Opposition Brief — Tumminello v. Maryland

Supreme Court, U.S.

sur, SRARY, © | FILED

Sur Ais COURT, DLIBL oct 19 1971

E. ROBERT SEAVER, CLERK

IN THE

a Court of the United States

OcToserR TERM, 1971

JOHN B. TUMMINELLO,

’ Petitioner,

STATE OF MARYLAND,

Respondent. — nes

On Petition For A Warr or CERTIORARI To THE

Court or SPEcIAL APPEALS OF MARYLAND

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Francis B. Burcu,

Attorney General of Maryland,

Epwarp F. BorcErpine,

Assistant Attorney General

of Maryland,

Chief, Criminal Division,

GILBERT ROSENTHAL,

Assistant Attorney General

of Maryland,

One South Calvert Building,

Baltimore, Maryland 21202,

For Respondent.

The Daily Record Co., Baltimore, Md. 21203

_

TABLE OF CONTENTS

Prmmeeramy CORRREIINTE ..........<..<c.cccccccectecsssesceccccsccc 000.

SEE NRT ROC eR REET Ia EGA EN FT a OER HEED

QUESTIONS PRESENTED ................ Sse Dae e Stren pCR a re eA Y

CONSTITUTIONAL AMENDMENTS INVOLVED .....................-

STATEMENT OF THE CASE .................cccccccccccccceeecececeueeeececeees

ARGUMENT:

s

II.

The Petitioner’s right to confrontation under

the Sixth Amendment was not violated when

the testimony of the prosecuting witness,

which was taken at the prior trial, was read

into evidence at the time of Petitioner’s sec-

ond trial because the prosecuting witness was *

mentally ill and declared to be unavailable... —

The Petitioner’s right to due process, under

the Fourteenth Amendment, was not violated

when the transcript of a tape recording, a povr-

tion of which was inaudible, and in which the ©

voice uttering the incriminating statements

was never airectly identified as that of the

Petitioner, was admitted into evidence .........

| AES ARTO LD LI OL Ree Lee ee

TABLE OF CITATIONS

Cases

Barber v. Page, 390 U.S. 719 (1968) 2.000000...

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

SE oor ecet ee aes esse cee teh state ies

Johns v. United States, 323 F. 2d 421 (5th Cir., 1963)

Lynch v. State, 2 Md. App. 546, 236 A. 2d 45 (1967)

McGuire v. State, 200 Md. 601, 92 A. 2d 582 (1952)

12

14

11

13

13

12

12

ie PAGE

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

RRR GL, A eit ligt ie SIR ie RC ROE 9,10

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

ARs seer 98 2 PPR ae oe 3

Tumminello v. State, 10 Md. App. 612, 272 A. 2d 77

NS aa carat ta See vedcnixnskebinyvasnave 1

Washington v. Texas, 388 U.S. 14 (1967) ........0000....... 11

Statutes

Constitution of the United States:

vi ccsshasvwsuerivesedsouonsdens 2

Fourteenth Amendment ......0................0.ccccceeceees 2,12

Miscellaneous

4 Wigmore, Evidence (3rd Ed., 1940) §§1229-1230. .. 13

wren

In THE

Supreme Court of the United States

OctToserR TERM, 1971

No. 17

JOHN B. TUMMINELLO,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

On PETITION For A Writ or CERTIORARI TO THE

Courr or SPECIAL APPEALS Or MARYLAND

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

PRELIMINARY COMMENTS

This Brief in Opposition to the Petition for Writ of Cer-

tiorari is filed pursuant to the request of this Honorable

Court.

OPINION BELOW

The opinion and judgment of the Court of Special Ap-

peals are reported at 10 Md. App. 612, 272 A. 2d 77 (1971),

and are printed as Appendix A of the Fetitioner’s brief.

2

QUESTIONS PRESENTED

1. Was Petitioner’s right to confrontation under the

Sixth Amendment violated when the testimony of the

prosecuting witness, which was taken at the prior trial,

was read into evidence at the time of Petitioner’s second

trial because the prosecuting witness was mentally ill and

declared to be unavailable?

2. Was Petitioner’s right to due process under the Four-

teenth Amendment violated when the transcript of a tape

recording, a portion of which was inaudible, and in which

the voice uttering the incriminating statements was never

directly identified as that of the Petitioner, was admitted

into evidence?

