Petition — Sherman v. Maryland

IN THE

Supreme Court of the United States

OcToBER TERM, 1979

N. 79-885

RICHARD LEON SHERMAN,

Petitioner,

V.

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS

OF THE STATE OF MARYLAND

LESLIE L. GLADSTONE,

Suite 400,

One East Redwood Street,

Baltimore, Maryland 21202,

Counsel for Petitioner.

TABLE OF CONTENTS

| PAGE

OPINIONS BELOv ................ Sie CAibniradect lecabedcdduess 1

Pn ai td LRN SRO REET: [EOE PION | ie

CQQUMSTUIIE FAMBEITIDS ois cin sccseserscnsosscoessoescecsvonre 2

CONSTITUTIONAL PROVISIONS AND RULES OF _

IIE BNE INE ficdiccsckcncteessscsnscsvoyencvsconpssesorene 2

STATEMENT OF: THE CASE ........cccscccsccsssesssssecsssssoaess 3

REASONS FOR GRANTING THE WRIT ......... i Sia 5

COMME NI iii Licks cndcaninstcncscbaspisnnostesivsnntrsenneospesnes 13

Appenpix A—Unreported Opinion of the Court

of Special Appeals of the State of Maryland 1a

AppEeNpIx B—Order of the Court of Appeals of

the State of Maryland 00............:cccccesseceesceeessees 8a

APPENDIX C—Copy of the Judgment in Question 9a

APPENDIX D—Rules 527 and 741, Annotated

ANNO IE, RYAN prccicinscniisenssiscicinosonannnirnestasfers 9a

TABLE OF CITATIONS

Cases

hiss Vv. State, 31 Md. App. 25, 354 A.2d 499

(1976) sccosecsee Bo { at

Brady v. United States, 397 USS. 742, 90 S.Ct.

RO TN wre dicsk enon cs hands sete cepronstaservavene 12

Duppins v. State, 17 Md. App. 464, 302 A.2d 717

(1973). .sascn EME BEES 5 SO GP OLA leben Ace 11

Roviaro v. United States, 253 U.S. 53, 77 S.Ct.

EE CI iisicc cin hctel i cissnccstis Bake Dicedses, 5,6,78,9

Schneckloth v. Bustamonte, 412 U.S. 218, 93

pac RE CRF Gores eshac csc eccc sss tabcterscecooesoveassrccese 12

United States v. —_— 482 F.2d 1352 (5th Cir.

ay sdethndbccevonsbadieas ihkaphseseqdbbideccinasiiucstvebebocwecetsess 10

MP Meh ee =.

Be Swe eS =

Maryland Rules of Procedure 741 csciescicii

. a a OE EIT SO BT "es. OPA C3

e PAGE

United States v. Jones, 580 F.2d 785 (5th Cir

I iii Ni ind sain a sesiehs ak canoes Saba saopebuanaomimieiesee, 9

United States v. Kitchen, 488 F.2d 527 (8th Cir

MPO) sicciinsssokigkiscascucdbanaiss eobialpcieseed dplaadithinesunimees 9

United States v. megeiian, 507 F.2d 30 (9th Cir.

RTE cinasacrcilh bist: cchsaietecvcduksscabeadliceshes adivnenddehihes 9

United States v. Pollard, 479 ¥.2d 310 (8th Cir

RPT IOE sien iscis tikka i tehdubbatthc valacgntcatlaacaciehutssevasssseesubis 8,9

United States v. Ramsey, 220 F, Supp. 86 (E.D

TMI AD Gosccnsddehec tccdi conskarapbesigiosigecesteeasscckpieses 8

United States v. Rivers, 406 F. Supp. 709 (E.D

WR, DIOP aii checdnin sich casein cxcsocastesssatensecoceveaiesadeubin 8,9

United States v. Tatum, 496 F. 2d 1282 (5th Cir

LOTR) ricci ccs tiadabibebsacthecsciviliabhide «ps cdbuaavasseansanbioee 9

United States v. Tuck, 380 F.2d 857 (5th Cir.

Diese sind snrdoitosacsgigeeaivustrbosovcuiuhtlelinas tadbns vate 9

United States v. Turbide, 558 F. 2d 1053 (2d Cir.

1977) ih iebinhaild cbigpebinjestuidninititica abi asimebehidnddansisibcisse 9

United States v. Webster, 490 F.2d 435 (8th Cir.

1974) sesseeneans Dieta adc ek ch cic csVasteaconscsdoce tduaaisccassiconcecs 10

White v. United Stw: #8, 330 F.2d 811 (8th at

1964) ........+. Gancnigehopaatose Mhipieid andes isciglawahsdaniopen Seboesia’ Wis

Constitutional Prec. isions

United States Conatitation, Amendment XIV ... 2,8

Rules of Court

| Maryland Rules of Procedure ORT ies iia diasiiasa i 11,12

66

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

RICHARD LEON SHERMAN,

Petitioner,

v.

STATE OF MARYLAND, :

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS

OF THE STATE OF MARYLAND

Petitioner, RICHARD LEON SHERMAN, prays that

a writ of certiorari issue to review the opinion and

judgment of the Court of Special Appeals of the State of

Maryland, rendered in these proceedings on June 4;

1979. Certiorari by the Court of Appeals of the State of

Maryland was denied on September 10, 1979.

OPINIONS BELOW

_ The unreported opinion of the Court of Special

Appeals of the State of Maryland appears at Appendix

infra, pp. la-8a. The denial of a petition for

2

certiorari by the Court of Appeals of the State of

Maryland appears at Appendix B, infra, at p. 8a-9a.

JURISDICTION

The Order of the Court of Appeals of the State of

Maryland was entered on September 10, 1979. This

petition was filed less than 90 days thereafter. The

jurisdiction of this Court is based on 28 U.S.C. 1257(3).

