Spector v. State

Smith, J., delivered the opinion of the Court. We shall here affirm the judgments entered against Allen B. Spector, Maurice B. Wyatt, and Donald H. Noren on three charges of bribery in violation of Maryland Code (1957, 1976 Repl. Vol., 1980 Cum. Supp.) Art. 27, § 23. 1 i.

Background On September 13, 1973, May 14, 1974, and May 24, 1974, the Secretary of Health and Mental Hygiene issued orders effecting a moratorium on connections of sewers for new buildings in certain areas of Baltimore County. Samuel Gorn, Richard Davison, and Bernard Rome were developers adversely affected by the moratorium. They sought relief from the Board of Review of the Department of Health and Mental Hygiene in the form of exceptions to the moratorium. Spector, Wyatt, and Noren are members of the bar.

At the times here relevant Noren was an Assistant Attorney Gen ⁴¹⁰ eral of Maryland whose duties included representation of the Environmental Health Administration, a part of the Department of Health and Mental Hygiene, in the matter of such exceptions before the Board of Review. Spector and Wyatt were practicing lawyers in Baltimore City. 2 Spector was a member of the Baltimore City Council. Three indictments were returned against Spector, Wyatt, and Noren by the Grand Jury of Baltimore City. The first count of the first indictment charged that Spector and Wyatt "on or about September 5,1974,... did unlawfully, willfully, and corruptly pay a bribe, reward, fee, and testimonial, to wit: two thousand five hundred dollars ... to Donald H. Noren, being then and there an Assistant Attorney General for the State of Maryland ... for the purpose of influencing him in the performance of his official duties in violation of Article 27, Section 23, Annotated Code of Maryland . . . .’’The second count charged Noren with having on the same day "unlawfully, willfully and corruptly receive[d] a bribe” in that amount from Spector and Wyatt "in the performance of his official duties” in violation of Art. 27, § 23.

The second indictment in similar language charged Spector and Wyatt with having paid a bribe to Noren in the amount of $1,500 on October 27, 1974. It likewise charged Noren in language similar to the first indictment with having received that sum at that time. The third indictment in similar language charged that on February 10, 1975, Spector and Wyatt paid the sum of $1,650 to Noren as a bribe. It likewise charged Noren with receiving such an amount as a bribe at that time.

The statute in question, Art. 27, § 23, provides 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 his official duties; and if... any ⁴¹¹ officer or any employee of the State . .. shall demand or receive any bribe ... for the purpose of influencing him in the performance of his official duties, or for neglecting or failing to perform the same, every such person so bribing or attempting to bribe any of such officers or persons, and every such person so demanding or receiving any bribe ... shall be deemed guilty of bribery .... The defendants elected a court trial. The case was heard in the Criminal Court of Baltimore by Macgill, J. 3 Each of the defendants was sentenced to two years in the care of the Department of Correction on each of the counts. Sentence was suspended in each instance and each defendant was placed on two years unsupervised probation.

In addition, a fine of $5,000 on each of the three counts was levied on each of the defendants. An appeal was promptly noted to the Court of Special Appeals. Since pursuant to Maryland Rule BV16 we had suspended each of these attorneys from the practice of law by reason of these convictions, we issued a writ of certiorari ex mero motu to the Court of Special Appeals because a by-pass of that court would expedite the ultimate disposition of these proceedings. ii. Appellants’ contentions The appellants claim (1) that since each of the indictments was "couched in [the] generic terms of the statute, alleging payments to 'influence official duties’, [they] were denied apprisal of the specific charges against them, guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution, and Article 21 of the Maryland Declaration of Rights, when the trial court did not grant demands for bills of particular, which requested disclosures of the ⁴¹² specific official duty(ies) or act(s) of Noren which Wyatt and Spector allegedly sought to influence”; (2) that in order to sustain a conviction of bribery pursuant to Art. 27, § 23 "the State must prove the specific official act(s) or duty(ies) of Noren, which Wyatt and Spector allegedly sought to influence, in that it is the essential element of quid pro quo that distinguishes the specific criminal intent underlying bribery from the mens rea of other related crimes, such as accepting an unlawful gratuity,” which it is contended the State failed to do; (3) that if, "assuming arguendo the State is not required to prove the specific act sought to be influenced, there was [no] legally sufficient evidence of a corrupt agreement to sustain a conviction of bribery”; and (4) that the trial court failed to comply with Rule 735 "when it did not fully apprise Defendants of their right to trial by jury on the first day of trial, although such advice was rendered during a pre-trial proceeding.” iii.

