Tumminello v. State

Thompson, J., delivered the opinion of the Court. John Tumminello, the appellant, was convicted of false pretenses by the Criminal Court of Baltimore. He was ⁶¹⁴ sentenced to a term of three years. On appeal his conviction was reversed by this Court, Tumminello v. State, 7 Md. App. 380 , 256 A. 2d 342 .

He was retried in the Criminal Court of Baltimore, Judge David Ross presiding with a jury and upon reconviction was sentenced to a like term. On this appeal he raises questions as to: (1) sufficiency of the evidence; (2) the mental capacity of Robert A. Sewell to be a witness against him; (3) an amendment to the indictment; and (4) the admission of a stenographer’s transcript interpreting a tape recording. There was evidence showing that Robert A. Sewell was arrested in August of 1966 on a charge of assault with intent to murder; on December 9, 1966, Sewell was convicted and sentenced to a term of four years in the House of Correction. He engaged an attorney to handle his appeal who apparently sent John Tumminello, a professional bondsman, the appellant, to one Father Maloney to secure money to pay for the appeal bond.

Tumminello told Father Maloney that he had been sent to collect $600. for which he would have the case against Sewell “fixed”. On this assurance Father Maloney gave the appellant $600., $500. of which he had obtained from a joint account between himself and Sewell; the other $100. was his personal funds. Afterwards, while visiting Sewell in the House of Correction, Tumminello told Sewell that on the following Monday he would be brought into court and placed on probation but it would cost $1,000. to “spring” him. Previously, through the efforts of Sewell’s counsel and the Father, Judge James K. Cullen had agreed to conduct a hearing on the Monday in question to determine whether the sentence should be stricken and Sewell placed on probation.

After the hearing was completed he was placed on probation, although the judge was not aware of any of Tumminello’s activities. After Sewell was released, he went to the appellant’s office where the appellant informed him that additional monies were needed. Sewell said that at this time he requested the appellant to advise him as to how much he had been paid and that he ⁶¹⁵ listed an amount in excess of $2,000. 1 and told him that he would hold the receipt on his desk until more money was paid. The appellant then took Sewell to Father Maloney’s home and while the appellant waited, Father Maloney and Sewell went to the bank and withdrew $300. of which Sewell gave the appellant $290.

Tumminello continued to demand money from Sewell who complained to the State’s Attorney. On May 23, 1967, the State’s Attorney, under Md. Code, Art. 27, § 125 (a) obtained an order from Judge J. Gilbert Prendergast to use an electronic device to overhear and record a conversation between Sewell and Tumminello. The order was based upon an affidavit by Sewell. At the same time an arrest warrant and search and seizure warrant were also issued.

At the direction of the State’s Attorney, Sewell then arranged to meet Tumminello in his office for the purpose of paying him additional money. Sewell was supplied with $150. marked money which he took to Tumminello’s office, with a hidden microphone which was to transmit the conversation to a recording device set up in an automobile near the office. Sewell entered the office, paid $100. of the money to Tumminello and had a conversation, the recording of which was partially garbled. When Sewell left the premises, the police entered, arrested Tumminello and recovered the $100.

The portion of the conversation which was recorded concerned Sewell’s claim that his attorney was demanding more money, and was threatening to have the suspension of his sentence revoked if he was not paid; and Tumminello’s lengthy advice that Sew-ell did not owe his lawyer any more money as he, Tumminello, was responsible for the change of sentence. A stenographer’s transcript of the clear portion of the tape was admitted in evidence. Tumminello did not testify at the second trial. Additional facts will be stated as various contentions are discussed. ⁶¹⁶ I Sufficiency of the Evidence Sewell testified that he was convinced Tumminello had “fixed the case” because the suspension of sentence occurred at the exact time and exact manner Tumminello had previously predicted and that he, Sewell, paid him the funds because he thought it was necessary for the appellant to obtain funds with which to bribe the judge and State’s Attorney, as appellant had represented to him.