QUESTIONS PRESENTED

I. Whether the State’s failure to release the name and

address of its informant-participant prior to trial,

resulting in the informant’s unavailability at trial is a

denial of due process of law.

II. Whether the State’s failure to physically produce

its informant-participant after request by the defense to

substantiate an entrapment defense is a denial of due

process of law.

III. Whether a defendant may be held to have

impliedly waived fundamental rights which guarantee

a fair trial to an accused, in the face of trial strategy

which is grounded on the assertion of those very rights.

CONSTITUTIONAL PROVISIONS

United States Constitution amendment XIV, § 1: “nor

shall any State deprive any person of life, liberty, or

property without due process of law.”

Rules of Court:

Annotated Code of Maryland, Volume 9B

Rules of Procedure:

Rule 527, page 328

Rule 741, page 103 (1979 cumulative supple-

ment) |

(The full text of ‘these rules is set out in

Appendix D). |

3

STATEMENT OF FACTS

The petitioner, Richard Leon Sherman, was convicted

of the distribution of marijuana in violation of Mary-

land State law, having sold approximately one pound to

an undercover agent, Trooper Mickey Norman, at a

meeting on January 20, 1977. The meeting was

arranged and attended by a police informant, who had

identified herself to petitioner as Janice Carr. '

Petitioner’s defense at trial was entrapment, on the

theory that a woman named Janice Carr, who both

arranged and attended the meeting of January 20, 1977,

induced the sale of the marijuana by the petitioner

through the promise of sexual favors. Although the

precise whereabouts of Janice Carr were not known,

petitioner issued a summons for her appearance, as well

as issuing a pre-trial motion to produce the informant,

riled October 25, 1977.

In the pre-trial motion, petitioner apprised the State

that his defense would be entrapment and that it was

therefore necessary to secure the presence of Janice

Carr. Petitioner requested that the Court order the State

to produce Ms. Carr, since she alone. possessed the

exculpatory evidence which could corroborate Mr.

Sherman’s testimony to establish entrapment.

Three weeks later (November 16, 1977), at the hearing

on this motion, the prosecutor agreed to make efforts to

locate Ms. Carr (T. 3, p. 161). In light of this voluntary

compliance, the Motions Judge expressed no compelling

need to sign the order requiring the State to produce Ms.

Carr. Petitioner continued his own efforts, through

contacts with Ms. Carr’s family, to try and locate her.

At trial, on November 28, 1977 (four weeks after filing

_ the original motion to produce the government infor-

mant and one week after the prosecutor’s promise of

assistance in locating her), the State had still not

4

provided any information with respect to her present

whereabouts. In spite of this fact, the Trial Judge

formally denied the October 25, 1977 motion to produce

(T. 41). On the final day of trial, the State revealed for

the first time, through ‘he testimony of Trooper

Norman, that the real identity of the informant was

Darlene Jaworski and not Janice Carr, although the

trooper acknowledged that Ms. Jaworski may have

given her name as Janice Carr to the petitioner (T. 14-

15). Trooper Norman further revealed that no attempt

whatever had been made to locate or provide the

address of either Janice Carr or Darlene Jaworski to the

petitioner, despite the particularization of the need for

such witness’ testimony (T. 23-24).

The defense made an oral motion to have the State

produce Darlene Jaworski, and later filed a formal

written motion to produce on December 2, 1977. Two

summons were also issued by the defense, directed to

the different addresses thought to be current for Ms.

Jaworski. After the defendant testified, a continuance

was requested for additional time to locate Darlene

Jaworski and to be given an opportunity to subpoena

her to trial (T. 116). Two weeks were granted by the

court ‘for these purposes (T. 121). Before this continu- _

ance was ordered, additional testimony had_ been

elicited by the defendant with respect to the wherea-

bouts of both Janice Carr and Darlene Jaworski.

Darlene Jaworski’s ex-husband, Edward Jaworski,

testified that to the best of his knowledge, Ms. Carr was

sent by State or Federal authorities to Hawaii in

February or March of that year, and that Darlene had

gone out to Hawaii “just recently” to join Ms. Carr.

(Janice Carr and Darlene Jaworski are sisters) (T. 113-

114), At no time prior to or during the trial did the State

give: to the defendant the current address of either

. isi noueh sei the defense. |.

5

During the two-week continuance, the defendant

made numerous efforts to locate both sisters. Letters

were sent to last-known addres.es, summonses were

issued and relatives were contacted, all to no avail.

After the two-week continuance, defense testimony

reveale.. that Janice Carr had written three letters to

Bernadette Carr, her sister-in-law, over a seven-month

period, the envelopes all bearing Hawaiian names and

different return addresses. The defense, being unable to

locate either of the sisters, rested its case. The Court

found that petitioner had not met his initial burden of

establishing an entrapment defense and convicted him.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW DIRECTLY CONFLICTS

WITH THE DUE PROCESS PRINCIPLES OF THE

_ ROVIARO DECISION.