The facts The trial judge said from the bench in making his findings of fact: I must reach my conclusions on the evidence whether by way of testimony, or by way of documents which have been admitted for my consideration. As the State has said in this case the evidence, or these cases, there are three of them being tried together in effect, the evidence it relies on to establish these cases is circumstantial. Circumstantial evidence is not weaker, or of a lesser quality than other kinds of evidence. In these cases, and as I said before, these cases have been consolidated for trial, the evidence establishes beyond a reasonable doubt, and I do not think that it is even disputed, that Mr. Noren, at the time of the incidents described, was an officer or employee of the State, an Assistant Attorney General.

I think ⁴¹³ that the evidence also, in each case, establishes beyond a reasonable doubt, that Mr. Noren received payments of money which were derived from the three applicants or developers who testified, and that he received these payments from Mr. Wyatt and these payments were part of the sums received by Judge Spector, as fees from each of the applicants. So, in each case, Mr. Noren, the public official, received something of value derived from the matters pending before the Department which he represented. These facts, of course, do not make him guilty of bribery, nor do they make Judge Spector or Mr. Wyatt guilty of bribery. To find one or more of these defendants guilty of bribery, it must be established beyond a reasonable doubt that the moneys were paid and received pursuant to a corrupt agreement.

The State contends that various incidents described in the evidence show, circumstantially, that there was such a corrupt agreement in each instance. Before detailing the circumstantial evidence in these cases, on which, as I understand it, the State is relying, I should point out that in these cases, as in others, each specific incident or detail, in itself, cannot be considered separately. All incidents or details, considered cumulatively, are what matter. Each of the three associations, or what I will call developers, and I will refer to them by the names of the parties who testified as their representatives, the evidence shows were placed in serious or desperate financial straits by the imposition of the sewer hook-up moratorium on May 14, 1974.

According to the evidence each day the moratorium remained in effect as to them their financial conditions worsened. The first two, Mr. Gorn and Mr. Davison, engaged lawyers who resorted to orthodox ⁴¹⁴ legal proceedings to get relief for their clients. Colonel Rome tried the same avenues on his own. The first two, without abandoning the counsel they had retained, turned in addition to Judge Spector.

None of the three, I think it is significant to say, could recall precisely who referred Judge Spector’s name to them. Mr. Gorn, if you believe this part of his testimony, retained Judge Spector simply to keep him posted as to what was going on. Peculiarly, however, according to Mr. Gorn, he retained Mr. Spector on a contingent fee basis, contingent on his securing relief from the moratorium and while seeking of that relief was in the hands of other counsel. Judge Spector labeled this fee an "annual retainer.” Mr. Davison went to see Judge Spector because he felt that since Judge Spector was a city councilman, "He knew his way around in the bureaucracy and could expedite things.” Colonel Rome was advised that a stipulation had to be prepared with Mr. Noren before he could get a hearing.

He testified that he had difficulty getting together with Mr. Noren. Finally, he retained Judge Spector. He made a kind of contingent fee arrangement with Judge Spector, of the five thousand dollar fee requested by Judge Spector, he agreed to pay $2500.00 after he received a hearing before the Board of Review and the remaining $2500.00 only if the Board granted him the relief which he sought. Of course when I refer to "the Board” I am referring to the Board of Review.

Rather promptly, after his clients met with success and after he was paid the agreed fees, Judge Spector paid a portion of them to Mr. Wyatt and Mr. Wyatt in turn, and just as promptly, paid a portion of his portion over to Mr. Noren. It is of some significance, I think, that the amounts paid to Mr. Wyatt went into his personal account and from that account he paid Mr. Noren who deposited his portions in his personal account. I think that it is also ⁴¹⁵ of some significance that Judge Spector’s files, aside from the stipulation prepared for Colonel Rome, contain, so far as I could observe, no lawyer’s work product done by him, nor any evidence of any work done for him by Mr. Wyatt. I should also mention that State’s Exhibit 38A and 38B show that the check for $1600.00 issued by Judge Spector to Mr. Wyatt was labeled "Referral-Butterfield case.” Butterfield, as you will recall, was a case which involved a personal injury claim and with which Mr. Wyatt had no connection whatsoever.

