Jones v. State, 130

• Decision Date: 27 May 1983
• Docket Number: No. 130,130
• Parties: Glenn JONES v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 7

297 Md. 7

464 A.2d 977

Glenn JONES v. STATE of Maryland.

No. 130.

Court of Appeals of Maryland.

May 27, 1983.

Motion for Reconsideration Denied

Sept. 9, 1983.

Mark Colvin, Baltimore, for appellant

Alexander L. Cummings, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ., and W. ALBERT MENCHINE (Retired) Specially Assigned, Judge.

COUCH, Judge.

Having been found guilty, in a jury trial in the Criminal Court of Baltimore, of felony murder, robbery, and use of a handgun in the commission of a crime of violence, Glenn Jones appealed to the Court of Special Appeals. We granted his petition for a writ of certiorari prior to consideration by that court in order to resolve a question of public importance. In doing so, we are of necessity compelled to consider all issues raised by Jones in his appeal, which are as follows:

1. Did the trial court err in refusing to permit defense counsel to inspect the grand jury testimony of two key prosecution witnesses for purposes of cross-examination and impeachment?

2. Was the out-of-court photographic identification of Appellant so suggestive and conducive to misidentification as to deny him due process of law?

3. Did the trial court abuse its discretion in failing to take any corrective action after the prosecution referred to matters not in evidence during closing argument?

4. Was Appellant improperly convicted of, and sentenced for, both felony murder and the underlying felony?

Because of the nature of the questions raised, little need be said regarding the underlying facts of the crime giving

rise to Jones's conviction. Suffice it to say that Leonard Holland was shot and killed during the course of a robbery witnessed by Kevin Lawson. Lawson subsequently picked Jones's picture from a photographic array as the person who shot Holland, and later made a similar in-court identification. He explained he had gone to school with Jones and had known him for some time.

(1)

Although Jones, prior to trial, had sought to inspect the grand jury testimony of the State's principal witnesses, Clanton and Lawson, he makes no issue here of the denial of that motion. He does assert error, however, in the denial of a similar motion made after each of these witnesses had completed his direct testimony for the State. The record reveals that the trial judge had denied the motion as to Clanton after reviewing Clanton's grand jury testimony in camera and concluding that it was not "substantially or significantly different" from that given at trial. As to Lawson, however, the trial judge concluded that his grand jury testimony did vary, in some respects, from his trial testimony and thus made available to Jones those portions of the grand jury testimony of Lawson which did vary. We note that no use of such testimony was made during cross-examination by Jones's counsel. The record makes clear that the trial judge reasoned that since his examination of the grand jury testimony of Clanton showed no significant inconsistencies, there was no "particularized need" for access to such testimony. In our view, the trial judge, albeit well-meaning, misconceived the meaning of "particularized need," requiring us to reverse the convictions in this case. We explain.

The parties appear to be in agreement that, consistent with the need for secrecy surrounding grand jury proceedings, there is no absolute right to inspect grand jury testimony prior to trial. Jones argues, however, that he had the right to such inspection once the witnesses had testified Heretofore we have not had the occasion to deal with this precise problem ¹ directly although it has been alluded to. See Attorney Grievance Comm'n v. Strathen, 287 Md. 111, 117, 411 A.2d 102, 105-106 (1980), where Chief Judge Murphy said for the Court:

on direct. He also argues, alternatively, that once a "particularized need" was shown, he then had the right to inspect. The State, on the other hand, argues that automatic disclosure of grand jury material is not required, but if a "particularized need" is shown, such disclosure may be had after the witness has testified on direct. We perceive from the record and briefs that what constitutes "particularized need" is misunderstood by the parties and the trial judge. Furthermore, there is disagreement with respect to the mechanism to be used for disclosure.

"Attorney disciplinary proceedings before an Inquiry Panel upon a complaint that an attorney has committed an act of misconduct are similar in purpose to the accusatory proceedings conducted by a grand jury. See Attorney Griev. Comm'n v. McBurney, 282 Md. 116, 383 A.2d 58 (1978). It is true, of course, that in a proper case an accused may, at trial, be afforded access to grand jury minutes for purposes of cross-examination or impeachment if he demonstrates a 'particularized need' for disclosure. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Silbert v. State, 12 Md.App. 516, 280 A.2d 55 (1971)."

