Smith v. State

ROBERT M. BELL, Judge. Curtis Lee Smith, appellant, has appealed from the denial, by the Circuit Court for Prince George’s County (Femia, J.) ³¹⁴ of his motion for a new trial. Because we find the trial court erred when it refused to compel the testimony of one of the witnesses produced at the hearing, we will reverse and remand to that court for further proceedings. Appellant was tried by a jury presided over by Judge Femia.

Despite relatively weak identification testimony produced by the State and strong alibi evidence presented by the appellant, the jury returned verdicts of conviction for robbery, rape, burglary and certain other related charges. 1 Judge Femia, although he expressed doubt as to the guilt of appellant, sentenced appellant to life plus 30 years for the convicted counts. This court affirmed the convictions in an unreported per curiam opinion, Curtis Lee Smith, Jr. v. State of Maryland, No. 1642, September Term, 1982, filed July 1, 1983, in which the author suggested that the panel might have decided the case differently were it to have been the triers of fact, a sentiment underlined by the concurring opinion. Nevertheless, the judgments were affirmed, and appellant subsequently moved for a new trial. In his motion, appellant alleged the existence of newly discovered evidence, not available to him when he was tried. 2 Hearings were held on the motion on two days, June 27, 1984 and October 10, 1984.

On June 27th, testimony ³¹⁵ was taken from Kenneth Plummer, Horatio Sales, 3 Grady Sweet, and Philip Yarborough. 4 Sweet, who was serving a twenty year sentence pursuant to a plea to three counts of armed robbery and a related count of use of a handgun in the commission of a crime of violence arising out of the Pasco incident, testified that appellant was not a participant in the crimes. Although he admitted his complicity, his testimony was replete with attempts to minimize his involvement in the specific acts constituting the crimes and to protect his co-defendants to the fullest possible extent. Yarborough, who pled guilty to a misdemeanor theft charge arising out of the Pasco incident, denied any involvement in the crimes, claiming to have been asleep in Sweet’s car both prior to and after its perpetration. He also denied that appellant had been in Sweet’s car or that he had even seen appellant prior to June 27, 1984.

Plummer and Sales were serving sentences for unrelated offenses 5 when they testified. Plummer testified that while he and Owen Marsh were on the same cell block at the Prince George’s County Detention Center, Marsh told him "... that he don’t see how they got Curtis for [the Pasco crimes] because he wasn’t never there, he didn’t do it, they got him for something he didn’t do.” As a result, Plummer contacted his lawyer and eventually gave a statement to Detective Herl on December 7, 1982, after appellant’s conviction. Sales’ testimony was that Owen Marsh admitted to Sales that he (Marsh) raped Mrs. Pasco and participated in the crimes in her home. In addition, Sales testified that Sweet told Owen Marsh, in his presence, that appellant, the wrong man, had been charged so that Marsh “didn’t have anything to worry about” and that Sweet ³¹⁶ pointed appellant out to Sales as a person, whom Sweet had never seen before, who had been charged with Sweet in the Pasco incident.

Owen Marsh’s absence was most conspicuous. Owen Marsh was viewed by Judge Femia as being the key to appellant’s case on the motion: So, your first witness [Sweet] is a liar, your second witness [Yarborough] is a liar, but a nice-looking liar, your third witness, Mrs. Sweet, is a nice lady, but she can’t be called to do anything. She was available. Your fourth and fifth witnesses aren’t available as evidence in this case.

Marsh is the answer to this case. I don’t care what Marsh wants to do, get him on the witness stand, make him take the Fifth, I will override the Fifth and let’s go. Marsh is the key to this case. Therefore, anticipating appellant’s request, Judge Femia did not rule on the motion on June 27th, rather, he left the issue open and continued the hearing for several months to allow appellant to locate and summons Owen Marsh.

Owen Marsh appeared with counsel on October 10, 1984. Marsh had been charged in an eighteen count indictment, with the crimes arising out of the Pasco family incident. He had pled guilty to count 12, felony theft, in exchange for a suspended sentence and probation and the nol pros of the remaining counts. As a threshold issue, Marsh’s counsel objected to any questions and inquired of the State and the court as to Marsh’s exposure to further prosecution for crimes committed against the Pasco family.

The prosecutor ultimately responded: Your Honor, I didn’t say I think I had the options. It was my opinion, not being a jurist, that the State would be precluded from reinstituting any charges arising out of this incident against Mr. Marsh. I don’t happen to be a judge. I don’t know what my research would bring.

