Kardy v. Shook

Decision Date15 February 1965
Docket NumberNos. 324,343-345,s. 324
Citation207 A.2d 83,237 Md. 524
PartiesLeonard T. KARDY, individually and as State's Attorney for Montgomery County, v. Kathryn J. SHOOK, Associate Judge, et al. STATE of Maryland v. Mark Franklin SHERRY, Charles W. Scott, Charles S. Stull.
CourtMaryland Court of Appeals

John W. Sause, Jr., Asst. Atty. Gen., Baltimore (Thomas B. Finan, Atty. Gen., and Robert C. Murphy, Deputy Atty. Gen., Baltimore, on the brief), for appellants.

James R. Miller, Sr., Rockville, for appellees Kathryn J. Shook, Associate Judge and others.

James R. Miller, Silver Spring (Miller & Miller, Silver Spring, on the brief), for appellee Mark Franklin Sherry.

Robert S. Bourbon, Silver Spring (Irwin H. Liptz, Washington, D. C., on the brief), for appellee Charles W. Scott.

Alger Y. Barbee, Rockville, and William C. Miller, Silver Spring, for appellee Charles S. Stull.

Before PRESCOTT, C. J., and HAMMOND, HORNEY, MARBURY, SYBERT, OPPENHEIMER and ROBERT E. CLAPP, Jr. (specially assigned), JJ.

PRESCOTT, Chief Judge.

There are four appeals (Nos. 324, 343, 344, and 345) which will be considered and disposed of in this opinion. This may be done conveniently, because the questions to be determined, with minor exceptions, are, for all practical purposes, the same.

Appeal 324--Statement of the Case and Its Facts.

The State's Attorney for Montgomery County, in his official capacity and as an individual, filed a petition against Judge Shook, associate judge of the Sixth Judicial Circuit, the clerk of the Circuit Court and the sheriff of Montgomery County. He sought ex parte and final injunctions restraining the appellee-defendants from enforcing certain orders passed by Judge Shook.

Counsel for certain defendants (Sherry in Appeal No. 343; Scott in Appeal No. 344; and Stull in Appeal No. 345), who had been indicted by the Grand Jury, filed, in their respective cases, motions for 'Discovery and Inspection.' At this time, we shall set forth in some detail only what was requested in Sherry's petition (Appeal No. 343) and what relief the court granted as a result thereof, for it will be easier, we think, to follow the differences in the questions involved in the appeals if we state them under separate headings.

Sherry's petition requested 'that in accordance with Rule 728 a of the Maryland Rules' he be given, by the State's Attorney, certain information and reports and allowed to make certain inspections. In this petition, he did not specifically seek the opportunity to take the deposition of any witness, but, inter alia, asked that the State's Attorney be required to furnish him 'with all details of the alleged offenses * * * including, but not limited to: (a) the substance of the testimony to be [adduced] at the trial by Jeanne Virginia Adkins [the prosecuting witness] and all other witnesses whom the State intends to call 1 * * *.' No allegation concerning the necessity or disirability of taking the deposition of any witness was contained in the motion. The only allegation as to why the specific items actually asked for were requested was that the defendant was charged 'with * * * serious offenses and the requested discovery and inspection is necessary and vital to the preparation' of his defense. Apparently construing the above as a request by the defendant to take the deposition of the witness Adkins, the trial court, on October 19, 1964, passed an order which granted 'the motion of the defense to take the deposition of Jeanne Virginia Adkins.' On the following day, similar orders were passed in Appeals Nos. 344 and 345, as we shall see below.

When the petition praying for an injunction, together with its affidavit and exhibits, was presented to Judge Shure, he denied the request for an ex parte injunction and signed an order to that effect, Maryland Rule BB73, and, thereafter, petitioner appealed here. This Court ordered that the appellant's brief in Appeal No. 324 be considered also as appellant's brief in Appeals Nos. 343, 344 and 345. No motion to dismiss this appeal (324) has been filed.

Appeal No. 343--Additional Statement of the Case and Its Facts.

This is a direct appeal from an order of the trial court, dated October 19, 1964, which granted a defendant below in a criminal prosecution the right to take a pre-trial deposition of the prosecuting witness. The defendant, who is not indigent, was indicted for assault with intent to rape and simple assault, and, over objection by the State's Attorney, the above order was passed.

