State v. Tumminello

Thompson, J., delivered the opinion of the Court. The State has applied for leave to appeal from an order of the Criminal Court of Baltimore granting relief under the Uniform Post Conviction Procedure Act and directing a new trial for John Tumminello who was convicted of obtaining money under false pretenses. His first conviction was reversed by this Court in Tumminello v. State, 7 Md. App. 380 , 256 A. 2d 342 but he was re-convicted on December 12, 1969. We affirmed his second conviction in Tumminello v. State, 10 Md. App. 612 , 272 A. 2d 77 , certiorari was denied by the Court of Appeals of Maryland on April 5, 1971 and by the Supreme Court of the United States, 404 U. S. 948 , 92 S. Ct. 276 , 30 L.Ed.2d 264 (1971).

According to the memoranda filed by the State and by Tumminello’s counsel, the only issues presented for our decision are: (1) was Tumminello deprived of his absolute right to be present at various stages of his trial; and (2) if he did not have an absolute right to be present on the occasions described hereinafter, did he suffer prejudice by not being present during certain bench and chambers conferences. The facts are fully set out in the prior opinions of this Court. In essence they are that John Tumminello, a bail bondsman, having heard that it was the intention of a trial judge to suspend a sentence previously imposed on Robert A. Sewell, contacted Sewell and told him that he would be able to get him released from prison if Sewell could raise some money to pay the judge and the State’s Attorney. Sewell directed him to see a Father Maloney who was holding some money for him.

From this source Tumminello obtained $600; he thereafter obtained other sums. After Sewell’s release Tumminello ⁴²⁴ kept demanding more money. Sewell complained to the State’s Attorney who procured a warrant authorizing the use of an electronic eavesdropping device; police officers recorded portions of a conversation between Tumminello and Sewell during which an additional $100 in marked bills was paid to Tumminello. The police officers immediately arrested Tumminello and recovered the marked money.

The State’s Attorney and the trial judge had no knowledge of Tumminello’s activities at the time Sewell’s sentence was suspended. The post conviction hearing judge found that Tumminello was deprived of the right to be present at several stages of his trial. He additionally found that the absences actually prejudiced Tumminello’s case and thus deprived him of due process of law. The federal Constitution contains no express guaranty that an accused has a right to be present at his trial except when testimony is being taken; i.e. the Sixth Amendment right to be confronted with the witnesses against him, which is made applicable to State prosecutions by the due process clause of the Fourteenth Amendment.

Pointer v. Texas, 380 U. S. 400 , 85 S. Ct. 1065 , 13 L.Ed.2d 923 (1965), Illinois v. Allen, 397 U. S. 337 , 90 S. Ct. 1057 , 25 L.Ed.2d 353 (1970). It has been held that the Sixth Amendment of the United States Constitution applicable to state prosecutions through the due process clause of the Fourteenth Amendment requires the presence of the accused at other stages of his trial if there is a reasonable possibility of prejudice because of his absence. Snyder v. Massachusetts, 291 U. S. 97 , 54 S. Ct. 330 , 78 L. Ed. 674 (1934). See annotations to Illinois v. Allen, supra, 25 L.Ed.2d 931 .

We shall consider first and at length, the hearing judge’s finding of actual prejudice because of Tumminello’s absence from a pretrial chambers conference and several recorded bench conferences. 1 ⁴²⁵ On the morning of the trial, counsel and the trial judge conferred in chambers; the conference was recorded; Tumminello was not present. At that conference the Assistant State’s Attorney informed those present that the victim, Sewell, was mentally incapable of testifying and that he intended to offer a transcript of his testimony at the prior trial. 2 Defense counsel, Douglas N. Sharretts, informed those present that it was his intention to object to the introduction of the transcription of Sewell’s prior testimony on the bases: (1) that the state could not show that he was legally unavailable for trial; (2) that the witness, Sewell, was mentally incompetent to testify at the prior trial; and (3) that he intended to move to suppress the tape recording because Sewell was mentally incompetent at the time he executed the affidavit in support of the warrant under which the recording was made. The Assistant State’s Attorney then informed those present that if the court should rule that Sewell’s prior testimony could not be used, he intended to move to amend the indictment as to the amount of money that was obtained by reason of the false pretenses. Defense counsel indicated he would object to the amendment.