Likewise, State’s Exhibits 43 A and 43B show that the check in the amount of $1700.00, issued by Judge Spector to Mr. Wyatt was labeled, "Referral fee.” that was by the secretary, as I recall. Although it does not appear from the testimony that Mr. Rome who paid the fee to Judge Spector, he never had contact with Mr. Wyatt. I believe that it was suggested to me in closing argument that I should not consider anything as to which there was no proof, specifically that Mr. Noren, Mr. Wyatt’s partner, knew the source of the payments remitted to him by Mr. Wyatt. I think that I, like a jury, may use my common sense and experience in life in evaluating evidence and on that basis it is difficult for me to believe that persons dealing in commercial transactions, much less partners and friends, transfer substantial sums of money to each other without either explanation or inquiry.

A reasonable inference, from the evidence, I think would be otherwise. It was also urged that the State should have made out a better case by calling some of the members of the Board of Review to show that Mr. Noren, in his relations with that body, did or did not do anything untoward, or something untoward, I should say. Of course, my role is not to demand that the State produce certain elements of proof but it is simply to evaluate the proof which the State does produce. ⁴¹⁶ It was also suggested that persons engaged in bribery are not so foolish as to use checks and oth,er documents but would resort to cash transactions. I can only say, from my obervation persons engaged in dubious activities are just as prone to blunder as persons engaged in legitimate activities.

It has been said as to circumstantial evidence that before a verdict of guilty is justified, the circumstances taken together must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence. I find here no reasonable hypothesis or theory of innocence when I consider the circumstances I have mentioned as well as others in evidence which I have considered, but may not have mentioned. In the light of all of the circumstances, taken together, I find in each case, beyond a reasonable doubt, that the moneys which passed from Judge Spector through Mr. Wyatt to Mr. Noren were made pursuant to a corrupt agreement or agreements and constituted bribes offered and accepted. Bribery, as you know, has been defined as "the corrupt payment or receipt of a private price for official action.” Set forth in State v. Canova, 278 Md. 483 , at page 485 (1976).

In view of the conclusions I have reached, my verdict is that the Defendant, Judge Allen B. Spector is guilty as charged in Indictment Number 17935501; 17935504; 17935507; Mr. Wyatt is guilty as charged in Indictment Number 17935502; 17935505; 17935508; and that Mr. Noren is guilty as charged in Indictment 17935503; 17935506; 17935509. We shall develop such additional facts as may be requisite in the course of our discussion of the points raised. ⁴¹⁷ iv. The validity of the indictments The defendants elected not to challenge the validity of the indictments in the trial court but attempt to do so on appeal. Under Rule 736 a motion asserting a defect in a charging document must be filed within thirty days after the earlier of the appearance of counsel or the first appearance of the defendant before the court "except when discovery is furnished on an issue which is the subject of the motion, then the motion may be filed within five days after the discovery is furnished.” Thus, under the rule the point is deemed waived in the case at bar.

There having been no challenge to the validity of the indictments in the trial court, their validity is not before us on appeal. Rule 885. v. The bill of particulars We point out that although the appellants suggested in arguments in the trial court that the indictments did not sufficiently inform them of the charges against them, at no time did they mention the constitutional provisions they have raised here. The demand for particulars alleged that each indictment was "so general as not to give the Defendant sufficient information to prepare a proper defense to the charge.” The particulars demanded included the specific official duties or acts of Noren which the defendants "allegedly influenced or sought to influence by the payment of the alleged bribe”; "[t]he specific influence, which the payment of the aforesaid bribe had or was intended to have upon the official duties of .. . Noren”; "ft]he manner in which the State contends there was any deviation from what it maintains was the proper conduct by ...

