Bartram v. State

• Decision Date: 07 July 1977
• Docket Number: No. 148,148
• Citation: 280 Md. 616,374 A.2d 1144
• Parties: Marilyn Susan BARTRAM v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 616

280 Md. 616

374 A.2d 1144

Marilyn Susan BARTRAM v. STATE of Maryland.

No. 148.

Court of Appeals of Maryland.

July 7, 1977.

James P. Gillece, Jr., and Gerard P. Uehlinger, Baltimore (Robert B. Barnhouse and Piper & Marbury, Baltimore, on the brief), for appellant.

W. Timothy Finan, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

SMITH, Judge.

In a final desperate attempt to void convictions of second degree murder and a related handgun offense, appellant, Marilyn Susan Bartram (Mrs. Bartram), framed as an issue to us on her petition for the writ of certiorari, "Did the State's conduct with regard to the Grand Juries which considered the petitioner's case mandate that the indictment of September 9, 1974 (sic) be dismissed?" ¹ We answer the question in the negative.

The full facts surrounding this case are set forth in the opinion of the Court of Special Appeals in Bartram v. State, 33 Md.App. 115, 364 A.2d 1119 (1976).

Mrs. Bartram's husband died as a result of gunshot wounds. Some nine months later she was indicted by the Grand Jury of Baltimore County. Apparently, three witnesses were in the grand jury room at the same time and testified in turn in the presence of each other. A motion to dismiss the indictment was filed. The State then entered a nolle prosequi. The matter was submitted to a subsequent grand jury which returned a second indictment. On a motion to dismiss that second indictment the Deputy State's Attorney involved in the first incident advised the court:

"We told the Grand Jury that we had had an error in our previous proceedings, which we freely admitted, and probably even explained the nature of the error. That is to say that we had more than two witnesses in the Grand Jury at one time. We fully understood, at the time, that we were making what amounted to a technical error that we could correct at any time."

He further explained with reference to the proceedings before the grand jury leading to the return of the first indictment:

"Corporal Wise, Detective Todd, and Dr. Fisher, I think, were all in the Grand Jury at the same time. If I may say to the Court, because of the technical nature of this case and because of the availability of Dr. Fisher, that and the investigative part of this case, at that time, that is why that was done." ²

In many of the counties of Maryland grand jury testimony is not recorded. In Mrs. Bartram's case a transcript was made of the proceedings leading to the return of the first indictment but not of the second. At the hearing on her motion to dismiss when the parties were unable to agree as to what had taken place prior to the return of the second indictment the individual who at the time of that second indictment was the Deputy State's Attorney for Baltimore County, but who had since left that office, was brought into the courtroom and questioned by the trial judge. He said relative to the proceedings before the grand jury leading to the second indictment:

"At the second one, it is my recollection that we summarized what the State's case was to the Grand Jury. I think we had one police officer there. That was the usual custom and practice in the case. The first time was entirely different from what we normally would do in front of a Grand Jury because of the technical nature of this particular case."

Mr. Bronstein, the former Deputy State's Attorney, was questioned as to whether or not Dr. Fisher's testimony was given to the second grand jury:

"My recollection is that it wasn't. Dr. Fisher's testimony, I don't think we read any transcript. We merely spoke to the Grand Jury and I think with one of the detectives and summarized what the State's evidence was, which is perfectly proper. The Grand Jury is not a judicial body it is strictly investigative."

The proceedings further reflect:

"THE COURT: I understand. Basically, then, what was done was that the State itself summarized the testimony they had?

"MR. BRONSTEIN: Yes. If I remember correctly, Your Honor, I am speaking of course without notes and

"THE COURT: All right. On the second Grand Jury the evidence was given by a summation of the evidence that the State had.

"MR. BRONSTEIN: And only one witness being present.

"THE COURT: One witness gave testimony to that Grand Jury of that witness's evidence?

"MR. BRONSTEIN: That is correct, Your Honor.

"THE COURT: Is that correct?

"MR. BRONSTEIN: Yes. If the Court please, the State's attorney's office, at least at that time, made up a witness sheet for the Grand Jury, and I am looking at the witness sheet for that date and it indicates that Corporal Frederick Wise was the only witness summonsed to appear before the Grand Jury on that particular day. I don't have any recollection of anybody being there. I can hardly remember whether Detective Wise was there. I specifically remember him being there the first time and I think he was there for the second one."

