Maloney v. State
| Decision Date | 26 April 1973 |
| Docket Number | 500,Nos. 498,s. 498 |
| Parties | Thomas Dennis MALONEY, the younger, and Maloney Enterprises, Inc., v. STATE of Maryland. Ernest KELLER, the younger, v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Frank G. Perrin, Waldorf, for appellants.
George A. Eichhorn, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Edward F. Borgerding, Asst. Atty. Gen., Chief, Crim. Div., J. Thomas Caskey, Jr., James G. Klair and Harry A. E. Taylor, Asst. Attys. Gen., on the brief, for appellee.
Argued before ORTH, C. J., and MORTON and SCANLAN, JJ.
On 6 July 1971 the State's Attorney for Charles County requested the Governor of Maryland to designate the Attorney General of Maryland to conduct an investigation into 'an apparent substantial overpayment in State and County funds to school bus contractors in Charles County' and to handle any further proceedings growing out of such investigation. On 12 July the Governor wrote the Attorney General:
The result of the investigation by the Attorney General was a series of indictments charging the crimes of false pretenses and attempted false pretenses returned on 16 August by the Grand Jury for Charles County and filed in the Circuit Court for Charles County. Nos. 3858, 3859 and 3860 charged Ernest Keller, the younger, (Keller). Nos. 3846, 3847 and 3848 charged Thomas Dennis Maloney, the younger, (Maloney). Nos. 3849, 3850 and 3851 charged Maloney Enterprises, Incorporated (the Corporation). Motions to dismiss the indictments were filed, by Keller on 15 November, and by Maloney and the Corporation on 17 November. The motions were heard by Mitchell J., on 26 November and denied. Motions for rehearing were made on 1 December and denied on 6 December. The propriety of the denial of the motions to dismiss is before us.
The motions were grounded on the appearance of two Assistant Attorneys General, Edward F. Borgerding and George A. Eichhorn, III, before the grand jurors concerning the matter of the alleged overcharges on which they were to pass, aiding the jurors in the examination of witnesses and advising them on questions of law. There is no claim that they were present while the jurors were deliberating on the evidence or voting. It is not disputed that Borgerding and Eichhorn were duly appointed Assistant Attorneys General, that the Attorney General assigned them the duty of conducting an investigation and instituting appropriate legal proceedings with regard to the matter designated by the Governor, and that, in performance of their assigned duty, they had attended the grand jury to aid in the examination of witnesses and advise it on questions of law. The query is whether they had the authority to do so.
The Attorney General has constitutional authority to appoint such number of deputies and assistants as the General Assembly may from time to time by law prescribe. Constitution of Maryland, Art. V, § 3. The General Assembly has authorized him to appoint certain designated assistants and 'such additional assistants * * * as may from time to time be authorized in the budget.' Each of the assistants serves 'during the pleasure of the Attorney General' and takes no oath of office. Code, Art. 32A, § 6. See Hammond v. Lancaster, 194 Md. 462, 71 A.2d 474. The Attorney General, however, is expressly authorized by Code, Art. 32A, § 6, '* * * to assign to them and each of them mthe performance, subject to his discretion and control of any of the duties required of him by law.' It follows, therefore, that Borgerding and Eichhorn could do, subject to the Attorney General's discretion and control, whatever the Attorney General could do in regard to the matter concerning the bus contractors.
