*1 PHILIPPE ANDRE SINCLAIR STATE
OF MARYLAND 591, September Term, [No. 1974.]
Decided June *2 and argued was before cause The Morton, Lowe, Davidson J.J. Spiller, brief Richard on Paul H. Morton Submitted Kimmel, Spiller Bradley for & Kimmel, Fred S. London appellant. General, Raum, Attorney
Bernard A. Assistant General, Burch, Richard R. whom were B. Attorney Francis Cooper, Attorney County, Kent and Basil for Wadkovsky, Deputy County, on Kent for brief, appellee. Davidson, J., opinion of the Court. delivered the Morton, page dissenting opinion at J., and filed dissents infra. by a Sinclair, Philippe Andre was convicted appellant, County (Wise, for Caroline sitting Court jury in the Circuit charges (contained in an separate five J., presiding) on Act, information) violating Worthless Check the so-called years, Code, A sentence of five with three 142. Art. (count imposed years suspended, on the first conviction was information) identical sentences concurrent 3 of the (counts remaining convictions imposed on four were information). The been removed case had 11, 15 County. for Kent the Circuit Court from issues, in a number raises appellant In this legally the evidence was he contends of which the first Code, finding guilt Art. under support a insufficient 27 § appellant the record appears from
It a resort operated Corporation which president of Sinwellan in Kent Lodge near Chestertown Oak as The Great known between separate occasions County, Maryland. On five signed checks July August 13, 1973, varying appellant, several drawn on banks amounts totaling payable Packing over made to Fulton Meat $10,000, Company (Fulton), company in were delivered to that payment for meats sold and delivered to The Great Oak Lodge. presented Each of the five checks was appropriate and each was bank Fulton returned with the Funds” notation “Insufficient and the further notation on checks, presented twice, please several of the “Check do not present again.” evidence There was that at the time of payment still had not been honored or trial below the checks made in lieu of the checks. to Fulton legally contending
In that the evidence was insufficient convictions, particularly sustain the it is contended appellant *3 there was no evidence to show that intended signed he cheat and defraud Fulton or that the dishonored proved checks; that there was no “evidence that insufficient prove delivery funds”; and that there was a failure to meats.
Code, 142, provides part: Art. 27 §
“Every person who, with intent to cheat and another, money, credit, goods defraud shall obtain * * * * * * anything by check, or means of a of value any negotiable any draft or of other instrument drawn, by person by any kind such or whether person, persons, corporation, upon other firm or * * * any bank and the paid upon same be not presentation, shall be deemed to have obtained such * * * money, credit, goods, things services or of * * * giving pretense. value means The of false check, negotiable of the aforesaid worthless draft or * * * instrument prima shall be facie evidence of defraud; provided intent to cheat or such person shall be a bona fide resident of the State of deposit and shall with the drawee of such * * * paper days within thereafter funds ten same, sufficient all costs and meet the with interest which have accrued he shall not be prosecuted section, under and no this by presentment,
either indictment or otherwise, shall be instituted commenced until after the expiration period days.” said of ten quarrel We cannot appellant’s statement that under mus; statute, the “State show that there was a representation of existing fact made with intent defraud, operation: and that the representation of such as a deception induced a transfer and the obtaining the money property by person committing the fraud loss of League another.” See v. State, App. 1 Md. 681. We cannot agree, however, that the State failed to meet its burden. manager credit (whose place Fulton principal business was in Massachusetts) testified agreed that Fulton to deliver Lodge meats to The Great upon Oak order of the chef and that shipments were to be made common (motor freight) carrier on a C.O.D. basis. The driver of the specifically truck was instructed to deliver the meats until payment, he had received either check or cash. He further given testified each of five checks was Fulton for meats “sold delivered” to The Great Oak Lodge. According manager, several on occasions when were unpaid, checks returned appellant he talked with “redeposit they who him right.” advised them and are all perfectly clear, therefore, We think it that Fulton was part property upon induced with its in reliance representation appellant (which turned out to be a *4 misrepresentation) the good. that were checks The statute provides giving that the of a prima worthless check “shall cheat; appellant facie evidence of intent to or defraud.” The only presumption by “making not failed to the good” rebut days provided the within ten statute, checks the the unpaid but the record indicates that the checks were still at Thus, rebutting the time of the trial below. rather than the statutory presumption, appellant’s the of course action appear to confirmed his intention cheat and have defraud. proof no in the that
We find merit contention there was no delivery of the of the meats. There was the evidence that the delivery until had received a make he driver was not to truck five checks in and Fulton had its payment check therefor ostensibly represented manager stated possession the testimony from There was meats. payment for the delivered delivery of the meats on several eyewitnesses to the appellant testimony the Finally, was of there the occasions. “redeposit manager of Fulton the credit himself who told hardly in the checks,” he would have made a statement delivery of the meats. absence highly signature, it respect appellant’s proof With manager the credit unlikely appellant would advise — — right” they “they all had redeposit are the checks Moreover, jury signature the drawer. his contained comparison themselves it for the checks had before checks were signature The issue of whether the cards. bank’s jury and the members appellant was for the drawn signature. obviously it that was concluded prove no evidence there was The contention patently pay the checks is frivolous. funds to insufficient paid. overwhelming they had not been evidence was The appellant’s Thus, contention that find no merit we finding guilt support legally insufficient evidence Code, under Art. 27 § validity upon vigorous attack appellant
The mounts Attorney had a “the State’s because of his convictions * * prosecuted nevertheless interest conflict of but attorney 24, 1974, January the state’s appears that on It Maryland: Governor following letter to the wrote the Sir: “Dear County of one is involved
Kent and the Sinwellan Philippe Andre Sinclair on whom were indicted Corporation, both charges County. 1973,in arose Kent October Lodge Oak and Yacht of Great a transfer out of Club. transpired which have have events
Certain handling prosecution. incapable me rendered *5 These events have been discussed with Clarence W. Sharp, Chief of the Criminal Division of the Attorney General’s Office.
