Piracci v. State

• Decision Date: 22 June 1955
• Docket Number: 163,Nos. 162,s. 162
• Citation: 207 Md. 499,115 A.2d 262
• Parties: Dominic PIRACCI v. STATE of Maryland. Dominic PIRACCI and Piracci Construction Co. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 499

207 Md. 499

115 A.2d 262

Dominic PIRACCI v. STATE of Maryland.

Dominic PIRACCI and Piracci Construction Co. v. STATE of Maryland.

Nos. 162, 163.

Court of Appeals of Maryland.

June 22, 1955.

G. C. A. Anderson, Baltimore (James S. Morrow, Jr., and Anderson, Barnes & Coe, Baltimore, on the brief), for appellants.

Norman P. Ramsey, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Anselm Sodaro, State's Atty., and J. Harold Grady, Deputy State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

These appeals are from judgments and sentences in each case of a year in jail for Piracci, to run consecutively, suspended upon payment of a fine of $2,000 and costs in each case.

These case arose out of alleged irregularities in connection with the authorization and construction of a parking garage at Hanover and Redwood Streets, in Baltimore City, one of the projects mentioned in Jones v. State, Md., 115 A.2d 273. In No. 162, Piracci was charged in two counts with conspiring with one Ashley and others, to obstruct justice by altering and falsifying certain records of the Piracci Construction Co., Inc. for portions of the years 1951, 1952 and 1953, which he had been summoned to produce before the Grand Jury. In No. 163, Piracci and Piracci Construction Co., Inc. were charged in three counts with conspiring with Haar, Winik and Baltimore Garages, Inc., to fraudulently obtain from the City $42,966 'by means of divers false pretenses and representations, and other false, subtle means and devices'. In both cases the appellants elected a jury trial, but in No. 163, the defendants other than Piracci and Piracci Construction Co., Inc., elected a court trial, and there was a severance. In each of the instant cases the appellants filed a petition for removal, which was denied. The correctness of that ruling is the only question argued in No. 162, and the brief in that case combines argument on the point with argument on the similar point raised in No. 163.

Presentments in both cases were returned on October 21, 1953, and indictments were filed on October 30, 1953. Motions to dismiss both indictments were filed on December 18, 1953, on the ground, among others, that an undue amount of publicity had been given the Grand Jury proceedings, resulting in undue pressure and influence upon the Grand Jurors and in a violation of the rule of secrecy. In overruling these motions on January 19, 1954, the trial judge considered exhibits that summarized the publicity up to that date. A trial schedule was then arranged. The case against Haar, Winik and Baltimore Garages, Inc. was heard by the court and concluded on March 18, 1954, with a verdict of guilty. The trial of Piracci and Piracci Construction Co., Inc., No. 163, began on March 19. A petition for removal was filed on that date. The case resulted in a verdict of guilty on April 1. The trial of Piracci on the obstruction of justice charge, No. 162, began on April 5, and a petition for removal was filed on that date.

The petition for removal in No. 163 alleged that a public controversy over the Rivoli Theater project, in which Piracci was concerned, had begun in June, 1953, developed into a Grand Jury investigation, and culminated in a number of indictments, all of which had been extensively publicized, almost daily over a period of nine months, with comments 'suggestive, if not accusative, of improper of unlawful dealings in connection with the said Off-Street Parking Program'. It was further alleged that the verdict of guilty in the case against Haar and Winik had been announced on the previous day, accompanied by an oral opinion reviewing the evidence in some detail and determining that these defendants had conspired to defraud the City; 'that the conclusions to be drawn by the public and prospective Jurors in these circumstances are necessarily and inescapably harmful and prejudicial to these Petitioners'. The State did not file any specific pleading traversing the allegations but expressed its opposition to the removal and counsel were heard in argument. The court declined to postpone the hearing, as requested, to enable the petitioners to prepare exhibits covering newspaper clippings over the previous nine months. The court said: 'it is clear that until yesterday no petition was filed and counsel did not regard the factors that were to be considered as sufficient grounds to justify them in praying for removal. The change which has taken place by reason of yesterday's proceedings does not seem to us to be sufficient to make this petition reasonable or not unreasonable. We feel that the [decision of the] Court of Appeals in the Newton case which has been cited is very close to the point here, and our decision follows that.'