CONSTITUTIONAL AMENDMENTS INVOLVED

The Sixth 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 district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence.”

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 * * *.”

STATEMENT OF THE CASE

After Petitioner’s original conviction for false pretenses

in a jury trial held in the Criminal Court of Baltimore on

August 4, 1968 was reversed by the Court of Special Ap-

3

peals of Maryland on August 5, 1969,1 Petitioner was re-

tried and found guilty on December 9, 19tY¥ of the same

offense at a second jury trial in the Criminal Court of Balti-

more and sentenced to the jurisdiction of the Department of

Correctional Services for a period of three (3) years.

In 1966, one Sewell had been convicted of a crime and

was sentenced to a term of imprisonment (T. 194).2 It was

at this time that Father Maloney met Sewell. Father

Maloney opened a bank account for Sewell in their joint

names, in an effort to handle Sewell’s financial affairs dur-

ing the time in which Sewell was serving the term of his

imprisonment (T. 193-194). At Sewell’s direction, Father

Maloney withdrew $300 on February 24, 1967, for an at-

torney’s fee and $500 on April 5, 1967, for a bondsman (T.

197-198) whom Father identified in court as being Petitioner

(T. 199). Petitioner called Father Maloney five days later

and advised Father that he was coming to get the money

in order to get Sewell out of jail. When Petitioner arrived,

the Father testified that Petitioner asked for $600.00 and

said that the additional $100 was for people who had to be

paid off in order to “fix” the case (T. 200-202). Father asked

for a receipt, and Fetitioner wrcte “$600 paid, held in es-

crow for Robert Sewell” on the back of his business card

and gave it to Father (T. 204-206). Father Maloney further

1 Tumminello v. State, 7 Md. App. 380, 256 A. 2d 342 (1969). This

reversal was not predicated upon any of the grounds relied upon by

Petitioner in the present Petition for a Writ of Certiorari.

2 Uniess otherwise indicated, all references to the transcript relate

to the second trial of Petitioner which began on December 8, 1969,

and is the subject of this Petition for Writ of Certiorari. Where it is

necessary to refer to the transcript of record of Petitioner’s first trial,

the Respondent will use the same system and nomenclature as sug-

gested by Petitioner in his Footnote No. 1. Therefore, when referring

to the first trial, the preface “I” will refer to the transcript of the first

trial; the letters “A”, “B”, etc., will refer to the volume of the tran-

script of the first trial which is involved, and the final number used

will refer to the page of the cited volume.

4

testified that Petitioner stated that the money would be

repaid “if it couldn’t be arranged” (T. 206). There was no

discussion concerning a bail bond. Four days later Sewell

was out of prison and was brought home by Petitioner (T.

207). Sewell asked Father to drive him to the bank to

obtain $300 more (T. 208). Sewell’s bank book showed a

withdrawal of $300 on April 14, 1967, and Sewell had the

$300 with him when he got into Petitioner’s car (T. 209).

On cross-examination, Father Maloney reiterated that the

money was to be used to have the case “fixed” (T. 219).

Petitioner advised Sewell that the former could “spring”

Sewell for $1,000 (T. 294). Of this money, Judge Cullen? -.

would receive $500, the State’s Attorney or Clerk of Court

would receive $500, but Petitioner “wasn’t making anything

out of it himself” (T. 295). The Petitioner started to de-

mand additional monies, and threatened that if the addi-

tional monies were not obtained, Judge Cullen would send

Sewell back to prison for four years (T. 306-307). Because

of these threats, and Sewell’s fear that Petitioner would

have Sewell sent back to prison (T. 309), Sewell was finally

taken to the State’s Attorney’s Office by an attorney (T.

310).

On May 24, 1967 there was a meeting in the State’s At-

torney’s office of several police officers, two Assistant State’s

Attorneys and Robert Sewell (T. 479). Sgt. Armstrong

made the affidavit to Judge Prendergast that there was

probable cause for the issuance of the search and seizure

warrant (T. 484). He acknowledged that his affidavit of

probable cause was based upon the assumption that the

statements made by Sewell were correct (T. 486). The

then State’s Attorney, Charles E. Moylan, Jr., had signed

8 Judge James K. Cullen of the Criminal Court of Baltimore had

sentenced Sewcli to the Maryland House of Correction for a period of

four years. oS

ASE SE tO APR RT EN hearin at SE CN .

