Petition for a Writ of Certiorari — Tumminello v. Maryland

IN THE

Supreme Court af the Wuited States

OoroBeR TERM, 1971

ek A eG

J OHN B. TUMMINELLO, Petitioner,

Vv.

_ Strate or Maryianp, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS OF MARYLAND

E. BARRETT PRETTYMAN, JR.

Hocan & Hartson

815 Connecticut Avenue

Washington, D.C. 20006

Louis H. Farep

530 Equitable Building

Baltimore, Maryland 21202

_ Attorneys for Petitioner

Pauses of Brnon S. Anams Pane, Inc., Wasuinaron, D. C.

=>,

TABLE OF CONTENTS

Page

eC cicaceuen te tbeebiheveauns eee i

EN AS 1

ee eer ce ae Ghee ea ee anaes seees 2

Constitutional Amendments Involved ............... 3

ete ved sciesseheseaeudaees 3

cae ceccescevencsescceaces +

Reasons for Granting the Writ .................000- 17

ee eee yeaah ke cane save e* 26

Appendix A—Opinion and Judgment of the Court of

Special Appeals of Maryland .................. la

Appendix B—Order of the Court of \ppeals of Mary-

ee eee eh eee Cake ews ea Beh oceecense’s 12a

Appendix C—Extracts of Testimony of Robert A.

eee ENS eee dar beeeee ae see 13a

TABLE OF AUTHORITIES

CASES |

Barber v. Page, 390 U.S. 719 (1968) ................ 20

Berger v. New York, 388 U.S. 41 (1967) ............ 25

Blackburn v. Alabama 361 U.S. 199 (1960) .......... 18

Brookhart v. Janis, 384 U.S. 1 (1966) ................ 20

Bruton v. United States, 391 U.S. 123 (1968) ........ 20

California v. Green, 399 U.S. 149 (1970) ............ 26

Capuano v. United States, 9 F.2d 41 (1st Cir. 1925) .. 26

Coolidge v. New Hampshire, 39 U.S.L. Week 4795

eh ie ae a ams chk can kK KS +80 23

District of Columbia v. Armes, 107 U.S. 519 (1883) .. 18

Douglas v. Alabama, 380 U.S. 415 (1965) ............ 20

Dutton v. Evans, 400 U.S. 74 (1970) ................ 17, 26

Fountain v. United States, 384 F.2d 624 (5th Cir.

1967) cert. denied sub nom. Marshall v. United

States, 390 U.S. 1005 (1968) ................2.. 24

ii Table of Contents Continued

Page

Katz v. United States, 389 U.S. 347 (1967) .......... 25

Marshall v. United States, 390 U.S. 1005 (1968) ...... 24

Melvin v. State, 210 Miss. 132, 48 So.2d 856, 49 So.2d

i Cc GAG SiC ian ean eee ibnel eae chs ge nc 22

People v. McCaughan, 49 Cal.2d 409, 317 P.2d 974

SE 55 eh bute caked eae Raa en cee ens kas 18

Peopie v. Stephens, 117 Cal. App. 2d 653, 256 P.2d

BRR Rr ere saab cor ale ak 22

Pointer v. Texas, 380 U.S. 400 (1965) .............. 17, 20

Roberts v. Russell, 392 U.S. 293 (1968) .............. 20

Tumminello v. State, 7 Md. App. 380, 256 A.2d 342.... 4

United States v. Bryant, —— U.S.App.D.C. ——, 439

Pp ok es ee ae Se 21, 22

United States v. Kabot, 295 F.2d 848 (2d Cir. i eae

cert. denied, 369 U.S. 803 CEE cabaservevuseace

United States v. Klosterman, 248 F.2d 191 (3rd Cir. —

Sd eee ee er nee Pere re Pree 25, 26

United States v. Stephenson, 121 F.Supp. 274 (D. D.C.

1954), appeal dismissed, 96 U.S. App. D.C. 44, 223

Ee RE re 23

Onited States v. Schanerman, 150 F.2d 941 (3d Cir.

EES re rae oa reo 22

United States ex rel. Smith v. Baldi, 344 U.S. 561

EE *i4iS ei sthe eee caecia cen kiaaxs hanes 19, 20

Washington v. Texas, 388 U.S. 14 SEE eiseenupaneus 20

CoNSTITUTIONAL PROVISIONS AND STATUTES:

Sixth Amendment to the United States Constitution

passim

Fourteenth Amendment to the United States Constitu-

SE cd adaadekechakhh can edecbeagaaeteenu end passim

rere rT errr y ret yr ere 2

MISCELLANEOUS:

8 8 tk ee eee er errr 23

a laa Cheese hea ebaee es 18

McCormick on Evidence, § 196 ........-.....22- eee 23

Wharton, Criminal Evidence, §119 ................. 18

4 Wigmore on Evidence, §§ 422 and 1192 ........... 19, 23

IN THE

Supreme Court of the United States

OcToBER TERM, 1971

No.

JoHN B. TUMMINELLO, Petitioner,

v.

STATE OF MARYLAND, Respondent.

_ PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS OF MARYLAND

-

Nee ee

Petitioner, John B. Tumminello, prays that a writ of

certiorari issue to review the decision and judgment of

the Court of Specia! Appeals of Maryland in the avove-

entitled case entered on January 5, 1971.

OPINION BELOW

The opinion and judgment of tue Court of Special

Appeals are reported at 10 Md. App. 612, 272 A.2d 77,

and are printed as Appendix A hereto. The denial of

2

the Petition for a Writ of Certiorari by the Court of

Appeals of Maryland has not been reported but is

printed as Appendix B hereto.

JURISDICTION

Petitioner was convicted of false pretenses in Balti-

more, Maryland, on December 9, 1969. The Court of

Special Appeals of Maryland issued an opinion on

January 5, 1971, affirming the judgment. On March 5,

1971, petitioner filed a timely Petition for a Writ of

Certiorari in the Court of Appeals of Maryland. That

court denied the Petition on April 5, 1971. Jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1257

(3).

Petitioner raised the constitutional points presented

here at various points prior to, during and after his

first and second trials * and on appeal.”

‘

1JTA 152-156; IC 48-49, 52-53, 68; II 3-31, 33-34, 98, 109-131

(especially 124), 155-156, 239-243, 393-394, 414-415, 440, 449;

III 12-15. Unfortunately, one volume of the transcript of record

of petitioner’s first trial was not numbered sequentially following

the other volumes. Therefore, fcr the purposes of clarity, peti-

tioner has used the following system of citing the record: ‘‘I’’ re-

fers to the transcript of the first trial, ‘‘II’’ to the transcript of the

second trial, and ‘‘III’’ refers to the argument on the Motion for

A New Trial following the second trial. ‘‘A’’, ‘‘B’’, ete., refer

to which volume of the transcript of the first trial is involved, and

the final number used refers to the page cited in that volume.

Thus, ‘‘IB 16’’ means page 16 of the second volume of the first

trial. Since the transcript of the second trial was numbered

sequentially, the letters (‘‘A’’, ‘‘B’’, ete.) have been left out of

the citations to the second trial.

2£.g., Appellant’s Brief in the Court of Special Appeals fol-

lowing the first trial, pp. 5-9; Appellant’s Brief before the Court

of Special Appeals following the second trial, pp. 13-17; Petition

to the Maryland Court of Appeals, pp. 5, 28, 30, 32, 33, 37.

3

CONSTITUTIONAL AMENDMENTS INVOLVED .

The Sixtii Amendment to the Constitution of the

United States provides: : :

‘In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed, which dis-

trict shall have been previously ascertained by

law, and to be informed of the nature and cause

of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defense.

The Fourteenth Amendment to the Constitution of

the United States provides, in part:

No State shall * * * deprive any person of life,

liberty, or property, without due process of law

* & &

QUESTIONS PRESENTED

Was a criminal defendant’s right to confrontation

under the Sixth Amendment and his right to due

process under the Fourteenth Amendment violated

where the two principal pieces of evidence used against

him—without which the State concededly could not

convict—consisted of:

(1) the ‘‘canned”’ testimony from a prior trial of a

man who was declared a paranoid schizophrenic with

brain damage in each of the five years preceding his

testimony; whose illnesses, according to the prosecu-

tion’s own psychiatric testimony, were directly bound

up with the events of this case and would distort his

testimony, and who was so mentally ili at the defend-

ant’s second trial that he could not even be brought to

the courtroom; and

4

(2) the transcript of a tape recording, the first and

last parts of which were totally inaudible and the

middle nart of which was only partially audible, and

in which the voice uttering the incriminating state-

ments was sever identified as the defendant’s?

STATEMENT OF THE CASE

On April 4, 1968, petitioner was convicted of false

pretenses * after a jury trial in the Criminal Court of

Baltimore, Maryland. This conviction was reversed

by the Court of Special Appeals of Maryland on Au-

gust 5, 1969, on the ground that petitioner had been

wrongly prevented from testifying about conversations

with certain key figures in the case. Tumminello v.

State, 7 Md. App. 380, 256 A.2d 342.

Thereafter, on December 9, 1969, petitioner was con-

victed of the same offense at a second jury. trial in the

same Criminal Court and given a sentence of three

years in prison. i

The events which led to these convictions began in

August 1966, when one Robert A. Sewell was arrested

for assault with intent to murder. He was subsequently

convicted and began to serve his sentence. Sewell’s

attorney sent petitioner to Father Harry Maloney, a

Catholic priest who had befriended Sewell. Pctitioner

had been a bail bondsman in Baltimore for five years

(IC 148), had previously been a clerk for the Municipal

Court for toree years (tbid.), and had no prior crimi-

3 According to the trial court’s charge to the jury, the State

had to prove three elements to convict petitioner of this crime:

that there was a misrepresentation of a past or existing f:>t, that

the misrepresentation was made with intent to defraud, and that

the misrepresentaiion resulted in a transfer of money from a

person to petitioner, causing the person to suffer a loss.

