Gulick v. State

• Decision Date: 07 February 1969
• Docket Number: No. 71,71
• Citation: 249 A.2d 702,252 Md. 348
• Parties: Marvin R. GULICK v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 348

252 Md. 348

249 A.2d 702

Marvin R. GULICK v. STATE of Maryland.

No. 71.

Court of Appeals of Maryland.

Feb. 7, 1969.

Robert C. Heeney, Rockville (Heeney, McAuliffe & McAuliffe, David L. Cahoon, County Atty., and Stanley D. Abrams, Asst. County Atty., Rockville, on the brief), for appellant.

Joseph Zitomer, Sp. Asst. Atty. Gen., Silver Spring (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, FINAN, SINGLEY and SMITH, JJ.

FINAN, Judge.

This is an appeal from a finding by the lower court that Marion R. Gulick (appellant), a detective sergeant in the Montgomery County Police Department, was guilty of contempt for refusing to obey its order to divulge the name of an informant who had given him information in the course of his investigation of a murder case.

On January 29, 1968, in the trial of State of Maryland v. William Clifton Offord, Jr., criminal #8819, in the Circuit Court for Nontgomery County, Maryland, the State called Sergeant Gulick as a witness. On cross-examination, the defense counsel asked Sergeant Gulick if he remembered testifying before the Grand Jury on June 5, 1967, in connection with the subject criminal case. The Sergeant answered in the affirmative and the defense counsel proceeded to read to him his testimony which was in effect that one of his informants had seen the alleged murder weapon, a knife, and had told him that it looked like one belonging to Charles Ralph Offord, brother of the accused. Defense counsel then asked Sergeant Gulick the name of the informant who had said the knife was similar to the one with which he had seen Ralph Offord playing. The State objected strenuously to this question, the response to which would have revealed the name of the informant.

There followed extensive argument on both sides relating to the general privilege not to disclose the informant's identity. The defense counsel urged the importance of his establishing that the knife belonged to Charles Ralph Offord and not the accused. ¹ During these arguments the State offered to stipulate that the knife belonged to Charles Ralph Offord, brother of the accused, and furthermore, that the informant could testify to that and no more. This was not acceptable to the defense counsel who insisted upon knowing the name of the informant, stating that he might want to question him on the witness stand. The State requested that the lower court take the informer's testimony outside the presence of the jury for the purpose of determining whether his testimony would be of value to the defense, which the lower court refused to do. The State also emphatically informed the lower court, that to reveal the informant's name would place his life in jeopardy and would also set a precedent which would seriously handicap law enforcement officers in the area, insofar as obtaining any assistance from informers was concerned. ² The lower court overruled the State's objection to defense counsel's request that Sergeant Gulick reveal the informant's name and ordered him to make the disclosure. The Sergeant declined to name the informant, stating, he also feared for the informant's personal safety. The lower court repeated the order and indicated that it had heard the argument on the point of privilege and had overruled the objections. The lower court felt that it was within its discretion to order disclosure of the informant's identity and the Sergeant was directed to answer the pending question. He again refused to do so. The lower court then took a ten minute recess and upon its return, Sergeant Gulick was served with a show cause order as to why he should not be held in contempt. At that point he made a request that he be represented by counsel; his attorney entered an appearance and the hearing on the contempt citation was set for January 31, 1968, two days after the citation.

The trial of William Clifton Offord, Jr., was continued on January 30, 1968, at which time his defense counsel moved for a mistrial on the grounds that the publicity which had been given to Sergeant Gulick's refusal to name the informant was prejudicial to the defendant's case. The lower court inquired of the jury whether they had read newspaper accounts of the events of the previous day which had taken place out of their presence. There was one affirmative response. One member of the jury also indicated that a statement by the President of the Montgomery County Council concerning the case would influence his verdict. The lower court thereupon declared a mistrial.

In the contempt proceeding, the following day, Sergeant Gulick filed an affidavit which indicated that the informant did not observe the homicide, did not participate in it in any form, nor did he obtain, or enable the police to obtain, any physical evidence.

The lower court took judicial notice of the proceedings in State v. William Clifton Offord, Jr., criminal #8819, out of which the contempt proceeding arose and State v. Charles Ralph Offord, criminal #8626, and the minutes of the testimony before the Grand Jury in criminal #8626.

At the hearing on the contempt citation, Sergeant Gulick, the appellant, was called to testify and stated that the informant gave him information about the knife to the effect that it was already in the possession of the police, having been turned over to an officer by a person whose motor vehicle had been parked near a home which had been visited by both Offord brothers the night of the crime. Sometime thereafter the knife dropped from the sunvisor of the individual's car. As a result of this, the appellant was able to learn that an officer did indeed have the knife but had failed to connect it with the murder.

The defense counsel for William Clifton Offord, Jr. was called to the stand in the contempt proceedings and testified that he had no knowledge as to whether or not the State had used any direct evidence which had been obtained from informants. He explained that the reason he felt that the informant's name was necessary was because the name of the owner of the knife in question was of vital importance to the defense of his client, and he claimed that the original person who had been indicted for the crime, namely, Charles Ralph Offord, brother of the accused William Clifton Offord, Jr., owned the knife. He admitted, however, that he knew the informant could only testify that Charles Ralph Offord had a knife similar to the one that was offered in evidence. And he also admitted that the State would have so stipulated as to the informant's testimony.

After hearing argument of counsel for both sides, the lower court entered a finding that Sergeant Gulick was in contempt and imposed a fine of $25.00 and a suspended 60 day confinement. It is from this contempt conviction that the appellant appeals.

The trial court in the Offord case was confronted with alternatives of a most serious and vexing nature. In order to bring them into focus we deem it helpful to recite a pertinent part of the court's opinion rendered in the contempt proceedings:

'In reaching the verdict herein the Court has considered the public interest in the use of and in the continuing use of informers; and that a qualified privilege against the identity tends to encourage disclosures by informants. However, the general privilege of the State to withhold the identity of an informer must give way to the right of the accused to obtain relevant and competent evidence when necessary to his defense when the circumstances warrant it.

'It is the Court's view that the facts and circumstances in the case of the State of Maryland v. Clifton W. Offord, Jr. (William Clifton Offord, Jr.) are extremely unusual in that a person other than the defendant then on trial in Criminal No. 8819 was indicted for the crime of first degree murder alleged against the defendant, and that the indictment was nolle prossed. And, further, the grand jury minutes released to the defendant by Judge Moore reflect that the unidentified informant in question had told Sgt. Gulick, in effect, that the alleged murder weapon, a knife, might have belonged to a person other than the defendant. Since the murder weapon was offered in evidence the owner thereof, coupled with other evidence that a similar knife was flashed at or near the scene of the alleged murder a short time before the attack on the deceased, the name of the owner or the one in possession of the knife is highly relevant and for such reason the informer's name and his testimony should be available to the defendant in that it is essential to the fair determination of the issues.'

We agree with the lower court's statement of the law, as to the general privilege accorded the State to withhold the identity of an informer in a criminal proceedings and the exception given when the dominant right of the accused to a fair trial requires disclosure on the premise that the identity of the informer is necessary to his defense. Drouin v. State, 222 Md. 271, 160 A.2d 85 (1960). However, we disagree with the appropriateness of the application of the exception under the facts of the criminal proceedings which give rise to the contempt citation in the case at bar.

An exhaustive review of the law on the subject of the privilege of disclosure afforded the State regarding the identity...