People v. Bellanca, Docket No. 4803

• Decision Date: 30 October 1969
• Docket Number: Docket No. 4803,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Peter J. BELLANCA, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 754

173 N.W.2d 754

20 Mich.App. 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Peter J. BELLANCA, Defendant-Appellant.

Docket No. 4803.

Court of Appeals of Michigan, Division No. 2.

Oct. 30, 1969.

Released for Publication Feb. 4, 1970.

Louis J. Colombo, Jr., Stanley E. Beattie, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert C. Goussy, Asst. Atty. Gen., Lansing, for plaintiff-appellee.

Before FITZGERALD, P.J., and LEVIN and T. M. BURNS, JJ.

LEVIN, Judge.

The defendant, Peter J. Bellanca, an attorney at law, is charged with having committed perjury ¹ when he testified before Circuit Judge James S. Thorburn, then sitting as a one-man grand juror, ² that Ann Decker communicated with him because she wanted him to represent her as a lawyer and that he did not solicit her.

Ann Decker appeared before the Thorburn one-man grand jury on July 18, 1967 and, at that time, she was represented by Mr. Bellanca. She again appeared before the grand jury on August 4, 1967, this time without counsel. The testimony alleged to be false was given by Mr. Bellanca before the grand jury on August 10, 1967.

Before the preliminary examination, Mr. Bellanca moved for an order requiring the production of transcripts of his August 10, 1967 testimony and of Ann Decker's July 18th and August 4th testimony. The motion was heard by another Oakland county circuit judge who denied the motion stating: 'I think you are entitled to such discovery as you may need, but I believe that that comes after preliminary examination.' Mr. Bellanca now appeals, on leave granted, the order denying his motion.

A partial transcript of Ann Decker's testimony of August 4, 1967 was served on Mr. Bellanca's counsel the day after his motion was filed. The transcript contains the testimony of the witness beginning on page 33 and ending on page 41. ³

Mr. Bellanca asserts that he needs the requested transcripts to prepare properly his defense at the preliminary examination, that he is entitled to his 'chance to win' at the preliminary examination ⁴ and that unless these materials are furnished before the preliminary examination that opportunity to avoid the filing of an information and being bound over for trial will be seriously jeopardized.

In 1951 the governing statute was amended in the following relevant particulars:

1. The provision, § 4, ⁵ prohibiting the judge and others connected with the inquiry from publishing any statement pertaining to any information or evidence involved in the inquiry was qualified by excepting from this secrecy provision 'cases of prosecutions for contempt or perjury against witnesses who may have been summoned before the judge conducting such inquiry, or for the purpose of determining whether the testimony of a witness examined before the judge is consistent with or different from the testimony given by such witness before a court in any subsequent proceeding, or in cases of disciplinary action against attorneys and counselors in this state.'

2. A new provision, § 6a, ⁶ was added concerning the safekeeping of grand jury records after the termination of the inquiry. Where the grand jury lasts more than 30 calendar days the records are required to be 'sealed and filed with the clerk of the supreme court of the state of Michigan, where it shall be held secretly in a separate container securely locked. * * * And the entire transcript and record as to any witness, and so far as material, including any grant of immunity shall be available to such witness in connection with any appeal or other judicial proceeding where it may be relevant upon such witness filing a petition with the circuit court of the county in which he resides setting forth the proceeding for which such documents are sought and describing the portions of such transcript and record as to such witness only, which such witness requested for such appeal or proceeding; the judge of such circuit court shall issue an order upon the filing of such petition directed to the clerk of the supreme court of the state of Michigan * * * ordering such clerk to make available to such witness all such portions of the transcript and record as shall pertain to such witness and as set forth in the petition.'

Mr. Bellanca asserts that by reason of these amendments there has been eliminated any doubt that may have formerly existed ⁷ as to the right of one charged with an offense by a grand juror to a transcript of his own testimony and of the testimony of other grand jury witnesses. He points out that the prosecution against him is for perjury and argues that whatever policy may have existed at common law or under this statute before its amendment shielding from public scrutiny testimony given before a grand jury has been superseded by a policy which now requires that all pertinent testimony be made available to one charged with perjury as a result of an inquiry under this statute.