The appellee contends the order is not one from which an appeal may be taken, because it is interlocutory in nature, and, therefore, the appeal should be dismissed. He further contends that if the merits of his case be reached the trial court had inherent power to pass the order, that he has a constitutional right to take the deposition of witnesses before trial, and the fact that he waived the right to a preliminary hearing before he employed counsel is an additional reason why he should have the right to take the deposition.

Appeal 344--Statement of the Case and Its Facts.

This, too, is a direct appeal from an order of the trial judge. The defendant, charged with manslaughter, filed a motion for discovery, 'pursuant to the [Maryland] Rules of Discovery in Criminal Causes,' requesting, among other things, the 'production of [the] substance of any statement made by any persons other than defendant,' and 'production of verbatim copy of any statement made by any person other than defendant.' No request was made to take the testimony of the State's witnesses, and the only allegation as to why the specific items actually asked for were requested was that 'said items sought being material to the preparation of defendant's case * * *.' At the time of filing his motion for discovery the defendant also filed a motion for a bill of particulars. The trial court, in her order, stated she had held in the Sherry case, supra (Appeal No. 343), that the accused had a right to examine the witnesses for and against him on oath prior to trial, and held that 'this right the court holds is available to the defendant herein.' No ruling was made on the motion for a bill of particulars. Apparently feeling that the above order granted more relief than was actually requested, the court made no ruling, insofar as the record discloses, upon the other items of relief specifically asked for in the motion for discovery.

The appellee, who is not indigent, contends that 'an accused has a fundamental right, under both the State and Federal Constitutions to broad criminal discovery, including the taking of depositions of the State's witnesses,' and he, too, advances as one of the reasons he is entitled to this right the fact that he was indicted by the Grand Jury without a preliminary hearing.

Appeal 345--Statement of the Case and Its Facts.

The defendant-appellee herein, who is indigent, is charged in one indictment with armed robbery, attempted armed robbery, robbery and larceny; in another with murder and murder in the perpetration of a robbery. The indictments were returned by the Grand Jury without a preliminary hearing being held. After indictment, his counsel filed a motion for discovery and inspection 'in accordance with [Maryland] Rule 728 a,' in which he prayed the discovery of many things. No request was made to take the deposition of any witness, and the only reasons assigned for the discovery requested were that the defendant was charged with 'serious offenses and the requested discovery and inspection is necessary and vital to the preparation of the defense * * *.'

The trial court ordered the State to furnish certain of the information requested, and took under advisement as 'request for the substance of the testimony of the State's witness' to be considered with a similar request in Sherry, supra. Thereafter, defendant filed a 'Motion to Exclude Evidence,' in which he requested a pre-trial hearing with respect to the inadmissibility of certain evidence. His counsel then wrote to the trial court stating that he did not desire 'to foreclose the possibility of taking depositions,' but he did request that any ruling 'on the right of this defendant to take [pre-trial] depositions be delayed' until counsel were in a position to 'give specific notice to a specific deponent.' The State's Attorney furnished all of the information and allowed all of the inspections ordered by the court. This left for consideration only items 2(f), (g) and (h) of the motion for discovery, which, in essence, requested under (f), 'the substance of the testimony to be given at trial of all witnesses' of the State; under (g), the names and addresses of 'all persons whom the State' or anyone on its behalf had interviewed or interrogated in connection with the charges against the defendant; and under (h) copies of police and investigators' reports. The court denied the request contained in (g), and granted the right to defendant's counsel to inspect 'any reports of the Montgomery County Police relative to the investigation of the alleged offenses.' (The State raises no objection here to this portion of the order.)

With regard to the request contained in (f), the court, again apparently feeling that in granting the defendant the right to take the depositions of the State's witnesses was affording him greater relief than he had asked for, stated that he was entitled to 'depose the witnesses who are to appear against him' and, therefore, 'it is unnecessary for the court to require the State to furnish [the] substance of the testimony as requested in subsection (f) * * *.'

The appellee has filed a motion to dismiss the appeal, assigning the same reasons as those stated in Appeals No. 343 and 344. He also contends that the trial judge's order permitting him to take the deposition of the State's witnesses is sustainable on two grounds: the judge's discretionary power to do so; and appellee's constitutional right under ...

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