The Maryland Court of Special Appeals erroneously

misapplied this Court’s ruling in Roviaro v. United

States, 353 U.S. 53, 77 S. Ct. 623 (1957), by allowing the

State to fail to disclose the name of its informant. The

informant, Darlene Jaworski, was the only eyewitness

who could corroborate petitioner's story concerning the

number and nature of prior contacts made in setting up

the drug transaction for which petitioner was convicted. ©

The informant’s true name was never supplied to

petitioner until after that informant was no longer

available for questioning on the witness stand or in

preparation of the defendant’s case. Indeed, a current

address for the informant was never supplied. This

failure was in the face of the proper procedural request

by the defendant filed well in advance of the November

28, 1977 trial date. This failure to supply the name and

address of the informant was compounded by the

- State’s silence after being apprised, by the filing of a

motion, that the defendant was looking for an individ-

6

ual named Janice L. Carr (Motion to Produce, p. 1). The

State knew or should have known that this was a false

name given by Darlene Jaworski to the defendant. This

motion, requesting a court order compelling the State’s

assistance in locating the informant, was also filed well

in advance of trial. Further, knowing that the defend-

ant was looking for a person altogether different from

the actual informant, the State affirmatively misled the

Court and defense counsel not only by its silence as to

the true identity of the police informant (Md.- Rule

§ 741(f) imposes a continuing duty to disclose), but also

by its asserted willingness to exert some effort to locate

the person named in the defendant’s Motion to Produce.

No effort was ever made to locate either the person

named by the defendant in his Motion to Produce, or

the true police informant, Darlene Jaworski.

On the 25th of October, 1977, the State not only had

the defendant’s request for the name of the informant

actually used, but also knew that the defendant was

seeking the wrong person. The defendant’s motion of

October 25 particularized the type of testimony which

he alleged “Janice Carr” would corroborate, that this

testimony was exculpatory in nature, that this was the

sole witness with the knowledge ‘of such information,

and that this witness accompanied Trooper Norman

and was present at the commission of the offense. All of

this information, viewed in the light cast by this

Court’s opinion in Roviaro v. United States, supra,

establishes that the disclosure of the informant’s

identity would be “relevant and heipful to the defense of

the accused or essential to a fair determination. .

Roviaro, supra, at 60-61. Whether disclosure aoud be

required at all calls for a “balancing of the public

interest in protecting the flow of information against

the individual’ 8 right to prepare a defense,” Roviaro,

supra, at 62 (emphasis added), taking into account “the

crime charged, the possible defenses [and] the possible

7

significance of the informant’s testimony.” Supra, at

62.

This case involves an entrapment defense which

could only be corroborated by the testimony of the

informant involved. Trooper Norman testified that he

met petitioner for the first time on the occurrence of the

sale. It was therefore apparent that all arrangements

were made through Darlene Jaworski in advance of the

drug transaction. It is clear, therefore, that disclosure is

required in this case. The question presented is whether

the State can comply with the dictates of Roviaro, supra

by delaying in releasing the informant’s identity until

the very day of trial at a time that the defendant’s

ability to locate and interrogate such person in

preparation of his defense, or call such person as a

witness, has been prejudiced. (By the time the disclo-

sure was made, Ms. Jaworski had already left for

Hawaii. Timely disclosure would have found her

available for compulsory process in the State of

Maryland.)

The decision in Roviaro was based in large part on

the inherent unfairness of non-disclosure which pre-

vented that defendant’s ability to.“explain or amplify”

the police report of the incident (at p. 64). Petitioner was

clearly within the Roviaro situation wherein the

informant was the only other person besides the

petitioner who could corroborate or refute the assertion

of entrapment.

Throughout the Roviaro decision, reference is made to

what might be disclosed by the absent informant, how

his testimony might be relevant or helpful, what might

be disclosed on direct or cross-examination, the possibil-

ity that such testimony might disclose an entrapment,

and ability to amplify or contradict testimony of the

government witnesses. This is the end sought by the

requirement of disclosure in the case at bar, that is, to

8

give the defendant a realistic opportunity to present all

the occurrences which led to the ultimate, illegal

transaction. Roviaro, supra, at 64.

The State’s actions in this case, by revealing the

name of the informant for the first time at trial, seems

to bring this case within the letter of Roviaro, in which

there was error to refuse disclosure at trial. ‘The effect of

holding the State’s activity in this case to be a

discharge of its duty eviscerates the ratio decidendi of

Roviaro and allows the State to retain its practice of

non-disclosure, to the prejudice of defendant’s right toa

fair trial.

2. DENIAL OF THE MOTIONS TO PRODUCE THE

INFORMANT IS A FEDERAL CONSTITUTIONAL

QUESTION OF IMPORTANCE IN THE

ADMINISTRATION OF JUSTICE.

The defense of individuals who have been “set up” by

an informer has revealed unique and substantial

deficiencies in prosecutorial procedure when such

procedure is viewed in the light of the Fourteenth

Amendment’s guarantee of due process. These deficien-

cies have been recognized by various federal courts

across the country as violating in‘ some instances, the

defendants’ right to a fair trial. United States v.

Ramsey, 220 F. Supp. 86 (E.D. Tenn. 1963); United

States v. Rivers, 406 F. Supp. 709 (E.D. Pa. 1975);

United States v. Pollard, 479 F.2d 310 (8th Cir. 1973).

These cases recognize that allowing the government

unilateral discretion in deciding which witnesses

should testify often works to substantially prejudice the

defendant’s ability to prepare an adequate defense in

the informer type of situation.

‘The ability to question and/or cross-examine all the

participants to the transaction is an essential aspect to

‘ any meaningful check on police methodology. This was

9

explicitly noted in Roviaro v. United States, 353 U.S. 53,

77 S. Ct. 623 (1957). Fundamental fairness requires that

the informant’s information, which was invaluable in

the construction of the government’s case, be made

available to the defense in order to give meaning to the

right of the accused to a fair trial and also his right to

compulsory process. United States v. Pollard, 479 F.2d

310 (8th Cir. 1973); United States v. Kitchen, 488 F.2d

527 (8th Cir. 1973).

With the recognition of this duty on the part of the

government to assist in securing a fair trial to the

accused before he steps into the courtroom, there has

been the necessary attempts to define the situations in

which the failure of the government to produce (or

render assistance in locating) a witness prejudices the

accused’s right to a fair trial.