I, therefore, hereby request the Attorney General’s Office handle the of these cases. you Thank very your much for kind cooperation
and consideration in this matter.” pretrial At a April 4, conference held on 1974, appellant that, discovered notwithstanding previous State’s motion to continue the case in permit order its prosecution by an attorney assistant general, rather than attorney, state’s attorney state’s going himself was prosecute April case. On 1974, appellant filed a seeking, motion among things, other disqualify the state’s attorney deputy and the attorney state’s prosecuting from the cases and to dismiss the cases because of a conflict of part interest on the of those officials. Attached to the motion appellant, a sworn affidavit of April 11, dated pertinent part which read in as follows: “(1) That the Attorney, Cooper, Richard Deputy and the Attorney, Wadkovsky, Basil hold partnership themselves out as a practice in Chestertown, of law in Maryland; (2) Wadkovsky That Basil is or has acted as attorney for the National Bank and such against Bank holds a note Frank and Ethel Russell Realty, Inc.; Great Oak Estates (3) Attorney Cooper That State’s is or has been appellant appended, In1. “A,” brief as Exhibit the letter dated January 24, attorney Governor, from the state’s the text of placed which was set forth above. This document was in the record attorney state’s also state’s as an attachment Appellant a motion for continuance. appended, “B,” May 20, 1974, Exhibit a document dated from the attorney appellant’s attorney. document, This written after the ended, appear trial does not in the record in the case. recipiatur In its brief the State made a motion iie and a motion to strike appellant’s Exhibits “A” and “B” from brief. The motion is denied with respect “A,” part Exhibit which the State itself made a record granted respect this case. isIt to Exhibit “B.” *6 against Tilley who attorney Carrol holds a note Club, Oaks & and Great Resort Yacht Russells Inc.; defendant, Philippe
(4) A. Sinclair That negotiating during and 1973 was involved Yacht purchase of Great Oak Resort & with the Inc., Realty, Club, Estates Inc., and Oak Great Russell; Frank and Ethel the lands Deputy Attorney Cooper and (5) State’s That attempted Wadkovsky to sell the Attorney State’s Philippe A. the defendant they held to *7 any would indicate conflict of interest or other posture which any way unduly would in prejudice represent the defendant. The indictments action of Jury, the Grand rather than prosecutor,[2] any improper and motivation of the Attorney filing presentments State’s in should be pursued civilly tactically. any adversary In proceeding opposing necessity counsel must of hostile, prosecutor and in the case of a he could competently perform otherwise, yet does not necessarily ground not disqualification. indicate for Such seems to be the situation here.” The office of the attorney state’s is constitutionally created: “There shall attorney be an for the State in each county, City Baltimore, styled to be The State’s * * Attorney, who shall be elected the voters thereof Maryland, Constitution of V, Art. 7. The attorney state’s is § branch, official of the executive State, Powell v. 16 Md. App. 685, 694-95, 1, n. and serves as a state rather than a officer, Pressman, Valle local v. 591, 229 Md. 600. “The * * * Attorney perform shall such duties as shall be * * prescribed by law Maryland, Constitution V, Art. § implementation 9. In of these provisions, constitutional Code, provides: Art. 10 34 “The for each county City and the shall, of Baltimore county such city, prosecute defend, part State, on the all cases which the State be interested.” The office of state’s attorney, being law, unknown to possessed the common judgments subject 2. The of conviction are of this were charges based on contained in an information. Rule 708. prescribed powers than those the Constitution no other State, Kilgour Evening Star statutes of v. State, v. 81 Md. 96 Md. Hawkins Newspaper Co., 306, 16, 29; powers nowhere enunciated and defined. these are but 310; Md. Aquilla, Price, Md. State v. Wells 443, 446; responsibility App. 487, denied, 755. Md. cert. level devolves prosecuting cases at the trial attorney by upon reason of his constitutional the state’s supra, Aquilla, at implemented statute. mandate 493; App. n. 10 Md. writ Hunter, State v. 305-06 having improvidently granted, certiorari dismissed as attorney’s routine 17. In addition to the state’s 263 Md. obligations prosecutor, he has duties as certain represents only public criminal court. “He very enforcement, but is also the realm of law State * * * * * * has, special he of the court so that sense as officer right duty help give impliedly, and the effect both the by the judgments pronounced under it as the law and the Wells, supra, Court.” at attorney is broad official
The state’s vested “with prosecute criminal causes.” discretion institute and Brack *8 Hunter, supra, Wells, 90; Aquilla, at 184 Md. 494; of Brack, supra, supra, at 305-06 n. 5. In at Court Appeals said: crime, persons of prosecutions of accused
“In such distinguish sound discretion to he must exercise a He guilty the innocent. must be and between the to institute official discretion with broad trusted causes, subject generally to prosecute criminal and purely is one not The office judicial control. learning the exercise of ministerial, but involves p. Jurisprudence, discretion. American and Attorney general rule, whether the State’s As a prosecution is particular a or not institute does does in his discretion.” matter which rests a attorney apparent, therefore, a is It is at once state’s public official; holding office; and an elected a constitutional government. a of of He can member the executive branch only be removed from incompetency, office “for wilful neglect duty, office, of or in misdemeanor on conviction a Law, Court Senate, a vote of two thirds of on the (Constitution recommendation of the General” Maryland, 7); VArt. and he is entrusted “with broad prosecute official discretion to institute 90). charges” (Brack, supra, at attorney perform a
