writing for this Court in Gibson, Tate & Austin v. State, 17 Md. App. 246 , 300 A.2d 692 (1973), set forth the rationale for the distinction between the removal provisions when he stated at 257-258: "We believe that the rationale of Johnson [v. Louisiana, 406 U.S. 356 (1972)] is applicable to the case at bar.

There is nothing invidious in the Maryland Constitutional distinction between removal in capital and non-capital criminal offenses. The distinction serves as a means of preventing an abuse of removal and thereby facilitates, expedites, and reduces expense in the administration of criminal justice. That Maryland chooses to 'treat capital offenders differently’ does not violate 'the constitutional rights’ of those charged with non-capital offenses.” Similarly, Judge Eldridge, writing for the Court of Appeals in Johnson v. State, 271 Md. 189 , 315 A.2d 524 (1974), stated, at p. 194: ⁴¹⁴ "The history of the removal provision, therefore, shows a shifting concern between having a broad right of removal and having a very limited right because of the abuse associated with requests for removal. The present constitutional language resulted from a desire to narrow the right because of the abuses shown.

No other intent is revealed by the historical material.” The rationale set forth above is just as applicable to Rule 744. While some prejudice might be inherent in any capital offense, it is not necessarily present in a non-capital offense. The trial court’s function is to examine the accused’s suggestion of removal to see whether there are reasonable grounds for it. That Rule 744 grants the judge the power and discretion to do so does not deprive a defendant of the right to a trial by an impartial jury.

ISSUE II Appellant next alleges that the trial judge abused his discretion by refusing to grant a change of venue. The record discloses that on June 9, 1980, appellant filed a motion for removal on the basis of pretrial publicity. A hearing on the motion was held on July 15, 1980 before Judge John P. Corderman. Appellant testified she had seen people on the street who had called her a "crook” and that she had received "very nasty” phone calls since the equity trial.

Also introduced at the hearing were newspaper articles about the equity trial and subsequent indictment for perjury. Included among the former was an article wherein the presiding judge at the equity trial likened appellant to a "barracuda, lying in waiting (sic) for some poor, unsuspecting fish to swim by and be devoured.” He went on to state that "(t)here was testimony from 20 consumers who swam by the door and were so devoured.” 3 ⁴¹⁵ The hearing judge denying the motion for removal stated: "... (t)here has been no showing that voir dire would not result in a panel of Jurors being selected to try the case based solely on the evidence before them. There are a number of newspaper articles which have been submitted, all of them save one relate to a civil case tried last year and the publicity does not begin to amount to anything like the publicity which has surrounded other cases which have been tried in this jurisdiction in which Jurors have been empaneled who were able to try the case based solely on the evidence before them at that time.

Therefore, the Court will deny the Motion for Change of Venue.” Evidently some voir dire questions were propounded to the prospective jurors at commencement of the trial. However, neither the questions nor the responses appear in the record before us. No objections or exceptions are noted in the record. Counsel for the appellant indicated that he had no objection to the jury as empaneled.

Removal of a non-capital offense rests within the sound discretion of the trial court. Maryland Rule 744; Waine v. State, 37 Md. App. 222 , 377 A.2d 509 (1977). Review on appeal, however, is limited to consideration of whether the party seeking removal has met the burden of showing that "he has been prejudiced by adverse publicity and that the voir dire examination of prospective jurors, available to him, would not be adequate to assure him a fair and impartial trial.” Waine, supra, 227 . Judge Mason, recently writing for this Court in Simms v. State, 49 Md. App. 515 , 433 A.2d 1199 (1981), stated at 518-519: "A party moving for a change of venue carries a heavy burden of satisfying the court that there is so great a prejudice against him that he cannot obtain a fair and impartial trial.

Generally, in order to meet this burden, the defendant must show in ⁴¹⁶ non-capital cases '(1) that the newspaper article (or pretrial publicity) is prejudicial, (2) that a juror has read the prejudicial newspaper article (or otherwise been exposed to the prejudicial publicity), and (3) that the juror’s decision at the trial was influenced by that newspaper article (or pretrial publicity).’ Presley v. State, 224 Md. 550, 555 , 168 A.2d 510 (1961), cert. denied, 368 U.S. 957 (1961); Waine v. State, supra, at 227. Voir dire examination is usually a sufficient mechanism to insure that a defendant obtains a fair and impartial trial despite the pretrial publicity. United States v. Jones, 542 F. 2d 186 (4th Cir. 1976), cert. denied, 426 U.S. 922 (1977). This may be satisfied if each venireman empaneled indicates that he has not formed an opinion of defendant’s guilt or innocence as a result of the pretrial publicity or that the pretrial publicity would not 'in any way derogate from his ability to give the defendant a fair and impartial trial,’ as was done in the instant case.” After a thorough examination of the record before us, we conclude that the pretrial publicity was not so inherently prejudicial as to require a change of venue prior to voir dire examination of potential jurors.