5

the complaint which lead to the issuance of the arrest war-

rant (T. 487). Mr. Moylan testified that he questioned

Sewell and was impressed that Sewell was a reasonably re-

sponsible witness (T. 511-513). Had Mr. Moylan known of

Seweli’s mental condition, he would have presented that

information to Judge Prendergast (T. 415). Sgt. Armstrong

was also unaware of Sewell’s mental disorder (T. 490).

A court order was also obtained to allow Sewell to be

outfitted ‘with an electronic recording device (‘T. 510). Both

Sgt. Armstrong and Sgt. Steven Tabling saw Sewell out-

fitted with the electronic device, and they both observed

that Sewell was given $150 in pre-recorded money (T. 480-

481, 466). All of the officers took up positions where they

could observe Petitioner’s office (T. 467). Sgt. Armstrong

observed Sewell meet Petitioner and after a brief conver-

sation, the two entered Petitioner’s office (T. 481).

Marshall Meyer had furnished the State’s Attorney’s

Office with the electronic device used by Sewell (T. 398).

As the conversation was transmitted, Meyers tape recorded

the same from his automobile (T. 400). Sgt. Tabling was

also in Meyers’ automobiie and heard the voices which were

transmitted from the electronic device to the tape recorder

(T. 467-468).4 Meyers than gave the tape to the Assistant

State’s Attorney (T. 405).

A court stenographer, Yale Aarons, did not know Sewell

or Petitioner (T. 425). He stated that the voices on the

* At a pre-arranged signal, Sgt. Armstrong, Sgt. Tabling, Officer

Nevin and an Assistant State’s Attorney entered the building with

their search and seizure warrant and the arrest warrant (T. 482).

The warrants were shown to Petitioner (T. 482). Petitioner emptied

his pockets, and both Sgt. Tabling and Sgt. Armstrong testified that

Petitioner stated, in essence, “There is the money he gave me, that’s

what you are looking for” (T. 469, 483). The money which came

out of Petitioner’s pocket corresponded to the same serial numbers

which had been pre-recorded (T. 469-483).

6

tape were iden‘ified by one of the Assistant State’s At-

torneys (T. 426), and that he was certain that all of the

testimony transcrived from the tape recorder which re-

ferred to “S” was the same person, and all the testimony

referred to as “T” was the same person (T. 423). Mr. Aarons

was only successful in transcribing the middle portion of

ihe iape, and he testified that the first and last parts of the

tape were completely unintelligible (T. 424-425).

Rather than reiterate Sewell’s mental condition as set

forth in the record, the Respondent adopts the Petitioner’s

Statement of the Case at pages 11 through 13 of the Petition

for a Writ of Certiorari, with the exception of the footnotes

contained therein. Petitioner’s second trial was approx-

imately twenty months after the first trial. Sewell’s mental

condition had deteriorated to such an extent during this

period of time that the trial court held that Sewell was so

incompetent to testify at the time of the second trial as to

be declared an unavailable witness. Accordingly, the trial

court determined that Sewell’s testimony given at the prior

t .al would be admissible at the second trial of Petitioner

(T. 155). Based upon this determination, Sewell’s testi-

mony from the first trial was subsequently read to the jury

at the time of Petitioner’s second trial ('T. 288-390).

With reference to the tape recording of the conversation

between Sewell and Petitioner, the Defense sbjected to the

identification of the voices on tlie tape. As the resuii of this

objection, the triai court ordered the voices designated as

“1” and “2” instead of “S” and “T” as they appeared in the

transcript which Aarons had prepared (T. 432-442). The

transcript of the tape was then read to the jury (T. 451-

462).

ARGUMENT

‘

THE PETITIONER’S RIGHT TO CONFRONTATION UNDER THE

SIXTH AMENDMENT WAS NOT VIOLATED WHEN THE TESTI-

MONY OF THE PROSECUTING WITNESS, WHICH WAS TAKEN AT

THE PRIOR TRIAL, WAS READ INTO EVIDENCE AT THE TIME OF

PETITIONER’S SECOND TRIAJ. BECAUSE THE PROSECUTING WIT-

NESS WAS MENTALLY ILL AND DECLARED TO BE UNAVAILABLE.

