GEORGE FRANKLIN SINE v. STATE OF MARYLAND
No. 22, September Term, 1978
Court of Special Appeals of Maryland
November 6, 1978
40 Md. App. 628
Accordingly, we conclude that there was no variance between the allegata and the probata, and that, if the evidence sufficed to establish that appellant aided or abetted a storehouse breaking with intent to commit “grand” larceny, it sufficed to support his conviction on the indictment.
Judgment affirmed; appellant to pay the costs.
Submitted by Alan H. Murrell, Public Defender, and Victoria A. Salner, Assistant Public Defender, for appellant.
Submitted by Francis Bill Burch, Attorney General, Stephen Rosenbaum, Assistant Attorney General, Warren B. Duckett, Jr., State‘s Attorney for Anne Arundel County, and Gerald K. Anders, Assistant State‘s Attorney for Anne Arundel County, for appellee.
THOMPSON, J., delivered the opinion of the Court.
DAVIDSON, J., dissents and filed a dissenting opinion at page 636 infra.
George Franklin Sine was convicted in a jury trial, in the Circuit Court for Anne Arundel County, of attempting to obtain money under false pretenses, conspiracy to obtain money under false pretenses, and making a false report to the police. He was sentenced to two concurrent five year terms on the first two charges and to a one year term, running consecutively, on the false report chargе.
On appeal he raises the following issues:
- Whether the court gave an erroneous instruction concerning the burden of proving the voluntariness of a confession.
- Whether the evidence was sufficient to sustain the conviction of making a false report.
- Whether the sentence on the charge of making a false report was illegal because it exceeded the statutory maximum.
After the collision, an ambulance was called and Officer George H. Hall of the Anne Arundel County Police Force was dispatched to the scеne. During his on-the-scene investigation, Officer Hall was told by Michael Carey that the U-Haul truck which he, Carey, had been driving crossed the center line of Constant Avenue and collided with appellant‘s car. Carey gave no explanation of why this happened. Carey‘s version of how the collision occurred was corroborated in a statement by Joseph Sine to Officer Hall at North Arundel Hospital approximately 30 minutes later. Officer Hall did not speak to the appellant who was then being treated by emergency medical personnel.
Appellant was taken from the scene of the collision to University Hospital in Baltimore where he was examined for injuries. No external injuries were discovered and routine exploratory surgery revealed no internal hemorrhaging. He remained in the hospital overnight and was discharged thе following day.
Appellant subsequently made a claim for compensation against U-Haul. Some settlement negotiations took place directly between appellant and U-Haul‘s insurance adjustor but they failed to reach an agreement and appellant subsequently brought suit against Michael Carey and U-Haul in an attempt to recover damages alleged to have resulted from the collision. Two Anne Arundel County detectives testified that appellant told them that he had staged the
I The Erroneous Jury Instruction
The trial court gave the following instruction on the issue of the voluntariness of the above-mentioned statements:
“Likewise, a confession in this state must be freely and voluntarily given. If you find that there was a statement made by the accused, but this statement was not freely and voluntarily given with complete knowledge and waiver of his constitutional right to remain silent, then ... and you find that by a preponderance of the evidence, you‘re satisfied that that is it, then of course, that statement cannot be used to convict him.” (ellipsis in transcript).
This was the only instruction given on the point. Although it does not explicitly allocate the burden of proof as between the parties, this statement is clearly susceptible of the interpretation that the appellant bore the burden of proving by a preponderance of the evidence that his incriminating statements were made involuntarily. Accordingly, it constituted error.1 Gill v. State, 265 Md. 350, 289 A. 2d 575 (1972); Linkins v. State, 202 Md. 212, 96 A. 2d 246 (1953);
Appellant points to three considerations which, he argues, would justify the exercise of our discretion in his favor in this case. First, he points out that the error was prejudicial. The mere fact that the alleged error may have resulted in some prejudice to the appellant does not, in itself, justify the invocation of the plain error rule. Otherwise, any error that could not be considered harmless would be reviewable and
Second, he states that the error here, even if pointed out to the trial judge, could not have been corrected. We disagree. The instruction was of such a character that if the error had been brought to the court‘s attention the proper clarification
The third consideratiоn raised by appellant is “the likelihood that defense counsel‘s failure to object was neither a trial tactic nor inadvertence, but rather the result of a belief that the instruction as given was in accord with the law.” In his argument to the jury, made prior to the court‘s instructions, defense counsel said:
“Judge Childs will instruct you to the effect that in order for a statement to be identified and go to the jury as evidence, it has to be freely and voluntarily made and the burden is upon the State to prove by a preponderance of evidence that that statement was freely and voluntarily made.”