Noren of his official duties as any such alleged deviations relates [sic] to the charges contained” in the respective indictments; the identity of "those individuals employed by any governmental agency or unit who had authority with regard to the matters complained of in the indictment concerning the exercise by .. . Noren of his official duties,” with an indication as to "the nature of the ⁴¹⁸ authority reposed in each such individual and whether that authority was exercised or was to be exercised in any manner in connection with the indictment charged and, if so, in what manner”; the date of the document or documents evidencing the payment of the sums in question, "stating if the alleged payment was made by check, whose signature appears on the check” together with the identity of the custodian of the document; and the date of the document or documents evidencing the performance or contemplated performance of Noren’s official duties allegedly influenced or intended to be influenced by the giving of and his receipt of a bribe together with the identity of the custodian of the document. The State excepted to the demand. The matter was heard by Perrott, J., to whom the case was then assigned.

He directed an answer to the first demand. Accordingly, an amended answer was filed stating: 1. Part of the duties of Donald H. Noren, as an Assistant Attorney General assigned to the Department of Health and Mental Hygiene was to represent that Department before the Board of Review which determined whether grounds existed upon which to base the granting of exceptions to any moratoriums handed down by the Department. It was Mr. Noren’s duties before the Board of Review that Mr. Spector and Mr. Wyatt influenced or sought to influence.

Exception was again taken. An additional answer was required. Pursuant to that ruling the State specified: 1. That the duties of Donald H. Noren as an Assistant Attorney General for the State of Maryland assigned to the Department of Health and Mental Hygiene include, but are not limited to: a) representing that Department as counsel before the Board of Review; b) preparing Stipulations of Fact to be presented before the Board of Review; ⁴¹⁹ c) meeting with aggrieved parties of moratoriums or their counsel; d) aiding in the preparation of disputes to be presented before the Board of Review; and e) arguing for the enforcement of all applicable sections of Article 41 of the Annotated Code of Maryland and the Rules of Procedure of the Board of Review.

Again, exceptions were taken upon which the court ruled: 1. The State is hereby ordered to strike the words "but are not limited to” in paragraph one of the amended answer; 2. The defendant’s exception to the State’s amended answer is otherwise overruled. The court finds that the defendants are not entitled to any further particularization of the duties of Mr. Noren which the defendants, Wyatt and Spector, allegedly sought to influence in this case.

The defendants sought discovery under Rule 741. The State’s reply was filed on January 30,1980. (The exceptions to the demand for particulars were filed on February 4.) The reply included a statement that upon reasonable notice to the State the defendants or their attorneys might "inspect and copy any books, papers, documents, recordings or photographs which the State intends to use at trial; inspect and photograph any tangible objects which the State intends to use at trial; ... inspect, copy and photograph any item from or belonging to [each] Defendant”; and "inspect and copy all written reports or statements made in connection with this case by each expert consulted by the State.” Obviously, among other things this made available to the defendants copies of the checks which were part of the evidence in this proceeding. The State’s answer included the names and addresses of thirty-one persons said by the State to be those then "known that the State intendfed] to call to prove its case in chief or to rebut alibi testimony ....” The ⁴²⁰ first three individuals listed were Richard Davison, Samuel Gorn, and Bernard Rome, the three persons whose cases were allegedly the subject of the bribery.

Appellants place great weight upon Russell v. United States, 369 U.S. 749 , 82 S. Ct. 1038 , 8 L. Ed. 2d 240 (1962), referring to language of Mr. Justice Stewart for the Court, 369 U.S. at 765 , to the effect that an indictment not framed to apprise the defendant with reasonable certainty of the nature of the accusation against him is defective, although it may follow the language of the statute. That case is inapposite. The defendants were there indicted pursuant to 2 U.S.C. § 192 for having refused to answer questions "pertinent to the question then under inquiry” by a subcommittee of the United States House of Representatives. No issue of particulars was involved.

In fact, Mr. Justice Stewart said for the Court, "[I]t is a settled rule that a bill of particulars cannot save an invalid indictment.” Id. at 770 . In the second paragraph of the opinion the Court said: In each case the indictment returned by the grand jury failed to identify the subject under congressional subcommittee inquiry at the time the witness was interrogated. The indictments were practically identical in this respect, stating only that the questions to which answers were refused "were pertinent to the question then under inquiry” by the subcommittee. In each case a motion was filed to quash the indictment before trial upon the ground that the indictment failed to state the subject under investigation at the time of the subcommittee’s interrogation of the defendant.

