Wilson v. State

Orth, J., delivered the opinion of the Court. Sullivan Wilson (appellant) was charged by indictment No. 1874 with possession (1st count) and control (2nd count) on 2 March 1968 of heroin, a narcotic drug. By an addendum to the indictment he was warned that the State intended to prosecute him for those offenses as a second offender. Harry Valentine (appellant) was charged in each of indictments Nos. 1871 and 1872 with possession and control of a narcotic drug on 16 March and 2 March 1968, respectively.

Wilson, Valentine, Erwin Randolph Nutter (appellant), Theodore Sylvester Cook, Edward Allen and Louis O. Taylor were jointly charged by indictment No. 1878 with conspiring together and with each other to violate the Narcotics Laws of the State of Maryland on 12 February 1968 and thence continually up to and including 18 March 1968. Wilson, Valentine and Nutter were jointly tried under the indictments at a court trial in the Criminal Court of Baltimore which began on 18 February 1969. 1 At the close of all the evidence the court granted motions for judgment of acquittal made by Valentine as to indictments Nos. 1871 and 1872. Wilson was found guilty under each count charged in indictment No. 1874 and, on a consecutive trial, upon the addendum. Wilson, Valentine and Nutter were each found guilty of conspiracy under indictment No. 1878.

FACTS It appeared from testimony adduced by the State and from a diagram admitted into evidence that the west side of Pennsylvania Avenue (the even numbered side) in ⁶⁵⁸ Baltimore City begins at its intersection with Mosher Street and, running in a northerly direction, ends at its intersection with Pitcher Street. Between Mosher and Pitcher Street it is intersected by Smithson Street and at the northwest corner of Smithson Street and Pennsylvania Avenue is the Alhambra Bar. Continuing in a northerly direction there follows the Ebony Barber Shop, a store, a Shoeshine Parlor, a driveway leading to a parking lot in the rear of 1530 Pennsylvania Avenue, the Spot Bar (1530 Pennsylvania Avenue), another driveway leading to the parking lot in the rear thereof and apparently more business establishments until the intersection with Pitcher Street. The east side of the 1500 block of Pennsylvania Avenue (the odd numbered side) begins at the intersection of Mosher Street and runs north to Mc-Mechen Street which intersects the east side of Pennsylvania Avenue but does not extend to intersect the west side.

The intersection of McMechen Street with the east side of Pennsylvania Avenue is south of the intersection of Pitcher Street with the west side of Pennsylvania Avenue. Smithson Street leads to an alley running along the rear of the properties facing on the west side of Pennsylvania Avenue. The police were investigating narcotics traffic in the Pennsylvania Avenue area. From 14 February 1968 to 16 March 1968 they conducted a surveillance of the 1500 block, most of their activities centering from Smithson Street to Pitcher Street.

This area was under observation each week day and occasionally on Sundays. “Some days we may have spent ten to twelve hours. On other days, particularly on Sundays, we may spend two or three hours.” It appeared that usually surveillance would begin about noon or shortly before and continue until about 4:00 P.M. The method of surveillance was primarily by personal observations of police officers, supplemented by photography — still photographs and movies. The still photographs were taken by an officer concealed in a building on the east side of Pennsylvania Avenue using a camera with a telephoto lens. The movies were taken ⁶⁵⁹ by officers concealed in a “surveillance vehicle” parked at the rear of the lot behind the shoe shop.

Activities and occurrences observed on seven days during the period of surveillance were shown in detail by evidence adduced. February Uk, 1968 About 1:35 P.M. Valentine was observed standing in the north driveway leading to the parking lot in the rear of the Spot Bar. A woman approached him and he nodded his head. They were joined by Taylor and Allen.

The woman gave Taylor something, received what appeared to be capsules from Taylor and departed. Ten still photographs showed substantially these occurrences and activities as described by an officer. They were also depicted in motion pictures taken. 2 February 16,1968 Valentine, Wilson, Taylor, Nutter and Allen were observed. When a woman approached, Valentine nodded his head and Wilson gave her “something” in exchange for “something else.” Nutter met Valentine in the rear of the shoeshine parlor and something was exchanged between them — “we cannot say exactly what it was.” Nutter then went in the direction of the barbershop, Valentine remaining in the parking lot area.