The trial judge and the State’s Attorney both testified, denying receipt of any money or any knowledge of the appellant’s activities. In Lackard v. State, 8 Md. App. 580 , 583, 240 A. 2d 312 , we quoted the requirements set out in Smith v. State, 237 Md. 573 , 207 A. 2d 493 , 495 to establish the crime of obtaining money by false pretenses as follows: “‘(1) false representation of a past or existing fact; (2) made with intent to defraud; and (3) that the victim actually relied on the false representations to her loss.’ ” Clearly, the evidence recited sufficiently supports a guilty verdict under the aforegoing definition of the law. Appellant contends the evidence was insufficient to support his conviction by reason of the rule set out in Kucharczyk v. State, 235 Md. 334 , 201 A. 2d 683 wherein the Court of Appeals held that when a witness stated on direct examination that a crime occurred and on cross-examination that no crime occurred, his testimony was too-inconsistent to support a verdict of guilt. He points to Father Maloney’s testimony at the prior trial that the money given to Tumminello was. for bail as inconsistent with the testimony in the present trial that the money was for a “fix.” An analysis of the testimony shows that the testimony is not as inconsistent as represented.

Although some unimportant details of Father Maloney’s testimony were inconsistently recited, his testimony as to the important matters was clear. The record shows that'appellant stated-on the telephone -that , he wanted $500. from Father Maloney for the bail but when he ar ⁶¹⁷ rived at the house to collect the money, he demanded $600., stating it was to “fix” the case. This difference as to which conversation was referred to accounts for the apparent discrepancy. Appellant also contends that this testimony made Father Maloney an accomplice, whose testimony must be corroborated.

Assuming, without deciding, that this is true, there was ample evidence to corroborate the testimony in Sewell’s testimony and in the tapes. Appellant further contends that since the money furnished by the State’s Attorney was not lost, the victim did not rely on a false representation to his loss. This argument entirely overlooks the other sums paid, especially the $290. paid by Sewell to Tumminello at Father Maloney’s home after Sewell had been released on probation. II Incompetency of the Witness Sewell At the second Tumminello trial, the witness Sewell was found mentally incompetent to testify.

The trial court held Sewell’s insanity made him sufficiently unavailable for the present trial so as to allow the testimony from the prior trial to be admitted. In his appeal, appellant makes two concessions and raises two contentions. He concedes that: (1) Sewell was in fact incompetent at the second trial, (2) under Contee v. State, 229 Md. 486 , 184 A. 2d 823 , proof of the insanity of a witness is proof of sufficient unavailability to admit his testimony from a prior trial. See also Britton v. State, 10 Md. App. 70 , 267 A. 2d 747 as to proof of unavailability in general.

Appellant’s two contentions concerning Sewell’s incompetency are: (1) Since Sewell’s insanity is not permanent, and since possibility of recovery exists, the witness Sewell, although insane at the time of the second trial, would have been cured (and thus available) within a short time; therefore, it was error to admit his testimony from the prior trial. (2) Sewell was also incompetent at the time of the first trial; therefore, his testimony from ⁶¹⁸ the first trial should not have been admitted at the second trial. To support his first argument on Sewell’s incompetency, appellant cites Lindsay v. State, 2 Md. App. 330 , 234 A. 2d 479 holding that a witness being out of state until one or two days after the trial occurred was not sufficient unavailability to admit the testimony of the witness from a prior trial. The principles applied in Lindsay have no application to the facts of the present case since Sewell’s recovery, if any, was vague, indefinite, and uncertain.

The only specific testimony on Sewell’s cure was as follows: “THE COURT: Do you have any expectations that further treatment will result of curing him to a point where he will be able to at some future date testify in his own defense in the charges pending against him? “THE WITNESS [Dr. Adamo] : Well, we are trying. He is being treated the best we can but I must say that this paranoid type of schizophrenia is very difficult to treat. These beliefs which are based on a false reasoning are very difficult to change and modify. So, the only thing I can answer, we keep on trying in the hope that he will improve.” The vagueness of this testimony readily demonstrates the difference between the cure of this mentally ill witness as opposed to the return of a witness to this jurisdiction in a few days.

Appellant more strenuously urges the testimony showed the witness was incompetent to testify at the