Primarily, the cases that have addressed this point

state that the accused must show that the missing

witnesses’ testimony must be relevant to the crime

which the accused is defending or the defense he is

seeking to estabiith; United States v. McQuillan, 507

F.2d 30 (9th Cir, 1974), and that such testimony might

help to exculpate him. United States v. Jones, 580 F.2d

785 (5th Cir. 1975); United States v. Rivers, 406 F. Supp.

709 (E.D. Pa. 1975).

With respect to any efforis made to locate a witness

whose presence the defense deems relevant, the courts

have required not only that the defendant himself make

reasonable efforts; United States v. Turbide, 558 F.2d

1053 (2d Cir. 1977); United States v. Tatum, 496 F.2d

1282 (5th Cir. 1974); but where the government makes a

reasonable effort on its own, the duty is fully dis-

charged. White v. United States, 330 F.2d 811 (8th Cir.

1964), cert. den. 379 U.S. 855; United States v. Tuck, 380

F.2d 857 (2d Cir. 1967).

oy

eine :

10

Finally, the courts have held that the defendant must

have a request for the production of the witness and

absent such, there is no duty on the part of the

government to assist in the location, or production of

the necessary defense witnesses. United States uv.

Fallings, 482 F.2d 1352 (8th Cir. 1973); United States v.

Webster, 490 F.2d 435 (8th Cir. 1974).

Viewed in the perspective of the facts incontrovertibly

shown by the trial record, petitioner has carried the

burden imposed on him to show the merit of his claim.

The State, on the other hand, did nothing to assist in

locating the informant-participant (T. 23, 24).

It is respectfully submitted that the Maryland State

Courts have decided this question in a manner in

conflict with the guiding opinions of other courts which

have considered the matter and in the absence of any

controlling authority from this Court. It is further

submitted that the question of the duty on the part of

the government to produce its informants is ripe for

review by this Court, owing to the frequency with which

this particular question arises in the lower federal

courts, from all parts of the country, and the failure of

the State adequately to protect this fundamental federal

right to a fair trial.

3. THE DECISION BELOW DIRECTLY CONFLICTS

WITH THE WAIVER PRINCIPLES OF THE

SCHNECKLOTH DECISION.

The Maryland Court of Special Appeals held that the

defendant’s request for the production of the informant

and the actual demand for physical production of the

informant was waived by “failing to request a continu-

ance under Md. Rule 527(c) and choosing to proceed

with his motion for judgment of acquittal.” Sherman v.

State, Appendix, p. 4a-5a. This case having been tried

- without a jury, a Motion for Judgment of Acquittal was

11

superfluous, however, and not necessary to preserve the

issue of sufficiency of the evidence. Barnes v. State, 31

Md. App. 25, 354 A.2d 499 (1976); Duppins v. State, 17

Md. App. 464, 302 A.2d 717 (1973). The Court’s decision

on waiver is based on. the specific failure of the

defendant to request a further continuance after three

envelopes bearing different Hawaiian return addresses

were revealed in Janice Carr’s handwriting. Scrutiny of

the statements required in order to satisfy all the

prerequisites of a continuance under Md. Rule 527(c)

reveals the untenable nature of the Court’s holding,

particularly when viewed in connection with all of the

petitioner’s prior efforts and motions made to locate the

witness.

For a continuation to be granted to locate a missing

witness, Maryland Rule 527(c)(2) requires, inter alia, a

sworn statement that there is a “reasonable expectation

and belief that such witness can be procured within a

reasonable time.” The Court of Special Appeals rea-

soned that the production of the three envelopes

afforded such a reasonable expectation and belief of

timely procurement of the missing witness, and

therefore the election to proceed with the Motion for

Judgment of Acquittal rather than move for a second

continuance obviated any complaint that there was a

denial of due process — to the defendant’s

rights.

In arriving at this conclusion, the Court fails to note

that trial was just resuming after a two-week continu-

ance devoted (on petitioner’s part) to the location of this

very witness. The fact that the envelopes contain three

different return addresses and were all written by

Janice Carr no more leads to a reasonable expectation

and belief that Darlene Jaworski could be procured

within a reasonable time than does the information

that was known to defense counsel on November 28,

that Darlene Jaworski was somewhere in Hawaii (T. 110,

12

118-9). The Court of Special Appeals’ requirement that

the defendant, under Md. Rule 527, swear to the

reasonableness of the expectation that Darlene Ja-

worski can be found and summoned in order to get a

continuance ar:* thereby preserve his constitutional

rights flies in the face of the facts as they are revealed

from the record.

When there is an assertion by the Government that

the defendant has waived a right which exists to

guarantee the defendant’s interest in a fair trial, this

Court has required that a strict standard be applied to

determine whether such “an intentional relinquishment

or abandonment of a known right or privilege,”

Schneckloth v. Bustamonte, 412 U.S. 218, 933 S.Ct. 2041

(1973), did in fact exist. There is no such finding here by

the Court of Special Appeals, nor can there be where

counsel’s trial strategy was based on a vigorous

assertion of those very rights. Rather, the Maryland

Court seeks to impute such a waiver on the basis of a

trial strategy, which does not inherently carry with it

the waiver of any rights, much less those of a

Constitutional nature. On the facts of this case, there

can be no doubt that the particular trial strategy

employed was pursued without “sufficient awareness of

the likely . . . consequences.” Brady v. United States,

397 U.S. 742, 90 S.Ct. 1463 (1970).

13

CONCLUSION

For the foregoing reasons, it is respectfully requested

that this Court issue a Writ of Certiorari to review the

decision of the Court of Special Appeals of the State of

Maryland.

Respectfully submitted, -

LESLIE L. GLADSTONE,

Suite 400,

One East Redwood Street,

Baltimore, Maryland 21202,

Counsel for Petitioner.

