State ex rel. Ronan v. Superior Court In and For Maricopa County

• Decision Date: 05 March 1964
• Docket Number: No. 8201,8201
• Parties: STATE of Arizona ex rel. Charles N. RONAN, County Attorney of Maricopa County, Petitioner, v. The SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF MARICOPA, the Honorable George Sterling, Robert Clark, Court Reporter, and Thad M. Moore and W. E. Stanford, Real Parties in Interest, Respondents.
• Court: Arizona Supreme Court

Page 109

390 P.2d 109

95 Ariz. 319

STATE of Arizona ex rel. Charles N. RONAN, County Attorney of Maricopa County, Petitioner, v. The SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF MARICOPA, the Honorable George Sterling, Robert Clark, Court Reporter, and Thad M. Moore and W. E. Stanford, Real Parties in Interest, Respondents.

No. 8201.

Supreme Court of Arizona, In Banc.

March 5, 1964.

Rehearing Denied April 14, 1964.

Charles N. Ronan, Maricopa County Atty., and Felix F. Gordon, Chief Deputy County Atty., for petitioner.

Lewis, Roca, Scoville, Beauchamp & Linton, by John J. Flynn and James Moeller, Phoenix, for W. E. Stanford.

Jack C. Cavness, Phoenix, for Thad M. Moore.

BERNSTEIN, Justice.

Charles N. Ronan, County Attorney of Maricopa County, petitioned this court for a writ of prohibition against the respondent Superior Court, the Honorable George Sterling, judge thereof, and Robert Clark, court reporter, praying that respondents be prohibited from enforcing an order dated December 27, 1963, granting defendants' motion to be supplied with transcripts of the testimony given before the Grand Jury in Criminal Case, No. 43052, now pending in Maricopa County Superior Court.

Although we have heretofore issued our alternative writ of prohibition, we are of the opinion that the relief requested is more properly granted by a writ of certiorari and we will consider this petition as if we had before us the issuance of the latter writ. State ex rel. Ronan v. Superior Court, etc., 94 Ariz. 414, 385 P.2d 707; State ex rel. Mahoney v. Stevens, 79 Ariz. 298, 288 P.2d 1077; A.R.S. § 12-2001. At both common law and under a statute similar to A.R.S. § 12-2001, and taken from California as was our statute, a writ of certiorari may be used to review abuse of discretion. State Board of Medical Examiners v. Spears, 79 Colo. 588, 247 P. 563, 564-565, 54 A.L.R. 1498; error dismissed, 275 U.S. 508, 49 S.Ct. 158, 72 L.Ed. 398:

'* * * district courts have jurisdiction to review the action of inferior courts and tribunals upon writ of certiorari only as to the question of their jurisdiction. Such was the nature of the common-law writ and such is the nature of our Code writ, to which is added, what really was included in the common-law writ, that if the court abused its discretion, or failed regularly to pursue its authority, which has the same meaning, the reviewing court might examine the evidence bearing on jurisdiction or abuse of discretion, but not with a view to determine facts or draw conclusions therefrom respecting guilt.'

The real parties in interest, Thad M. Moore and W. E. Stanford, members of the State Tax Commission, were charged by the Grand Jury with conspiracy to accept bribes as public officers (one count) and accepting bribes as publie officers (eight counts). the order complained of is:

'IT IS THE ORDER of the Court that Robert Clark * * * as official Court Reporter to the Grand Jury, be, and he [is] permitted, directed and required to forthwith furnish the defendants, and each of them, * * * a similar transcript of the witnesses' testimony in the cause before said Grand Jury, as heretofore furnished to the County Attorney's Office, pursuant to Court Order.'

In entering this order Judge Sterling gave his reasons as follows:

'IT IS THE OPINION of the Court that for many sound reasons the veil of secrecy surrounding the proceedings of a Grand Jury should be preserved and that such 'veil of secrecy' should only be pierced as directed by Rule 107 of the Rules of Criminal Procedure, where it appears to the Court that good and sufficient cause exists and that the furtherance of justice requires it.