The Assistant State’s Attorney explained that without Sewell’s testimony he would not be able to prove that the amount of money obtained was $2300 as alleged in the indictment, but that other evidence could establish a lesser sum was obtained by false pretenses and for that reason he would like to have the indictment amended as to the amount. Defense counsel made reference to a “hassle” in the prior proceedings as to the bill of particulars insofar as it related to the amount of money Tumminello received from Sewell. There was further discussion as to the mental competency of Sewell during which defense counsel stated he felt it was the obligation of a trial judge ⁴²⁶ to notice mental incompetency of a witness whenever it came to his attention and he thought the trial judge should notice it during the pre-trial conference. All present agreed that the question as to whether or not Sewell’s testimony would be received was an important issue in the case.

Immediately after the conclusion of this conference the case was called for trial. In Tumminello’s presence, defense counsel made reference to the fact that both court and counsel were familiar with certain preliminary motions he desired to make before the case was called for trial. He then moved that Robert A. Sewell be excluded as a state’s witness on the grounds that he was not competent and he requested that the motion be heard prior to the time the jury was impaneled. The State agreed that the witness was presently incompetent but the trial judge insisted that testimony be produced both as to the witness’s present competency and his competency at the time of the prior trial.

Evidence on these questions was received for the remainder of the day. When court resumed the next morning, the state indicated that it definitely would not call Sewell as a witness and probably would not use the transcript of his prior testimony. The court was requested to defer ruling on the question of the admissibility of Sewell’s prior testimony. The state also moved to amend the indictment as to the amount of money received by reason of false pretenses from the sum of $2300 to $700.

This motion was granted over objections of defense counsel. The state informed the trial judge that the tape recording was of very poor quality and that a court reporter had prepared a transcript after repeatedly listening to the tape. He desired to give the jury a copy of that transcript while the tape was being played. Defense counsel indicated his intention to make a motion to suppress the tape on the basis that Sewell was incompetent at the time he made the warrant supporting affidavit.

He alleged that Sewell’s condition was known to the State’s Attorney but was not made known to the ⁴²⁷ judge who issued the warrant authorizing the recording of the conversation. He also intended to move to suppress the marked bills which were transferred from Sewell to Tumminello during the recorded conversation. Defense counsel also objected to the tape on the ground that it was garbled and that it contained voices not properly identified as those of Sewell and Tumminello. He also objected to the transcript made by the court reporter.

After consideration of previously introduced evidence, the trial judge ruled that Sewell was presently incompetent and not available to testify at Tumminello’s second trial, but that he had been competent during the prior trial and at the time he executed the affidavit in support of the search warrant. The judge said he would listen to the tape, read the transcript again, and then make a final decision as to whether or not the transcript should be presented to the jury. He expressed a feeling that, in general, a court reporter could interpret the tape for the benefit of the jury and a copy of his transcription could be read to the jury. After the court stated its tentative ruling, defense counsel stated that he thought it would be a waste of time for the court or the jury to hear the tape and provided his other objections were preserved, he would not object to having counsel or the court reporter read the transcript to the jury.

Thereafter a jury was impaneled and the case proceeded. The record shows that Tumminello was present except at the initial conference prior to the calling of the case for trial and except at one or two unrecorded bench conferences during these proceedings. Douglas Sharretts, trial counsel, testifying at the post conviction hearing, said that Mr. Tumminello never requested that he be advised as to what was going on at the bench or chambers conferences and that “I don’t recall a single thing that was said and done in his trial that wasn’t discussed [with Tumminello] at the recess of the court, or break of the jurors, or during the lunch hour, and for long hours after the trial each day. I think ⁴²⁸ we met constantly, talked and retalked, and discussed and re-discussed, argued and debated, and re-argued everything that was written down.” That the only specific disagreement between him and Mr. Tumminello was as to how a priest was to be cross-examined.