CERTIFICATE OF SERVICE |

I Heresy Certiry, this __. day of December, 1979,

that three copies of the aforegoing Petition for Writ of

Certiorari and Appendices were hand-delivered to the

Attorney General, State of Maryland, One South

Calvert Street, Baltimore, Maryland 21202, and that all

parties required to be served have been served.

Leslie L. Gladstone

y

—

la

APPENDIX A

Unreported

In The Court Of Special Appeals

Of Maryland

September Term. 1978

No. 1156

Richard Leon Sherman

v.

State Of Maryland

Moylan, Wilner, Couch, Judges

Per Curiam

Filed: June 4, 1979

Richard Leon Sherman appeals his December 13,

1977 conviction for distribution of marijuana in

violation of Md. Code, Art. 27, § 286(a), by the Circuit

Court for Baltimore County, sitting without a jury. The

verdict of guilty on two other counts, possession with

intent to distribute in violation of Art. 27, § 286, and

possession in violation of Art. 27, § 287, were merged

with the distribution conviction. Sherman was sen-

tenced on October 23, 1978 to be committed to the

2a

Department of Correction for five years, two and one-

half years of this period were suspended. It was further

recommended that this sentence run concurrently with

any sentence imposed for violation of probation

pending in the United States District Court for the

District of Maryland.

The events which resulted in appellant’s arrest and

conviction were the subject of some controversy at trial.

On January 20, 1977 a State Trooper, working under-

cover, entered appellant’s apartment accompanied by a

woman and, after a short period of time passed, the

trooper purchased one pound of marijuana from appel-

lant.!

Appellant, believing the woman who accompanied

the trooper to be one Janice Carr, filed a motion to

compel the State to produce her for trial. It was claimed

in the motion that appellant’s defense was entrapment

by Janice Carr, an agent of the police, who induced the

appellant to commit the offense. A hearing was held on

the motion on November 16, 1977. According to

appellant’s proffer, the presiding judge found it unnec-

essary to grant the motion since the prosecutor agreed

to make an effort, through the police and other avenues,

to locate Carr.

The trooper, testifying on the first day of trial,

November 28, 1977, stated that the woman who

accompanied him to appellant’s apartment was Darlene

Jaworski, not Carr. He further revealed that he had

information, two months old, that both Carr and

Jaworski, who were sisters, were in either Hawaii or

Colorado. Appellant requested a continuance of one

week so that Jaworski could be located; the court

granted a two week continuance. A motion to compel

the State to produce Jaworski? was filed by appellant

1 There was testimony at trial that the woman made the

purchase. The trial court concluded that only the trooper was

involved in the actual transaction.

It appears from the record that no action was taken by

ee

3a

on December 2, 1977. Neither Jaworski nor Carr was

present when the trial resumed on December 13, 1977.

Appellant challenges his conviction upon the follow-

ing grounds: »

1. Did the trial court err in failing to grant

Defendant’s Motions to Compel because the State’s

failure to produce the addresses of alleged infor-

mant Janice Carr or alleged informant Darlene

Jaworski was prejudicial to the defense?

2. Should the Defendant’s conviction be reversed

because the State’s failure to timely provide the

Defendant with the name of the alleged informant

Darlene Jaworski was prejudicial to the defense?

3. Was the judgment of the lower court that

Defendant was not entrapped by the State daxazicd

erroneous?

The trial court, in ruling upon appellant’s motion for

judgment of acquittal, to some extent took the wind out

of the sails of all three arguments advanced by

appellant by focusing upon and negating the entrap-

ment defense itself. Appellant testified that Janice Carr

made five phone calls to him offering sexual favors in

return for his procuring the marijuana. Appellant’s

version was corroborated by Joe Jacobson? who

testified he overheard some of appellant’s conversations

with Carr.

The trial court in its oral opinion concluded that the

identity of the alleged informant, i.e., whether it was

Janice Carr or Darlene Jaworski, was a “red herring”

since the real issue presented was whether appellant’s

evidence was sufficient to raise the entrapment issue.

The trial court reviewed the testimony of the defense

witnesses, including appellant’s testimony, regarding

the telephone calls from Janice Carr, and found none of

it to be credible. The trial court, instead, chose to accept

the testimony of the trooper, the only witness for the

3 Jacobson incriminated himself by revealing that he had

originally purchased the marijuana for appellant so that

appellant Bases i “get together” with Carr.

49

State. The following factual determination was made

by the trial court: :

‘{I] find that there was no entrapment. What

occurred was simply this: Trooper Norman in his

capacity as an undercover officer was in the

Defendant’s residence. And the Defendant told him

that he could sell the pound of marijuana for X

number of dollars. . . . The defendant went to the

back of the apartment, came out with a quantity of

marijuana, money changed hands.”

The trial court denied appellant’s motion for judgment

of acquittal on the basis of this factual determination.

Although the trial court only addressed the entrapment

issue, we are compelled to answer appellant’s issues 1

and 2 because the court’s ruling might have been

different if Carr or Jaworski had testified.

1

Appellant urges us to reverse his conviction because

the State’s failure to produce Janice Carr and Darlene

Jaworski, or their present addresses, amounts to a

suppression or withholding of material evidence excul-

patory to the appellant and therefore violates appel-

lant’s right to due process. Brady v. Maryland, 373 U.S.

83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Tobias v.

State, 37 Md. App. 605, 621, 378 A.2d 698 (1977); Ross v.

Warden, Maryland Penitentiary, 1 Md. App. 46, 53, 227

A.2d 42 (1967). According to appellant, the State, the

State Police, and the trooper involved should have the

knowledge, resources, and control over the alleged

informant, whomever she may be, to produce her to

testify at trial.

