Chester v. State, 1117

• Decision Date: 15 September 1976
• Docket Number: No. 1117,1117
• Parties: Paul L. CHESTER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 593

32 Md.App. 593

363 A.2d 605

Paul L. CHESTER v. STATE of Maryland.

No. 1117.

Court of Special Appeals of Maryland.

Sept. 15, 1976.

Certiorari Denied Nov. 30, 1976.

George L. Russell, Jr., Baltimore, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., for Baltimore City, and John Henry Lewin, Jr., Asst. State's Atty., for Baltimore City on the brief, for appellee.

Argued before POWERS, MENCHINE and RICHARD M. POLLITT ^*, JJ. ^*

MENCHINE, Judge.

Paul L. Chester (appellant), an elected Clerk of the Court of Common Pleas, went to trial before a jury in the Criminal Court of Baltimore under indictment 17401949 (Rasin, J., specially assigned, presiding). Initiated as a three count indictment, the State entered a nolle prosequi as to the second count prior to commencement of trial. At the conclusion of the State's evidence a Motion for Judgment of Acquittal as to the third count was granted. The jury convicted under the first count and the appellant was sentenced to fine and imprisonment.

On appeal, appellant makes the following contentions:

'I. The Special Prosecutor Was Appointed Illegally.

II. Denial Of Access To Grand Jury Minutes Was Unwarranted.

III. The Evidence Was Insufficient To Support A Charge of Malfeasance In Office.

IV. Submission Of Count One To The Jury After Dismissal Of Counts Two And Three Was Error.'

I. The Prosecutor

On November 27, 1974, the State's Attorney of Baltimore City filed a petition requesting the court to appoint 'an Assistant State's Attorney' pursuant to the Annotated Code of Maryland, Courts and Judicial Proceedings Article, § 2-102. On the same date twelve judges then assigned to and serving in the twelve parts of the Criminal Court of Baltimore, by joint order appointed John Henry Lewin, Jr., Esquire, as 'Assistant Counsel for the State for the purpose of prosecuting the (Chester) case with full powers authorized under the laws of Maryland.' Under the signature of each of the said judges there was typed 'JUDGE CRIMINAL COURT OF BALTIMORE.'

Appellant contends that Mr. Lewin's appointment and subsequent service as assistant counsel for the State constituted reversible error. He maintains: (a) that appointment to such an office must be made by the Supreme Bench of Baltimore City-not by the Criminal Court of Baltimore; (b) that the failure to accord him notice and hearing prior to the appointment denied him due process under the Maryland and United States Constitutions; (c) that an order passed by the Chief Judge of the Court of Appeals on November 22, 1974 designating ¹ the Honorable George B. Rasin, Jr. (who was not a signatory to the appointment order) to preside as the trial judge in the case, operated to deprive the other judges of the Criminal Court of the power to appoint assistant counsel in that case; and (d) that Mr. Lewin was qualified to act as assistant counsel for the State only during the regime of the Honorable Milton B. Allen as State's Attorney, his authority terminating as a matter of law with the qualification of the successor State's Attorney.

(a) The appointment

The case of State v. Ensor and Compton, 277 Md. 529, 356 A.2d 259, is dispositive of this contention. The judges of the Criminal Court of Baltimore possessed the power to appoint assistant counsel for the State.

(b) Due Process

One accused of crime has no constitutional right to notice or hearing upon the question of who shall prosecute the case against him, when the assigned prosecutor regularly was appointed pursuant to a valid general law.

(c) The designation of Judge Rasin

The designation of Judge Rasin in pertinent part authorized him '. . . to sit, either alone or with one or more other Judges, as a Judge of the Supreme Bench of Baltimore City assigned to the Criminal Court of Baltimore in the case of State of Maryland v. Paul L. Chester . . ..'

The order of designation neither diminished the powers of the other judges assigned to the Criminal Court of Baltimore nor limited essential judicial action in the case exclusively to Judge Rasin.

(d) Duration of the appointment

The appointment of Mr. Lewin was stated to be 'for the purpose of prosecuting the (Chester) case with full powers authorized under the laws of Maryland.' The statute authorizing passage of that order plainly intended the powers of such an appointee to extend through the completion of the assigned duty. The fact that a change in the office of the State's Attorney occurred subsequent to the passage of the court order in no way attenuated its legal effect.