The petition in No. 162 alleged that the publicity concerning the convictions in No. 163, and the provious case against Haar and Winik, made it impossible for the petitioners to obtain a fair trial. Again, there was no answer filed by the State, but the court heard argument and examined the exhibits submitted. However, the petition in this case, as in No. 163, was not filed until the case was actually called for trial. We do not suggest that the petitions were not timely, but the lateness of their filing explains the State's failure to file formal pleadings.

Except in capital cases, the right of removal is not absolute, but is controlled by art. IV, Sec. 8 of the Maryland Constitution as amended by Ch. 364, Acts of 1874, ratified in November, 1875. This section provides that in addition to a suggestion that the accused cannot have a fair and impartial trial in the court in which the case is pending, 'it shall be necessary for the party making such suggestion to make it satisfactorily appear to the Court that such suggestion is true, or that there is reasonable ground for the same; * * *.' We may assume, without deciding, that in a proper case the court might properly grant a removal upon a finding that there was reasonable ground for the suggestion, even if the court did not believe that the petition established beyond question that a fair and impartial trial could not be had. Cf. Lee v. State, 161 Md. 430, 442, 157 A. 723. But in either case the burden of persuasion is upon the party making the suggestion. Here the trial court, assuming the truth of the facts alleged as distinguished from the conclusions to be drawn therefrom, found that there was not reasonable ground for the suggestion.

The appellants contend that this is a factual issue, not addressed to the discretion of the trial court. The argument runds counter to the holdings in a long line of Maryland cases. In the leading case of Downs v. State, 111 Md. 241, 248, 73 A. 893, 895, the court said: 'As it is now necessary to make it satisfactorily appear to the court in which the suggestion is made that the party charged in the presentment or indictment is entitled to the order for removal, and as no other tribunal can determine when it does so appear to that court, it follows as a logical conclusion that, in the absence of evidence to show that the court below acted arbitrarily and abused or refused to exercise the discretion given it by the amendment, this court cannot say that the removal should or should not have been granted, and can only affirm the action of the lower court.' See also Tidewater Portland Cement Co. v. State, 122 Md. 96, 100, 89 A. 327; Allers v. State, 144 Md. 75, 78, 124 A. 399; Newton v. State, 147 Md. 71, 77, 127 A. 123; Lee v. State, supra, 161 Md. 433, 157 A. 724; Jones v. State, 185 Md. 481, 485, 45 A.2d 350; Auchincloss v. State, 200 Md. 310, 314, 89 A.2d 605; Larch v. State, 201 Md. 52, 55, 92 A.2d 463; Heslop v. State, 202 Md. 123, 126, 95 A.2d 880; Wanzer v. State, 202 Md. 601, 607, 97 A.2d 914. We adhere to the views expressed in these cases, which recognize, of course, that the action of the trial court is reviewable to determine whether there has been an abuse of discretion.

The appellants stress the fact that the State did not file any pleading in reply to the petitions for removal, citing Jones v. State, supra, 185 Md. 481, 45 A.2d 350. In that case it was stated that the court could not ignore or summarily dismiss a petition for removal, and that in the absence of an answer its allegations must be taken as true. The case was remanded in order that the State might traverse the facts alleged in the petition and the court determine the truth or falsity of the allegations. It may be noted, however, that the allegations of the petition in that case, as in Lee v. State, supra, related to mob actions and racial prejudice, and were not confined to publicity, as such. We are not prepared to hold that the State's failure to reply in the instant case, if a procedural error, was a reversible one. The State did not contest the fact that the publications had been made as represented, but argued that the situation did not call for the action requested. Nor are we prepared to hold that the court's refusal to postpone the case, to permit the assembly of clippings covering the publications over the previous nine months, was an abuse of discretion under the circumstances. Matters of continuance are ordinarily within the discretion of the trial judge. Cf. Laque v. State, Md., 113 A.2d 893, 898. It does not appear that the court was not aware of, or failed to give consideration to, the nature and extent of the newspaper comments. The court had previously considered exhibits covering the period up to January 19, 1954, and a sampling of the clippings in the record indicates that the publicity reached its peak with an announcement on October 22, 1953, of a 'Fraud Conspiracy is Charged to Piracci.'

The petition in No. 163 was based primarily on the announcement of the verdict in the Haar and Winik case on the previous day. The petition did not allege that that verdict, or...