4)

nal conviction. IM 384, 388. According to the prose-

cution, petitioner obtained money from Father Maloney

to have the Sewell case ‘‘fixed’’; a judge subsequently

did release Sewell but placed him on parole on condi-

tion that he receive treatment at a mental hospital, and

after Sewell’s release petitioner obtained additional

money from him on the false representation that peti-

tioner had in fact fixed the ease. According to the de-

fense, petitioner acted at all times as a professional

bail hondsman; during the course of these activities

he d-covered that Sewell’s sentence would be sus-

pended if he could obtain an appropriate letter from

Father Maloney; petitioner did obtain such a letter, and

Sewell thereafter voluntarily allowed petitioner to keep

money which Sewell had advanced for a proposed bail

bond and also paid him other monies.‘

Three weeks after Sewell’s release from prison, he

was taken to the Office of the State’s Attorney. IA

49-51. Asa result of conversations held there on three

different occasions, the State’s Attorney obtained two

contemporaneous orders from a judge of the Criminal

Court, both based entirely on an affidavit by Sewell—

a search warrant authorizing the recording of a con-

versation between Sewell ard petitioner, and a war-

rant authorizing petitioner’s arrest.> Nothing was said

to the judge about Sewell’s mental state, although

papers which were in the State’s Attorney’s files at

that time showed that Sewell had suffered from seri-

* Petitioner’s version was supported by the fact that at one point

he gave Father Maloney a written receipt for sume of the money

in question. IA 242-243, 248-249; II 204-206.

°IA 11-17, 53-54, 67-68; II 485-488, 490. The warrant had no

provision for a return, and none was subsequently made to the

eourt. LA 33-34, 39, 40-41.

6

ous mental illnesses for many years, as detailed more

fully below.®

On May 24, 1967, Sewell was outfitted in the State’s

Attorney’s office with a recording device obtained from

private sources and went to petitioner’s office, where

a number of people were gathered.’ As the State’s

Attorney himself testified, Sewell was sent to peti-

tioner with this device because ‘‘we fully expected’”’

petitioner to incriminate himself; the purpose was to

obtain a ‘‘transcript’”’? of that incrimination.’ Peti-

tioner was not warned of the device or given any warn-

ing about incriminating statements. IA 32-33. Se-

well was instructed to and did pay money to petitioner

during the recorded conversation. IA 47, 94-95; IT

402-404. Estimates as to how long Sewell was with

petitioner, recording his voice, ranged from 15 minutes

to an hour.®

STI 112-114, 488-491, 494-495, 517, and see defense proffer at

II 528-530.

TIA 78-79, 81, 103-106; IC 16; II 427, 430, 466-468, 479-482.

It was a wireless type transmitter which could send signals to a

receiving unit and under frequency modulation to a transmitter,

which in turn was tied in by wire to a tape recorder. IA 104;

IC 44; II 398. The transmitter was taped to Sewell’s chest and a

battery placed in his pants pocket. IA 105, 107.

8TA 32. The intent to incriminate petitioner is also shown

at LA 46-47, where the State’s Attorney was asked, ‘‘He [Sewell]

was instructed to confer with ‘“umminello regarding what he is

charged with?’’, and he replied, ‘‘Right. * * *’’ The State’s At-

torney told how he had concluded that ‘‘if we could arrange some-

how to overhear one of the conversations that Mr. Sewell indicated

to us were periodically taking place between himself and Mr.

Tumminellc, that would be enovgh by way of very strong cor-

roboration to prove the case we were hoping to prove.’’ IA 57.

And he stated that his intent was ‘‘tc make the arrest immediately

after we got the electronic eavesdrop.’’ IA 57. The prosecutor

characterized the incident as a ‘‘raid’’. IC 248.

TA 27, 40, 126, 132; IC 19, 34; II 406, 423, 475, 481, 492.

7

A police car was parked a few buildings away, with

a taping unit plugged into the car’s cigarette lighter.”

Although at least five people were in the car at one

time or another and overheard at least parts of the

conversation as it was being taped,” none subsequently

testified at either trial as to the contents of the con-

versation or the identity of the voices being overheard.

The first and last parts of the tape were totally in-

audible, and much of the middle part was inaudible

or distorted. apparently due to the fact that an answer-

ing service had a transmitting station on top of a build-

ing very close to petitioner’s building, and its frequency

was the same or very close to the same frequency as the

police recording unit. IA 106-107; IT 399-401, 406,

475. .

When Sewell left the building, officers entered and

arrested petitioner, taking the money from him which

Sewell had given him. IA 73-78 ; II 467-475. The tape

was turned over that same afternoon to John H. Lewin,

Jr., an Assistant State’s Attorney for Baltimore City,

and it remained in his private apartment for over seven

months, during which time it was played at least twice

by him. IA 114, 127-128, 132-133; II 405. It was

then given to Mr. Yale Aarons, a Criminal Court steno-

grapher. Mr. Aarons kept the tape for five days for

the purpose of attempting to transcribe the voices, be-

fore it was returned to Mr. Lewin. Aarons had to

play each section of the tape from two to twelve times

in order to catch the words he transcribed. IC 62;

IT 421-422. However, because of the interference in

the recording process, he was not able to transcribe

70TA 82, 108, 113, 123-125; IT 467-468, 480-481.

“TA 28, 108, 125-126; IC 34, 45-46; II 398-399, 467.

8

the first half of the tape, the ending, or many words,

phrases, sentences and sections of the middle portion

of the tape.”

Mr. Aarons did not know Mr. Sewell or petitioner

and had never heard their voices. II 425. Nor was he

familiar with any other voice—there were at least

three—on the tape.” But Mr. Aarons had already

been told by Mr. Lewin that ‘‘there would be two par-

ticular voices on the tape.’’ II 417. Mr. Lewin then

1217 417-422, 475; State’s Ex. 3. As Mr. Aarons testified at II

' 425:

**Q Actualiy the first part of the tape was wholly unin-

telligibie ?

‘A. Yes.

¥* & *

‘*Q. And how much of the portions of the tape would you

say was wholly unintelligible?

‘‘A The first part of it. I don’t know how many minutes

it ran where it was not intelligible and then there was the last

part of that tape that was completely—lI couldn’t hear a thing.

“<Q *** T don’t know whether that which you have trans-

scribed is the beginning, middle or the end. * * *

‘“‘A It’s the middle, the middle portion of it.’’

Mr. Aarons further admitted that ‘‘ A lot of it was not clear * * *.’’

IC 62. He three times described the first part of the tape as ‘‘com-

pletely undiscernible.’’ IC 65-66. As for the rest, ‘‘A lot of it

was garbled. * * * I couldn’t decipher everything. A lot of

noise was in the background.’’ II 418. Many parts, he said, were

‘‘entirely unintelligible.’’ II 419. Even the court commented

that ‘‘There is a great deal of noise, extraneous noise on the tape,

that makes it difficult to understand * * *.’? IC 49. And the prose-

cutor at the second trial admitted that even at the time of the first

trial, the entire tape was ‘‘virtually unintelligible.’’ II 105. He

also stated that the purpose of the transcript at the first trial was

to permit Mr. Lewin to ‘‘read to the jury what had theretofore

been unintelligible to them.’’ II 106.

13TA 74, 82-83; IB 405; IC 35, 253; II 426-427, 430, 467-468,

470.

9

identified the voices of Mr. Sewell and petitioner for

Mr. Aarons, and Mr. Aarons in turn placed “‘S”’ or

“T”’ in jront of the conversation which he transcribed

from the tape, based solely on the directions of Mr.

Lewin." Mr. Lewin was the man direcily and specifi-

cally assigned by the State’s Attorney to take charge

of the investigation and prosecution of the case against

petitioner. IC 3; II 479, 509, 570. Although another

Assistant State’s Attorney was also assigned to the case,

it was Mr. Lewin who:

—participated in the initial discussions with Sewell

and took part in questioning him. IA 45, 49-51, 53 ;

IC 126; IT 511.

—brought Sewell in to have his affidavit taken, was

present when it was taken, and brought him back to

sign it. IB 514; IC 4, 12-13, 127.

—requested the technical equipment used to make

the tape recording. II 397-398.

—had the arresting officer come to his office for in-

structions prior to the taping. IA 79.

—appeared with others before the court to obtain the

search and arrest warrants and then kept possession

of them overnight. IA 19-22, 55; IC 4-5; II 494, 512. .

—was in charge of instructing Sewell as to how to

conduct his taped cunversation with petitioner. IC

23 ; IT 477.

—supplied Scuwell with Lewin’s own personal funds

to be marked and given tu petitioner. II 466, 480.

—was in the police car listening to the tape while

it was being recorded. IA 125, 133-134.

4 IC 63-64, 67; II 417, 426-428, 431; see also III 22-23, 26.

10

—was present at the search and arrest of petitioner.

IA 134-135; IC 20; IT 471, 482-483.

—took possession of the tape and, except for five

days, kept possession of it in his apartment for ten

months prior to trial.. LA 44, 114, 127-128, 132-133;

IT 405.

—requested Mr. Aarons to transcribe the tape. IC

61; II 430-431.

—made out the indictments against petitioner. IC

128.

—testified against petitioner at the pre-trial hearing

and at the first trial. IA 130-136; IC 144 e¢ seq.

—represented the State a. the hearing on the Motion

to Suppress. IA 1.

—was the principal prosecutor against petitioner at

the first trial, presenting both the opening statement

and the argument to the jury at the close of evidence,

reading the transcript of the tape to the jury, and ex-

amining or cross-examining all 14 witnesses with the

single exception of when he himself testified. IA 218,

222; IC 78 et seq., 144 et seq., 352.

Because of the use made at the second trial of evi-

dence adduced at the first trial, it is necessary to re-

view briefly the two principal pieces of evidence intro-

duced against petitioner at that first trial. They were

(1) the transcript of the tape, and (2) the testimony

of Mr. Sewell.