That state’s should the duties of his fair, impartial objective in a office manner is to state American Bar Association Fair Standards obvious. {See words; Justice.) fair, impartial objective of Criminal — — readily generally words understood are somewhat difficult, occasion, specific on to define in terms of acts and individuals, including attorneys, All are conduct. state’s degrees subject emotion, prejudice, taste and innate predilection. Thus, always possible it is that the course of attorney, any public a conduct of state’s other official or citizen, private by worthy unworthy be motivated appraising attorney ideals. In of a conduct state’s who is here, having charged, as a conflict of interest of such proportions disqualify prosecuting as to him from a individual, particular we think the true measure or standard posed simple should be viewed in the which his conduct prosecuting issue: Did his action the individual result process denial of due of law to that individual. Otherwise stated, prosecution wanton, was the of the accused so harassing deny blatant as to the accused his right impartial our.view, In to a fair and trial. fundamental therefore, bringing the hard core issue is whether the being resulted the accused denied his process right due fundamental and constitutional society. right in modern law as that is known to us disposed by simple Thus, the issue before us cannot be *9 County attorney had a finding for Kent that the state’s concerned, appellant of interest insofar as the conflict judge judgment finding trial in this we make on the no and, process due respect. We the broader issue of look to standard, find a shred of by we cannot measured that any way indicate in the record before us to evidence impartial right to a fair denied appellant was the may resulted prosecution have appellant’s the trial. That attorney or state’s conduct the reprehensible from personal prejudice toward will by ill have been motivated attorney, does not state’s part of the appellant on the the the record before simple, crystal-clear that on fact alter the appellant were the result suffered the us the convictions impartial judge and being fair trial of his accorded circumstances, no merit the we find jury. Under these should be appellant’s convictions the contention that Attorney had conflict of reversed because “the State’s ** prosecuted *.” nevertheless interest but appellant prejudicial next that “The Court’s contends during coupled with error the remarks trial jury reversal instructions to the necessitates He also “The trial court aided the asserts that conviction[s].” * * carefully the record We have scrutinized find no It is the substance to these contentions. responsibility judge the trial of an of a trial to insure that fair, expeditious proceeds orderly in a manner. accused Judge State, App. 9 Md. Wise did Douglas See just prejudice rights of this and we see no appellant A trial. review of the the conduct they jury instructions demonstrates that contained a of the case. We clear law find and correct statement no error. “attempted
Finally, appellant asserts he $20,000.00 deposit was on with the demonstrate Guaranty Company Title and and that [he] * * * good] checks, five have used funds make these [to not to but for the fact that he was under Court order use agree judge them.” trial that such evidence was We find entirely and we no error in its exclusion. irrelevant Judgments affirmed; costs be
paid by appellant. by appellant jurisdictions cited from 3. We have reviewed cases other unpersuasive inapposite. and find them to *10 218
Davidson, J., dissenting: sequel
This is a State,1 depicts to Sinclair which persistent Attorney protect efforts of a State’s the citizens County activity. of Kent from criminal These cases concern Philippe Sinclair, appellant the activities of Andre (Sinclair), who, president Corporation, of the Sinwellan operated leased and a marina and “The resort known as Lodge” County, Great Oak situate near Chestertown Kent Maryland.
The pay initial case arose when Sinclair became unable to employees salary goods of one of his and for and services Lodge by repair rendered the Great Oak a television On 9 October 1973 for Kent business. Circuit Court jury, presided by Judge Wise, County, a over James A. Corporation convicted Sinclair Sinwellan violating Maryland (1957, Repl. Vol.) 27, Code Art. § money 144, “Obtaining negotiable ... check or other stop payment.” Accordingly, instrument with intent imprisonment Sinclair was sentenced to six months with suspended upon making three months of sentence a corporation $1,000 The fined of restitution. was which fine suspended. was On 15 October 1973 in the Circuit Court for County, jury, Judge again presiding, Kent with Wise Corporation convicted Sinclair of vio- and the Sinwellan lating 27, 142, “Obtaining money Art. check.” ... bad § was to a Sinclair sentenced consecutive six month term of imprisonment. corporation again $1,000 was fined suspended. fine The case concluded when both of the judgments Sinclair and Sinwellan Cor- were reversed. poration, supra. pay for case arose when Sinclair became unable to
This
lodge’s
meat used in the
On 9
some
restaurant.
November
County,
1973 in the Circuit Court
for Kent
Richard R.
