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  • Thomas G. Gray, with whom was J. Seymour Sureff on the brief, for appellant. Clayton A. Dietrich, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General and Saul A. Harris, State's Attorney for Baltimore City on the brief, for appellee.
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  • SYBERT, J., delivered the opinion of the Court.
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Docket Number
Attorney(S)
  • Thomas G. Gray, with whom was J. Seymour Sureff on the brief, for appellant. Clayton A. Dietrich, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General and Saul A. Harris, State's Attorney for Baltimore City on the brief, for appellee.
Judges
  • SYBERT, J., delivered the opinion of the Court.
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Smart Summary

Case Summary: Harmon v. State, No. 157, September Term, 1961 (Decided Feb. 22, 1962)

Factual and Procedural Background

Charles E. Harmon was indicted and tried in the Criminal Court of Baltimore on charges including robbery with a deadly weapon. A jury found him guilty under the first count charging robbery with a deadly weapon of money from an express company office. Judgment was entered on that verdict. Harmon, represented by counsel at trial, was granted a belated appeal to the Court of Appeals of Maryland. The appeal raised several complaints: (1) that Harmon was denied reasonable opportunity to confer with counsel and to prepare his defense because of the trial scheduling and defense counsel's other recent trial obligations; (2) that the voir dire examination of prospective jurors was inadequate and that later talesmen were not examined as to potentially prejudicial newspaper publicity; (3) that a newspaper article about an acquittal in a prior related case was prejudicial; (4) that the evidence was insufficient to convict; and (5) that off-the-record motions and objections (not in the record) should be considered or the record supplemented. The Court of Appeals affirmed the judgment.

Legal Issues Presented

  1. Whether the trial court's denial of a postponement or continuance — leaving counsel with the time available (counsel appointed 46 days before trial) to prepare after intervening trial work — constituted an abuse of discretion or denied reasonable opportunity to confer with counsel and prepare a defense.
  2. Whether the voir dire examination conducted by the trial court was insufficient to secure an impartial jury, particularly given that the court apparently asked only the original panel whether they had read anything in the newspapers about the case and did not repeat that question to later panels or talesmen.
  3. Whether a newspaper article (reporting the judge's remarks in an acquittal in a trial the day before) that was not offered in evidence can be considered on appeal as prejudicial and grounds for reversal.
  4. Whether the evidence was insufficient to support the conviction and, relatedly, whether the Court may review sufficiency of the evidence in the absence of a motion for a directed verdict of acquittal made at trial.
  5. Whether off-the-record requests or objections (not in the record) can be considered on appeal, or whether the record should have been supplemented by application to the trial judge or to the Court of Appeals.

Arguments of the Parties

Appellant's Arguments

  • Defense counsel argued he was denied reasonable opportunity to prepare because (a) he had defended the appellant on a different robbery charge the day before the instant trial, and (b) in the preceding week he had been engaged in a five-day trial for a related case and had other trial obligations. Counsel stated he "vigorously opposed" the proposed trial date and requested adequate time to prepare, which the trial court refused.
  • Appellant contended the voir dire was inadequate (a single question to the original panel about newspaper reading was not repeated to later panels), and that the failure to examine later talesmen about prejudicial publicity denied an impartial jury.
  • Appellant contended that a newspaper article reporting the judge's remarks in the prior acquittal was prejudicial to his trial held the next day.
  • Appellant challenged the sufficiency of the evidence to convict.
  • At oral argument before the Court of Appeals, appellant's counsel asserted that certain requests or objections had been made off the record at the bench and sought to excuse their absence from the record on that basis.