As to the tape, the court denied a pre-trial motion to

suppress it (IA 149-150) and at trial overruled defense

objections to both the tape (1C 47-49, 52-53, 56-57, 68)

and the transcript of the tape. I 47-49, 52-53, 56-57,

11

70, 77-78. The transcript was therefore read to the

jury.”

As to Mr. Sewell, evidence only partially developed

at the first trial but developed more fully at the sec-

ond trial showed his history as follows:

—His difficulties began when he was severely in-

jured in the head during the Korean War in 1950.

Karly Veterans Hospital records varied as to whether

his principal problem was a chronic brain syndrome or

a paranoid schizophrenic reaction, but he without ques-

tion had organic brain damage and an abnormal EEG

pattern. IT 146, 590.

—In 1954 he was admitted to the Crownsville State

Hospital (a mental institution) and diagnosed as a

schizophrenic, regular paranoid type, but also with a

chronic brain syndrome with convulsive disorder and

psychotic reaction. IT 57, 593-594,

—By 1959 he had been ‘‘in and out of Veterans

- Hospitals’’ a number of times. In that year he was ad-

mitted once again to Crownsville,”* and the diagnosis

of both injury and psychosis continued. One doctor

noted: ‘‘The degree of deterioration of all intellectual

functions resembles one of the pre-senile syndromes

IC 78-87. The defense, without in any way waiving its ob-

jections to both the tape and the transcript, took the position that

for the jury to listen to both the transcript being read and to the

tape itself would unduly magnify the tape’s importance. There-

fore, since the tape was admittedly worthless without the transcript,

and the court was ruling the transcript admissible, the defense

allowed the transcript te be read without the playing of the tape—

again without waiving objections. IC 58-59, 72.

16 Police records show that this followed a charge of assault,

striking, and malicious destruction of property.

12

(Picks disease) of Algheime disease * * *.’’ II 145-

146, 594.

—In 1960 he was admitted to Perkins State Hospital

(another mental institution). He now had epilepsy

with seizures, and his 100% service-connected disability

evaluated him as ‘‘chronic brain syndrome with psy-

chotic reactions’’. II 57, 145.

In early 1961 he was diagnosed at Perkins on several

occasions after transfer from the Maryland House of

Correction, with doctors noting his ‘‘very bizarre be-

havior and confusion,’’ and finding him ‘‘disoriented,

irrelevant in his replies to questions, restless and agi-

tated and [with] some persecutory trends * * *.”’

Sewell then took a turn for the worse and assaulted

ancther inmate with a chair. By mid-year he had

epilepsy grand mal and was showing ‘‘delusions of per-

secution,’’ after having repeatedly been diagnosed as

psychotic. II 55-56, 60, 140-141, 144-145, 589-594.""

On January 18, 1965, he was admitted to Fort How-

ard Hospital (still another mental institution). He

was allowed to leave nine days later ‘‘against medical

advice.”’ IC 335.

By 1966 Sewell had received further head injuries

through car accidents; he was noted by doctors to be

‘‘unreliable and irresponsible’’; he was suffering from

**chronic brain impairment which means that he has

impaired memory, impaired judgment, impaired com-

17 Police records show that he was again committed to Crowns-

ville in November 1964 following charges of disorderly conduct

and carrying a deadly weapon. Further offenses were charged

against him in 1965, 1966, 1968 and 1969. On May 5, 1970 (sub-

sequent tc petitioner’s second conviction), Sewell was charged

with impersonating a police officer, was found not guilty by

reason of insanity, and was committed once again to Crownsville.

13

prehension”’; he had ‘‘impairment for recent memory

and remote memory’’; he was suffering not only from

a memory defect but also from a severe distortion due

to paranoid tendencies; he was in the ‘borderline

mental defective range’’; he was considered ‘‘a danger-

ous person,’”’ and there was ‘‘nothing more psychi-

atrically that can be done for this patient.’’ IC 300,

307-313, 317-320; II 61, 63, 65, 141-142, 583-586, 591-

592. In summary, ‘‘if he says something which hap-

pens to be untrue it is not because he is telling a lie

but rather because his mind is functioning in such a

way as to distort that.’’ IC 312.

When Sewell was sentenced in 1967 for assault with

intent to murder, the court stated that ‘‘he is deteriorat-

ing and you can tell he is a little dangerous.’’ IB 532.

And when the sentence was later suspended, Sewell’s

own attorney urged that he be sent to Fort Howard

Hospital ‘‘by reason of his mental condition,’’ which

the judge ordered. IB 527.

Sewell was again found to be psychotic in 1968 (the

date of petitioner’s first trial), and by 1969 (the date

of the second trial) he was so psychotic that he could

not even testify. II 2, 14, 37-38, 47-50, 52-53, 61-63, 65,

71, 87, 142-144, 598. The psychiatrists were unanimous

in their view that he was ‘‘a paranoid schizophrenic

with superimposed organic brain syndrome, with brain

trauma.’”’ II 37. Any account he would give would be

‘“‘unreliable’’? (II 50) and ‘‘elaborated’’ (II 69); he

was ‘‘hallucinating’’ and ‘‘receiving delusions’’ (II

87), and, most importantly, it was very likely in their

judgment that his testimony at the first trial was sub-

ject to the same deficiencies as at the time of the second

trial. II 71. Both his brain damages and his paranoia

were permanent and incurable. IC 312-313; 318.

14

Sewell’s testimony against petitione> at the first

trial was so filled with error and contradiction” that it

is difficult to summarize. By way of example only, we

have printed as Appendix C a small portion of his com-

ments relating to the amounts of money which were

allegedly paid to petitioner.” Even the prosecutor ad-

mitted that he was ‘‘suffering rather severely from

mental disorders’’ (II 175) and that he did ‘‘imagine

things and gets things mixed up and confused and

there’s no doubt about that.’’ II 647. Nevertheless,

over objection (IB 327-328, 340-341, 346-348, 354),

Sewell was allowed to testify.”

18 F.g., cf. IB. 420-421 with II 146, 594; IB 495-496, 507-508

with IB 525, 533, and II 498; and IB 371 with IB 408. Sewell

denied that he had ever been diagnosed ‘‘mentally sick’’ (IB 426),

that he had ever been committed to a mental institution (IB 420-

421), or that he had even been to Crownsville since his military

service. IB 421-422. And see the prosecutor’s concession at IC 145.

19 One result of all this confusion was that the prosecutor at the

second trial, over objection, amended the original indictment,

which charged that the ‘‘thing of value’’ Sewell gave to petitioner

was $2300, to a charge that the amount was only $700. II 25-29,

95-104, 640-645.

20TB 370-521. Defense counsel was severely limited in his

cross-examination of Sewell (e.g., IB 409, 409-410, 41C-416, 416,

417-418, 419-420, 433, 437-438, 454-455, 464-466, 472-414, 496-497,

506-507, 508, 509, 511-512)—-so much so that defense counsel moved

‘for a mistrial as a result of repeated limitations on his question-

ing. IB 512.

A pre-trial psychiatric report on Sewell made for the Supreme

Bench dated September 21, 1966, was ruled inadmissable (IB 367),

despite long arguments by the defense as to its admissibility (IB

336-366) ; despite the fact that Sewell knew when the report was

made that it would be used in court (IC 284-285, 296-297, 304-305,

313), and despite the fact that Sewell had waived any privilege

in regard to it by using it himself in another proceeding. IB

§11-512.

In addition the examination of the psychiatrist who testified

about Sewell’s mental condition was severely limited. The court

15

After petitioner’s conviction and the reversal by the

Maryland Court of Special Appeals, petitioner was

brought to trial a second time. Over three and a half

years had passed since the alleged crime. By now, Mr.

Sewell had become ‘“‘unavailable’’ in the sense that he

was considered too insane to be able to testify." Over

objection,” his testimony from the first trial was read

to the jury. II 288-390.

The tape was by now, if anything, in worse condition

than it had been in at the first trial. The prosecutor

himself admitted that this ‘‘very incriminating docu-

ment”’ (II 106) was ‘“‘very unclear,” that there was

“‘great interference, static, distortion.’? II 105. It

was ‘‘virtually unintelligible,’ II 107; see also II 134.

When the defense also objected to the identification of

the voices on the tape, the court ordered the voices

designated as ‘‘1’’ and ‘‘2”’ instead of “‘S”’ and “‘T”’,

IT 432-442. Asa result, the petitioner was never identi-

fied to the jury at the second trial as a speaker on the

tape. See III 12-14. This was particularly vital in

view of the fact that petitioner had denied making a

number of statements attributed to him in the tran-

seript (¢.g., IC 252, 253, 262), and he had claimed that

in some instances some one else had been speaking to

Sewell (IC 253), or that he himself had been speaking

admonished defense counsel that ‘‘Not every mental defect can

be shown * * *”’ and that the psychiatric testimony had to relate

to Sewell’s ability to observe and remember, to relate later what

he had observed, or his ability to tell the truth. IC 299; see also

IC 285, 298-299, 300, 301-303.

217I 2-3, 14, 34, 36-53, 150-151. The prosecutor admitted that

if Sewell testified, ‘‘I don’t think I will get anything cther than

completely incoherent ravings.’’ II 14.

22TI 3-33, 93, 108, 131, 150, 276-277. A motion to strike it at

the conclusion of the reading was also denied. II 393-394.

16

to another client (IC 255), or that some one else had

been speaking to some one other than Sewell. IC 260-

261. Petitioner’s attorney, who listened to the tape,

found it ‘‘quite at variance’’ with the transcript. IC

53. Despite all this, the transcript of the tape was

nevertheless read to the jury (II 451-462), over objec-

tion. II 155-156, 239-243, 440, 442, 462.

The only other testimony linking petitioner with the

alleged crime was the testimony of Father Maloney.

By his own admission, however, Father Maloney was a

diabetic who suffered from a failing memory. IA 257-

258. He repeatedly admitted he could not remember

dates, statements or events.” At one point, he could not

even remember testifring previcusly to the exact oppo-

site of what he was currently testifying to. II 617-625.