County
Cooper,
(Cooper),
for Kent
filed
charging
20 count
information
both
and the
Sinclair
Corporation
separate
five
Sinwellan
violations on
Corp.,
646,
274 Md.
A. 2d
1. State v. Sinclair
and Sinwellan
aff'g,
App. 477,
(1974).
21 Md.
Cooper, removed the case and Deputy Wadkovsky, State’s January Basil 25 1974 On for a motion filed a (Wadkovsky), Attorney County for Kent among things, the fact: upon, other based continuance “3. has made certain That the Defendant Attorney
allegations concerning the State’s Attorney required which has the State’s to Maryland request the Governor of State of appoint Attorney prosecute to General to Attorney these cases. That Assistant tentatively assigned General who has been prosecution in handle the for the State is trial county and will in another not be available to prosecute (2) these cases for at least two please copy my months. Attached find a Mandel.” letter to Governor [sic] Cooper, letter, R. State’s At- from Richard The attached Governor, Mandel, dated torney, Marvin to the Honorable January 1974, events” had 24 indicated that “certain Cooper “incapable had rendered transpired which han- requested Attorney that prosecution” and “the dling the prosecution of these cases.”2 office handle the General’s April pretrial discovery on at a conference Sinclair’s Cooper going prosecute himself was cases provides Maryland V, “when Constitution 2. Article § Attorney Assembly, General] by he [the or required Governor General Attorney any brought prosecuting any suit action shall aid prosecute State, any he of this shall commence the or defend Court State State, any Courts, part any on the of the suit or action said according law, acting Assembly, Governor, or the General commenced, prosecuted defended....” shall direct to be Article, Proceedings (1974), 2-102 § Code Courts Judicial Repl. Vol.) (a) (1957, [formerly Art. states 11] Code codified as follows: proceeding, may appoint specific “If in a court advisable state, auditor, surveyor, reporter, authorized counsel for the court assistant accountant, rule, party counsel for a law or seeking, motion April 1974 Sinclair’s on 11 was followed Attorney Cooper things, disqualify State’s among other Wadkovsky prosecuting Deputy from of a conflict of cases, because and to dismiss the cases Attached to the motion part officials. on the of those interest in which he stated sworn affidavit was Sinclair’s against him were issued and and informations indictments purchase certain notes only he refused filed after owners of the Yacht of the indebtedness representing the clients, Wadkovsky’s private and after Cooper’s and Club Wadkovsky’s threats of Cooper’s and ignored he filed an from a civil that he event owners of the in favor of the against him and judgment January 1974, from letter dated copyA Yacht Club. Wise, 1974, Judge April On 17 Cooper, was also attached. hearing, motion. denied the without *12 April 1974 the on 22 According docket entries three, except numbers pros alii counts to nol motion information, was eleven, of the seven, fifteen and nineteen solely on proceeded on that date jury then granted. A trial charge against counts, which involved a each of those five 27, five 142 on distinct of Art. for a violation Sinclair jury found trial the conclusion At occasions. indicating Cooper, that he five counts. guilty of all Sinclair any [way] being in this as consider hoped doesn’t “the Court accused,” that then asked vindictive, I as have Judge Wise $95,500.00 discontinued. be pretrial of bond remarking that Sinclair, bail and released continued any and that there offense” “$95,000.00 ample for about is appearances Sinclair’s previous problem with been no had Sinclair, on Judge Wise sentenced 1974 On June for trial. counts, years five a term of five each suspended, were to be years of which imprisonment, three concurrently. Other criminal run all of the sentences with tried. remained to be against charges pending Sinclair presence may require officer, master, examiner, and or other court.” special prosecutor. appoint a Cooper court to not ask the did I eight grounds reversal. On Sinclair raises contentions agree majority that seven of Sinclair’s with however, I my colleagues, believe are without merit. Unlike which, believed, presented was evidence that there part of appearance of interest on the a conflict of create the Wadkovsky circumstances would Cooper and that such proceedings. for further and remand necessitate reversal Attorney is recognizes that the State’s majority to institute and discretion vested with broad official but, despite quotation its from prosecute criminal causes 319, 90, (1944), 2d A. Wells, Md. Brack exercise of makes mention of the fact no quotation A from judicial control. subject discretion provided by majority, Brack, supra, fuller than that states as follows: Maryland, Article
“By the Constitution perform such the State’s shall Section By prescribed. may law be Section 33 duties Code, 1939, officer is of Article 10 of defend, part of the ‘prosecute on the required to State, which the State all cases persons prosecutions accused In interested.’ such crime, a sound discretion to he must exercise guilty innocent. He distinguish between the discretion to be trusted broad official must causes, subject prosecute institute is one judicial The office generally to control. ministerial, the exercise
purely but involves Jurispru- American learning and discretion.