In each case the motion was denied. In each case the issue thus raised was preserved on appeal, in the petition for writ of certiorari, and in brief and argument here. [Id. at 752-53.] The Court pointed out: [T]he very core of criminality under 2 U.S.C. § 192 is pertinency to the subject under inquiry of the ⁴²¹ questions which the defendant refused to answer. What the subject actually was, therefore, is central to every prosecution under the statute. Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute. ¡Id. at 764.] It was in this context that the Court said: For these reasons we conclude that an indictment under 2 U.S.C. § 192 must state the question under congressional committee inquiry as found by the grand jury.

Only then can the federal courts responsibly carry out the duty which Congress imposed upon them more than a century ago: "The question must be pertinent to the subject-matter, and that will have to be decided by the courts of justice on the indictment.” 19 [Id. at 771-72.] The footnote refers to a quotation ( 369 U.S. at 757 ) earlier in the opinion in which Senator Bayard, "[t]he principal spokesman for the bill” which enacted the statute in question, was said to have "repeatedly made this very point” on the floor of the Senate when the matter was under consideration as reported in Cong. Globe, 34th Cong., 3d Sess. 440 (1857). In short, Russell is concerned with the validity of an indictment, not with the issue of whether or not a bill of particulars should be granted. The matter of particulars was discussed for the Court by Chief Judge Prescott in Hadder v. State, 238 Md. 341 , 209 A.2d 70 (1965), where the accused stood convicted of first degree murder: Appellant’s request asked for a number of items, including one for the particulars as to "the * * * hypothesis of commission” of the crime charged.

We assume that this was an expression of a desire to make the State give the defense its theory of the case. All of the particulars requested were ⁴²² furnished except this one, and the appellant, without citing a single authority which states that it is proper to require the prosecution to state its theory of a case under a request for particulars, claims prejudicial error. The contention misconceives the right, vel non, to, and the function and office of, a bill of particulars. As a general rule, particulars are not granted as a matter of right, but the granting and denial thereof rest in the sound discretion of the trial court, Pearlman v. State, supra; however, the courts of Maryland rightfully have been quite liberal in granting such particulars on proper occasions, and especially when indictments have been drawn in the short forms permitted by statute.

But bills of particulars are intended to guard against the taking of an accused by surprise by limiting the scope of the proof. Berger v. State, 179 Md. 410 ; Hunter v. State, 193 Md. 596 . They have never, to our knowledge, been utilized for the purpose of requiring the State to elect a theory upon which it intends to proceed. As the Court succinctly stated in Rose v. United States, 149 F.2d 755 (C.A. 9): "The purpose of a bill of particulars is to secure facts, not legal theories.” In United States v. Fruehauf, 196 F. Supp. 198 (U.S.D.C., S.D.N.Y.), the Court named five theories upon which the prosecution might proceed, but denied a motion for a bill of particulars which asked that the Government be required "to state which of the theories it is relying upon and to state, if its claim is based upon any other contention or premise, what such contention or premise is.” See also 4 Wharton’s Criminal Law & Procedure (Anderson), § 1867; Anno.: 5 A.L.R.2d, at p. 459; United States v. Dilliard, 101 F.2d 829 (C.A. 2), cert. den. 306 U.S. 635 .

We hold that, under the circumstances here involved, the appellant was not entitled to make the prosecution select and state its theory of the case. [Id. at 350-51.] ⁴²³ See also Veney v. State, 251 Md. 159, 163-64 , 246 A.2d 608 (1968). In Veney we emphasized the discretionary nature of a grant of particulars. In Pearlman v. State, 232 Md. 251 , 192 A.2d 767 (1963), cert. denied, 376 U.S. 943 (1964), cited in Hadder , Judge Horney said for the Court: A defendant is not entitled as of right to particulars. Rule 715 a provides that on motion by a defendant, the court may order the filing of a bill of particulars.

But in most cases the grant or