Chesley v. State

• Decision Date: 09 April 1968
• Docket Number: No. 157,157
• Citation: 3 Md.App. 588,240 A.2d 342
• Parties: John W. CHESLEY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 588

3 Md.App. 588

240 A.2d 342

John W. CHESLEY v. STATE of Maryland.

No. 157.

Court of Special Appeals of Maryland.

April 9, 1968.

Harvey Lee Cohen, Baltimore, for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr. and Barrett Freedlander, State's Atty. and Asst. State's Atty. for Baltimore City, on the brief for appellee.

Before MURPHY, C. J., and MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

The appellant was found guilty in a trial by the court in the Criminal Court of Baltimore of the rape and robbery of Molly Manigold. ¹ He was sentenced to imprisonment for the balance of his natural life on the rape conviction and to a term of 10 years on the robbery conviction to run concurrently with the life sentence.

On appeal the appellant contends:

I The lower court erred in denying ing his motion to dismiss the indictments.

II The evidence was not sufficient to sustain the convictions.

III He was denied due process of law by suppression of evidence by the State.

I

The appellant filed a motion to dismiss the indictments on the grounds that he was not afforded the benefit of counsel 'when he was presented for indictment before the Grand Jury' and was 'denied his constitutional right to confront and cross-examine witness against him which Grand Jury heard'. The motion was denied.

In Watson v. Warden, 2 Md.App. 134, 233 A.2d 321 we held that there was no denial of rights guaranteed by the 6th and 14th Amendments to the Constitution of the United States by the exclusion of an accused and his attorney from the proceedings of the grand jury leading to indictment. We cited Coblentz v. State, 164 Md. 558, pages 566-567, 166 A. 45, page 49, 88 A.L.R. 886, where the Court said:

'The grand jury is an accusing body, and not a judicial tribunal; and it acts upon knowledge possessed by its members from any source, whether from witnesses brought before it, or from information gained before its sessions. '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.' Blaney v. State, 74 Md. 153, 21 A. 547, 548; In re Grand Jury Report, 152 Md. 616, 137 A. 370. And their oath requires them to present all things truly as they come to their knowledge, according to the best of their understanding. But it is an inflexible requirement that their investigations shall be carried on secretly and free from outside interference or influence; and great care is taken that they shall be so carried on. The purposes of this are many. Freedom of inquiry is to be preserved, and at the same time individuals whose conduct may be investigated, but against whom no indictment may be found, are to be protected from disrepute, and all individuals are to be protected from one-sided presentations of unfavorable evidence, without opportunity to reply, before any one present unnecessarily. See In re Grand Jury Report, 152 Md. 616, 631, 137 A. 370. This protection from one-sided hearings has, indeed, been regarded as demanded in constitutional provisions for inauguration of criminal proceedings by indictment. Commonwealth v. Harris, 231 Mass. 584, 121 N.E. 409. It is, moreover, 'inherent in the grand jury system with all the force of a statutory enactment.' United States v. Edgerton (D.C.) 80 F. 374, 375. And it is found embodied in the familiar grand jury oath that the members sworn shall keep secret the counsel of the state, their fellows, and their own, and shall not present any one for envy, hatred, or malice, nor leave any one unpresented for fear, favor, or affection, or hope of reward. The rule is not merely a remedial one, that injury shown to have been sustained by the accused in a particular case shall be remedied, but also a preventive one, which interposes in advance for private benefit and public benefit as well. Discriminations between degrees of departure from it are difficult to manage, and unless the bar is maintained in all cases, it can hardly have any effective existence. Therefore the law must act upon the existence of opportunity rather than await proof of abuse, as in cases of communications with petit jurors, and also in civil cases of conflicts of interests of agents, attorney, or trustees. Mason v. Martin, 4 Md. 124; Gaither v. Myrick, 9 Md. 118, 143, 66 Am.Dec. 316; Derlin v. Derlin, 142 Md. 352, 121 A. 27. 'Their findings must be their own, uninfluenced by the promptings or suggestions of others, or the opportunity thereof.' Lewis v. Board of Commrs. of Wake County, 74 N.C. 194.'