dence, rule, p. general As 245. a whether the par- Attorney does or does not institute a in matter which rests ticular is a grossly is abused that discretion discretion. Unless there is a clear duty compelled statute or such exists, will not showing duty mandamus that such Ryan, Juris, 623; 100 Corpus p. Boyne v. Cal. lie. 38 Burroughs, 90 Mich. 265, 707;McLaughlin P. v. 34 529, 66 311, 283; Talty, 166Mo. S. 51 N. W. State v. petition allegation this
W. There is no the 361.
222 grossly abused, nor do that such discretion was
case gross facts as set constitute abuse of the out arbitrarily The statement that he acted discretion. capriciously pleader.” is a conclusion of the added.) (Emphasis believed,
I the facts set out here persuaded am Attorney’s gross a abuse of the State’s discretion constitute prosecution. I a criminal further believe that this to institute obligation remedy power and such an Court has the abuse. appraise a the conduct of
The standards which by Maryland law.4 It is the Attorney are established every lawyer, represent duty prosecutor, of as ABA, Code, zealously the of the law. client within bounds power the 7, 7-1. the Ethical Consideration Because Canon prosecutions in him an prosecutor vests to institute justice at least authority in the administration of criminal authority greater than, sweeping as, perhaps as Bar cases, American presides in criminal judge who Relating Association, to the Administration Standards Introduction, Function, at Justice, The Prosecution Criminal ABA, 1974) referred to as (Compilation, [hereinafter Standards], public prosecutor responsibility differs justice, duty His is seek of the usual advocate. from that State, 684, App. Powell v. 16 Md. merely to convict. not Code, (1973); ABA, 1, 454, n. 1 A. 2d 694-95 n. ABA, Standards, 7-18; see Ethical Consideration Function, (c) obligation at 1.1 83. His Prosecution § well public the innocent as interest but protect only persons, guaranteed to safeguard rights all and to upon appear Code of Professional relied The standards Responsibility referred American Bar Association [hereinafter Appeals, Maryland Code], ABA, Rule 1970 the Court of On 13 October thereby imbuing adopted with the force of law. Code it the ABA Code, Constitution, IV, ABA contained Maryland Appendix Art. 18A. The Maryland Procedure, 9B of Vol. F Rules of to’the parts: Vol.) Repl. the Canons (1957, 1971 of three consists inter-related Code objectives norms; which are the Ethical Considerations axiomatic which are toward Disciplinary strive; legal and the Rules should which profession professional acceptable level of conduct. See the minimum establish App. 280, Comstock, Trust, 23 Md. n. Inc. Investment Crest A. 2d 891, 904 (1974). n. *14 guilty. Brack, supra, at 184 Md. including those who 7-13; see 321; ABA, Code, 40 A. 2d Consideration Ethical Function, at ABA, Standards, The Introduction Prosecution Maryland, in Supreme Brady stated v. 77. As the Court 1194, 1197(1963): 85, 87, U. S. 83 S. Ct. guilty only when are
“Society not wins fair; our when trials are but convicted justice suffers system administration of the unfairly.” is treated when an accused must, State, he represents prosecutor Because a impartial in the only judge, be disinterested must a appear People to be so his duties but also performance of Maryland authority that in for the statement there is no direct While discharge impartial of his prosecutor in the disinterested and must be a clearly duties, in illustrate that prosecutorial cited the text the authorities Indeed, system. justice principle fundamental to our criminal is one such a the impartiality an obvious one. majority opinion is that this rule states (1957, Repl. worthy pursuant Code note that It is order, issued, by 41, 14A, executive Vol.) Mandel Governor Marvin Art. concerning possible conflict of September Ethics a Code of dated 4 interests, employees branch of state of the executive all officers and for Orders, 9A, Supp.) (Vol. government. Maryland p. Executive 1974Cum. Code Policy provides I, that: Declaration of 130.Article employees responsible people all of the are officers and “State any segment group. The not to favored or of the State and in must be conducted such an of the State and affairs business impartial or employees opportunity must personal persons officer understand that no State manner that all improperly employee officers and influenced. State can be bias, prejudice, or where must avoid all situations They personal gain decisions. could influence their for suggesting equally favoritism or avoid circumstances motivating gain conduct of State force Government. the minimum ethical of this Code to set forth “It is the intent employees the executive be followed officers standards to only government. intended not These standards are of the branch to result the might employees require to avoid activities officers and private gain employment using public or for office or person any organization giving but of favored treatment public in the executive branch confidence also to maintain opportunity personal might permit prohibiting activities objectives preference gain personal to influence decisions. impartial State administration are to maintain government.” public government confidence and to maintain who, Attorneys, the actually governs of State’s the conduct this Code Whether State rather although and officials executive branch members of the officers, constitutionally has not jurisdictions, established are local than Maryland. decided *15 132, (N.Y.Cty.Ct. 1972); v. Krstovich, N.Y.S.2d 137 State 338 1968); 192, (Wash. App. v. Huson, 440 2d 195 State P. 1960); 51, (Mo.App. People v. McIntosh, 58 333 S.W.2d 1957); 419, (N.Y. App.Div. 424 Lombard, State N.Y.S.2d 168 State, Tate, (La. 1936); 229, 112 v. 171 Hall v. P. So. 217 ABA, Code, 9; 1923); Canons and (Okla.Crim.App. Canon 231 XXIII, Ethics, IV, XIII, XXVIII, Canons Rules of Judicial XXXII, XXXIII, 2 (adopted Maryland 1231); Rule Rule 1.2, 84; Function, 42 Standards, The Prosecution at ABA, § Jur., (1942); Prosecuting A at 255-56 23A ttor.ieys, Am. § (1961); C.J.S., C.J.S., Law, District and Criminal § Prosecuting (1959). In Attorneys, (1), at 674 order to § all, equal prosecutor must use fair and treatment assure discretionary governmental of restraint exercise ABA, prosecute. powers, such in the of cases to selection 7-13; Standards, ABA, The Code, see Ethical Consideration Function, Comment, (c), 83; Prosecution 1.1 at — A Re-evaluation Prosecutorial Discretion of and its Potential Prosecutor’s Unbridled Discretion generally Uviller, (1971). Abuse, L. Rev. 485 See DePaul Quest Commentary, Prosecutor an The Virtuous ABA, 71 Mich.L.Rev. Ethical Standard: Guidance from Responsibility Freedman, (1973); Professional (1967). He, like Prosecuting Attorney, 55 G.L.J. 1030 possesses discretionary powers attorney government who position, litigation, not use his to civil should relative parties government, or to power to harass economic Code, ABA, See bring unjust settlements results. about Finally, lawyers, he is like all 7-14. Ethical Consideration presenting, or participate in threaten present, forbidden advantage in charges solely to obtain present 7-105; Disciplinary ABA, Code, Rule State see matter. a civil Super. 