(This subject will be discussed hereinafter.) The following occurred as Mr. Sharretts was being questioned by Tumminello’s then counsel, Mr. Cardin: “Q. And did he not also request of you that the jury hear the tape recordings themselves? A. Now, Mr. Cardin, you are getting into a very difficult area. This was not something that was discussed just for a few minutes. It was discussed for days, if not weeks.

The question of whether Mr. Tumminello wanted to sit through in the presence of the jury the playing of those tapes over, and over, and over, and over. He knew it was apparent from Mr. Aarons’ document, it was apparent from Mr. Aarons’ testimony, that the tapes would have to be played over repeatedly, repeatedly, repeatedly, to extract everything possible from the tapes. But with each playing of it those things which were as clear as crystal would be repeated over, and over, and over as well. And it was a question of evaluation at that time, which you’ll understand that determined the decision between all of us that we would go on with it as long as the court had ruled it admissible, we would go on the written, typewritten summary rather than the live tape.

Q. Well, I’m trying to understand one part here. The court, having ruled the transcript admissible, wasn’t there a request by Mr. Tumminello at that point that the tape be played for the jury at least once, so that they could understand the, for lack of a better word, difficulty that Mr. Aarons obviously went through in order to obtain the transcript, so that they ⁴²⁹ could test his reliability in putting down the words from the tapes? A. No, Mr. Cardin. Q. It was nothing like that?

A. No. There was a reason for it. If you want, I’ll repeat it. Q. These discussions that you alluded to was before the case was actually called for trial then, I take it, as far as what was going to happen with regard to the tapes? A. It was a question of whether they would use the tapes, or use the transcript, and which position would we take if we had an election.

And as the time of trial came along, it narrowed itself down to whether we insisted on the tapes, or whether the State would go on the transcription, the argument being that the tapes would be the best evidence rather than the transcription being the second, and we had a right to insist that the State use the best evidence if we wanted to. And the question was, did we want to insist that they use the live tapes under the best evidence rule. And we resolved that in the negative after full discussion. Q. Now, you say ‘we.’ Do I take it then that Mr. Tumminello was a party?

A. Yes, of course, he was a party to it.” With reference to the pre-trial conference we have discussed, the post conviction judge found as follows: “This conference dealt with integral decisions of the pending case based on facts, testimony and evidence relating to the prior case and was a stage of the trial. Mr. Sharretts, himself, expressed this feeling when he said, T say this pretrial conference comes within the definition of anytime in the proceedings.’ 3 It is obvious ⁴³⁰ that the discussions held at that time were critical to the Petitioner’s case and that many of the actions of defense counsel and also the Assistant State’s Attorney taken during the trial were as a result of the understandings held by them based on what took place at that conference. These actions were therefore taking place without the knowledge or the reasoning of the Petitioner, due to the fact that he was not personally present at the conference. It is also a fact that the Petitioner was ready, willing and able to attend this conference at the time it was held.” As to. this and other conferences which will be discussed hereinafter the post conviction judge concluded as follows: . . this Court recognizes the right of the Defendant to be present at all stages of his trial, including conferences between counsel and the trial Judge, both before and during the trial.

Therefore, because Petitioner was unaware of many matters which could have had a bearing on the trial, had he known about them and was able to render assistance to his counsel concerning them, the outcome of his trial may have been different. This Court feels that there is only one way in which Petitioner can be assured of a fair trial in which his participation is knowledgeable and complete; that is, for a new trial to be ordered.” We think the post conviction hearing judge’s statement of the law is too broad and his factual conclusions clearly erroneous. After the conclusion of the-pre-trial conference, each of the matters discussed were brought out in open court in the presence