The powers and duties of the Attorney General prescribed in Art. V, § 3 of the Constitution of Maryland include that '* * * when required by the Governor * * *, he shall aid any State's Attorney in prosecuting any suit or action brought by the State in any Court of this State, and he shall commence and prosecute or defend any suit or action in any of said Courts, on the part of the State, which * * * the Governor, acting according to law, shall direct to be commenced, prosecuted or defended * * *.' The Governor, acting explicitly under this constitutional authority, directed the Attorney General, by a written, definitive request, to commence and prosecute any action appropriate to the matter of the alleged overpayment in State and County funds to school bus contractors in Charles County, and to aid the State's Attorney for Charles County in any such action brought by the State. It is apparent that the investigation conducted by the Attorney General, through the two assistants, indicated that crimes had been committed. We find it to be clearly within the ambit of the constitutional provision that the authority of the Attorney General to 'commence' an action includes his presence to attend the grand jury to aid in the examination of witnesses and advise on questions of law. Without this concomitant authority, the mandate to 'commence and prosecute' any action which the Governor shall direct 'to be commenced and prosecuted' would be sterile indeed. We refuse to construe the constitutional provisions requiring the Attorney General to commence and prosecute an action so narrowly as to preclude him from presenting the case to a grand jury. Under the constitutional provisions the Attorney General became the prosecuting officer in the cases before us. We are in accord with the generally prevailing opinion that the prosecuting officer may, and it is his duty as well as his privilege, attend on the grand jurors with matters on which they are to pass, aid in the examination of witnesses, and give such general instructions as they may require, without, however, being present while the grand jury is deliberating on the evidence or voting on a matter under investigation. 4 Wharton's Criminal Law and Procedure, § 1716 (1957). See Grand Jury, 38 Am.Jur.2d §§ 34-35; People v. Zara, 44 Misc.2d 698, 255 N.Y.S.2d 43 (1964). Because the Attorney General was authorized to so appear before the grand jurors, Borgerding and Eichhorn could so appear. As we have concluded that the appearance of the Assistant Attorneys General before the Grand Jury for Charles County was authorized, their presence and participation had no adverse effect on the indictments returned. We hold that the court below did not err in denying the motions to dismiss the indictments.
Both of the Assistant Attorneys General, before attending the grand jurors, were appointed Special Assistant State's Attorneys for Charles County and were administered the oath of that office. In view of our holding that their appearance before the Grand Jury as Assistant Attorneys General was authorized, we have no need to reach the question whether they were also so authorized in the capacity of Special Assistant State's Attorneys. We take the view that appointments of them as Special Assistant State's Attorneys were immaterial, and did not, in any event, render their appearance as Assistant Attorneys General improper.
The Prosecution of Keller
Indictments nos. 3858, 3859 and 3860, under which Keller was charged, were consolidated for trial. The trial was had before a jury in the Circuit Court for Charles County, commencing on 17 January 1972 and concluding on 21 January. At the close of all the evidence the State 'abandoned' indictment no. 3858. The jury returned a verdict of guilty of obtaining (1st count of indictment 3860) and attempting to obtain (indictment 3859) certain monies from the Board of Education of Charles County (the Board) by a false pretense. 1 The transcript of the proceedings shows the circumstances surrounding the rendering of the verdicts and the discharge of the jury:
'(Whereupon, at 10:00 o'clock p. m. the jury returned and announced their verdict in the criminal case 3859 of guilty and in Criminal No. 3860 announced the verdict of guilty, after which the jury was harkened to its verdict.)
MR. PERRIN (Defense Counsel): Would Your Honor poll the jury?
THE COURT: I think it is too late, Mr. Perrin. They have been harkened to their verdict.
Mr. Ferrell (Official Court Reporter), did we find when we need the jury again?
(Whereupon, after further discussion regarding bond, court was recessed at 10:07 o'clock p. m. from day to day.)'
On 31 January there was a hearing on Keller's motion for a new trial. At the hearing the trial judge said: The court attempted to salvage the trial. 2 'I really cannot see any prejudice that could be done by polling the jury at this time as to their verdict.' Over the objection of Keller, the court directed the Clerk to have the jury returned on 2 February.
On 2 February at a conference in chambers, the court put 'formally in the record that the objection (of Keller) to bring the jury back for the purpose of taking the poll of the jury is overruled.' Defense counsel then made a request:
'Now, since they are coming back over my objection, I ask the Court before they are polled to ask them, I...
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