II. Grand Jury Minutes

On June 11, 1975, approximately four weeks prior to the commencement of trial, counsel for appellant filed a Motion for Disclosure of Grand Jury Minutes. The motion, after asserting that such Minutes were 'needed for the purposes of impeaching and/or testing the credibility of key prosecution witnesses,' alleged: (a) that 'all the testimony bearing on the alleged unlawful acts will be concerning numerous private meetings and conversations over many months'; (b) 'That from the posture of the case it is rather obvious that such key prosecution witnesses have already committed perjury'; and (c) 'That a 'particularized need' for disclosure has been shown, as more fully set forth in the accompanying Memorandum of Law.' ²

In Silbert v. State, 12 Md.App. 516, 280 A.2d 55 (1971), cert. den. 263 Md. 720, Chief Judge Murphy (now Chief Judge of the Court of Appeals of Maryland) for this Court collected and discussed the cases dealing with the circumstances under which grand jury transcripts will be required to be disclosed to an accused. After pointing out that a 'particularized need' must be demonstrated before access to grand jury minutes may be had, Judge Murphy declared that the issues 'is one of fact to be decided in each case; there is and can be no general test.' Id. at 523, 280 A.2d at 60.

We shall examine the record to determine whether a 'particularized need' has been shown. It appears from the record that the State, pursuant to an order of the trial judge, filed in the proceedings a bill of particulars of the first count of the indictment reading in pertinent part as follows:

'1. The names of those persons whom the State contends were the subjects of Defendant's attempt to coerce and intimidate are: Roland Keller, Peggy J. Washington, Patricia Bertorelli, John Wankmiller, Francis Sherry, Randall Carroll, Arthur Sindler, Nicholas Possidente, Lolita Fales, Genevieve Salfner, John Henry Winkler and Krystal Marie Garner Halloway.

2. The circumstances under which the State contends that Defendant engaged in the conduct and acts charged are a meeting held at approximately 4 p. m. on January 11, 1974 in his office on the first floor of the Courthouse at which time Defendant made some of the statements which are described generally in the State's Answer to Item 2 of Defendant's Motion for Discovery.'

Moreover, the record shows that upon application of the appellant, the trial judge, inter alia, required the State (a) to furnish the names and addresses of the witnesses against him whom the State intended to call to prove its case in chief; ³ (b) to furnish the defendant with the substance of the alleged oral statements attributed to the defendant; ⁴ and (c) to furnish the defendant with all evidence whether verbal or written which is exculpatory in nature. ⁵

It is manifest that al of the witnesses disclosed in the State's bill of particulars and in the State's answer to the discovery motion were available for interviews by the appellant prior to trial. There is no substantial departure by the witnesses from the particularization of the events as recited in the State's bill of particulars, or answer to Motion for Discovery. The witnesses at trial were sequestered. Extensive cross-examination produced neither substantial conflict in the testimony of any witness individually nor substantial disagreement in the totality of the testimony of all witnesses inter sese. No witnesses were called in behalf of the appellant. In sum, the evidence of what was said and done by the appellant is without contradiction.

Claim to a 'particularized need' requires delineation of the facts tending to support the contention. Something more must be shown than mere surmise or speculation that the testimony of a witness at trial may be inconsistent with his testimony before the grand jury. In the subject case no factual base supporting the claim has been shown.

In such circumstances, what we said in Grimm v. State, 6 Md.App. 321, 331-32, 251 A.2d 230, 236-37 (1969), cert. den. 255 Md. 741 (1969), U.S. cert. den. 397 U.S. 1001, 90 S.Ct. 1150, 25 L.Ed.2d 412 (1970), is particularly applicable here:

'Finally, appellant contends that the trial court erred in denying his motion for the production of the Grand Jury testimony of Sergeant Louis Roemer. The contention appears based on the proposition that Roemer's testimony at trial revealed that he was the only witness who testified before the Grand Jury and that his testimony was insufficient to justify the indictment. Appellant claims that he was therefore seriously prejudiced by his inability to impeach Roemer at the trial through use of his testimony before the Grand Jury.

'It is the well settled rule that the competency of testimony before the Grand Jury will not be inquired into by the courts and the alleged insufficiency of such evidence is no ground to dismiss an indictment. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397; Pick v. State, 143 Md. 192, 121 A. 918; Wilson v. State, 4 Md.App. 192, 242 A.2d 194. Equally well settled is the proposition that there is no absolute right to inspect the testimony of a witness before a Grand Jury. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973; Pittsburgh Plate Glass Company v. United States, 360 U.S 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323. At...