Yet he was asked to recall events which had taken

place three and a half years ago in relation to a man

who the Father himself said was only one of at least 500

whom he had helped over the years. IB 313-315.*

TA 232, 254, 255, 260-261, 262, 263, 264, 267, 268, 271-272: IB

279, 282, 284, 294, 297, 298, 300, 301, 302, 309, 311, 312, 315; II

201, 203, 207, 212, 213, 215, 223, 224, 226, 246, 248, 249, 254, 259,

262, 273, 274, 604, 617, 618, 619, 621, 623, 624, 625.

*4 Perhaps the best indication of the lack of force to his testimony

are the following two points: (1) The prosecutor admitted that

withuut the tape, there would have been no trial despite the

presence of the Maloney testimony. II 648. (2) After the psychia-

trist testified to Sewell’s mental condition, the prosecutor admitted

his reluctance to admit the ‘‘canned testimony’’ of a witness who

was ‘‘under a substantial mental disorder at the time he gave that

testimony.’’ II 90-91. Therefore, he decided not to have Sewell’s

testimony read and said he would change his mind only ‘‘if the

State’s case otherwise did not hold up and I anticipate that it

will.’’ II 91-92; see aiso II 101. After Father Maloney gave his

direct testimony, however (II 193-228), the prosecutor changed his

mind about Sevell’s prior testimony and asked that it be read to the

jury. IT 243.

Almost entirely on the basis of the transcript of the

tape and the reading of Sewell’s prior testimony, the

jury returned a verdict of guilty, the Maryland Court

of Special Appeals affirmed (App. A), and the Marv-

land Court of Appeals denied certiorari (App. B).

REASONS FOR GRANTING THE WRIT

This is a classic—and frightening—case of a man

deprived of his Sixth Amendment right,” to confront

the evidence against him and to have his jury see, hear

and evaluate that evidence.

This was a second-hand trial in which the two prin-

cipal pieces of evidence against petitioner—the two

without which the prosecution concededly could not

convict ““—were never seen or heard by the jury.

The chief prosecution witness, Sewell, was an insane

criminal who had not one psychotic disability but four:

paranoia, schizophrenia, brain damage and epilepsy

grand mal. He was, moreover, the most dangerous type

of liar, for as the prosecution’s own psychiatric witness

put it, ‘I don’t think he knows he is lying. *** Of

course, the schizophrenia paranoid type is character-

ized by delusions and doubt and disorder which has a

tremendous bearing on any accounts they give.”’ IT 59,

67. This was a witness who lied to his own priest,

whose sworn statements to the State’s Attorney were

in direct conflict with his testimony at petitioner’s first

trial, and whose testimony even standing by itself was

riddled with conflicts, contradictions and utter con-

fusion. It is almost impossible to believe that a man

* This right, of course, is made applicable to the States through

the Fourteenth Amendment. Dutton v. Evans, 400 U.S. 74, 79

(1970) ; Pointer v. Texas, 380 U.S. 400, 403 (1965).

*6TA 66; II 648; cf. II 91-92, 101, with II 243.

18

could be convicted of a crime on the basis of the type of

testimony set forth in Appendix C. But even worse,

the jury that convicted petitioner the second time never

saw this witness, never was able to gauge for itseif

his demeanor and manner while giving this extraordi-

nary testimony.” Surely it is more important for a

jury to assess the personal performance of an insane

man than that of the ordinary witness.”

This is not a case in which evidence of insanity sub-

sequent to a crime or a trial is used in an attempt to

prove insanity prior to the crime or trial. Sewell’s in-

sanity was fully documented as far back as 1950—18

years before he testified—and he was found to be

psychotic in every one of the five years immediately

preceding his testimony. Moreover, it was not a fleet-

ing or casual type of neurosis but a permanent psy-

chosis ; * it was an illness that affected both his memory

27 If a confession is not admissible because there is substantial

evidence that the defendant was incompetent and insane at the time

he made it (Blackburn v. Alabama, 361 U.S. 199 (1960) ), the pri-

mary testimony against a defendant by a third party should be

judged in the same light. One is as equally damaging, and as

equally likely to be false, as the other. All courts agree that a

witness must be able to give a correct account of the matters he

has seen or heard. District of Columbia v. Armes, 107 U.S. 519

(1883).

*8 That is why ‘‘sound discretion demands the exercise of great

caution in qualifying as competent a witness who has a history of

insane delusions relating to the very subject of inquiry in a case

in which the question is not simply whether or not an act was done

but, rather, the manner in which it was done and in which testi-

mony as to details may mean the difference between conviction

and aequittal.’’ People v. McCaughan, 49 Cal.2d 409, 317 P.2d

974, 981-982 (1957) (per Traynor, J.).

2° Insanity, once established, is assumed to continue unless it is

cured or unless there is a long lapse between the illness and the

event in question. Wharton, Criminal Evidence, § 119; Annot.,

27 ALR 2d 121.

19

and his ability to tell the truth, and it was one which

manifested itself in connection with the very events

about which he testified.”

For present purposes however, the more important

point is that at the first trial, although the jury did

not have before it all the facts about Sewell’s illness,

it at least had the opportunity to see and evaluate the

man, Petitioner was able to confront the witness

against him. But at the second trial, no one—neither

jury, court nor defendant—even saw the witness. This

hopelessly insane person, whose testimony, in the prose-

cutor’s words, would have amounted to no more than

‘completely incoherent ravings’? (II 14), never ap-

peared. Instead, his prior testimony was read to the

jury. |

We recognize, of course, the general rule that the

prior testimony of a witness may be read to the jury

if the witness is no longer ‘“‘available” and if full

cross-examination was allowed when the testimony was

originally given. But, as demonstrated in footnote 20,

supra, cross-examination was not fully available at peti-

tioney’s first trial—neither as to Sewell nor as to the

psychiatrist who testified about his condition." More-

3°In fact, one of the important reasons why Sewell was not

permitted to testify in person at the second trial was that “his

paranoid elaborations are related to the events he is supposed to

testify on.’’ II 76-77. After pointing out that some topics sre

more sensibly discussed by mental patients than others (II 67-68),

the psychiatrist then demonstrated in detail how Sewell’s account

of the incidents involving petitioner was a topic intricately inter-

woven with his illness. II 69-70. This is the type of situation

specifically warned against by Wigmore (§ 422, p. 585). |

31 See United States ex rel. Smith v. Baldi, 344 U.S. 561, 571

(1953). Surely restrictions on cross-examination in a case such as

this one, where both the witness and the tape are suspect from the

20

over, in Barber v. Page, 390 U.S. 719 (1968), this Court

stressed the importance of having the witness made

available for trial rather than having his testimony

from a prior hearing read to the jury. See also Wash-

ington Vv. Texas, 388 U.S. 14 (1967). This should be

particularly true where the witness’s present condition

is related back to his condition at the time he testified,

so that the jurors, by seeing him now, are receiving

with some accuracy the same impressions they would

have received if they had heard him originally.

Perhaps most importantly, additional psychiatric

testimony and records developed at the secona trial

showed more fully than previously just how insane

Sewell had been when he originally testified. The

psychiatrist at the second trial, in fact, was able to

relate Sewell’s condition back to the time he testified.

After showing at some length how Sewell was not

‘‘available’’ because his testimony would be so com-

pletely unreliable and distorted, the psychiatrist stated

repeatedly that Sewell’s mental difficulties went back

many years (II 50, 53, 63, 65, 66) and that it was

‘‘very likely’’ that his prior testimony was subject to

the same deficiencies as those facing him at the time

of the second trial. II 71.

In the face of this evidence and the additional psy-

chiatric reports adduced at the second trial, it was a

denial of both due process and the right to confronta-

tion for the court to have allowed this witness to testify

outset, are as serious as those which this Court has condemned in

other Sixth Amendment cases. E.g., Pointer v.- Texas, supra;

Douglas y. Alabama, 380 U.S. 415 (1965) ; Brookhart v. Janis, 384

U.S. 1 (1966). The jury here was as unprotected from being

misled as was the one in Bruton v. United States, 391 U.S. 123

(1968), and Roberts v. Russell, 392 U.S. 293 (1968).

21

against petitioner not in person but on the basis of

‘canned testimony.’’ As the trial court said at one

point, ‘‘I am awfully concerned about using canned

testimony in the case where the man might well have

been suffering from delusions which would affect the

accuracy of his testimony.’’ II 83. Yet that is pre-

cisely what the court proceeded to allow.

Sewell’s testimony, however, was not the only second-

hand evidence used to convict petitioner. The “‘in-

criminating’’ tape of petitioner’s conversation with

Sewell was never heard by the jury at the second trial,

and in its place was an alleged ‘‘transcript’’, read to

the jury by the prosecution.

We begin with the fact that there never was a com-

plete tape (n. 12, supra). The entire beginning and

end of petitioner’s conversation, which might well have

explained or put an entirely different light on the

middle portion, was completely eliminated by trans-

mitting interference. Mr. Aarons did not even at-

tempt to transcribe most of the tape.”

82 See United States v. Kabot, 295 F.2d 848 (2d Cir. 1961), cert.

denied, 369 U.S. 803 (1962), where too small a portion of the

tape was deemed available. In United States v. Bryant, — US.

App. D.C. —, 439 F.2d 642 (1971), a tape was taken of conversa-

tions, between an undercover agent of the Bureau of Narcotics and

D. ngerous Drugs and the three defendants, who were subsequently

ace..sed of selling heroin. The agent made no effort to preserve

the tape, and it was in fact lost prior to trial. In view of the due

process requirement that certain materials be disclosed to the

defense, the Court of Appeals ordered a hearing as to the agent’s

negligence on the theory that if he had been negligent in failing to

preserve the tape, the indictment would have to be dismissed. The

tape, said the court, may have corroborated the agent’s story,

“‘or, for all we know, it might have completely undercut the Gov-

ernment’s case. * * * What we do know is that the conversations

22

As to the middle portion which he did attempt to

transcribe, by his own admission what he heard was

often inaudible, distorted, unclear or undiscernible (n.