'Defendants in their supplemental [sic] have set forth four grounds which they urge as being 'good cause'. The Court is of the opinion that of the four grounds urged by defendants, only ground No. 3 has any merit. In ground #3 defendants set forth that the 'veil of secrecy' has already been pierced in an improper and unauthorized manner, in that the State already has in its possession the very transcript defendants request. An examination of the records and files discloses that the County Attorney has in his possession such a transcript of the testimony. However, the record fails to disclose that this transcript was obtained in an improper and unauthorized manner. On the contrary, the record discloses that the County Attorney obtained such transcript of this testimony, pursuant to an Order entered in this cause by the Superior Court.

'In view of what has been said by the Court, the only issue now to be determined by this Court is whether or not fundamental fairness and the proper administration of justice require that the defendants now be given the same information.' (Emphasis supplied). Rule 107, 17 A.R.S., is as follows:

'No grand juror, county attorney or other prosecuting officer, reporter or interpreter shall disclose the testimony of a witness examined before the grand jury or other evidence received by it except when required by a court to disclose the testimony of a witness examined before the grand jury 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.' (Emphasis supplied.)

Under this rule, it will be noted that there are three circumstances which justify the trial court in ordering disclosure of testimony before a grand jury, namely, (1) after a witness has testified at the trial, to determine whether such testimony is consistent with that given before the grand jury, (2) where the witness is charged with perjury, and (3) when permitted by the court in the furtherance of justice. Obviously, the trial judge's order in this case can be justified only under the assumption that it was in furtherance of justice. If it was not, was it in excess of or a great abuse of discretion?

The grand jury is of ancient origin, and has always been regarded as one of the glories of Anglo-American law. As the Supreme Judicial Court of Massachusetts said in Opinion of Justices, 232 Mass. 601, 603, 123 N.E. 100:

'* * * The grand jury is an ancient institution. It has always been venerated and highly prized in this country. It has been regarded as the shield of innocence against the plottings of private malice, as the defense of the weak against the oppression of political power, and as the guard of the liberities of the people against the encroachments of unfounded accusations from any source. These blessings accrue from the grand jury because its proceedings are secret and uninfluenced by the presence of those not officially and necessarily connected with it. It has been the practice for more than two hundred years for its investigations to be in private, except that the district attorney and his assistant are present.

'Secrecy is the vital requisite of grand jury procedure.'

Indeed, the prohibition against holding a person to answer for an infamous crime unless on a presentment or indictment of a grand jury is embodied in the Fifth Amendment to the United States Constitution. Although this provision of the Federal Constitution does not apply to the states, and the grand jury is not used as extensively as formerly in state criminal procedure, nevertheless traditional grand jury procedure is still regarded as an effective aid in the enforcement of criminal law and the protection of rights of defendants. The Federal Constitutional provision itself comes from the Magna Carta. See Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887).

Complete secrecy has always surrounded the proceedings of the grand jury. Indeed, as recently as 1932 it was seriously, though unsuccessfully contended that it was improper to have a court reporter present to make a transcript such as the one involved in this case. United States v. Amazon Industrial Chemical Corp., 55 F.2d 254, (D.C.Md.). Originally the Federal Department of Justice secured transcripts by using a court reporter who was also a member of the Bar, and swearing him as a special assistant to the district attorney. United States v. American Tobacco Co., 177 F. 774 (W.D.Ky.1910). It is of course, perfectly proper for a court reporter to make a transcript of the testimony in Arizona today, and the preparation of the transcript and the preservation of its secrecy are specifically provided for in Rules of Criminal Procedure 95 and 98. To this day it is improper in Arizona for the County Attorney to be present during the deliberations of the Grand Jury. However, his presence and that of his deputies is permitted at all other times. Rule 98, Rules of Criminal Procedure.

In this case the County Attorney properly has in his possession a transcript, and so he may rely upon the record itself, rather than the memory of his deputies who were present while the witnesses were testifying. Transcription of the record by order of the court is authorized by Rule 95. No impropriety or unfairness is involved in making available to the County Attorney an accurate record of testimony which his deputies lawfully heard at the time it was given. The modern rule authorizing transcripts is not conceived of as a breach of the rule of secrecy, nor is it supposed that the transcripts will be used by, or the contents revealed to, anyone not authorized to learn what had gone on in the grand jury room under the rule of secrecy in its strictest historical interpretation.

It is clear that the defense, at least in advance of trial, is not entitled to a complete transcript of the grand jury testimony, unless there has been some modern development of the law relaxing the rule of secrecy which is applicable in Arizona. Some states, among them California, (Cal.Pen.Code, §§ 925, 938.1) have provided by rule or st...