Valentine, Allen, Taylor and Wilson made several other “transactions” in the area of the parking lot. “In one situation Allen and Taylor were observed to make an exchange with a female and on another occasion [they] were observed to pull something out of Allen’s trousers. It would appear he had on two pair of trousers at the time and a manila envelope * * * And he gave Taylor some of the contents of the envelope, at which time he put the remainder back in his trousers.” On other occasions Valentine climbed up on something, and reaching into a rainspout in the rear of the shoeshine parlor took a package down, and went out of sight for a few minutes, came back, and put something into the rainspout. These occurrences and ac ⁶⁶⁰ tivities of 16 February were apparently shown in the movies taken. February 21,1968 Valentine and Taylor were on the parking lot near the Spot Bar.

At various times between noon and 4:00 P.M. a person approached them, talk for a few minutes, “and they would exchange something,” whereupon the unknown person would depart. February 2U, 1968 On several occasions during the period of surveillance a person would approach one or more of Taylor, Valentine and Wilson, make an exchange of something and depart, Taylor, Valentine or Wilson remaining. March 2,1968 A “source” was used by the police. The agent was searched and found to have no narcotics or money in his possession.

The police gave him a $5 bill. The agent walked south on Pennsylvania Avenue to Wilson and Valentine, who were in front of the Spot Bar. Valentine nodded to Wilson. A police officer was in a car parked on Pennsylvania Avenue about 75 feet from the scene.

After a short conversation between the agent and Wilson, the officer saw the agent give the money to Wilson and receive something from Wilson which Wilson took out of his pocket. The agent returned directly to the officer and gave the officer three gelatine capsules containing a powder. At the time the market price for the capsules was “three for five” dollars. It was established by analysis that the powder in the capsules was heroin hydrochloride.

The agent had been used by the police in this manner in other cases “numerous times.” He was considered by the police to be “quite reliable,” based on their experience with him in other cases. March 6,1968 The police observed Valentine “come to the rear of the parking lot and two persons stopped and talked to Edward Allen. Harry Valentine walked in — walked south ⁶⁶¹ into the Alhambra Bar. Edward Allen went in the bar and returned in a few minutes and went back to the two persons that had talked to Valentine and an exchange of something was made and the persons departed. * * * Allen remained in front of the parking lot where he was later joined by Valentine.” March 16,1968 The police “observed several people come up and talk to Allen and Allen went over to his car and reached down near the front wheel, the right front wheel of the car, where he took out a brown envelope.

He came back to those people. He returned to the car and reached down again towards the front wheel of the car and returned back to the front of the driveway — the parking lot.” Valentine and Cook were seated in the car during these occurrences. The police arrested Valentine, Cook, Allen and Taylor, who were also on the parking lot. Cook stated that he was the owner of the car and gave the police permission to search it.

The police searched the car and “removed from the [right] front wheel of the car a brown envelope.” It contained 7 clear gelatine capsules and 2 red gelatine capsules. It was shown upon analysis that the 7 clear capsules contained cocaine hydrochloride and the 2 red capsules contained heroin hydrochloride. Nutter was arrested on 16 March and Wilson on 17 March. 3 WILSON AND NUTTER Severance The Maryland Rules of Procedure as to a joint trial relate to both offenses and defendants. The general rule is that the court may order two or more indictments to be tried together if the offenses and the defendants could have been joined in a single indictment.

Rule 734. Two or more offenses may be charged in the same indictment in a separate count for each offense. Rule 716 a. Two or ⁶⁶² more defendants may be charged in the same indictment “if they are alleged to have participated in the same act or transaction or • in the same series of acts or transactions constituting an offense or offenses.