1960). 227, 230-31(N.J. A. 163 2d Motors, v. Detroit was and there sworn Here the record shows that years 1972 testimony effect in the uncontradicted buy Oak negotiating the Great and 1973 Sinclair Inc., Realty, Club, Inc., Oak Estates Great Resort and Yacht July In Frank and Ethel Russell. the lands of Cooper Deputy State’s August Attorney Wadkovsky, partners private who then were in the law, practice represented and who held clients who *16 Thereafter, October, presentments would indict in Sinclair. grand jury. were made the to On 29 October 1973 the by in civil the suit was noted following Sinclair. On the day, grand 30 October jury the special was called into session and against returned several indictments Sinclair. On according entries, November to the docket Attorney Cooper filed the 20 charging count information the violations here involved. January Cooper attempted disqualify
On 24 to by requesting himself in a letter to the Governor the appointment Attorney prosecute General to the cases, indicating Sinclair-Sinwellan in the letter that transpired “certain events” had rendered which him incapable handling prosecutions. The those nature of the continuance, events was clarified in a for motion filed the day, explained allegations” by next that “certain made concerning Attorney “required” Sinclair the State’s had him request Attorney appointment to the General’s as prosecutor. pointed The motion out that an assistant Attorney tentatively assigned, General had been but that he months, would not for at be available least two and that the by Attorney’s continuance was necessitated the State’s April 1974, disqualification. according On 4 to a motion for disqualification by Sinclair, notwithstanding filed apparent fact that postponed trial had April until 22 permit Cooper’s in replacement order General, Attorney Cooper Assistant Sinclair learned that going prosecute. himself April was On 11 1974 Sinclair disqualification filed the which, motion for and dismissal said, Judge April we have Wise denied on 1974. On grossed April Attorney nol 15 of the 20 information, proceeded in and the counts case to trial on remaining jury’s guilty, five counts. After the verdict of Cooper’s Judge denied motion to Wise discontinue Sinclair’s outstanding charges $95,500.00 bail bond. Other criminal against remained be tried. Sinclair relating that, believed, think the evidence
I engaged pattern the State’s of conduct particular assistant, whole, and in viewed as his attempted arrangements Cooper to make twice evidence that clients, private he benefit of his with Sinclair for the with criminal threatened Sinclair once appealed judgment civil event that Sinclair an adverse clients, that, private by parties indebted to his obtained disqualify fact, Cooper attempted himself because misconduct, give “allegations” of at least Sinclair’s fact, appearance Cooper did, threatened to and purpose obtaining the charges present private clients’ interests protecting his advantage of outstanding notes. securing on their repayment appearance believed, give the also would evidence, if charge prosecute Sinclair Cooper’s determination *17 prosecutions successive part hope that in the motivated capitulate and cause Sinclair would and convictions purchasing the of his Cooper, either *18 convicting personal in the accused. La.Stat.Ann. interest for (3). has 15:310, also a statute (1950) While Missouri Rev.Stat. replace regular special prosecutor power appoint to the grants prosecutor a a court recognized “interested,” the have the Missouri courts he where is Jones, prosecutor. temporary appoint power so inherent court formerly 56.110, (1969) Supra, 85; § see Mo.Rev.Stat. at 262 S. W. (1919) 742. Mo.Rev.Stat. (1933); App. 63-64, Md. State, 50-54 Hopkins v. the (1974). A. 2d in Coblentz Court of 744-45 Yet Appeals dicta, pecuniary a direct interest recognized, in that grand juror. disqualify in a The serve to would disqualification, of determining test existence such the grand Appeals, whether the according to the of Court by acquittal juror “gain or the lose” a conviction of or accused. century Appeals ago.the Court of decided the case
Over a State, (1869). pled There Md. 163 the defendant of Clare v. against him in to the indictment that the abatement not in the of the law had been followed selection-of mandates selected, jury, its had grand the because members by judges required, but a court clerk. The as the law factually allegation determined this lower court informality correct, held it a mere but that concerned plea and the defendant defect. The was overruled not a fatal Appeals of reversed the On the Court convicted. conviction, notwithstanding fact the judgment of any prejudice alleged proved specific defendant had not of Court him method selection. from unlawful Md. 177-178: Appeals said at 30 there trial, indispensable, a criminal “It find indictment inquest required grand men,’ ‘goodand lawful be constituted should it, any part lie under body, substantial if the challenged they may be disqualification, presented; or after the the bill is prisoner before plead objection in finding, prisoner thereof. abatement Judge remarks of in the fully concur
“We opinion Hitchcock, dissenting Boyington Porter, 143, State, subsequently which was overruling the decisions Alabama followed case, principle ‘what majority in that opinion of the sacred than that policy be more public can Ought pure? .. not the justice . should be sources found say indictments rather court men, revoked, shall be good and lawful persons not
229 none, annulled and If holden forever? I am to be put life, my my accusers, least, on trial for let at be legales boni et It homines.’ results from these views legal that there has no been trial and conviction of prisoner in this case. any government “Under law trial of persons crime, accused from its commencement conclusion, scrupulously should be conducted according requirements only law. of the Not public private the sacred administration justice, community, good but the order security protection life, liberty property, preserved, except by cannot be the inflexible impartial maintenance enforcement of the statutory, as as the well fundamental laws of the provisions land. Where the substantial of the law regarded, party have and a has been thereof, convicted violation and without their sanction, party reversal, legal such is entitled to a steps in due time are taken to obtain redress.