The opinion does not contain a detailed account of the appellee's affirmative arguments beyond the appellee's representation by counsel and the trial court rulings discussed by the Court.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Pressley v. State, 220 Md. 558, 155 A.2d 494 (1959) Cited as an example of a case holding that considerably shorter intervals between appointment of counsel and trial were adequate for preparation. Used among authorities to support the Court's conclusion that the 46-day period (even allowing for intervening trial work) was adequate and that refusal to continue the case was not an abuse of discretion.
Cullings v. State, 205 Md. 22, 106 A.2d 69 (1954) Cited as an example of a case holding shorter intervals adequate; also cited later in connection with record supplementation procedures. Relied upon as supporting authority that shorter preparation intervals may be adequate; cited also in discussing means by which a record may be supplemented when off-the-record matters are asserted.
Avery v. Alabama, 308 U.S. 444 (1940) Cited among authorities holding that shorter intervals for preparation can be adequate. Included in the list of precedents showing that the time allowed here was adequate and that refusal to continue was not an abuse of discretion.
Taylor v. State, 226 Md. 561, 174 A.2d 573 (1961) Cited in support of the proposition that a trial court's refusal to postpone or continue a case is not an abuse of discretion under the circumstances presented. Asserted as additional authority for the Court's finding that there was no abuse of discretion in refusing the continuance requested by defense counsel.
Neusbaum v. State, 156 Md. 149, 143 A. 872 (1928) Cited for the proposition that where the record fails to show a motion for postponement or continuance, or an objection to the refusal, such a defense is not available on appeal. Applied to hold that because there was no motion or objection shown in the record, the complaint about the refusal to continue could not be raised on appeal.
Gray v. State, 224 Md. 308, 167 A.2d 865 (1961) Cited for the proposition that if the voir dire question propounded does not adequately cover freedom from prejudice, the defendant should submit other questions and request a more comprehensive examination. Used to support the Court's holding that, absent a request for additional voir dire or an objection, the Court will not consider the adequacy of the voir dire raised for the first time on appeal.
Presley (Presley/Presley) v. State, 224 Md. 550, 168 A.2d 510 (1961) Cited in connection with voir dire practices and juror qualification issues (as authority for procedures and precedents regarding voir dire and juror examination). Referenced to emphasize that a defendant should request more comprehensive voir dire and to compare circumstances where juror qualification and publicity issues were considered.
Grammer v. State, 203 Md. 200, 100 A.2d 257 (1953) Cited for the proposition that a judgment will not be reversed on the basis of matter outside the record (evidence not offered at trial). Applied to support the Court's refusal to consider the newspaper article that was not offered in evidence and therefore was outside the record on appeal.
Hayette v. State, 199 Md. 140, 85 A.2d 790 (1952) Cited for the same principle that this Court will not reverse a conviction based on evidence outside the record. Used to reinforce the rule that the Court will not consider the newspaper article because it was not part of the trial record.
Garlitz v. State, 71 Md. 293, 18 A. 39 (1889) Cited as a comparative authority in upholding a trial judge's qualification of a juror after the juror indicated limited exposure to the newspaper article. Referenced to support the Court's conclusion that the trial judge properly held a juror qualified where the juror said he "didn't even read much about it," and there was no objection by appellant.
Humphreys v. State, 227 Md. 115, 175 A.2d 777 (1961) Cited for the well established rule that sufficiency of the evidence in a jury criminal case cannot be reviewed on appeal in the absence of a motion for a directed verdict of acquittal made at trial. Applied to dismiss appellant's sufficiency challenge because no directed verdict motion had been made below.
Jefferson v. State, 218 Md. 397, 147 A.2d 204 (1958) Cited for the procedural point that the record may, under some circumstances, be supplemented as to what actually occurred by application to the trial judge (Maryland Rule 826 e) or by application to the Court for an order to correct the record (Rule 827 b). Used to explain the method by which off-the-record matters might have been made part of the record, and to note that no such application was made in this case.

Court's Reasoning and Analysis

The Court addressed each of appellant's contentions in turn and applied procedural and evidentiary rules strictly according to the record.