If nots 1g more, Pctitioner’s entire argument substanti-

ates the fact that it would have been totally impossible to

allow Sewell to have testified at the time of Petitioner’s

second trial. Petitioner’s quote of the prosecution’s psy-

chiatric witness (Pet. 17) was received at the time of

Petitioner’s second trial, and helps to narrow the entire

issue. Therefore, the Respondent would submit that the

only question upon which the Petitioner relies is whether

or not Sewell should have been allowed to testify at the

time of Petitioner’s first trial. It is the Petitioner’s general

contention that Sewell, the chief prosecuting witness, “was

an insane criminal who had not one psychotic disability but

four: paranoia, schizophrenia, brain damage and epilepsy

grand mal” (Pet. 17). Petitioner’s contention that Sewell’s

testimony, standing by itself, was ‘riddled with conflicts, con-

tradictions and utter confusion” (Pet. 17) is nothing more

than a mere bald allegation without any substantiation what-

soever. Assuming that there may have been some discrepan-

cies in Sewell’s testimony, Sewell’s testimony taken in its to-

tality would be a question for the jury, as the trier of fact,

to determine. The jury wou'd determine whether or not to

believe Sewell, and this would be true whether reference is

made to the jury in Petitioner’s first case wherein Sewell

was personally present and testified, or the jury in the second

case wherein Sewell’s testimony from the first trial was

read to them.

8

The Respondent acknowledges that the record is replete

with references that Sewell had been suffering from various

stages of mental illness for a long period of time. However,

it is interesting to note that Sewell was convicted of a crime

and sentenced by Judge Albert L. Sklar in 1966; and again

convicted and sentenced by Judge James K. Cullen later

the same year. The tape recording of the conversation be-

tween Sewell and Petitioner took place on May 24, 1967

(T. 479), and Petitioner was first tried on March 27, 1968.

The transcript of the tape recording, which was read to the

jury at the time of the second trial (T. 451-462), corresponds

to a great extent with the testimony which Sewell had

given personally at Petitioner’s first trial and which was

read to the jury at Petitioner’s second trial (T. 312-316).

It is the Respondent’s position that all of the above sub-

stantiate the fact that Sewell was not so incompetent at the

time of Petitioner’s first trial to warrant the complete dis-

regard of the testimony he personally gave then. Con-

versely, the Respondent would submit that because of

Sewell’s ccndition at the time of the Petitioner’s second

trial, no error was committed in allowing Sewell’s original

testimony to have been read to the jury at the second trial.

To have had Sewell present at the time of the second trial,

as apparently suggested by the Petitioner (Pet. 19), would

have served absolutely no purpose whatsoever with regard

to Sewell’s testimony at the time of Petitioncr’s first trial.

The presence of Sewell would have merely adoed substance

to the trial court’s finding, based upon psychiatric evidence

introduced preliminarily, that Sewell was “iinavailabie” to

testify personally at Petitioner’s second trial.

The Petitioner recognizes “the general rnle that the prior

testimony of a witness may be read to the jury if the wit-

ness is no longer ‘available’ and if full cross-examination

was allowed when the testimony was originally given”

(Pet. 19). Although the Petitioner argues otherwise, a re-

view of the cross-examination of Sewell by Petitioner’s

trial counsel at the time of the first trial, does not demon-

strate that the cross-examination of Sewell was incomplete.

While it may be true that the psychiatrist who concluded

that Sewell was not competent to participate in Petitioner’s

second trial, stated that Sewell had been suffering from a

mental disease for many years, this point does not appear

to control the specific question of Sewell’s sanity at the time

of Petitioner’s first trial. The same psychiatrist further

stated that he was unable to determine with certainty the

intensity of the disease in March of 1968 (the date of the

original trial of Petitioner), because he had not examined

Sewell at that time. It was further pointed out that Sewell’s

mental condition would “go up and down” (T. 65-66). In

response to questions by the trial court, the psychiatrist

stated that he could not be precise in determining whether

or not a specific patient would give an accurate account of

events without examining the patient (T. 66-67), although

he did admit that it could be likely that Sewell was subject

to the same deficiencies in March, 1968 as at the time of

the Petitioner’s second trial. Conversely, the psychiatrist

testified that it was also possible that Sewell was in a state

of remission at the time of Petitioner’s previous trial, there-

by making Sewell’s testimony reasonably accurate (T. 71).