“For judgment these reasons the of the court overruling pleas below abatement, and the judgment final prisoner, of conviction of the must be reversed; but this does not entitle him to be discharged, legal or exonerate him from a trial for the same may He offense. be held under original capias, commitment or until a new in- framed, dictment is under which a trial had; or discharged until he is in due course of law.” (Citations omitted.) principles
The same
were
quoted
affirmed and
in State v.
Vincent,
718, 732,
91 Md.
1036,
47 A.
(1900),
1040
and State v.
Madison,
265, 269,
240 Md.
880,
(1965);
213 A. 2d
see
Kiff,
493,
Peters
407 U. S.
(1972);
S. Ct. 2163
Cassell v.
Texas, 339
282,
U. S.
70 S.
629 (1950).
Ct.
See also Beck v.
Washington,
541,
546,
U. S.
82 S. Ct.
(1972)
(dicta), 369 U.
S.
Viewed narrow these cases establish grand juror disqualified by when a virtue of direct prosecution, pecuniary interest in the outcome a criminal *20 jury grand when of of a or the method selection is violative law, though to a even no of the defendant is entitled reversal alleged proved. in a broader prejudice is or Viewed actual where there is perspective these cases establish that during a violation of law the inherent unfairness or accusatory phase prosecution a reversal of criminal proof allegation of an or of warranted even in the absence prejudice. actual applicable the
I principles am convinced are that these they grand jury Accusers, the or the State’s case. be instant “good A Attorney, aííid lawful men.” should be pecuniary juror, direct Attorney, grand who has a like a prosecution, should in the of a interest outcome prosecutor his duties Moreover, a who exercises disqualified. law, like a contrary requirements the of the a manner contrary way in a grand jury which is selected law, defect in the creates a fatal requirements of the prosecution. Continuation accusatory phase the criminal of governed to be we are concept of the American justice people have faith that requires rules of law Code, system.7 ABA, through legal our be obtained can justified 9-1. That faith is 9, Ethical Consideration Canon people justice only are convinced that when the can exist evenhandedly. of a The exercise is administered whom, what and determine prerogative to Attorney’s broad of rigidly standards prosecute must adhere how to Any by law. act not accordance established conduct confidence of the impairs the standards, it those because sovereign the State’s integrity the exercise of people in sanctity judicial process integrity concept and the expressed eloquently heritage, in the long part justice, was of our cultural Magna liberties, English great Carta: year document 1215 the delay, deny, we sell, will none none will we “To right will we none justice.” p. (1966). Freedom, Magna Carta, Stringham, Fountainhead R. See power prosecute, destroy to indict and people’s tends equal justice. faith in the fair and administration of Such acts are not to be sanctioned or condoned the courts. they When occur reversal is notwithstanding warranted any allegation proof absence of prejudice. of actual adduced, which, believed, Here, there was evidence if support would the inference that brought by person pecuniary who had a direct interest prosecution. the outcome of the criminal He and his gain financially, assistant would if stand to as a result of prosecutions convictions, capitulated successive Sinclair previous purchased to their demands either the notes “voluntarily” held pending their clients or dismissed a appeal. circumstances, civil Under such both should have disqualified. Moreover, there was evidence adduced which, believed, give here appearance *21 the of a requirements violation of the fundamental of law that a Attorney discharge fairly impartially and act the his duties and the exercise of his discretion. I could not Attorney sanction or condone the conduct of the State’s and if, fact, assistant it was as sworn to the defendant. Accordingly, under I such circumstances would reverse the convictions, notwithstanding allegation the absence of an proof prejudice of actual to Sinclair.