We recognize that throughout our sister jurisdictions, three distinct positions have been taken regarding disclosure of On the other hand, certain jurisdictions have held that a defendant is not entitled to inspection of a witness's grand jury testimony, even for cross-examination purposes. See, e.g., State v. Prestridge, 399 So.2d 564 (La.1981); State v. Porter, 303 N.C. 680, 281 S.E.2d 377 (1981).

grand jury testimony. Some courts have concluded that once a state's witness has testified on direct examination, his grand jury testimony is subject to inspection by a defendant for the purpose of cross-examination or impeachment. See, e.g., State v. Superior Court In and For County of Maricopa, 95 Ariz. 319, 390 P.2d 109 (1964); People v. Johnson, 31 Ill.2d 602, 203 N.E.2d 399 (1964); Antrobus v. State, 253 Ind. 420, 254 N.E.2d 873 (1970); State v. Cuevas, 282 N.W.2d 74 (Iowa 1979); Commonwealth v. Edgerly, 372 Mass. 337, 361 N.E.2d 1289, 1292 n. 3 (1977); People v. Wimberly, 384 Mich. 62, 179 N.W.2d 623 (1970); State v. Tate, 47 N.J. 352, 221 A.2d 12 (1966); State v. Felter, 85 N.M. 619, 515 P.2d 138 (1973); People v. Rosario, 9 N.Y.2d 286, 173 N.E.2d 881, 213 N.Y.S.2d 448 (1961); State v. Miner, 128 Vt. 55, 258 A.2d 815 (1969).

Finally, a number of courts have held that a defendant is not entitled to inspection for impeachment on cross-examination unless a "particularized need" is shown. See, e.g., State v. Doody, 432 A.2d 399 (Me.1981); State v. Baca, 85 N.M. 55, 508 P.2d 1352 (N.M.1973); State v. Palmigiano, 112 R.I. 348, 309 A.2d 855 (1973); Mott v. State, 543 S.W.2d 623 (Tex.Cr.App.1976).

As stated above, we have previously indicated that we looked with approval on the "particularized need" requirement. Strathen, supra. See also Thomas v. State, 50 Md.App. 286, 437 A.2d 678 (1981), cert. denied, 292 Md. 639, 437 A.2d 678 (1982). The Supreme Court of the United States likewise has opted for the "particularized need" requirement. See Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); United States v In Procter & Gamble, supra, Mr. Justice Douglas stated in pertinent part:

Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). It is observed that, as noted in these cases, rule 6(e) of the Federal Rules of Criminal Procedure provides, inter alia, that disclosure of grand jury testimony may be made "preliminarily to or in connection with a judicial proceeding ..." and that the matter lies within the discretion of the trial judge. No such similar rule exists in Maryland and, of course, we are not bound to follow the federal rule here. The problem is what does a defendant have to offer to demonstrate a "particularized need," keeping in mind that until a witness's grand jury testimony is disclosed, there is no way a defendant can determine whether such testimony varied from the trial testimony so as to be of any use on cross-examination.

"We do not reach in this case problems concerning the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like.7 Those are cases of particularized need where the secrecy of the proceedings is lifted discretely and limitedly." 356 U.S. at 683, 78 S.Ct. at 986-87, 2 L.Ed.2d at 1082 (emphasis supplied).

Again, in Dennis, supra, the Supreme Court quoted from its opinion in Procter & Gamble to the effect that

" '[P]roblems concerning the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility ...', are 'cases of particularized need where the secrecy of the proceedings is lifted....' " 384 U.S. at 870, 86 S.Ct. at 1849, 16 L.Ed.2d at 984 (citation omitted).

Accord Douglas Oil, supra, where the Supreme Court observed, "the typical showing of particularized need arises when a litigant seeks to use 'the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like.' " 441 U.S. at 222 n. 12, 99 S.Ct. at 1674, 60 L.Ed.2d at 167 (quoting Procter & Gamble). Moreover, in Pittsburgh Plate Glass, supra, the Supreme Court concluded that "a preliminary showing [of contradiction between the witness's trial and grand jury testimony] would not, of course, be necessary." 360 U.S. at 400-01, 79 S.Ct. at 1241, 3 L.Ed.2d at 1327. In Pittsburgh Plate Glass, the Court held that the defense had failed to show the existence of a "particularized need," pointing out that "the petitioners [had] failed to show any need whatever for the testimony of the witness[...