12, supra). The result was a patchwork transcrip-

tion, with many words and pkrases left to guesswork

and the imagination of the jury. In United States v.

Schanerman, 150 F.2d 941 (3d Cir. 1945), the court

held that transcribed notes by a stenotype operator

from recordings ‘‘repeatedly’’ played were properly

excluded. Here, Aarons had to play each portion of

the middle section of the tape from two to twelve times

in order to discern anything at all to write down. He

was attempting to hear, in other words, what the pros-

ecutor admitted that the jury could not hear (n. 12,

supra). Mr. Aarons was substituting his own per-

ception and discernment for that of the twelve jurors.

Even assuming that this would be permissible ir the

ease “f a transcript authenticated by independent

sources who had personally overheard the recorded

conversation, certainly it is entirely impermissible

recorded on the tape were absolutely crucial to the question of

appellants’ guilt or innocence.’’ 439 F.2d at 648 (citations

omitted). We see very little difference from the defendant’s stand-

point between a tape negligently lost and the tape which was

preserved in this case—virtually inaudible, subject to control by

the prosecutor for ten months prior to the first trial, even then

not heard and evaluated at the trial, but nevertheless used through

a transcript to convict.

88In People v. Stephens, 117 Cal. App. 2d 653, 256 P.2d 1033

(1953), a recording was rejected because much of it was unin-

telligible and subject to varying interpretations by the jurors, and

no witnesses who heard the recorded conversations testified as to

their content or the accuracy of the recording. Similarly, in Melvin

v. State, 210 Miss. 132, 48 So.2d 856, 49 So.2d 837 (1950), a wire

recording was excluded from evidence because of its lack of clarity.

t

where there is no independent authentication.* In this

respect, it is highly significant that at least five people—

at least one of whom knew Sewell personally (IC 35)—

overheard parts of the tape while it was being recorded,

but none verified the contents of the tape or any part

of those contents during either trial.

Nor was that all. This tape had remained for seven

months prior to Mr. Aarons’ transcription in the per-

sonal possession of the man charged with investigating

and prosecuting the case. Mr. Lewin participated, in

fact, from the very first discussions with Sewell to the

closing argument to the jury in the first trial. He had

even been present at petitioner’s arrest. It was he

who selected and instructed Mr. Aarons to transcribe

the tape, and it was he who identified the voices of peti-

tioner and Sewell on the tape. Again, even assuming

that the transcriber need not be personally familiar

with the voices of the speaker—as Mr. Aarons was

not—surely the party who identifies those voices, who

ties the defendant in a criminal case directly to the

4 The courts are unanimous that tapes and transcripts, if other-

wise admissible, must be properly authenticated. See 58 ALR 2d

1032-1036 ; McCormick on Evidence, § 196; 4 Wigmore on Evidence,

§ 1192. Moreover, where a recording cannot be used for some

reason, the prosecution’s use of a transcript has been held a denial

of the defendant’s right to be confronted by the best evidence.

Umited States v. Stephenson, 121 F.Supp. 274 (D.D.C. 1954),

appeal dismissed, 96 U.S. App. D.C. 44, 223 F.2d 326 (1955).

® As recently as June 21, 1971 this Court had oceasion to point

out that the chief government enforcement agent of the State is not

“‘neutral and detached’’ and ‘‘cannot be asked to maintain the

requisite neutrality with regard to their own investigations—the

‘competitive enterprises’ which must rightly engage their single-

minded attention.’? Coolidge v. New Hampshire, 39 U.S.L. Week

4795, 4797.

24

‘‘incriminating’’ evidence, cannot be the man assigned

to see that the defendant is convicted.*

As if this were not fatal enough, the judge at the

second trial eliminated the letters attributing the re-

corded remarks to petitioner and Sewell, and thereby

did away with the only semblance of evidence purport-

ing to tie petitioner to specific statements. No one at-

tributed the patch-work comments in the transcript to

petitioner’s voice, although any number of officers who

had overheard the recording and been present at peti-

tioner’s arrest might have done so. The jury at the

second trial undoubtedly assumed that the speakers,

though numbered ‘‘1’’ and ‘‘2’’, must have been previ-

ously and properly identified as Sewell and petitioner ;

otherwise there would be no point in the introduction of

the transcript. Yet no previous and proper identifica-

tion was made. The transcript therefore hecame a

wholly improper, second-hand piece of evidence, used

in place of a tape which the jury never heard.” This

is not merely an evidentiary issue; this goes directly to

the question of whether petitioner could even be tied

to the crime, as well as to the question of whether he

confronted the evidence that convicted him.

The denial of petitioner’s right to confrontation, how-

ever, was not the only constitutional violation here. The

86 Compare Fountain v. Umted States, 384 F.2d 624, 632 (5th

Cir. 1967), cert. denied sub nom. Marshall v. United States, 390

U.S. 1005 (1968), where the transcriber was ‘‘personally familiar

with each of the parties to the recorded conversations and was

able from experience to identify the voices.’’

87 If a tape is inaudible, the jury should know this and judge it

on that basis. It is not the prerogative of the prosecution to con-

vert an indecipherable tape into a decipherable one through the

aevis of a written transcript, for the very starkuess of the written

word misleads the jury as to the condition of the tape.

25

totality of circumstances in this case, including the fol-

lowing, clearly shocks the conscience and violates due

process:

—The warrants obtained against petitioner had no

provision for a return, and none was made (n. 5, supra),

as this Court has twice said is a necessary ingredient to

a valid warrant. Berger v. New York, 388 U.S. 41, 60

(1967) ; Katz v. United States, 389 U.S. 347, 356 (1967).

—The warrants were obtained without disclosure to

the court of Sewell’s record of serious mental illnesses,

even though evidence of these illnesses was in the

State’s Attorney’s files at the time. The Court of Spe-

cial Appeals noted the testimony of the State’s Attorney

that ‘‘he was not personally aware of the information”’

about Sewell in his own files, but the court failed to note

a lack of such testimony from the Assistant State’s

Attorney actually in charge of the case, Mr. Lewin.

IC 3; IL 509, 570. The State’s Attorney agreed that

this was information to which the court was entitled in

order to pass on the application for the warrants. II

515-517.

. —The warrant for the recording and the warrant for

petitioner’s arrest were sought and granted at the same

time (n. 5, supra). Since even the State’s Attorney

conceded that he needed the tape recording in order to

prove his case (IA 66), it is obvious that the arrest war-

rant was without probable cause at the time it wes

issued.

—The circumstances surrounding the recorded con-

versation between Sewell and petitioner inextricably

spell entrapment. The State’s Attorney admitted, in

fact, that the whole point of the tape and the marked

money was to incriminate petitioner (n. 8, supra). See

26

Umited States v. Klosterman, 248 F.2d 191 (8rd Cir.

1957) ; Capuano v. United States, 9 i'.2d 41 (1st Cir.

1925).

When these facts are combined with those recited

above in relation to Sewell and the tape, we respectfully

submit that due process has been denied. These facts

in combination strongly cail for a reversal of petition-

er’s conviction by this Court.

CONCLUSION

There has been an increasing tendency of late for

both state and federal courts to use prior or secondary

evidence instead of ‘‘live’’ evidence. This Court has

approved some of these uses.** But surely there comes

a point in the use of second-hand evidence where the

rights to confrontation and due process disappear. We

submit that they did in this case, where the ‘‘canned’’

testimony of an insane man and the partial transcript

of an inaudible recording combined to convict a man of

false pretenses.

Respectfully submitted,

E. BARRETT PRETTYMAN, JR.

Hocan & Hartson

815 Connecticut Avenue

Weshington, D.C. 20006

Louis H. FRIED

530 Equitable Building

Baltimore, Maryland 21202

Attorneys for Petitioner

38 F.g., California v. Green, 399 U.S. 149 (1970); Dutton v.

Evons, supra.

la

APPENDIX A

JoHN TUMMINELLO

Vv.

State oF MaryLanp.

No. 81

Court of Special Appeals of Maryland.

Jan. 5, 1971.

Argued before Ortn, THompson and Powers, JJ.

THomPson, Judge.

John Tumminello, the appellant, was convicted of false

pretenses by the Criminal Court of Baltimore. He was

sentenced to a term of three years. On appeal his con-

viction was reversed by this Court, Tumminello v. State,

7 Md.App. 380, 256 A.2d 342. He was retried in the Crim-

inal Court of Baltimore, Judge David Ross presiding with

a jury and upon reconviction was sentenced to a life term.

On this appeal he raises questions as to: (1) sufficiency

of the evidence: (2) the mental capacity of Robert A. Sewell

to be a witness against him; (3) an amendment to the in-

dictment; and (4) the admission of a stenographer’s tran-

script interpreting a tape recording.

There was evidence showing that Robert A. Sewell was

arrested in August of 1966 on a charge of assault with in-

tent to murder; on December 9, 1966, Sewell was convicted

and sentenced to a term of four years in the House of Cor-

rection. He engaged an attorney to handle his appeal who

apparently sent John Tumminello; a professional bonds-

man, the appellant, to one Father Maloney to secure money

to pay for the appeal bond. Tumminello teld Father

Maloney that he had been sent to collect $600. for which

2a

he would have the case against Sewell ‘‘fixed’’. On this

assurance Father Maloney gave the appellant $600., $500.

of which he had obtained from a joint account between

himself and Sewell; the other $100. was his personal funds.

Afterwards, while visiting Sewell in the House of Cor-

rection, Tumminello told Sewell that on the following

Monday he would be brought into court and placed on pro-

bation but it would cost $1,000. to ‘‘spring’’ him.