Regardless of the merits of appellant’s argument, we

find that appellant waived the-issue by failing to

request a continuance under Md. Rule 527(c) and

4 The trial court made a factual determination that the

woman who accompanied the trooper to appellant’s apart-

ment was Darlene Jaworski.

5a

choosing to proceed with his motion for judgment of

acquittal. The record discloses that the appellant had

information concerning the location of both Carr and

Jaworski. When the trial resumed -on December 13,

1977, appellant did not request a further: continuance

but proceeded to put on the remainder of his case. One

of the witnesses called by the defense was Bernadette

Carr, Janice’s sister-in-law. Appellant produced three

envelopes, which were given to him the morning of the

second day of trial by Bernadette, with Hawaiian

postmarks and containing return addresses. The names

written above the addresses were Hawaiian. The

envelopes were addressed to Bernadette and she iden-

tified them as having contained letters from Janice

Carr. After producing the envelopes and Bernadette

Carr, the appellant still did not request a continuance to

explore the possibility that both Carr and Jaworski

could be found at those addresses. Rather, appellant

made a motion for judgment of acquittal at the close of

his case. |

The court throughout the pendency of the case

indicated a willingness to permit appellant as much

time as was necessary to locate the witnesses. There-

fore, we see no basis for appellant’s complaint that he

was denied due process when there was a reasonable

possibility that both Carr and Jaworski could be found

and he sought only a judgment of acquittal rather than

a further continuance.

2

Again appellant relies upon Brady for his position

that the State suppressed the name of Darlene Jaworski

by failing to divulge her name upon appellant’s filing of

his motion to compel. Appellant contends that at no

time did the State deny that Janice Carr was the

informant at the hearing on appellant’s motion to

produce Janice Carr. The State’s failure to deny that

Janice Carr was the informant and its concomitant

failure to allege that Darlene Jaworski was the

6a

informant, according to appellant, constituted an

implicit admission on the part of the State that Janice

Carr was the informant. Thus the appellant claims he

detrimentaily relied on this-representation of the State

and was consequently unduly prejudiced. Appellant

contends iarther that had he known that the State

would allege that Darlene Jaworski was the informant,

he might have been able to procure her testimony for

the trial.

Appellant attempts to buttress his position by

referring to the testimony of Jaworski’s ex-husband.

Mr. Jaworski stated that he thought she had just

recently left for Hawaii. The trial court gave little

credence to Mr. Jaworski’s testimony and, of course,

under Md. Rule 1086, the credibility of a witness is a

matter for the trial court, not for this Court. Bailey v.

State, 16 Md. App. 83, 92, 294 A.2d 123 (1972). Moreover,

we perceive no prejudice to appellant in the State’s

failure to divulge the name of Darlene Jaworski in light

of the fact that the trooper disclosed the name at trial

and the trial court then granted a continuance for twice

the amount of time requested by appellant for the

purpose of locating her. Thus we believe the constitu-

tional requirement of disclosure of an informant’s

identity, when the informant’s testimony would be

helpful and relevant to the defense, was met in this

case. See Roviaro v. U.S., 353 U.S. 53, 60, 77 S. Ct. 623, 1

L. Ed. 2d 639 (1957). Accordingly, we find no ground for

reversal here.

3.

Appellant claims that the alleged informant® induced

him to sell a pound of marijuana to the trooper by

telephoning appellant five times in the course of a three

week period. She purportedly offered sexual favors in

return for appellant’s arrangement of the transaction.

As previously related, Joe Jacobson corroborated

appellant's testimony.

wee ——_—

’ Fo For purposes of this gat: “informant” sole of

both Janice Carr and Darlene Jaworski. The identity at this

point makes little difference.

7a

The defense of entrapment raises two questions of

fact: (1) did the agent of the government induce the

accused to commit the offense charged in the indict-

ment; (2) if so, was the accused ready and willing

without persuasion and was he awaiting any propitious

opportunity to commit the offense. Simmons uv. State, 8

Md. App. 355, 362, 259 A.2d 814 (1969). Appellant

contends the trial court was clearly erroneous in its

determination that there was no entrapment because

the evidence was insufficient to enable the lower court

to find beyond a reasonable doubt that there was no

evidence of the inducement of appellant by the police

i ge to commit the offense. We disagree with appel-

ant.

Appellant’s entrapment defense was considered by

that trial court upon his motion of acquittal. Thus the

trial court was concerned with whether the evidence

submitted, whatever its source, was sufficient to

support a finding that the defendant was induced by

the alleged informant to commit the offense. Fisher v.

State, 28 Md. App. 243, 250, 345 A.2d 110 (1975), cert. —

den., 276 Md. 743. The trial court determined that the

evidence was not sufficient to support a finding that

appellant was entrapped. The testimony presented by

the defense on the inducement question was rejected by

the trial judge. The judge chose instead to accept the

trooper’s version of the facts that the informant merely

accompanied him to the apartment. Judging the

credibility of the witnesses is the province of the trial

judge and we will not interfere with his conclusions

unless there is clear error. Bailey v. State, supra; Md.

Rule 1086. We are not inclined to do so here.

Appellant states further that the State did not meet

its burden of proving that the appellan’ had a

predisposition to commit the offense. The simple

answer is that without some evidence showing induce-

_ment as a matter of law, the issue of predisposition need

not be addressed by the trial court on a motion for

judgment of acquittal. Fisher v. State, supra at 251. We

8a

find no error in the trial court’s denial of appellant’s

motion for judgment of acquittal.

Judgment Affirmed.

Costs To Be Paid By Appellant.

APPENDIX B

In the Court of Appeals

of Maryland

Petition Docket No. 197

September Term, 1979

(No. 1156, September Term, 1978

- Court of Special Appeals)

Richard Leon Sherman

v.