Continuance / Adequacy of time to prepare: The Court noted that defense counsel had been appointed 46 days before trial. Even allowing for six days of intervening trial work and "other normal preoccupations of a busy law practice," the Court concluded the time available was "manifestly adequate" to prepare the appellant's defense in the absence of a showing of "extraordinary circumstances necessitating delay." The Court cited several cases holding that even considerably shorter intervals were adequate (Pressley, Cullings, Avery) and found no abuse of discretion in the trial court's refusal to postpone or continue the case (citing Taylor). The Court further observed that the record did not show any motion for postponement or continuance, nor any objection to the trial court's refusal to postpone; citing Neusbaum, the Court held that such a defense was not available on appeal when not presented below.

Voir dire and jury impartiality: The Court described the voir dire as limited: the trial court asked the original panel only, "Have any one of you read anything in the newspapers about this particular case?" The question apparently was not repeated to successive panels or additional talesmen. The Court found the record lacked any request by appellant for a more comprehensive voir dire or any objection to the scope of the court's examination or to the court's failure to repeat the newspaper question to subsequent panels. Because the appellant did not request additional questions or object below, the Court stated it would not consider these alleged errors raised for the first time on appeal. The Court cited Gray and Presley for the proposition that a defendant should submit other questions and request a more comprehensive examination if the court's question is inadequate.

Allegedly prejudicial newspaper article: The Court observed the newspaper article reporting the judge's remarks in a related trial the prior day was not offered in evidence at trial. Under Maryland Rule 885 and the Court's precedents (Grammer; Hayette), material outside the record cannot be considered on appeal. The Court therefore refused to consider the article as a ground for reversal. The Court also noted there was no showing that empaneled jurors had sat in the prior case or had been influenced by the article; one juror admitted seeing the article but said he "didn't even read much about it," and the judge held that juror qualified without objection—ruling the Court found proper (citing Garlitz). Furthermore, appellant later challenged that juror, and the Court noted the lack of demonstration that any juror had been prejudiced.

Sufficiency of the evidence: The Court stated that appellant failed to request a directed verdict of acquittal at any stage of the trial. Citing Humphreys, the Court emphasized the well-established rule that, absent such a motion, appellate review of sufficiency of the evidence in a jury trial is not permitted. Because no directed-verdict motion was made, the sufficiency contention could not be entertained on appeal.

Off-the-record matters and record supplementation: Counsel at oral argument said certain requests or objections had been made off the record. The Court explained that the record may, under some circumstances, be supplemented by application to the trial judge (Maryland Rule 826 e) or by application to the Court of Appeals to correct the record (Rule 827 b), citing Jefferson (and Cullings). The Court noted that no such application to supplement or correct the record had been made in this case, and therefore the asserted off-the-record matters could not be considered.

Holding and Implications

Holding: The Court affirmed the judgment of the Criminal Court of Baltimore. The opinion concludes with the statement: Judgment affirmed.

Implications: The direct effect of the decision is affirmance of the appellant's robbery-with-a-deadly-weapon conviction. The Court's ruling enforces several procedural principles: (1) adequacy of preparation time is evaluated in context and absent extraordinary circumstances a denial of a continuance is not an abuse of discretion; (2) appellate review will not consider alleged voir dire defects or non-record evidence (such as a newspaper article not offered in evidence) raised for the first time on appeal; (3) sufficiency challenges generally require a directed verdict motion below to be reviewable on appeal; and (4) off-the-record matters must be brought into the record by established supplementation procedures if they are to be considered. The opinion does not announce a novel legal principle but applies existing procedural and evidentiary rules to affirm the conviction.

This summary is based exclusively on the information contained in the opinion provided.