Since the voir dire questions are not before us and since no objections or exceptions were noted, we cannot say that either the hearing judge or the trial judge abused his discretion in denying the motion for removal. 4 ⁴¹⁷ ISSUE III Appellant next alleges the trial judge erred in denying her Motion for Judgment of Acquittal. She moved for judgment of acquittal at the close of the State’s case, alleging there was no independent evidence sufficient to corroborate the testimony of either Berry or Farber. In denying the Motion, Judge Wright stated that the unsatisfied judgments in the District Court provided sufficient corroboration. He reasoned that appellant was an experienced business woman; that she had knowledge of the judgments, entered in October and November of 1978; that (in substance) the jury was entitled to infer from those facts that she would have assured the satisfaction of those judgments had she in fact paid Berry and Farber in February of 1979, particularly in view of the pending suit by the Consumer Protection Division based, in part, on those same claims.

While it was primarily the duty of Berry and Farber to enter the judgments satisfied, 5 we cannot say as a matter of law that the trial judge was wrong in his assessment of the reasonable inferences which could be drawn from the evidence. In any event, appellant then testified in her own defense and produced several other witnesses, thereby withdrawing her Motion. Maryland Rule 756. She renewed her Motion at the close of all the evidence and it was again denied.

The jury then found her guilty of all counts. The Constitution of Maryland, Declaration of Rights, Article 23, provides that "(i)n the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.” This provision is further amplified by Code (1982 Replacement Volume) Article 27, Section 593: "In the trial of all criminal cases, the jury shall be the judges of law, as well as of fact, except that at the conclusion of the evidence for the State a motion ⁴¹⁸ for judgment of acquittal on one or more counts, or on one or more degrees of an offense, may be made by an accused on the ground that the evidence is insufficient in law to justify his conviction as to any such count or degree. If the motion is denied, he may offer evidence on his own behalf without having reserved the right to do so, but by so doing, he withdraws his motion. The motion may be made at the close of all the evidence whether or not such motion was made at the conclusion of the evidence for the State.

If the motion is denied the defendant may have a review of such ruling on appeal. The function of the appellate court in reviewing such ruling is limited. It does not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt, but merely ascertains whether there is any relevant evidence, properly before the jury, legally sufficient to sustain a conviction. State v. Devers and Webster, 260 Md. 360 , 272 A.2d 794 (1971); Wilson v. State, 261 Md. 551 , 276 A.2d 214 (1971); Cranford v. State, 36 Md. App. 393 , 373 A.2d 984 (1977).

The history of the crime of perjury and the evidence necessary to sustain a conviction thereof is rather complex and convoluted. Indeed, according to Pollock and Maitland, "(v)ery ancient law seems to be not quite certain whether it ought to punish perjury at all. Will it not be interfering with the business of the gods?” 6 By the time of Coke, however, the crime was established and the elements well-defined: "(t)he crime of wilful and corrupt perjury; which is defined by Sir Edward Coke, to be a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears wilfully, absolutely, and falsely, in a matter material to the issue or point in question.” 7 Code (1982 Replacement Volume) Article 27, Section 435 ⁴¹⁹ embodies the common law definition of peijury, and also enumerates specific instances that constituted the common law crime of false swearing. Gatewood v. State, 15 Md. App. 314 , 290 A.2d 551 (1972).

Peijury has been defined by Maryland courts to be committed when the following elements are met: 1. a lawful oath is administered; 2. in some judicial proceeding; 3. when a person swears wilfully, absolutely and falsely; 4. to a matter material to the issue or point in question. State v. Levitt, 48 Md. App. 1 , 426 A.2d 383 (1981). As defined above, it is declaratory of the common law to which Maryland residents become entitled by virtue of the Declaration of Rights, Levitt, supra; Deckard v. State, 38 Md. 186 (1873). The quantum of proof necessary to sustain a conviction is not as easily defined, however.

Judge Marbury, writing for the Court of Appeals in Brown v. State, 225 Md. 610, 171 A.2d 456 (1961), appears to have set forth the general standard applicable in Maryland today. He states at 616-617: "At common law it was originally held that to warrant a conviction of peijury the falsity had to be shown by direct and positive testimony of two witnesses. 7 Wigmore, Evidence, § 2040 (3rd ed. 1940). The rule has been said to be deeply rooted in past centuries having its inception in the Star Chamber. 7 id. §§ 2030 and 2044. Peijury was treated as a high misdemeanor which required a greater measure of proof than any other crime known to law, treason alone excepted.

However, the rule has been relaxed so as to allow a conviction of peijury to stand if there are two witnesses, or one witness corroborated by circumstances proved by independent testimony. 41 Am. Jur., Perjury, § 67; 70 C.J.S., Perjury, § 68. The tes ⁴²⁰ timony of one witness and other independent corroborative evidence must be of such a nature so as to be of equal weight to that of at least a second witness, thus foreclosing any reasonable hypothesis other than the defendant’s guilt. Weiler v. United States,