Here, however, court, viewing the trial the facts as sworn hearing to no allegations,” Sinclair as held “bald respect question and of whether the State’s engaged gave his assistant a course of conduct which appearance impropriety. Thus, findings no were made as the facts sworn to Sinclair were true. Under whether I nor these circumstances would affirm reverse neither judgments the trial below but would remand the case to hearing findings evidentiary and of fact on this court for an Cooper question. If were to find the trial court Wadkovsky engage questionable in a course of did not conduct, If were would stand. the trial court the convictions contrary, it should then dismiss the to find to the and, pursuant Maryland informations Code Courts (1974) (a) [formerly Proceedings Article, and Judicial § 2-102 Vol.) Repl. 26, (1957, Art. codified as ll].8 Code § who then appoint the State should counsel for assistant impartial public basis whether the determine a fair and on new criminal be that a requires interest either discharged. I be would so do not Sinclair instituted or that danger here from the only protect defendant only by doing so but also because prejudice, substantial impartial, people’s belief I be could certain sovereign unprejudiced use of unbiased prosecute be vindicated power to indict reaffirmed. respectfully
I dissent. statutory right appoint upon judge provision This confers 8. public requires. interest so See State whenever the assistant counsel for the note to 2-102 states 3, supra. reviser’s this section is based The § nóte judges grants IV, which on 9 of the Constitution Both Art. § authority appoint personnel and rules a number of statutes and on broad including 26, provide appointments, former Art. such § IV, provision, Art. § reviser also indicates that apparently constitutional law. of the common declarative appointment provides that an While the Article Courts present forerunner, proceeding,” specific Art. its “if in a made advisable “public appointments interest provided be made whenever could that such requires it.” notes matter July August of 1973. The Sinclair in October of and thereafter not consummated presentment Attorney Cooper made State’s County issued Jury of Kent the Grand subject informations which are the matter Jury actions; and Grand present criminal indictments; returned Attorney Cooper in October of (6) That State’s Jury, presentment Grand prior any Philippe A. defendant Sinclair informed the appeal entitled filed in the civil action defendant Club, Inc., et al. v. Resort & Yacht Great Oak Cooper, Attorney al., he, Sinclair, et defendant; indict the 29,1973; (7) appeal was taken on October special Jury was into (8) The Grand called following appeal of the civil day on the session returned; were indictments action and being (9) filed on be- Previous to Sinclair, Jury the Grand had half defendant any given presentments but had returned indictments.” Maryland, dated copy to the Governor A of the letter above, attorney, forth January 24, the state’s set from the affidavit. was attached to Wise, considering motion Judge April 17, 1974, On trial grant appropriate relief before to dismiss as one to under Rule order, entered an without a hearing, denying the In motion. preceding text order, Judge stated, part: Wise grounds “The mostly for relief consist of bald allegations. appear While it would therefrom that Deputy may and/or his have had or evinced an antagonistic adverse or even interest, nothing alleged there is or inferable that
Notes
notes against Club, Inc., the Great Oak Resort and Yacht Great Inc., Realty, Oak Russell, Estates Frank and Ethel attempted sell Sinclair the notes held their clients. The Moreover, matter was never consummated. there was sworn, testimony October, uncontradicted show that 1973, Cooper informed Sinclair that if he filed an in a civil action Club, entitled Great Oak Inc., Resort and Yacht al., Sinclair, al., he, et et Attorney Cooper,
notes cooperate with litigation civil filing an the not clients or Cooper appear used his making it that involved, thus government to harass Sinclair power of the position the and unjust result. compel an unwarranted and to believed, support evidence, if would the Consequently, which, pattern Cooper engaged in a of conduct that inference nor was neither disinterested that he if did establish it did, duties, least, give at performance of his impartial in the special personal was in interest appearance that his justice public obligation to administer with his conflict impartially. fairly and activities, if concerning Cooper’s sum, the evidence In at least show believed, be sufficient would 227 Attorney gave appearance of conduct also, by Maryland violating law. It the standards established believed, danger prejudice of substantial would create being unnecessarily resulting from his to the defendant subjected prosecution for a reason other than preservation public Under circum- interest. such Attorney in of the State’s institut- the discretion stances be, my view, ing instant criminal grossly abused. attorney who prosecuting abuses I believe that a by initiating acting in a criminal case discretion special personal a conflicts which he has interest which impartial discharge of his duties should be with the fair when the disqualified and that a conviction obtained prosecutor has should be reversed. Some such interest problem agree.6 state courts which have considered this precedent Maryland respect While there no with Appeals have question, this and this Court Court respect grand jury questions similar with considered system. long recognized In it has there is no grand statutory requirement jurors or other unprejudiced. State, 558, 570-71, v. 164 Md. 166 A. Coblentz 392, 1970); Cox, Snyder, (La. v. 2d 395 State 167 So. v. 237 So. 2d State Tate, 186, 1956); Marcotte, (La. 352, (La. 1964); 188 v. So. 2d 86 357-58 State 1924); Jones, 83, (Mo. App. 111-13; supra, Hall, v. W. 85-86 171 So. State 268 S. at 988, (Colo. 231; Conyers People, P. 2d 990 supra, v. 155 at 217 P. see 522, State, reversed). 1945) hearing (probation But Garton v. 454 S.W.2d see 195, 1967); (S. Goodwin, App. 1970); (Mo. 196 C. v. S.E.2d 526 State v. State 857, (N.J. 1966); Melerine, Rosengard, v. 109 So. State 219 A. 2d 2d People Tibbitts, 1959); (La. 457-60 and 109 So. 474-78 2d Disqualifica- Annotation, generally 1925). (Cal.Dt.App. See P. Relationship Prosecuting Ac- Attorney on Account tion cused, (1970). A.L.R.3d prosecuting requires judge to excuse a which has a statute Louisiana being “personal exist, interest attorney specified causes one where certain prosecution,” cases cited cause the Louisiana that of the adverse to prosecuting requiring disqualification of a have construed above attorney —