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HARMON v. STATE

CONTINUANCE — Denial Of Did Not Constitute Abuse Of Discretion Where Time Allowed For Defense Was Adequate — No Showing Of Extraordinary Circumstances Necessitating Delay. The appellant, who was found guilty of robbery with a deadly weapon, contended that he was denied reasonable opportunity to confer with counsel and prepare his defense prior to the trial. The Court stated that counsel had been appointed to represent the appellant forty-six days before trial of the instant case and that even after allowance for intervening trial work, the period of time available was manifestly adequate for preparation of appellant's defense, in absence of a showing of extraordinary circumstances necessitating delay. It was held that under the circumstances, there was no abuse of discretion in the trial court's refusal to postpone or continue the case. Moreover, the record failed to show that appellant made any motion for a postponement or a continuance, or entered any objection to the trial court's refusal to postpone or continue, and such defense is therefore not available on appeal. pp. 604-605

JURORS — Court Of Appeals Could Not Consider Allegedly Improper Voir Dire Examination Of Jurors In Absence Of Appropriate Requests Or Objections By Appellant. Appellant, who was convicted of robbery with a deadly weapon, contended he was denied an impartial jury panel because the trial court's examination of the prospective jurors on their voir dire was not sufficiently comprehensive and that there was a complete failure to examine certain additional talesmen who were later brought in, concerning newspaper publicity alleged to have been prejudicial to appellant's cause. The Court held that the record showed an absence of a request by appellant for a more extensive voir dire examination, and an absence of an objection to the trial court's failure to examine the later jurors as to the newspaper publicity and therefore, the Court was not at liberty to consider these alleged errors raised for the first time on appeal. pp. 605-606

EVIDENCE — Allegedly Prejudicial Newspaper Article Not Offered In Evidence — Court Of Appeals Will Not Review — No Review Of Sufficiency Of Evidence In Absence Of Motion For Directed Verdict — No Application To Supplement The Record Was Made. The appellant, who was convicted of robbery with a deadly weapon, contended that he was prejudiced by a newspaper article written as a result of his acquittal in the case tried the day before the trial in the instant case. The Court held that since the newspaper article was not offered in evidence in the trial court it was not properly before the Court for review. The Court of Appeals will not reverse a judgment of conviction on evidence outside the record. Further, there was no showing by appellant that any of the jurors empaneled in the instant case had sat in the prior case or heard the judge's remarks, or had been influenced by the article in question, or, in fact, had even seen it. Appellant further contended that the evidence was insufficient to convict but the Court held that in the absence of a motion for a directed verdict of acquittal made at some stage of the trial below there can be no review of the sufficiency of the evidence in a criminal case tried before a jury. In addition, no application was made to supplement the record so that objections made off the record could not be considered. pp. 606-607

H.C.

Decided February 22, 1962.

SYBERT, J., delivered the opinion of the Court.

The appellant, Charles E. Harmon, was granted a belated appeal from a judgment of the Criminal Court of Baltimore entered after a jury found him guilty under the first count of an indictment charging him with robbery with a deadly weapon of a certain sum of money from an express company office. Appellant was represented by counsel at the trial.

In his first assignment of error by the trial court, appellant contends that he was denied reasonable opportunity to confer with counsel and prepare his defense prior to the trial. His counsel (the same below and here) pointed out in his brief and oral argument in this Court that he had defended appellant on another robbery charge on the day before the trial of the instant case, and that in the preceding week he had appeared for two other defendants in a five-day trial of a related case. Counsel stated that he "vigorously opposed" the proposed trial date for the instant case and requested adequate time to prepare a defense, which was refused by the trial court.

The contention is not sustainable. Counsel conceded that he was appointed to represent appellant on a date which was 46 days before trial of the instant case. Even after allowance for the six days of trial work which intervened and the other normal preoccupations of a busy law practice, the period of time available was manifestly adequate for preparation of appellant's defense on the various charges, in absence of a showing of extraordinary circumstances necessitating delay. For a few of the cases holding considerably shorter intervals adequate, see Pressley v. State, 220 Md. 558, 155 A.2d 494 (1959); Cullings v. State, 205 Md. 22, 106 A.2d 69 (1954); Avery v. Alabama, 308 U.S. 444 (1940). Under the circumstances, we find no abuse of discretion in the trial court's refusal to postpone or continue the case. Taylor v. State, 226 Md. 561, 174 A.2d 573 (1961). Moreover, the record fails to show that appellant made any motion for a postponement or a continuance, or entered any objection to the trial court's refusal to postpone or continue, and such defense is therefore not available on appeal. Neusbaum v. State, 156 Md. 149, 143 A. 872 (1928).