In response to a question from the trial judge to defense counsel as to whether he desired to ask anything, the record reflects the following:

"MR. GILLECE: . . . Mr. Bronstein, when you say that you summarized, does that mean the State's attorney who was present read a summary of what the State's evidence was, read it to the Grand Jury?

"MR. BRONSTEIN: No, I think I narrated it.

"MR. GILLECE: You did it and not the witness?

"MR. BRONSTEIN: I think the combination thereof. You know, in using Detective Wise to explain certain things.

"MR. GILLECE: You presented other things yourself and told the Grand Jury about it?

"MR. BRONSTEIN: We told them, you know, basically, that this was the case and it was either murder or a triple shot suicide and that was the sum and substance of it.

"MR. GILLECE: You told the Grand Jury that there had been a previous indictment and it had to be dismissed because of a technical violation?

"MR. BRONSTEIN: I am almost sure I did but I can't say positively that I did that. It was my view at that time, and I still think it is the law, that, basically, the Grand Jury is privileged to hear anything except two witnesses at one time. It is an investigative body and can hear and say anything. We are perfectly free to narrate or anything that we want to."

From all of the above Mrs. Bartram presents three arguments as a basis for dismissal of the indictment: (1) "(t)he statement of the prosecutor that a previous grand jury had indicted (Mrs. Bartram), but that the indictment had to be dismissed because of a 'technicality' was clearly improper"; (2) "(t)he recitation by the prosecutor of his own narration of the case was manifestly unlawful"; and (3) "(t)he conclusory statement by the prosecutor that this case 'was either murder or a triple shot suicide' was argumentative and an impermissible attempt to influence the grand jury."

The quoted arguments of Mrs. Bartram do not constitute an accurate statement of the facts as a review of that portion of the record which we have quoted will reveal. Aside from that, however, she loses sight of the fact that a grand jury is an accusatory body, not a trier of fact.

Judge McSherry said for our predecessors in Blaney v. State, 74 Md. 153, 21 A. 547 (1891):

"However, restricted the functions of grand juries may be elsewhere, we hold that in this State they have plenary inquisitorial powers, and may lawfully themselves, and upon their own motion, originate charges against offenders though no preliminary proceedings have been had before a magistrate, and though neither the court nor the State's Attorney has laid the matter before them. The peace, the government and the dignity of the State, the well-being of society and the security of the individual demand, that this ancient and important attribute of a grand jury should not be narrowed or interfered with when legitimately exerted. That it may in some instances be abused is no sufficient reason for denying its existence. Though far-reaching and seemingly arbitrary this power is at all times subordinate to the law, and experience has taught that it is one of the best means to preserve the good order of the Commonwealth and to bring the guilty to punishment.

"Holding as we do that grand juries may, in this State, lawfully upon their own motion originate prosecutions against offenders, it is of no consequence how the case at bar was brought to their attention." Id. at 156-57, 21 A. at 548.

Most of this language was repeated with approval by Judge W. Mitchell Digges for the Court in the case entitled In re Report of Grand Jury, 152 Md. 616, 621-22, 137 A. 370 (1927).

Our predecessors in Owens v. Owens, 81 Md. 518, 522, 32 A. 247 (1895), in an opinion by Judge Boyd, refused to permit a grand jury foreman to be queried on cross-examination as to why a grand jury had dismissed a proceeding. The Court there quoted with approval from Elbin v. Wilson, 33 Md. 135 (1870). In the latter case the Court said that a trial judge "erred in requiring the witness, Elbin, to state whether, as grand juror, he did not endeavor to have the appellee indicted for perjury, or whether he did not furnish names of witnesses to the foreman to be summoned for that purpose." Judge Robinson pointed out for the Court in Elbin "obvious reasons" for the rule relative to grand jury secrecy:

"(F)irst, in order to secure the utmost freedom of deliberation on the part of the Grand Jury, and freedom of disclosure on the part of informers; secondly, to prevent the escape of the party should he know that proceedings were in train against him; and thirdly, to prevent the testimony before them from being contradicted at the trial before the traverse jury by subornation of perjury on the part of the accused. 1 Greenl. Ev. sec. 252." ³ Id. at 144.

The language in Elbin quoted in Owens was:

"(A)ll the authorities concur in saying that the juror will not be...