Such defendants may be charged in one or more counts together or separately and it shall not be necessary to charge all the defendants in each count.” Rule 716 b. But even if two or more offenses and two or more defendants could be charged in a single indictment, the court “if it appears that an accused or the State will be prejudiced by a joinder of offenses or defendants in an indictment, or by joinder of trial together, * * * may order an election or separate trial of counts, grant separate trials of defendants or provide such other relief as justice requires.” Rule 735. Valentine,. Wilson and Nutter were tried together under 1 the following indictments: No. 1871 charging Valentine with possession and control of a narcotic drug on 16 March 1968; No. 1872 charging Valentine with possession and control of a narcotic drug on 2 March 1968; No. 1874 charging Wilson with possession and control of a narcotic drug on 2 March 1968; No. 1878 charging Valentine, Wilson, Nutter (and Cook, Allen and Taylor — see note 1 supra) ing the period 12 February to 18 March 1968.

Nutter and Wilson, before any evidence was received, moved for a severance. 4 Rule 735. Nutter did not object to being tried together with the other defendants charged in No. 1878. but moved for a severance of that indictment from the other indictments in which he was not charged. Wilson moved that Nos. 1878 and 1874 not be tried to ⁶⁶³ gether and that neither of the indictments in which he was charged be tried with Nos. 1871 and 1872. The court denied the motions.

Nutter and Wilson claim error. In determining the question we are guided by the interpretation of the Court of Appeals with regard to Rules 716, 734 and 735. In Lewis v. State, 235 Md. 588 , Lewis and a, codefendant, Claude Street, were charged in seven indictments, Nos. 1853-1859, with robbery — three charging simple robbery and four armed robbery. Rosetta Green was also charged as a codefendant in No. 1854 and one Smith in No. 1857.

Street, alone, was charged with armed robbery in indictments Nos. 1860 and 1861 and with larceny in indictment No. 1862. Each of the indictments charged separate offenses at different times and places. All the cases were tried at the same time by the court sitting without a jury. The Court held that under the Rules the trial court did not have the right to require Lewis, over objection, to be tried at the same time all of the other offenses were tried.

It said that if the trial court found that neither the State nor Lewis should be prejudiced by a joinder for trial, it could have properly ordered a joinder for trial of indictments Nos. 1853, 1856, 1858 and 1859 as in those indictments only Lewis and Street were charged and those defendants “could have been charged with all of the offenses in one indictment by using separate counts.” 5 But the trial court erred in requiring a joinder for trial of those indictments with No. 1854 because “all of the defendants named therein were ‘not alleged to have participated in the same act or transaction or in the same series of acts or transactions’ which constituted the offenses in indictments 1853, 1855, 1856, 1857 and 1858 through 1862; hence all of the defendants could not properly have been indicted in one indictment, even though separate counts were used. And this, likewise, applies to indictment 1857. ⁶⁶⁴ Indictments 1860, 1861 and 1862 charged Street, alone, with offenses unrelated to the offenses charged in the other indictments. Again, it would not have been proper to have charged Street with the offenses named in these indictments and the other defendants with the crimes named in the other indictments in one indictment.” 285 Md. at 590-591. In McChan, Jones, Bethea, Griffin and Shelly v. State, 238 Md. 149 , eleven indictments were returned as a result of a series of armed robberies.

They presented charges against various defendants as follows: 1) Howard’s Liquor Store on 27 December 1963: No. 234 — armed robbery by McChan, Jones and Griffin. No. 236 — deadly weapon by McChan. 2) Eddie’s Cafe on 1 January 1964: No. 233 — armed robbery by McChan, Jones and Griffin. No. 237 — deadly weapon by McChan. 3) Lou’s Liquor Store on 2 January 1964: No. 230 — armed robbery by McChan, Jones, Bethea, Griffin and Shelly. No. 235 — deadly weapon by McChan. 4) Ensor Lounge on 2 January 1964: No. 228 — armed robbery by McChan, Jones, Griffin, Bethea and Shelly.

No. 238 — deadly weapon by McChan. 5) Howard’s Liquor Store on 9 January 1964: No. 229 — attempted armed robbery by Jones, Griffin and Bethea. No. 231 — assault with intent to murder by Bethea. No. 232 — deadly weapon by Bethea. McChan moved for a severance and the motion was denied and all the cases and all five defendants were tried together by the court sitting without a jury.