Previously, through the efforts of Sewell’s counsel and

the Father, Judge James K. Cullen had agreed to conduct

a hearing on the Monday in question to determine whether

the sentence should be stricken and Sewell placed on pro-

bation. After the hearing was completed he was placed on

probation, although the judge was not aware of any of

Tumminello’s activities. After Sewell was released, he

went to the appellart’s office where the appellant informed

him that additional monics were needed. Sewell said that

at this time he requested the appellant to advise him as

to how much he had been paid and that he listed an amount

in excess of $2,000.’ and told him that he would hold the

receipt on his desk until more money was paid. The appel-

lant then took Sewell to Father Maloney’s home and while

the appellant waited, Father Maloney and Sewell went to

the bank and withdrew $300. of which Sewell gave the ap-

pellant $290. Tumminello continued to demand money

from Sewell who complained to the State’s Attorney. On

“May 23, 1967, the State’s Attorney, under Md.Code, Art.

27, § 125A obtained an order from Judge J. Gilbert Prender-

gast to use an electronic device to overhear and record a

conversation between Sewell and Tumminello. The order

was based upon an affidavit by Sewell. At the same time

an arrest warrant and search and seizure warrant were also

issued.

=

1On cross-examination, Sewell explained the remainder of the

monies paid had been obtained by Tumminello from a lock box

which was in the custody of some of his relatives.

lr oe SRB Pwey LETTE O IS SLE GLEE ELSE LER. LR ARE i Ogg Rar

3a ;

At the direction of the State’s Attorney, Sewell then

arranged to meet Tumminello in his office for the pyrpose

of paying him additional money. Sewell was supplied with

$150. marked money which he took to Tumminello’s office,

with a hidden microphone which was to transmit the con-

versation to a recording device set up in an automobile near

the office. Sewell entered the office, paid $100. of the

money te Tumminello and had a conversation, the record-

ing of which was partially garbled. When Sewell left the

premises, the police entered, arrested Tumminel!o and re-

covered the $100. The portion of the conversation which

was recorded concerned Sewell’s claim that his attorney

was demanding more money, and was threatening to have

the suspension of his sentence revoked if he was not paid;

and Tumminello’s lengthy advice that Sewell did not owe

his lawyer any more money as he, Tumminello, was re-

sponsible for the change of sentence, A stenographer’s

transcript of the clear portion of the tape was admitted in

evidence. ©

Tumminello did not testify at the second trial. Addi-

tional facts will be stated as various contentions are dis-

cussed.

‘ I. Sufficiency of the Evidence

Sewell testified that he was convinced Tumminello had

‘¢fixed the case’’ because the suspension of sentence oc-

curred at the exact time and exact manner Tumminello

had previously predicted and that he, Sewell, paid hin the

funds because he thought it was necessary for the appellant

to obtain funds with which to bribe the judge and State’s

Attorney, as appellant had represented to him. The trial

judge and the State’s Attorney both testified, denying re-

ceipt of any money or any knowledge of the appellant’s

activities.

x

In Lockard v. State, 3 Md.App. 580, 583, 240 A.2d 312,

313, we quoted the requirements set out in Smith v. State,

4a

237 Md. 573, 207 A.2d 493, 495 to establish the crime of

obtaining money by felse pretenses as follows:

‘¢*(1) false representation of a past or existing fact;

(2) made with intent to defraud; and (3) that the

victim actually relied on the false representations to

her loss.’ ’’

Clearly, the evidence recited sufficiently supports a guilty

verdict under the aforegoing definition of the law.

[1] Appellant contends the evidence was insufficient to

support his conviction by reason of the rule set out in Kuch-

arezyk v. State, 235 Md. 334, 201 A.2d 683 wherein the

Court of Appeals held that when a witness stated on direct

examination that a crime occurred and on cross-examina-

tion that no crime occurred, his testimony was too incon-

sistent to support a verdict of guilt. He points to Father

Maloney’s testimony at the prior trial that the money

given to Tumminello was for bail as inconsistent with the

testimony ix the present trial that the money was for a

‘‘fix.’?? An analysis of the testimony shows that the testi-

mony is not as inconsistent as represented. Although

some unimportant details of Father Maloney’s testimony

were inconsistently recited, his testimony as to the im-

portant matters was clear. The record shows that appel-

lant stated on the telephone that he wanted $500. from

Father Maloney fo: the bail but when he arrived at the

house to collect the money, he demanded $600., stating, it

was to ‘‘fix’’ the case.

[2] This difference as to which conversation was re-

ferred to accounts for the apparent discrepancy. Appel-

lant also contends that this testimony made Father Ma-

loney an accomplice, whose testimony must be corroborated.

Assuming, without deciding, that this is true, there was

ample evidence to corroborate the testimony in Sewell’s

testimony and in the tapes.

da

[3] Appellant further contends that since the money

furnished by the State’s Attorney was not lost, the victim

did not rely on a false representation to his loss. This

argument entirely overlooks the other sums paid, espe-

cially the $290. paid by Sewell to Tumminello at Father

Maloney’s home after Sewell had been released on pro-

bation.

IL. Incompetency of the Witness Sewell

At the second Tumminello trial, the witness Sewell was

found mentally incompetent to testify. The trial court held

Sewell’s insanity made him sufficiently unavailable for

the present trial so as to allow the testimony from the prior

trial to be admitted. In his appeal, appellant makes two

concessions and raises two contentions. He concedes that:

(1) Sewell was in fact. incompetent at the second trial,

(2) under Contee v. State, 229 Md. 486, 184 A.2d 823, proof

of the insanity of a witness is proof of sufficient unavail-

ability to admit his testimony from a prior trial. See also

Britton v. State, 10 Md.App. 70, 267 A.2d 747 as to proof

of unavailability in general.

[4] Appellant’s two contentions concerning Sewell’s in-

competency are: (1) Since Sewell’s insanity is not per-

manent, and since possibility of recovery exists, the wit-

ness Sewell, although insane at the time of the second trial,

would have been cured (and thus available) within a short

time; therefore, it was error to admit his testimoney from

the prior trial. (2) Sewell was also incompetent at the

time of the first trial; therefore, his testimony from the

first trial should not have been admitted at the second trial.

To support his first argument on Sewell’s incompetency,

appellant cites Lindsay v. State, 2 Md. App. 330, 234 A.2d

479 holding that a witness being out of state until one

or two days after the trial occurred was not sufficient un-

availability to admit the testimony of the witness from a

prior trial. The principles applied in Lindsay have no

6a

application to the facts of the present case since Sewell’s

recovery, if any, was vague, indefinite, and uncertain. ‘The

only specific testimony on Sewell’s cure was as follows:

‘““The Court: Do you have any expectations that

further treatment will result of curing him to a point

where he will be able to at some future date testify

in his own defense in the charges pending against

him?

‘“‘The Witness [Dr. Adamo]: Well, we are trying.

He is being treated the best we can but I must say that

this paranoid type of schizophrenia is very difficult

to treat. These beliefs which are based on a false rea-

soning are very difficult to change and modify. So,

the only thing I can answer, we keep on trying in the

hope that he will improve.”’

The vagueness of this testimony readily demonstrates

the difference between the cure of this mentally ill witness

as opposed to the return of a witness to this jurisdiction

in a few days.

[5,6] Appellant more strenuously urges the testimony

showed the witness was incompetent to testify at the time

of the preceding trial, March 1968; therefore, the tran-

script of his testimony at that trial should not have been

admitted in the instant trial. The only witness offered to

the trial court in the instant trial on the competcicy of

Sewell at the first trial was Dr. Ido Adamo, a psychiatrist

at Clifton T. Perkins State Hospital. The gist of Adamo’s

testimony can be summarized by the following quotes:

**Q. [by defense counsel] Now, mf question of neces-

sity has to follow: Assuming the hypothetical question

that my brother, Mr. Ozer recited concerning the facts

in this present case today as applied to May, 1967,

would you in your opinion be able to say whether or

not in May of 1967, when he gave an affidavit to the

State and the next month—

7a

‘‘Mr. Ozer [Assistant State’s Attorney]: March of

’68 was the trial.

‘*Q. (Continuing)—and the subsequent trial in Feb-

ruary and March of 1968, assuming those two appear-

ances by Mr. Sewell under oath, I ask you now again,

whether or not in May of 1967, when he gave an affida- .

vit to the State and in March and February of ’68

when he was a witness in a trial, whether Mr. Sewell

had sufficient understanding to apprehend the obliga-

tion of anoath? That is the first question. Did he have

sufficient understanding to apprehend the obligation of

an oath? That’s the first question’’.

‘¢ A, I think I would answer the same way I answered

that time. I would say yes.

‘*Q. The next question is, in May of 1967 and in Feb-

ruary and March of 1968, on which occasions he made

statements under oath, did he in your opinion, did Mr.

Sewell have the capacity and was he capable of giving

a correct account of the matters which he had seen

or heard in reference to those things which were the

subject of an affidavit in May of 1967 and were the

subject of a trial in which he was a witness in March

of ’68?’’

‘‘The Court: Can you give an opinion in response

to that question with a reasonable degree of medical

certainty based on the examinations which you have

made of the patient and reports in the file Doctor?

‘<The Witness: Well, I can only say that there is

no question about the fact that he has been mentally

ill for many years and that he was suffering from a

mental disease and defect in 1966, ’67 and ’68 and ’69,

but I have some difficulty in determining with certainty

the intensity of the disease and the facts during each

time I have been asked. You know, these conditions

8a

go up and down. Sometimes the patients are fairly

reasonable, fairly in contact but there are some other

times that they are just—the reality testing is just

too much impaired. So, the occasions I have had do

not allow me to answer with precision the question.

‘‘By Mr. Sharretts: 3

“<Q. Well, could I then—

‘*A. As I said, there’s no question in my mind, I

think in nobody else’s mind that he has been mentally

sick for many years.

‘‘The Court: But am I interpreting what you’re

saying correctly in that even though he has been suf-

fering from these diseases that you have described

over a long period of time, without examining the

patient, you cannot determine at any given point in

time during that period whether or not he can give a

reasonably accurate account of events?

‘*The Witness: No, I cannot be precise in that.’’?