The cases cited by Petitioner do not appear to be of ap-

preciable value in his attempt to have this Court grant a

Petition for a Writ of Certiorari. People v. McCaughan, 49

Cal. 2d 409, 317 P. 2d 974 (1957), cited as Footnote 28 in

Petitioner’s Brief at page 18, involved the manslaughter

conviction of a psychiatric technician in a state mental

hospital. The question before the Court was whether or

not two mentally defective patients should be allowed to

10

testify. Ironically, the trial court held that the mental

patients were qualified to testify against Dr. McCaughan,

and the appellate court upheld this decision. This was so in

spite of a California Statute which related, in essence, that

those who are of unsound mind at the time of their exam-

ination in court may not testify. Nevertheless, the Court

determined that the question of sanity was to be deter-

mined at the time the witness was produced for examina-

tion. The Court at page 981 held the following:

“Whether he did proceed accurately, does recollect, and

is communicating accurately and truthfully, are ques-

tions of credibility to be resolved by the trier of fact.”

= a * * a a

“It is universally recognized that the competency of

a witness is to be determined ky the trial court in the

exercise of its judicial discretion.”

The second statement above quoted immediately pre-

ceded the quote used by the Petitioner. It wouid be the

Respondent’s position that the principles set forth in

McCaughan were followed in Petitioner’s case. In the event

that Sewell’s sanity was not questioned at the time of

Petitioner’s first trial, the Respondent would take the posi-

tion that Petitioner may have waived the question of

Sewell’s sanity at the time of the first trial.5 In any event,

it is further submitted by the Respondent that the trial

court did not err in determining that Sewell was apparently

competent to testify as a witness at the time of his exam-

ination, i.e., Petitioner’s first trial.

5 The question of Sewell’s sanity was nut raised directly on appeal

of Petitioner’s first trial. Petitioner did raise the point concerning

whether or not the trial court limited Petitioner’s trial counsel’s cross-

examination of Sewell when an objection was sustained to the inquiry

of whether Sewell had requested a psychiatric examination when

Sewell was convicted of assault.

11

While it may be true, as suggested by Petitioner (Pet.

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

importance of having a witness made available for trial

rather than relying upon his testimony from a prior hear-

ing being read to the jury, the factual situation in Barber

is simply inapplicable. In Barber, the “unavailable” wit-

ness was in a federal prison, and could have been produced

-at a subsequent trial in order to personally testify. In the

instant case, Sewell was unequivocally “unavailable” be-

cause of his mental incapacity and inability to testify.

In the same context, Washington v. Texas, 388 U.S. 14

(1967) is of no avail to Petitioner. Factually, Washington’s

conviction was reversed because “the State arbitrarily de-

nied him the right to put on the stand a witness who was

physically and mentally capable of testifying to events

which he personally observed * * *” see Page 22. (Emphasis

supplied.) There is no question but that Sewell was not

physically and mentally capable of testifying at the time of

Petitioner’s sécond trial.

Finally, the reasons given by the Court of Special Appeals

of Maryland for rejecting Petitioner’s contention that

Sewell was incompetent at the time of Petitioner’s first

trial are sufficient in considering Petitioner’s Writ of Cer-

tiorari. The appellate court agreed with the trial court

that the testimony elicited at Petitioner’s second trial was

not sufficient to overcome the presumption that Sewell was

sane at the time he testified at Petitioner’s first trial (Fet.

8a).

12

Il.

THE PETITIONER’S RIGHT TO DUE PROCESS, UNDER THE

FOURTEENTH AMENDMENT, WAS NOT VIOLATED WHEN THE

TRANSCRIPT OF A TAPE RECORDING, A PORTION OF WHICH

WAS INAUDIBLE, AND IN WHICH THE VOICE UTTERING THE

INCRIMID ATING STATEMENTS WAS NEVER DIRECTLY IDENTI-

FIED AS THAT OF THE PETITIONER, WAS ADMITTED INTO

EVIDENCE.