We said in Watson at page 140 of 2 Md.App. at page 325 of 233 A.2d:

'No Attorney, other than the State's Attorney, his assistants, or someone appointed in their stead is permitted to attend the proceedings before the grand jury. Coblentz v. State, supra, 164 Md. at page 564, 166 A. 45. The appearance of any person before the grand jury attempting to influence the jury is not permissible. Brack v. Wells, 184 Md. 86, 95, 40 A.2d 319, 156 A.L.R. 324. It has been held that one who is being investigated by the grand jury has no right, constitutional or otherwise, to appear before that body. Duke v. United States, 90 F.2d 840, 112 A.L.R. 317, (4th Cir. 1937) cert. denied 302 U.S. 685, 58 S.Ct. 33, 82 L.Ed. 528, rehearing denied 302 U.S. 775, 58 S.Ct. 135, 82 L.Ed. 600, (cited as authority in Brack v. Wells, supra); United States ex rel. McCann v. Thompson, 144 F.2d 604, 156 A.L.R. 240 (2nd Cir. 1944) opinions by L. Hand, J. cert. denied 323 U.S. 790, 65 S.Ct. 313, 89 L.Ed. 630. In Hitzelberger v. State, 173 Md. 435, 196 A. 288 it was held that one under investigation who attempts to influence a member of a grand jury to present certain evidence in favor of that person may be held in contempt. It has also been held that one who merely solicits the grand jury to allow him to testify in his own defense may be held in contempt. Commonwealth v. McNary, 246 Mass. 46, 140 N.E. 255, 256, 29 A.L.R. 483 (cited with approval in Hitzelberger v. State, supra.)'

We are not persuaded by the authorities relied on by the appellant to depart from our holding in Watson that neither the accused nor counsel representing him have any right to be present during the proceedings before the grand jury. ² Because of the nature of the functions of the grand jury, the cases cited by the appellant in support of his contention are not in point and are not apposite by analogy. They conclude that assistance of counsel may, under certain circumstances, be necessary to assure certain rights of an accused, at a preliminary hearing or arraignment ³, at a lineup ⁴, at the obtaining of a confession ⁵, and at the trial ⁶. Nor do we construe Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, where the Court held that the right of the accused to confront the witnesses against him was denied where a transcript of testimony at a preliminary hearing, at which there was no opportunity for cross-examination, was admitted in evidence at the trial on the merits, to compel such confrontation of witnesses in grand jury proceedings.

The appellant also alleges that, because prior to conviction, an accused who is charged with an offense, the maximum punishment for which is capital, is not entitled to bail 'as a matter of law' (Md. Rules, 777 a), the action of the grand jury in indicting him deprived him of his liberty without due process of law. But the rule continues: 'In a capital case the accused may be admitted to bail in the discretion of the court'. We see no merit in this allegation. The question presented by a denial of bail in such case is one of the exercise of the discretionary power of the court and there is no allegation here that the discretion was abused. See Fischer v. Ball, 212 Md. 517, 129 A.2d 822.

We find no error in the denial to dismiss the indictments. ⁷

II

Molly Manigold testified that about 11:00 P.M. on the evening of September 23, 1966 while she was walking from her brother's house at 1010 Mosher Street to the house of another brother at 1207 Winchester Street, 'somebody grabbed me around my neck * * * and pulled me backwards and twisted my neck and told me if I holler, say 'I kill you." She was able to see her assilant-'I'll never forget him'-and identified him as the appellant. She asked him why he was doing this to her, and he said, 'Shut up bitch', and hit her in her face with his fist. He dragged her down the alley and threw her down, 'beating my face from side to side'. He 'straightened' her with his leg across her and had intercourse, tearing her clothes 'off her'. He said, 'it's women like you I like to hurt'. She was 'halfway out and he did what he wanted to do * * * He put his penis in me'. He asked her if she had any money and when she replied that she did he took 'about a dollar and something' from her pocket while he was still 'sitting on top' of her. He told her he was going to kill her and 'he started beating me in my face again and I could feel my face swelling up all over'. He finally permitted her to get up but had her arm twisted around her back. He pushed her in this manner to her brother's house and she 'fell in the door', and hollered for help. She was then 'in shock' and 'all I know is waking up down at University Hospital, the doctors talking to me'. The victim's brother, Charles Mason, testified that he was sitting in his house when the 'outside door, slung open' and his sister hollered, 'Help'. He ran out the door and saw the appellant running 'eastward on Winchester towards the alley'. Mason ran after the appellant and caught him near the entrance to the alley. The appellant put his hand 'into his sweater' and Mason hit him, 'knocked him between the white fence and the brick wall'. He brought him back...