Obviously, this testimony fails to overcome the presump-

tion that the witness was sane at the time he testified.

See 2 Wigmore, Evidence, §§ 484, 497 (3d Edition); 1

Warton, Criminal Evidence, § 119 (12th Edition) ; 3 Jones,

On Evidence, § 760 (5th Edition). The following cases

have applied the presumption: Terry v. O’Neal, 194 Md.

680, 72 A.2d 26; Johnston v. Frederick, 140 Md. 272, 117 A.

768; and Rasnick v. State, 7 Md.App. 564, 256 A.2d 543.

The préof of insanity must be clear and conclusive. John-

ston v. Frederick, supra, Terry v. O’Neal, supra.

We cannot say the trial judge in the instant case abused

his discretion in receiving the testimony.

2 Other testimony showed that the witness was making use of

medical records as well as his personal examinations in making his

conclusions.

’ eerie eins

9a

ITI. Amendment of the Indictment

[7] Immediately prior to trial, the Assistant State’s

Attorney indicated he might proceed without Sewell’s testi-

mony and requested the court to amend the indictment as

to the amount of false pretenses from $2300. to $700. Over

objection, the court granted the amendment. On appeal,

appellant, while acknowledging the failure of the State to

prove the exact amount stated in the indictment, would not

be of ary legal importance, alleges he was deprived of a

valuable impeachment tool.

In Watkins v. State, 4 Md.App. 47, 50, 240 A.2d 787,

this Court discussed Md. Rule 714a which authorizes the

trial court to permit an amendment of indictment any time

before a verdict as to a matter of form, but not as to a

matter of substance, quoting the rule laid down in Corbin

v. State, 237 Md. 486, 489, 206 A.2d 809, 811 as follows:

‘As to what constitutes substance and what is merely

formal in an indictment, it may be said that all facts

which must be proved to make the act complained of a

crime are matters of substance, and that all else—in-

cluding the order of arrangement and precise words,

unless they alone will convey the proper meaning—is

formal.’’

Since the amendment here was without legal significance,

it is obviously within the discretion of the trial court to

permit the amendment. The purpose of an indictment is

to inform the accused of the charges, not to provide im-

peachment tools. Further, prior to argument to the jury,

the trial judge offered to rescind the order granting per-

mission for the amendment and to permit the case to be

submitted to the jury on the basis of the $2300. figure but

the offer was declined by the appellant’s counsel. Although

it seems that the alteration of the figure might have caused

some minute interference with counsel’s argument to the

jury, we do not see how the figure in an indictment could

PRY cadens ett A tan ik biaatiD a sindtn

.

10a

be used to impeach a witness with any great effectiveness.

We cannot say the t1:al judge abused his discretion in per-

mitting the amendment of the indictment.

IV. Admission of the Tape Recording

Appellant presents three reasons to support his conten-

tion that the evidence the State produced through the tape

recording should not have been admitted.

[8,9] First, he contends thé record shows that at the

time Sewell made the affidavit, he was incempetent to testify

in these proceedings. The testimony of the psychiatrist

quoted under IT, supra, shows the incompetency at the time

the affidavit was made (May, 1967) was not factually estab-

lished; therefore, the argument falls, even assuming an in-

competent witness could not under any conditions pro-

vide probable cause for a search warrant at a time when

his testimony would not have been admitted at a trial. The

State’s Attorney testified that although the records con-

cerning Sewell’s prior mental illness were in his files at

the time he made his application for the search warrant

and presented the witness to Judge Prendergast, he was

not personally aware of the information contained therein

and that if he had been, he would have submitted the in-

formation to the trial judge prior to the issuance of the

warrant. Thus we are not presented with the problem of

a state official withholding information. In discussing this

problem, the Court has not overlooked the fact that a search

warrant’s validity must be determined on the face of the

affidavits submitted to procure it. Scott v. State, 4 Md.

App. 482, 243 A.2d 609, Sessoms v. State, 3 Md.App. 293,

239 A.2d 118.

[10] Secondly, appellant alleges the tapes were not

connected to him because the trial judge ruled that the

identification of the voices by an Assistant State’s Attorney

to the stenographer who transcribed the tapes was inad-

missible to prove the persons speaking thereon. This argu-

a :

lla

ment completely overlooks the fact the taped conversation

agrees with the testimony of Sewell as to that part of the

conversation he had with the appellant. It can be said

that the tapes proved themselves to be connected with the

appellant with reasonable probability. Veihmeyer v. State,

3 Md.App. 702, 240 A.2d 649. The contention also over-

looks supporting testimony of the officers who placed the

marked money on Sewell, observed him walk into the office

with the appellant, listened to the broadcast portion of the

convei sation, and upon entering the office and searching the

appellant found $100 of the marked money on his person.

[11] Thirdly, the appellant contends the stenographer’s

typed transcript of the tape is inadmissible because por-

tions of the tane were unintelligible, particularly the be-

ginning and the end of the conversation. This question

goes to the weight of the evidence rather than to its ad-

missibility. It would hardly be contended that a non-

trespassing eavesdropper hearing a portion of the con-

versation could not testify to what conversation he over-

heard because he did not hear the entire conversation

between the parties. The tapes supported a vital part of

Sewell’s testimony as to what occurred when he was in

the office. The fact that it was not as complete as might

be desirable does not make it inadmissible. If evidence is

relevant, its weight is a matter for the trier of the *..cts.

Bromwell v. State, 8 Md.App. 382, 259 A.2d 577.

Judgment affirmed. Appellant to pay costs.

Pa

12a

APPENDIX B

IN THE COURT OF APPEALS OF MABYLAND

Miscellaneous Docket No. 14 (Criminal)

September Term, 1971

(No. 81, September Term, 1970 Court of

Special Appeals)

JoHN TUMMINELLO

v.

StaTe oF MaryYLanp

Order

Upon consideration of the petition for a writ of certiorari

to the Court of Special Appeals in the above entitled case,

it is

OrpereD by the Court of Appeals of Maryland that the

said petition be, and it is he: by, denied.

, /s/ Hatt Hawonp

Chief Judge

[szav]

Date: April 5, 1971.

13a

APPENDIX C bs

Part of Testimony of Robert A. Sewell Which Was Read to

= Jury at Second Trial

Q. All right. Would you tell us what the conversation

was that you had with Jobnny Tumminello?

A. I asked him—I mean he come down there, and he

told me Father Maloney give him six hundred dollars to

get me out and I said, ‘‘ Yeah, on bond’’, I said, because I

wanted to get my witness and things like that together.

He said, ‘‘No, I can spring you for one thousand dollars’’.

He was giving me the accounts of it so fast, actually I

couldn’t keep account of who was getting all this money.

Q. Did he mention any other names?

A. He mentioned—he told me the State’s attorney and

what they call the Clerk of the Court. And he said he

wasn’t making anything out of it himself. And T asked

him, I said, ‘‘Well, you suppose to be the big man. I mean,

I don’t see why you wouldn’t be the one to get the most

money.’’ And he said that he wanted everybody tu keep

their mouth, you know, shut.

& * *

By Mr. White:

Q. Did you make a statement to the State’s attorney’s

office, Mr. Sewell, on May 9, 1967, under oath?

A. Did I make a statement? Yes sir.

Q. Now, in that statement, isn’t it true that you said

that Father Maloney told you and showed you a receipt

that he had zeceived one thousand dollars that he had

given Johnny Tumminello, a thousand dollars that he had

given him instead of six hundred dollars?

A. I meant the amount—I think it was a little more than

one thousand dollars according to what he said.

Q. According—

nn ee

l4a

A. According to the way it was shown to me. And I

guess he was kind of confused. I want to tell you the truth.

He had me kind of confused about paying so much money

and kept asking for so much money, and so much money was

handed out. All I can do is count the money I gave him

out of my pocket when I got out. Furthermore, the money

he was getting from these people, I don’t know. All I

know, when I come out, I saw a bunch of receipts and no

money.

Q. Let me ask you the question again. Did you make

a statement under oath at that time that Father Maloney

showed you a receipt signed by Johnny Tumminello in the

amount of one thousand dollars that Father Maloney had

g.ven John Tumminello?

A. No, I didn’t.

Q. You did not make that statement under affidavit?

4A. No, I didn’t.

¢ * ¢

Q. Just a minute, Mr. Sewell. Did you make this state-

ment, ‘‘I then went back into Father Maloney’s house and

Father Maloney told me that while I had been in the Mary-

land House of Correction he had paid Johnny Tumminello

one thousand dollars’’? Did you make that statement un-

der oath?

A. That’s correct.

Q. Did you make the statement that, ‘‘He’’, meaning

Father Maloney, ‘‘showed me a card with Johnny Tum-

minello’s name on it, which card showed a receipt of one

thousand dollars on its back’’? Did you make that state-

ment under affidavit?

A. It wasn’t all on the card. It was on the bank book and

the card.

Q. Did you make that statement under oath?

A. That’s correct. I saw the receipt off of the bank book

and off the card there that he had wrote. He showed me

the card with the receipt on it, what Johnny Tumminello

gave me, what he give me.

vat +cat echoes ee

eee

i5a

Q. What did Father Maloney show you in connection

with the bank book? And I am showing the witness the

bank book at this time.

A. You can start lining up this here, right here. (Indi-

cating) Here is what—This is what my receipt—what ©

“Father Maloney done drawed out. (Indicating) Now, it

goes—

Q. Go abead.

A. —six hundred and three hundred is how much you

counted.

Q. Six and three is nine.

A. That is nine hundred dollars, right.

Q. Yes sir.

A. Okay. Now, here is one hundred and fifty more dol-

lars. (Indicating)

Q. Well, that is—I think that is ten hundred and fifty

dollars, right?

A. Okay. That at the time I made that affidavit there.

Q. That three hundred dollars, that was the three hun-

dred dollars that you got later on, wasn’t it? And you

gave to Tumminello, you said?

A. I was giving—I give that to Tumminello, but he was

sitting there adding this all together. This was all the re-

ceipts we was getting together.