Appellant next argues that he was denied an impartial jury panel, his complaint being that the trial court's examination of the prospective jurors on their voir dire was not sufficiently comprehensive and that there was a complete failure to examine certain additional talesmen who were later brought in, concerning newspaper publicity alleged to have been prejudicial to appellant's cause. The one question that was propounded to the original panel of prospective jurors by the trial court was "Have any one of you read anything in the newspapers about this particular case?" The question was apparently not repeated to successive panels which were examined in the effort to obtain a satisfactory jury.

Scrutiny of the record reveals gaps which are fatal to the contention here made. There is, in the first place, nothing to indicate that appellant sought a more comprehensive voir dire examination or that he objected to the examination as made by the trial court. Likewise, the record is barren of objection by appellant to the trial court's failure to repeat the question concerning newspaper publicity to the additional talesmen brought in. In the absence of a request for a more extensive voir dire examination, and in the absence of an objection to the trial court's failure to repeat to later prospective jurors the question that was asked of the original panel, this Court is not at liberty to consider alleged errors raised for the first time on appeal. If the appellant felt the question propounded did not adequately cover the matter of freedom from prejudice, he should have submitted other questions, Gray v. State, 224 Md. 308, 167 A.2d 865 (1961), and requested the trial court to examine the veniremen more comprehensively. Cf. Presley v. State, 224 Md. 550, 168 A.2d 510 (1961).

Appellant further maintains that he was prejudiced by a newspaper article written as the result of his acquittal in the case tried the day before the trial of the instant case. The article recounted certain upbraiding remarks made by the trial judge to the jury which had acquitted the appellant in that case. The newspaper article was not offered in evidence in the trial court and hence it is not properly before us for review. Maryland Rule 885. Cf. Gray v. State, supra; Grammer v. State, 203 Md. 200, 100 A.2d 257 (1953). We will not reverse a judgment of conviction on evidence outside the record. Hayette v. State, 199 Md. 140, 85 A.2d 790 (1952).

As indicated in our discussion of appellant's second contention, the trial court did ask the first panel of prospective jurors whether they had read anything in the newspapers about the case. One juror indicated that he had seen the article in question but when asked whether he had formed an opinion from what he had read, replied "I didn't even read much about it." The trial judge held the juror to be qualified, with no objection by appellant, and we find no error in this ruling. Cf. Garlitz v. State, 71 Md. 293, 18 A. 39 (1889). In any event, appellant admitted at oral argument that he later challenged this juror. Hence, even if the article was prejudicial, which we do not find, there was no showing by appellant that any of the jurors empanelled in the case had sat in the prior case on the previous day or heard the judge's remarks, or had been influenced by the article in question, or, in fact, had even seen it. Cf. Presley v. State, supra ( 224 Md. 550).

The appellant's final contention, challenging the sufficiency of the evidence to convict, is marked by a flaw frequently noted in criminal cases, that is, appellant's failure to request a directed verdict of acquittal at some stage of the trial. In the absence of such a motion below, it is well established that there can be no review of the sufficiency of the evidence in a criminal case tried before a jury. Humphreys v. State, 227 Md. 115, 175 A.2d 777 (1961).

Appellant's counsel at oral argument sought to excuse the failure of the record to contain the necessary motions alluded to in this opinion by explaining that certain requests or objections had been made to the trial judge in off the record discussions at the Bench. We may point out that under some circumstances, at least, the record may be supplemented as to what actually occurred by application to the trial judge, Maryland Rule 826 e, or by application to this Court for an order to correct the record, Rule 827 b. See Jefferson v. State, 218 Md. 397, 147 A.2d 204 (1958). Cf. Cullings v. State, supra, 205 Md. 22, 106 A.2d 69 (1954). No such application appears to have been made in this case.

Having found no error below, we will affirm.

Judgment affirmed.

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HARMON v. STATE
(Feb 22, 1962)