State of Maryland

ORDER

Upon. consideration of the petition for a writ of

certiorari to the Court of Special Appeals in the above

entitled case, itis 7

ORDERED, by the Court of Appeals of Maryland, that

the petition be, and it is hereby denied as there has been

9a

no showing that review by certiorari is desirable and in

the public interest. .

/s/ ROBERT C. Murphy,

Chief Judge

Date: September 10, 1979.

APPENDIX C

October 23, 1978 Hon. Austin W. Brizendine. Judg-

ment and Sentence: Defendant to be committed to the

Department of Correction for a period of five (5) years of

which 2'4 years is suspended it is recommended by this

Court that this Sentence imposed in this Case to run

concurrently with any Sentence imposed for Violation

of Probation now pending United States District Court

for the District of Maryland, further Defendant to pay

Court costs this Court. Appeal Bond set at $5000.00.

APPENDIX D

MARYLAND RULE Or PROCEDURE

Rule 527. Continuance or Postponement. Gen’!.

a. Generally.

1. In Court’s Discretion.

The court may upon motion of any party, or of its

own motion, continue an action from time to time in

order that a trial may be had upon the merits or as the

interests of justice may require; but

2. Not Beyond Second Term Unless by Consent, for

Cause, or by Rule.

No action shall be continued beyond the second term

after process has been served on the defendant, unless

‘by consent of the parties, or upon good cause shown by

10a

the party asking the continuance, or when these Rules

otherwise so provide.

(Art. 75, §§ 62, 71, 72.)

b. Attorney in Legislature.

When it shall appear that any attorney of record of

any party to any action at law or in equity is a member

of the General Assembly of Maryland or a desk officer

of either House of the General Assembly, and that said

General Assembly of Maryland shall then be in session,

such action shall be continued from time to time until

ten days after said General Assembly of Maryland

shall have adjourned, unless such attorney upon the

call of such action for trial waive the benefit of this

Rule. When it shall appear that any attorney of record

of any party to any action at law or in equity is a

member of the Legislative Council of Maryland, or one

of its subcommittees, such action shall be continued

when the said Legislative Council, or said subcommit-

tee, as the case may be, is holding a meeting, unless

such attorney shall upon the call of such action for trial .

waive the benefit of this Rule. Whenever it shall be

necessary to file a brief or memorandum of law in

action at law or in equity, which has been continued

_ under the provisions of this Rule, then such action shall

be continued for a time sufficient to prepare and file

such brief or memorandum.

(Art. 75, §24 (1961 Supp.); amended Sept. 15, 1961).

c. Absent Witness.

1. Motion for Continuance — Affidavit.

A motion for a continuance or postponement on the

ground that the evidence of an absent witness is

wanting must be supported by an affidavit of the party

making the application or of some other credible

2. Affidavit — Contents.

. The affidavit shall show that the testimony of the

absent witness is material, competent and proper, that

the affiant believes that the action cannot be tried with

lla

justice to the party without such evidence, that the

affiant has used reasonable diligence to procure the

same, and that the affiant has a reasonable expectation

and belief that such witness can be procured within a

reasonable time. The affidavit shall further show what

facts the affiant believes the witness will prove, and not

merely the effect of such facts in evidence, and that the

affiant believes them to be true.

3. Examination by Court.

The court may examine the affiant on oath as to any

of the matters alleged in the affidavit, and on what

information or knowledge he believes the witness will

prove what is alleged.

4. Effect of Admission.

If, upon the affidavit, or upon examination, the court

is satisfied of the truth of the affidavit and that the

testimony is material and competent, the court may

continue or postpone the case for such time as may be

deemed necessary to enable the party to procure the

attendance or obtain the testimony of such absent

witness, unless the opposite party will admit that the

absent witness would, if present, testify to the facts

alleged in the affidavit.

5. Consent to Deposition.

Where the testimony of an absent witness, whether

resident or nonresident, may be taken by deposition

and the opposite party will not admit that the absent

witness would if present testify to the facts alleged in

the affidavit, the court may grant a continuance or

postponement for the purpose of taking the deposition

of such absent witness.

6. Right to Impeach or Contradict.

An admission by the opposite party, or the taking of a

deposition, pursuant to subsections 4 and 5 hereof, shall

not deprive the opposite party of the right to impeach or

contradict the testimony of the absent witness in the

same manner as if such witness had been present.

(Art. 75, §§ 63-65, 70; amended Sept. 26, 1957.)

12a

d. When New Trial Granted or Judgment Set Aside.

Where a new trial is granted or where a judgment

shall be set aside for fraud or irregularity, the court

may continue or postpone the action so long as it shall

deem necessary for a trial thereof.

(Art. 75, § 66.)

e. Costs — By Whom Paid.

Where a continuance or postponement is granted, the

court shall make such order as to costs theretofore

accrued as may be just.

(Art. 75, § 73.)

Rule 741. Discovery and Inspection.

a. Disclosure Without Request.

Without the necessity of a request by the defendant,

the State’s Attorney shall furnish to the defendant:

1. Any material or information within his possession

or control which tends to negate the guilt of the

defendant as to the offense charged or would tend to

reduce his punishment therefor;

2. Any relevant material or information regarding:

(a) specific searches and seizures, wire taps and

eavesdropping, (b) the acquisition of statements made

by the defendant, and (c) pretrial identification of the

defendant by a witness for the State.

3. The State’s Attorney’s obligations under this

section extend to material and information in the

possession or control of members of his staff and of any

others who have participated in the investigation or

evaluation of the case and who either regularly report

or with reference to the particular case have pipeetent to

his office.

b. Discovery by the Defendant.