Q. Father Maloney didn’t tell you he had given that

three hundred dollars to Tumminello, did he? .

A. No, I don’t actually know how Father Maloney was

giving him that three hundred dollars. He drawed it out

and give it. I don’t know how he give it to him.

Q. You just said you give it to him.

A. I gave him three hundred dollars too, but, I mean,

that three hundred dollars he gave me beck ten dollars

out for my kids to take care of me the rest of that month.

16a

Q. The question is, did you pay Johnny Tumminello the

three hundred doliars which is represented on this bank

book as having been withdrawn on April 14, 1967?

A. I am the one that gives him that three hundred dol-

lars, the top three hundred.

Q. Now, would you show me, please, on the bank book

which you were referring to before when you made this

statement under affidavit in the State’s attorney’s office that

Father Maloney showed you a receipt where he had given

Mr. Tumminello one thousand dollars?

A. Now, would you let me make:this clear to you. By

that bank book—I wasn’t out here. I didn’t withdraw any-

thing out of that bank book. Now, not myself personally.

I didn’t draw anything out of there. I don’t know when

it was paid to him, how it was paid. All I can do is go

by the book Father Maloney showed me and the receipts

he showed me to account for the money. That’s all.

Q. What I am asking you is what receipts did he show

you?

A. Out of the book—He showed me what money he done

paid out of the book there for the attorney and things

like that. And that’s ali I know about it. I was in jail.

So, I didn’t know how that money was paid out. He got

everybody else in there, a vunch of other people involved.

[Emphasis added.] |

& * *

Q. I am going to ask you again, please, and I quote

again, ‘‘He showed me a card with Johnny Tumminello’s

name on it, which card showed a receipt of one thousand

dollars on its back.’? Now would you please explain once

‘more, if you can, if you are ab]: to explain, what you meant

by that?

A. What I meant—I explained to you. I said. what is

on the card and what is in the bank book. That is the re-

ceipt that I saw.

FEB. Ob Rive CR Dh ee Rt Adve nasene ae at

17a

Q. What receipt on the bank book then makes up one

thousand dollars?

A. See this? (Indicating) that leading three hundred

dollars up there that I was telling to you, add it up. That

is the one Father Maloney gave him. I mean, that is the

one I give him. <He give me back the ten dollars out of

that when I got back out. [IP 39-451.]

Q. Well, what did you mean in the statement when you

said, ‘‘Father Maloney told me that Johnny Tumminello

-had told him that the one thousand dollars was money

which was to be used to pay my bond’’?

A. What do you mean? As far as Father Maloney said

one thousand dollars for money to pay his bond? No, he

didn’t say that. He said the money he give him—at first,

Father Maloney told me the money he give him first was

money to get my bond. That was the time I was in jail.

I don’t know what was going on between Father Maloney

ahd Johnny Tumminello. Only after I got out, I give to

the best of my knowledge the figures on the epuemeeats the

figures I got.

Q. Didn’t you say in a sworn statement under oath to

the State’s attorney on May 9, 1967, that yon had given

Johnny Tumminello only two hundred dollars and not

three hundred dollars?

A. I gave him—I give him the whole two hundred and

ninety dollars. But, I was just counting—but, what he give

me back—what I received back out of three hundred dol-

lars. Two hundred and ninety dollars, that is what I paid

Tumminello that day.

Q. Well, didn’t you say in a sworn statement, ‘‘I then

gave the two hundred dollars to Johnny Tumminello out-

side Father Maloney’s house, and Johnny Tumminello told

me that I still had to come up with an additional three

hundred’’?

LEN A CY ATR IN RIS ERY SEN OAT TR RTT BER SEE EB PEL OES IO TES

18a

A. I was trying to actually—actually, what I was doing

then at that time there was telling the Priest a lie. And

I told you that in the beginning in the statement, that I

made that—TI didn’t like to be lying to the Priest. Now, I ~

went to tell him the truth. I give him all of it, yeah.

* * *

Q. Didn’t you tell the State’s attorney, ‘‘I told Father

Maloney that I needed three hundred dollars and Father

Maloney said he thought two hundred dollars was enough

* to take care of my kids’’?

A. That’s where the statement might have gotten mixed

up.

Q. Were you mixed up in the statement, or was that the

truth? | ,

A. That was the truth. The money I was giving him—

I was paying him, but it was more money. I was saying

less than what I give him. [IB455-459.].

Q. Didn’t ‘you tell the State’s Attorney that Father Ma-

loney gave you two one hundred dollar bills and told you

to use this money to take care of the kids?

A. Father Maloney gave me three hundred dollars. He

gave me three hundred dollars. [IB461.]

Q. First, how much money had been given to Mr. Tum-

minello of your own money by either you or anyone else

at that time?

A. By me a that time it was as the total amount I got

was about two thousand dollars already.

Q. Now, would you tell the ladies and gentlemen of the

jury how you add up to two thousand dollars?

A. How do I add it up? The money that I have in my

footlocker that I have a combination safe, that was the

first. And the money that followed—

Q. Just a minute. The money you had where?

A. In my footlocker. * * *

19a

Q. Where?

A. At my house.

e * te

Q. Let’s get all this money added up now. How much

from your footlocker?

A. According to what they told me—I count more—but

they told me that it was about—the figures they give me

was about two thousand ane three hundred dollars alto-

gether.

Q. That was in your footlocker?

A. And he give me a receipt for only twenty-two hun-

dred dollars. |

Q. Where is your receipt for twenty-two hundred dollars?

A. He had it on his desk. He wouldn’t give it to me.

He said the Judge needed five hundred dollars more. He

was going to finish paying the five hundred dollars more.

Me was going to tear that receipt up that he had on his

desk.

Q. The twenty-two hundred dollars came from where,

now? * * *

A. Some come from the footlocker and some from the

book what I withdrawed in the bank book here.

Q. I want to add up the two thousand dellars. What came

from the footlocker?

A. I don’t actually know. Don’t ask me about that ques-

tion. I don’t know. I wasn’t out here. I was in jail

and I didn’t pay out any of that money. I can’t account for

what they paid. I can say what I paid. Two or three

dollars at a time, I don’t know.

Q. Didn’t you make an affidavit to the State’s attorney

that you had paid Tumminello twenty-two hundred dollars?

A. That’s true. That’s the amount he give me and the

amount me and Father Maloney figured out.

Q. Well, I am trying to figure it up.

A. I am trying to figure it up too. All I can see is my

money is gone. That’s the only thing I can see. It is

gone. He said he received only a certain amount and the

people told me how much money they paid him. And

GSA Ne RI EU De tem Eg LIEN ge mR SD, FRE MERTEN ERE RR ERED OO OE PERRET CT IRI ATS SD,

20a

that’s all I can answer to the best of my knowledge and it

is no use me going into where it came from, what money

was taken out of that place because I don’t know. I don’t

know how much was taken out of the bank or where it

went to. Father Maloney said it was paid to him. [IB468-

471; emphasis added. ]

ee * *

Q. Did you tell the State’s attorney that some Gov-

ernment checks had been given to Mr. Tumminello?

A. I told him—i mean, I have told him Government

checks. I told him how they were—how they paid him

off. I don’t know how they paid him off. That is what I

answered. I don’t know how they paid him off. That is

what I had in the locker there. I had some checks in the

locker. [IB474; emphasis added.]

Q. Were there two of those checks?

A. Now, I learned later taat he didn’t pay him all in

checks.

Q. Didn’t you, Mr. Sewell—Mr. Sewell, didn’t you make

affidavit to the State’s attorney on May 9th that your son,

Howard Leroy Sewell, came to see you at the House of

Correction around March 17th of 1967, and told you that he

had given Johnny Tumminello two checks, which were

United States Treasury checks, each payable to you in the

amount of four hundred and eleven dollars?

A. Yeah, but he said it was a misunderstanding. That

is the only thing he told me iater on. That’s what he told

me first. But, when this stuff commenced to rolling and

started to getting dangerous, he claimed—and so he got

kind of frightened, and he told me, he said—he gave me

the money, and he said he didn’t want no more part of it.

Q. He told you he had given Mr. Tumminello two checks?

A. He deemed :t afterwards..I asked him did he give

him the checks, and he said no he didn’t give him the checks.

He said he give him that money.

Q. How much cash money?

FMGENIE GE OI LIS II IIA OSE FEL AUER NERY fo Das 0 8 Se

21a

A. He said altogetier—I asked him, and he said around

about one thousand and one hundred dollars, something

like that, one thousand and one hundred dollars. [IB476-

477; emphasis added.]

Q. Now, Mr. Sewell, how much money did you, yourself,

personally give to me Tumminello?

A. I mean, what I give him, it come to pretty close to

four hundred dollars almost.

Q. Four hundred dollars almost? A. About ten dollars—

maybe about ten dollar short. [IB485.]

Q. Mr. Sewell, in your affidavit to the State’s attorney,

Defense Exhibit No. 1, you stated, ‘‘Since Johnny Tum-

mineilo told me to keep in contact with him, I called him

at least twize after April 14th and discussed with him over

the phone how I was to pay the rest of the money.’’ Is

that correct? Is that correct that vou called him twice

after April 14th?

A. I mean, I called him—he told me—when I told him

I couldn’t get the money, I called him and notified him. I

mean, those are the two definite calls I made at that time,

the two serious threatening calls I made at that time.

Q. The two threatening calls that you made?

A. Yeah, somebody else on the extension listening.

Q. Did you mention that at any time to the State’s

attorney about paying the one hundred dollars to Mr.

Tumminello?

A. I do not know whether I mentioned all the money

in there or not because the way the figures—I mean, actu-

ally over—I mean, underestimated it because all the

money—I mean, believe me. I tell you this. It’s a pitiful

shame. I had money, but it’s all gone and who received

it, I don’t know. I don’t know. I got the figures from him.

The exact figures he gave me and the figures I got from the

police. [IB491-493; emphasis added. ]