Parlapiano v. District Court In and For Tenth Judicial Dist., No. 25345

• Docket Nº: No. 25345
• Citation: 491 P.2d 965, 176 Colo. 521
• Case Date: December 20, 1971
• Court: Supreme Court of Colorado

Page 965

491 P.2d 965 176 Colo. 521 Carl PARLAPIANO, District Attorney, Tenth Judicial District,
Pueblo, Colorado, Petitioner,
v.
DISTRICT COURT IN AND FOR the TENTH JUDICIAL DISTRICT, State
of Colorado, and Honorable S. Philip Cabibi,
District Judge in and for the Tenth
Judicial District, State of
Colorado, Respondents. No. 25345. Supreme Court of Colorado, En Banc. Dec. 20, 1971.

[176 Colo. 523]

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Carl Parlapiano, Dist. Atty., Daniel J. Sears, Deputy Dist. Atty., Pueblo, for petitioner.

Darol C. Biddle, Pueblo, for respondents.

GROVES, Justice.

A defendant was indicted for felonious conspiracy to possess a narcotic drug. The respondent judge entered an order that, not later than three days prior to trial, the People should furnish for inspection by defendant's counsel a transcript of the testimony before the grand jury of any witnesses who would be called to testify at trial. The district attorney filed a petition here for a writ of prohibition to prevent such disclosure under the order. We issued a rule to show cause why the relief prayed by the district attortney should not be granted.

We discharge the rule.

The order referred to above was entered on November 2, 1971. Two and one-half months prior to the entry of that order the indicted defendant made a motion for discovery, listing a great many things. In his motion the defendant requested, Inter alia, the production of grand jury testimony. On September 30, 1971 the court entered an order granting most of the requests. The request for grand jury testimony was denied with the following statement:

'The motion to inspect Grand Jury minutes so far as such motion requests pretrial discovery at this time is denied. However, in the event that this matter goes to trial, the defendant may renew this motion within 10 days of trial.'

On October 29, 1971 the defendant renewed his motion as to grand jury testimony, as a result of which the above mentioned order of November 2, 1971 was entered. It provided:

[176 Colo. 524] 'Since the defendant would be entitled to inspection of the Grand Jury testimony of any witnesses who testified at the trial of this case and in the interest of expediting an orderly trial, the People shall not later than three days prior to the trial date notify the Court of the names of the witnesses who it is then known will be called to testify at the trial, and if such persons did testify before the Grand Jury, a transcript shall be made available for inspection by counsel at the time of filing such notice.'

It is the position of the district attorney 'that the defendant should not be allowed to jeopardize the secrecy of the grand jury for mere purposes of discovery,' citing Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Pittsburgh Plate Glass v. United States, 360 U.s. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); Bary v. United States, 10 Cir., 292 F.2d 53 (1961); and State v. Vennard, 159 Conn. 385, 270 A.2d 837 (1970). The district attorney further calls our attention to the fact that the indicted defendant did not show any 'particularized need' as mentioned in Pittsburgh Plate Glass, Supra, and United States v. Procter & Gamble, 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958).

The People also state that, if the authority for the disclosure is Crim.P. 16(c)(1), under that rule there must be 'a showing of materiality to the preparation of the defense,' and that the request is reasonable. There was no such showing by the indicted defendant, but rather the reason given for the discovery was that denial thereof would violate the constitutional rights of the defendant. We do not pass upon constitutional claims upon which the motion was grounded. Instead, unless the People show otherwise, the grand jury testimony of a person who will testify at the trial is presumed to be material to the preparation of the defense, and a request therefor is presumed to be reasonable.

Historically, in most jurisdictions grand jury proceedings have been enshrouded with a cloak of secrecy. Sherry, Grand Jury Minutes: The Unreasonable Rule of [176 Colo. 525] Secrecy, 48 Va.L.Rev. 668. In Procter & Gamble, supra, there was dicta to the effect that there are instances of compelling necessity when the rule of the 'indispensable

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secrecy of grand jury proceedings' can be broken. These 'are instances when that need will outweigh the countervailing policy.' The majority ruling, however, was that there had not been a sufficient showing of good cause....