In addition, he submitted a written request for a jury instruction to the same effect. Apparently, therefore, counsel was aware that the burden of proving the voluntariness of a confession was with the State. Although he was apparently under a misapprehension as to the extent of that burden with respect to whether or not the jury may consider it as bearing on guilt after all the evidence is in. Gill v. State, supra; Linkins v. State, supra; Smith v. State, supra. It appears, therefore, that counsel‘s failure to object to the erroneous jury instruction was more the result of inadvertence than of an understandable belief that the instruction was correct. It may be true that even if defense counsel had objected he would have argued for a statement of the State‘s burden of proof less demanding than that which the law requires. On the other hand, it is also likely that had the trial judge‘s error been brought to his attention he would have fully and completely corrected it despite counsel‘s apparent imperfect position on the point. The purpose of Rule 757 f is to give the trial judge an opportunity to correct any error in his instructions, Anderson v. State, 12 Md. App. 186, 278 A. 2d 439 (1971), cert.
In light of the above discussion we find nothing compelling or exceptional about the circumstances of this case and we therefore decline to exercise our discretion under
II The False Report Conviction
The appellant contends that the evidence was insufficient to sustain his conviction for making a false report to the police.
“Any person who makes a false statement, report or complaint, or who causes a false statement, report or complaint to be made, to any peace or police officer of this State, or of any county, city or other political subdivision of this State, knowing the same, or any material part thereof, to be false and with intent to deceive and with intent to cause an investigation or other action to be taken as a result thereof, shall be deemed guilty of a misdemeanor and upon conviction shall be subject to a fine of not more than five hundred dollars ($500.00), or be imprisoned not more than six (6) months, or be both fined and imprisoned, in the discretion of the court.”
The record clearly shows that appellant himself made no statements to the police at the scene of the accident. Nor does it appear that he made any false statements to the police at any time thereafter. He seizes upon this circumstance to make a two-pronged argument that the evidence was insufficient to convict him of the crime charged.
Appellant first argues that the only statements made to the police concerning the accident were those of his brother, Joseph Sine, and Michael Carey, the driver of the U-Haul
With respect to the instant case, although the statements standing alone may have been factually true, they were only partially true under the circumstances and they were employed to convey a false impression to the investigating officеr. Therefore, appellant‘s argument that no false statements were made to the officer is without merit.
The second prong of appellant‘s argument on this issue is that he could not be convicted as a principal in the making of a false report because he neither made any such reports himself nor participated in, aided, or abetted the making of any such report. The evidence was clearly sufficient to show
As the crime charged is a misdemeanor all those participating in it “whether as principal or perpetrator, accessory before the fact, or aider or abettor are chargeable as principals.” Polisher, supra at 590, 276 A. 2d at 119.
III The Sentence for Conviction Under Art. 27, § 150
Judgments affirmed, except sentence for making a false report vacated and case remanded for resentencing.
2/3 of cоsts to be paid by appellant and 1/3 by Anne Arundel County.
Davidson, J., dissenting:
I agree with the majority that the trial court erred in its instructions on the question of the voluntariness of the appellant‘s inculpatory statements. Unlike my colleagues, however, I believe that there are compelling or exceptional circumstances in this case which justify the exercise of the discretion accorded by
I do not agree with the majority‘s assessment thаt the trial court‘s error “may have resulted in some prejudice to the
The significant impact of an accused‘s inculpatory statement has long been recognized. Thus, in Jackson v. Denno,1 the Supreme Court said:
“It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession ... and even though there is ample evidence aside from the confession to support the conviction.” 2
Here the appellant adduced evidence to show that his inculpatory statements were involuntary. The record shows that these statements constituted the most damaging evidence presented against him. Indeed, it is unclear whether absent those statements, the evidence would have been sufficient to sustain his convictions. Because the trial court improperly shifted the burden of proof to the defendant, or in the alternative, improperly articulated the applicable standard by which to determine the voluntariness of the statements, the jury may well have concluded that the statements were voluntary and considered them in reaching its verdict. But for these improper instructions, the jury might have concluded that the statements were involuntary and might well have excluded them from consideration. Under these circumstances, the trial court‘s error was fundamental. It resulted not simply in “some” prejudice to the appellant, but rather in substantial prejudice.
Moreover, I do not agree with the majority that “if the error had been brought to the court‘s attention the proper clarification could have been made without confusing the jury and any prejudicial effect could have been dissipated.” In order to correct this error the trial court would have had to explain either that the State had the burden of proving, not by a preponderance of the evidence, but rather beyond a
Finally, I do not agree with the majority that it would be improper to exercise the discretion accorded by
The majority implicitly relies upon Squire v. State 6 in which the Court of Appeals took into account, as one of the factors to be considered in determining whether to exercise discretion, thе fact that counsel‘s failure to object stemmed from an understandable belief that the instruction was correct.7 Squire, however, did not hold that it would be an
The purpose of
I believe that under the facts and circumstances of this case, the trial court “committed a plain and irremediable error ... material to the rights of the accused, which deprived him of his right to a fair trial and which must be correctеd to serve the ends of fundamental fairness and substantial justice.” 9 Accordingly, I believe that, notwithstanding the absence of any objection, the judgment should be reversed and a new trial granted.