The Respondent does not dispute the fact that it was

neressary for Mr. Aarons to repeatedly replay portions of

the tape in question in order to make the stenographic tran-

script of the conversations on the recording (T. 417-418).

However, the Respondent would submit that this contention

of the Petitioner, as well as all of 1..e other contentions of

the Petitioner concerning the tape, would go to the weight

to be assigned to the transcript of the tape, rather than the

admissibility of the same. Lynch v. State, 2 Md. App. 546,

236 A. 2d 45 (1967). See also McGuire v. State, 200 Md.

601, 92 A. 2d 582 (1952) wherein the stenographic transcript

was admitted in evidence as secondary evidence because

the tape could not be replayed on the tape recorder.

Petitioner has cited several cases which appear to hold

that the notes transcribed by a stenotype operator are not

admissible in evidence where the recording is either un-

intelligible or must be repeatedly replayed in an effort to

have the conversation transcribed (Pet. 22-24). However,

each of these cases also indicate that an individual may

testify to the conversations which have been recorded. In

the instant case, a portion of Sewell’s testimony which was

read to the jury (T. 312-316) was virtually the same as the

conversations contained in the transcript (T. 451-462). In-

cluded were the conversations concerning the obtaining of

the money under false pretenses, Petitioner’s instructions

to Sewell not to give his attorney any additional fee, and

13

Petitioner's assistance to Sewell in trying to help Sewell

obtain a job. The Respondent would further submit that

Sewell’s testimony was sufficient to properly identify the

voices as those of Sewell and Petitioner.

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

1967), a telephone conversation was recorded. An objec-

tion was raised to the reception in evidence of the copies

of the recording rather than the use of the original tapes

because a noise suppression process was used. A major

factor in Fountain was the strong showing of the accuracy

and reliability of the copy, and its value in making the

conversations more easi!y discernible to the jury. In this

same context, there does not appear to have ever been an

objection by the Petitioner that the transcript was either

inaccurate or unreliable, with the possible exception that it

was necessary to replay the tape several times in order for

Mr. Aarons to make the transcript. Therefore, the Respon-

dent would again subrnit that all of the Petitioner’s con-

tentions go merely to the weight given the transcript, rather

than to its admissibility.

In Johns v. United States, 323 F. 2d 421 (5th Cir., 1963),

it was held that secondary evidence may be admitted where

the original was unintelligible. See also 4 Wigmore, Evi-

dence §§1229-1230 (3rd Ed., 1940). In Johns, the recording

was available, but because the volume could not be turned

up loud enough for the jury to hear the recording, a copy

of the recording, which was conceded to be accurate, was

allowed to be introduced into evidence.

As pointed out by the trial court at Petitioner’s second

trial (T. 440), it was Petitioner’s trial counsel who brought

out the identification of the voices on the tape as those of

Mr. Sewell and Petitioner. This was during the cross-

examination of Mr. Aarons (T 426-428). As the transcript

was read to the jury, the parties were identified as number

14

“1” and “2”. Although it may be true that Sewell, at the

time of Petitioner’s first trial did not specifically identify the

voices on the tape as those of Petitioner and his own

(Sewell’s), it was brought to the attention of the trial court

that the transcript of the tape was similar to the testimony

of Sewell (T. 437-438). This, therefore, would be sufficient

to identify the voices for the benefit of the jury. Accord-

ingly, the Respondent would submit that there was no

prejudicial error in allowing the jury to hear the transcript

of the taped conversation, rather than the tape itself.

CONCLUSION

Since it was determined that Sewell was actually un-

available at the time of Petitioner’s second trial, the read-

ing of Sewell’s testimony, which was elicited at the time of

Petitioner’s first trial, in lieu of his presence at the trial,

was warranted. Any objection by Petitioner to the tran-

script of the taped conversation between Petitioner and

Sewell relates to the weight to be given to the transcript,

rather than to the admissibility of the conversation itself.

Accordingly, the Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

Francis B. Burcu,

Attorney General of Maryland,

EDWARD F.. BORGERDING,

Assistant Attorney General

of Maryland,

_ Chief, Criminal Division,

GILBERT ROSENTHAL,

Assistant Attorney General

of Maryland,

For Respondent.

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