Mr. Bellanca states that this policy appears not only in § 4 (which now excepts from its secrecy provision cases of prosecution for perjury) but in section 6a; he stresses the following italicized § 6a words, 'the entire transcript and record as to Any witness' and 'all such portions of the transcript and record As shall pertain to such witness,' claiming that the legislature thereby evidenced its intention that upon application the circuit court is required to enter an order directing the clerk of the Supreme Court of the State of Michigan to furnish a complete transcript of the testimony of 'any witness,' not merely a transcript of the testimony of the witness filing the § 6 petition. He also contends that, apart from the cited statutory provision, under recent decisions of the United States Supreme Court ⁸ and of our Supreme Court, ⁹ the circuit judge in this case should have ordered production of the requested transcripts.

We have examined the cases cited and are satisfied that they are not in point. ¹⁰ We appreciate that there has been increasing discussion in the literature and recognition in the cases of the desirability of pretrial disclosure by the prosecution to a defendant of statements of witnesses and other evidence the prosecutor intends to use at the time of trial. The standards relating to discovery and procedure before trial proposed by the American Bar Association Project on Minimum Standards for Criminal Justice would require a prosecutor to disclose those portions of grand jury minutes containing testimony of the accused and relevant testimony of persons whom the prosecutor intends to call as witnesses at the hearing or trial. ¹¹

Our disposition of this case makes it unnecessary for us to decide to what extent the developing concepts regarding pretrial discovery in criminal cases are part of the jurisprudence of our State. Nor do we think it necessary to consider the scope of the inquiry upon a preliminary examination. ¹

We are satisfied that § 6a gives the defendant an absolute right to have a copy of his own grand jury testimony. Section 6a is explicit in providing that the entire transcript and record of the witness himself shall be made available to him for use in judicial proceedings upon filing a petition with the circuit court for the county in which he resides. A preliminary examination is a judicial proceeding. ¹³ There is nothing in the statute which permits a construction limiting the right there conferred so that it may not be exercised before the preliminary examination is conducted, which would premit a circuit judge to defer entry of a § 6a order until after the preliminary examination is conducted. The statutes is in mandatory form. It states that the 'judge of such circuit court Shall issue an order upon the filing of such petition directed to the clerk of the supreme court * * * ordering such clerk to make available to such witness all such portions of the transcript and record as shall pertain to such witness and as set forth in the petition.' (Emphasis supplied.)

We cannot, however, read § 6a as conferring upon a witness a statutory right to have a transcript of the testimony of any witness other than himself. The words 'such witness' and 'such witness only' in § 6a clearly refer to the witness making the application to the circuit judge. Whatever an accused person's rights may be, apart from § 6a, to copies of the testimony of witnesses who may appear against him, under § 6a a witness may only obtain a copy of the transcript of his own testimony.

This leaves the question whether, apart from § 6a, we should order production of the transcripts of Ann Decker's testimony. It will be recalled that a portion of her August 4 testimony was furnished. It may well be that the balance of her August 4 testimony and her July 18 testimony should be furnished to aid Mr. Bellanca in making his defense. On the other hand, an examination of the unfurnished portion of the August 4 transcript may disclose that it does not concern at all the subject matter of the charges filed against Mr. Bellanca; the balance may be totally irrelevant and may contain the names of other persons whose identity should be protected as is the clear and sound policy of § 4. Neither the unfurnished portion of the August 4 transcript nor the July 18 transcript is available to us. They are in the possession of the clerk of the Supreme Court. Neither the circuit judge nor we are in a position to determine whether furnishing complete transcripts of Ann Decker's testimony is consistent with the policy of the act or necessary or desirable from the point-of-view of assisting Mr. Bellanca in making a defense. ¹⁴

Furthermore, we think it would be inappropriate for our Court to issue an order directed to the clerk of the Supreme Court unless we are specifically authorized to do so in a court rule or a statute like § 6a conferring such authority upon circuit courts as to a witness' own testimony. We doubt very much whether the...