Minton v. State

• Decision Date: 17 June 1959
• Citation: 113 So.2d 361
• Parties: A. M. MINTON, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 361

113 So.2d 361

A. M. MINTON, Petitioner, v. STATE of Florida, Respondent.

Supreme Court of Florida.

June 17, 1959.

Rehearing Denied July 15, 1959.

Jordan Johnson and Hal S. Ives, West Palm Beach, for petitioner.

Richard W. Ervin, Atty. Gen., and Irving B. Levenson, Asst. Atty. Gen., for respondent.

ROBERTS, Justice.

This cause is before the court on certiorari granted to review a decision of the District Court of Appeal, Second District, Minton v. State, Fla.App.1958, 107 So.2d 143, affirming a verdict and judgment convicting petitioner ('defendant' hereafter) of a gambling offense. Certiorari was granted because of an apparent conflict between the decision brought here for review and the decisions of this court in Trafficante v. State, Fla.1957, 92 So.2d 811, and State ex rel. Brown v. Dewell, 1936, 123 Fla. 785, 167 So. 687, involving the right of a defendant in a criminal case to inspect the grand jury testimony of a state's witness for the purpose of laying the foundation on cross-examination for impeaching the trial testimony of such witness.

In the Trafficante case, supra, 92 So.2d 811, this court held that it was error for the trial judge to deny a sworn application for a subpoena duces tecum directed to the official court reporter, directing her to bring the transcript of the testimony of the State's witness Dietrich given before the grand jury and to make same available to defense counsel in order that it might be utilized in cross-examination of the witness for the purpose of laying the foundation for impeachment of the witness' direct testimony, without first examining same to determine its 'materiality.' This application was made during the trial when the witness Dietrich was tendered to defense counsel for cross-examination; and it was stated therein, upon oath, that Dietrich's testimony before the grand jury was material and relevant to, and in conflict with, the testimony of this witness given on direct examination at the trial.

In the instant case counsel for the defendant, prior to trial, filed a written motion for an order requiring the State to make available to the defendant and his attorney all portions of the Grand Jury report applicable to his case, ostensibly for the purpose of obtaining a list of the witnesses to be used by the State at the trial. This motion was sworn to by counsel for defendant 'upon information, knowledge and belief.' Again, at the trial counsel for defendant made an oral motion during the corss-examination of the State's witness Thomas for leave to inspect the grand jury testimony of this witness 'so that I can determine whether he is testifying to the same thing at this time as he did then * * *.' Both motions were denied by the trial judge.

The trial judge did not read the grand jury testimony of the witness Thomas prior to denying the motion made by defendant's counsel during cross-examination of this witness for leave to inspect his grand jury testimony; and we were initially concerned with the question of whether his failure to do so was in direct conflict with the decision of this court in the Trafficante case, supra, 92 So.2d 811. For reasons hereafter stated we have concluded, upon further consideration, that the decision of the appellate court affirming the trial judge's action in this respect is in harmony with the decision of this court in the Trafficante case.

We wish to make clear, however, that the trial judge was eminently correct in denying the defendant's pre-trial motion to inspect the grand jury testimony of all the State's witnesses for the purpose of preparing his defense--assuming, arguendo, that his pre-trial motion was so considered by the trial judge, as here contended by the defendant. Our statute, § 905.27, Fla.Stat.1957, F.S.A., authorizes the disclosure of grand jury testimony of a witness 'for the purpose of ascertaining whether it is consistent with that of the witness given before the court, or to disclose the testimony given before the grand jury by any person upon a charge against such person for perjury in giving his testimony or upon trial therefor, or when permitted by the court in the furtherance of justice.' It has been so provided, in substance, by statute in this state since 1868. Ch. 1628, Acts of 1868. This court holds, under the terms of our statute and in accord with the great weight of authority in other jurisdictions, that in a prosecution for perjury (or subornation of perjury) allegedly committed before a grand jury, an accused has the right to inspect, in advance of trial, the transcript of testimony given before the grand jury upon which the perjury charged was based, in order to prepare his defense. See Gordon v. State, Fla.1958, 104 So.2d 524, 537; United States v. Rose, 3 Cir., 1954, 215 F.2d 617. But with this one exception we have found no case--and none has been cited--in which an accused has been permitted to inspect, in advance of trial, the grand jury testimony of the State's witnesses for the purpose of preparing his defense. The case most frequently cited in support of an order denying pre-trial motion for general release of the grand jury testimony in a criminal case is United States v. Garsson, D.C.N.Y.1923, 291 F. 646, 649, in which Judge Learned Hand said:

'I am no more disposed to grant it than I was in 1909. United States v. Violon, C.C. 173 F. 501. It is said to lie in discretion, and perhaps it does, but no judge of this court has granted it, and I hope none ever will. Under our criminal procedure the accused has every advantage. While our prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of any one of the twelve. Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and make his defense, fairly or foully, I have never been able to see. * * *'

See also the many cases cited in United States v. General Motors Corp., D.C.Del.1954, 15 F.R.D. 486, 487; Havenor v. State, 1905, 125 Wis. 444, 104 N.W. 116; United States v. Papaioanu, D.C.Del.1950, 10 F.R.D. 517; Commonwealth v. Ries, Mass.1958, 150 N.E.2d 527. For cases involving the release of grand jury testimony in non-criminal proceedings see In re Jessup's Petition, 1957, 11 Terry 530, 50 Del. 530, 136 A.2d 207 (general release of grand jury testimony sought by legislative investigating committee); Doe v. Rosenberry, D.C.N.Y.1957, 152 F.Supp. 403 (disclosure of grand jury matters sought in disciplinary proceedings against an attorney); United States v. General Motors, D.C.Del.1954, 15 F.R.D. 486, 488 (general release sought by defendant in civil suit for damages under the Elkins Act, 49 U.S.C.A. § 41(3)); In re Matter of Special 1952 Grand Jury, D.C.Pa.1958 22 F.R.D. 102 (release of plaintiff's grand jury testimony sought by defendant in civil action for damages for alleged violation of the anti-trust laws).

We repeat, then, for clarity, that--except as to grand jury testimony upon which a charge of perjury or subornation of perjury is based--an accused in a criminal case has no right to inspect, in advance of trial, the grand jury testimony of the witnesses who will be called by the State to testify against him at the trial for the purpose of preparing his defense. And we now revert to the question that prompted our preliminary issuance of the writ, that is, whether the appellate court's decision finding that no reversible error was committed by the trial judge in refusing to grant defendant's oral motion, made during the cross-examination of the witness Thomas, for permission to inspect the grand jury testimony of the witness for the purpose of laying the foundation for impeachment, is in direct conflict with the decision of this court in the Trafficante case, supra, 92 So.2d 811.

The rationale of the appellate court's affirmance of the trial judge's order denying inspection was, apparently, that no proper predicate was made by the defendant sufficient to require even a preliminary examination of the grand jury testimony of the witness Thomas by the trial judge 'with a view to making final determination of its materiality,' Trafficante v. State, supra, 92 So.2d 811, 815, a procedure which we indicated should have been followed in that case.

In the Trafficante case the State took the position that the grand jury before which the State's witness, Sergeant Dietrich, testified was not investigating the Trafficantes but was inquiring into the official conduct of law enforcement officers in the county; that the grand jury did not indict the Trafficantes; and that Dietrich's grand jury testimony was, therefore, not pertinent or relevant to the trial of the Trafficantes under an information charging them with offering and giving a bribe to Sergeant Dietrich. As noted in this court's decision in the cause, the defendants alleged under oath in their motion for the subpoena duces tecum that defendants and their counsel 'had reason to believe and verily did believe' that Dietrich's testimony before the grand jury 'was in material aspects directly opposite to and in conflict with the testimony given by the said Sergeant Dietrich in his testimony in chief in this cause'. They also proffered the testimony of the official court reporter that Sergeant Dietrich testified before the grand jury concerning some or all of the matters and transactions about which he testified in chief at the trial. It was against this background that this court said:

'Appellants' sworn application for the subpoena, as we have stated, sets up the materiality of the evidence sought to be reached by the subpoena and must be taken for the purpose of this appeal as proving materiality to the extent necessary to warrant examination of the transcript by the court with a view to making final determination of its materiality.' Trafficante v....