The Court of Appeals held that it was apparent that the motion for severance should have been granted. “This is so because ⁶⁶⁵ [McChan] was put on trial with his codefendants in four cases in which he was charged jointly with at least two of the other defendants, and in three cases in which he was not charged at all, in violation of Md. Rule 734,” citing Lewis v. State, supra. It reversed the judgments of conviction against McChan and remanded the cases for new trials. 6 In the instant case Nutter was put on trial with his codefendants in one case in which he was charged jointly with all his codefendants and in three cases in which he was not charged at all. Wilson was put on trial with his codefendants in one case in which he was jointly charged with all his codefendants and in two cases in which he was not charged at all. Under the rulings in Lewis and McChan this was improper, objection having been made.

The question is whether the charging of all the defendants with conspiracy operated to take the cases out of the Lewis and McChan holdings. We do not believe so. It is firmly establised that to aid in proof of the crime charged the State generally may prove prior acts, even though they constitute a crime, which tend to show motive, intent, a common scheme or design, absence of mistake or accident, or identity, if such a showing has relevance in establishing the principal fact at issue or matter in dispute. Ward v. State, 219 Md. 559 ; Jennings v. State, 8 Md. App. 312 (1969).

This general rule is applicable in cases of conspiracy. Bloomer v. State, 48 Md. 521 . Thus the acts of Wilson and Valentine, charged as substantive crimes in separate indictments against them, were admissible in the conspiracy case on the theory of a general plan. They were also admissible with regard to the conspiracy as acts occurring during a continuing conspiracy, being committed during the period of the conspiracy as alleged.

Greenwald v. State, 221 Md. 235, 250 . But we cannot agree that because the substantive offenses charged against Wilson and Valentine may have been admissible in the conspiracy case, this operated to permit ⁶⁶⁶ a joinder of trial of the substantive cases with the conspiracy case. To so hold would allow the State to avoid the intent of Rule 734 and obtain a joint trial of offenses and defendants, even though not chargeable in a single indictment, by charging that a number of persons conspired to commit substantive crimes charged against some of the alleged conspirators. If the State chooses to prosecute an individual conspirator for a substantive crime, he is entitled to a separate trial on that substantive crime on demand, even though the substantive crime constitutes an overt act tending to establish the conspiracy.

We think it was error to deny the motions for severance made by Wilson and Nutter. We must therefore reverse the judgments against them and remand the cases for a new trial. We note that the trial judge, if he found that neither the State nor the accused should be prejudiced by a joinder for trial as provided by Rule 735, could have properly ordered a joinder for trial of indictments 1872 and 1874 charging Valentine and Wilson, respectively, with possession and control of a narcotic drug on 2 March 1968, for these defendants could have been charged in one indictment, they being alleged to have participated in the same act or transaction. The Nondisclosure of- the Identity of the Agent of the Police In Nutter v. State, 8 Md. App. 635 (1970), we discussed fully the question of the disclosure of the identity of an informer.

We found the rule to be: The State has the privilege to withhold from disclosure the identity of persons who furnish information to police officers concerning the commission of crimes: except on the issue of guilt or innocence, and upon demand by the defendant, the trial court may, in the exercise of its judicial discretion, compel such disclosure upon demonstration that it is necessary and relevant to a fair defense. ⁶⁶⁷ We said that the factors to be considered in ascertaining whether such disclosure is necessary and relevant to a fair defense include the nature of the crime charged; the importance of the informer’s identity to a determination of innocence, as for example, whether or not the informer was an integral part of the illegal transaction and the possible significance of his testimony; and the possible defenses. Whether the privilege must yield depends on the facts and circumstances of the particular case. On cross-examination of the officer describing the activities of the agent, the State objected to questions by Wilson relating to the identity of the agent and the court said, “I will sustain the objection as to the actual identity of the source, but I will allow [the officer] to describe him as a human being of a certain race and general size.” It was elicited that the agent used by the police was “a colored male about twenty-seven. He was five foot eight.” He was not a police officer.

The police had used the same agent in a similar manner “numerous times” and considered him “quite reliable.” Objection to inquiry whether the agent had been convicted of a crime was sustained. It is clear that the court refused to compel disclosure of the actual identity of the agent demanded by Wilson. The point is squarely before us on appeal as to Wilson as he specifically claims that this was error. 7 Although we have reversed the judgments against Wilson on the ground of the improper denial of a severance, we think it necessary and