Upon the request of the defendant, the State shall:

1. Witnesses.

Disclose to the defendant the name and address of

each person then known whom the State intends to call

13a

as a witness at the hearing or trial to prove its case in

chief or to rebut alibi testimony.

2. Statements of the Defendant.

As to all statements made by the defendant to a State

agent which the State intends to use at a hearing or

trial, furnish the defendant: (a) a copy of each written

or recorded statement and (b) the substance of each oral

statement and a> copy of all reports of each oral

statement.

3. Statements of Codefendants.

As to all statements made by a codefendant to a State

agent which the State intends to use at a hearing or

trial, unless a severance has been ordered by the court,

furnish the defendant: (a) a copy of each written or

recorded statement, and (b) the substance of each oral

statement and a copy of all reports of each oral

statement.

4. Reports of Experts.

Produce and permit the defendant to inspect and copy

all written reports or statements made in connection

with the particular case by each expert consulted by the

State, including the results of any physical or mental

examination, scientific test, experiment or comparison,

and furnish the defendant with the substance of any

oral report and conclusion made in connection with the

particular case by each expert consulted by the State,

including the results of any physical or mental

examination, scientific test, experiment or comparison.

5. Evidence for Use at Trial.

Produce and permit the defendant to inspect and copy

any books, papers, documents, recordings, or photo-

graphs which the State intends to use at the hearing or

trial, and produce and permit the defendant to inspect

and photograph any tangible objects which the State

intends to use at a hearing or trial.

6. Property of the Defendant.

Produce and permit defendant to inspect, copy and

photograph any item obtained from or belonging to the

l4a

defendant, whether or not the State intends to use the

item at the hearing or trial.

c. Matters Not Subject to Discovers by the Defend-

ant.

This Rule does not require the State to disclose:

1. Any documents to the extent that they contain the

opinions, theories, or conclusions or other work product

of the State’s Attorney, and

2. The identity of a confidential informant so long as

the failure to disclose the informant’s identity does not

infringe a constitutional right of the defendant, and the

State’s Attorney does not intend to call the informant

as a witness, and

3. Any other matter if the court finds that by

disclosure there is a substantial risk of harm to any

person which outweighs the interest in disclosure.

d. Discovery by the State.

‘Upon the request of the State, the defendant shall:

1. Generally.

As to the person of the defendant:

(a) Appear in a lineup for identification;

(b) Speak for identification;

(c) Be fingerprinted;

(d) Pose for photographs not ebolne reenactment

of ‘a scene;

(e) Try on articles of clothing;

(f) Permit the taking of specimens of material under

his fingernails;

(g) Permit the taking from his body of samples of

blood, hair and other material involving no unreasona-

ble intrusion upon his person;

(h) Provide specimens of his handwriting;

(i) Submit to reasonable physical or mental examina-

tion.

-

15a

2. Reports of Experts.

Produce and permit the State to inspect oe copy all

written reports made in connection with the particular

case by each expert which the defendant intends to call

as a witness at the hearing or trial, including the

results of any physical or mental examination, scien-

tific test, experiment or comparison, and furnish the

State with the substance of any oral report and

conclusion made in connection with the particular case

by an expert which the defendant intends to use at the

hearing or trial, including any physical or mental

examination, scientific test, experiment or comparison.

3. Alibi Witnesses.

Upon designation by the State of the time, place and

date of the alleged occurrence, furnish the name and

address of each witness other than the defendant whom

the defendant intends to call as a witness to show he

was not present at the time, place and date designated

by the State in its request.

e. Procedure for Discovery.

1. Time for Discovery.

The State shall make diecdadteine paiouent to section a

of this Rule within 25 days after the earlier of the

appearance of counsel or the first appearance of the

defendant before the court pursuant to Rule 723

(Appearance — Provision for or Waiver of Counsel). The

defendant shall make a request for discovery pursuant

to section b of this Rule, and the State shall make a

request for discovery pursuant te section d of this Rule,

within 15 days after the earlier of the appearance of

counsel or the first appearance of the defendant before |

the court pursuant to Rule 723 (Appearance — Provi-

sion for or Waiver of Counsel). The party served with

the request shall furnish the discovery required by this

Rule within 10 days after receipt of the request.

2. Motion to Compel Discovery.

If discovery is not furnished as voomented.: a motion to

compel reap a may be filed within ten days after

16a

receipt of the discovery or after discovery should have

been received, whichever is earlier. The motion shall

specifically describe the matters requested which have

not been furnished. An answer to the motion may be

filed within five days after receipt of the motion. The

court may not consider any motion to compel discovery

unless the moving party certifies in the motion and sets

forth specific facts to demonstrate that he has made a

good faith attempt to secure the requested discovery

from the opposing party and the party has not complied

with the request.

f. Continuing Duty to Disclose.

If, subsequent to compliance with a request made

under this Rule with any order compelling discovery, a

party discovers additional matter previously requested

and required to be furnished, he shall promptly furnish

the matter to the other party or his counsel. If the

additional matter is doscovered during trial, in addition

to furnishing the matter promptly to the other party or

his counsel, he shall notify the court that the matter is

being furnished to the other party.

g. Protective Orders.

Upon motion and for good cause shown, the court

may order that specified disclosures be restricted. If at

any time during the proceedings it is brought to the

attention of the court that a party has failed to comply

with this Rule or an order issued pursuant to this Rule,

the court may order that party to permit the discovery

of the matters not previously disclosed, strike the

testimony to which the undisclosed matter relates,

grant a reasonable continuance, prohibit the party from

introducing in evidence the matter not disclosed, grant

a mistrial, or enter any other order appropriate under

the circumstances. All material and information to

which a party is entitled must be disclosed in time to

permit beneficial use thereof. 3 |

i ee