Judge Femia then ruled: Megrogan [sic] 4a seems to be saying, if the nol prosses were entered up on the balance of the cases in order to ³¹⁷ induce his plea, it [sic] can’t be reinstituted. That’s the plain language of Megrogan. Therefore, this man, I will now rule, is not immune in the legal sense of the Court in the term of art used, but the charges cannot be reinstituted against him under the Megrogan case. He made a deal; the deal was, drop these charges, I’ll plead to that.

That was the inducement for his plea. The other charges cannot be reinstituted. Therefore, he is not at jeopardy under the scenario with which we are dealing. Therefore, I will compel him to testify and overrule your Fifth Amendment objection.

However, I want him to clearly understand, Mr. Kenkel, that has to do with this case, this indictment. ... [A]s it relates to this case, if he is taking the Fifth Amendment, based upon jeopardy in this case, I’ll overrule his claim of the Fifth Amendment as to the events of December 21, 1981. If that’s his claim of Fifth Amendment, I am going to overrule his claim and compel testimony. Following consultation between Marsh and his counsel, the following colloquy then occurred: Mr. Kenkel: ... Mr. Marsh has requested I advise the Court he understands he was indicted in an eighteen count indictment; that he pled guilty to one of those counts; that the other seventeen were dismissed or nol prossed.

The Court: Which the Court considers to be a dismissal with prejudice. Mr. Kenkel: Dismissal and that he cannot be recharged for any of those seventeen counts. He says since the State may or may not wish to charge him, based upon his testimony or otherwise for any uncharged counts such as conspiracy, accessory before or after the fact, respectfully, he declines to answer any other questions and asserts his Fifth Amendment right. The Court: All right, Ms. Durovic, you may now proceed to inquire.

I am not ordering him to answer... ³¹⁸ Needless to say, appellant’s inquiries went for naught since Marsh invoked his privilege against self-incrimination-', as to each question posed. Having refused to compel Marsh’s testimony and following arguments of counsel, Judge Femia denied appellant’s motion for a new trial: It’s the fifth base 5 that I have been having tremendous problem with and I spent the majority of my time on, at least my consideration of it. It must be such and of such nature as that on a new trial, the newly discovered evidence would probably produce acquittal. Quite frankly, that’s where the evidence falls flat on its face.

In my opinion, I just don’t have in my opinion at this point, even giving it its kindest interpretation, any credible evidence whatsoever. Sweet, I must categorize Sweet as totally incredible, totally incredible. In fact, I’m afraid that during the hearing of June 27th, I evidenced my aggitation [sic] of the incredible nature of his testimony. I thought Yarborough was credible, believed him.

He didn’t say anything relevant, but I believed him. So, while he misses base four, Sweet, Plummer and Sails don’t even come near to touching base five, being credible. Try as I may, the only reason I could possibly grant a new trial with the state of the facts before me this evening would be out of sheer sympathy with the Defendant. While I have said it before, I’ll say it again, I’m totally sympathetic with this Defendant.

While I’m wear ³¹⁹ ing this robe, I cannot do that which the law does not permit. Even though I sit here in my heart and believe there’s another human being that we have made a mistake this time, but the mistake has been made under the rules and pursuant to the law and it’s a terrible thing, but I do not believe, consistent with my oath, I will obey the law and the rules, that I can grant a new trial. For those reasons, I deny it. I. Against this backdrop, appellant contends that Judge Femia erred in refusing to compel Marsh’s testimony concerning the crimes committed on December 21, 1981 against the Pasco family.

Judge Femia specifically ruled that none of the charges contained in the eighteen count indictment could be reinstituted and, as such, Marsh was a compellable witness as to those charges. He then ruled that uncharged crimes, such as conspiracy or accessory, arising out of the events of December 21, 1981, could be brought; thus, the privilege against self-incrimination was available with respect to such crimes. Although we agree with Judge Femia that none of the charges contained in the indictment could be reinstituted, Banks v. State, 56 Md.App. 38 , 466 A.2d 69 (1983); Magrogan v. State, 56 Md.App. 289 , 467 A.2d 784 (1983), because jeopardy attached when Marsh’s guilty plea was accepted and Marsh had not challenged or breached his plea agreement, Sweetwine v. State, 288 Md. 199 , 421 A.2d 60 , Cert. den. 449 U.S. 1017 , 101 S.Ct. 579 , 66 L.Ed.2d 477 (1980), we reject his ruling that uncharged offenses arising out of the same incident could have been charged. The State concedes that Marsh cannot be charged with