State of Cal. for Los Angeles County, Grand Jury Investigation, In re

• Decision Date: 06 March 1984
• Docket Number: No. 1088,1088
• Citation: 471 A.2d 1141,57 Md.App. 804
• Parties: In re STATE OF CALIFORNIA FOR the COUNTY OF LOS ANGELES, GRAND JURY INVESTIGATION. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 804

57 Md.App. 804

471 A.2d 1141

In re STATE OF CALIFORNIA FOR the COUNTY OF LOS ANGELES,

GRAND JURY INVESTIGATION.

No. 1088 Sept. Term 1983.

Court of Special Appeals of Maryland.

March 6, 1984.

James G. Maggio and H. Robert Scherr, Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty., Baltimore City, and Marshall Feldman, Asst. State's Atty., Baltimore City, on brief, for appellee.

Argued Before GILBERT, C.J., and ADKINS and BLOOM, JJ.

GILBERT, Chief Judge.

This Court on October 7, 1983, issued a per curiam order affirming an order by the Circuit Court for Baltimore City (Karwacki, J.) that commanded John Rees to "appear before the Grand Jury of the County of Los Angeles, State of California ...." ¹ We now explain why we affirmed the Circuit Court.

From the record we learn that the Grand Jury of the County of Los Angeles is inquiring into the unauthorized removal and theft of intelligence information from the Intelligence Division of the Los Angeles Police Department (LAPDID) by Detective Jay Paul (Paul).

There was testimony in the record that Paul, who was assigned to the LAPDID, was under a contractual relationship with Western Goals Foundation in which he was paid thirty thousand dollars a year "to maintain a computer for Western Goals Foundation and develop a computer program to input information in the Western Goals computer." Detective Ben Lovato of the LAPD testified that, "Western Goals is a private intelligence gathering foundation ...." The computer for Western Goals was maintained in the "office of ... Paul's wife, in Long Beach, California."

Apparently Paul would feed information gleaned from the LAPDID records into the Western Goals computer.

The editor of Western Goals, John Rees, allegedly removed from the office of Paul's wife, "thirty discs and one tape which contained" LAPDID "intelligence information." Rees refused to turn over the discs and tape to the LAPDID and left California. Obviously, he made his way to Maryland.

Because the Grand Jury of the County of Los Angeles desired Rees's appearance before it, a subpoena was issued on August 9, 1983, which commanded that Rees present himself before that body on September 29, 1983. In addition to appearing personally before the grand jury, Rees was directed to produce:

"All records of information furnished you or Western Goals by Jay S. Paul or any other Los Angeles Police Department officer or employee, and/or a representative of the office of Ann Love. Such records are not limited to but are to include 30 floppy discs and their printouts, and storage tape and its printouts, received on or about March 11, 1983, from Jay S. Paul, and all other floppy discs and their printouts, all tape cartridges and their printouts, and all other data base information whether stored electronically or otherwise."

Pursuant to the terms of the "Uniform Act to Secure Attendance of Witnesses from Without a State in Criminal Proceedings," ² Judge James M. Ideman of the Superior Court for Los Angeles County certified that Rees's presence, together with the discs, tape and printouts, was "necessary, material and relevant to the issues" before the Los Angeles County Grand Jury. Judge Ideman further certified that Rees would be protected "from arrest or service of process, either civil or criminal ...."

The judge's certificate, along with the subpoena of the grand jury, was transmitted to Maryland. Rees resisted returning to Los Angeles. The State of California, acting through the state's attorney for Baltimore City, moved pursuant to Md.Cts. & Jud.Proc.Code Ann. § 9-303 to have the Circuit Court for Baltimore City order Rees's appearance before the Los Angeles County Grand Jury. Following a hearing in the circuit court, Judge Karwacki issued that order, and Rees promptly appealed.

Because of the time restraints, we advanced oral argument.

In this Court Rees asserted four reasons why he believed that the order of the circuit court should be reversed. We shall discuss each of the arguments in the order in which Rees posited them to us, adding such additional facts as may be necessary.

I.

"Under Section 9-302, hearsay evidence is not admissible to prove that appellant is a material and necessary witness."

As we have previously commented, Judge Ideman, a California jurist, certified that Rees and the tangible evidence allegedly possessed by Rees were "material, and relevant to the issues considered by the Los Angeles Grand Jury."

Some States have held that such a certification when supported by an affidavit is itself sufficient to require that the witness be delivered to the requesting State. See e.g. Epstein v. People of State of New York, 157 So.2d 705 (Fla.App.1963); In re Cooper, 127 N.J.L. 312, 22 A.2d 532 (1941); Superior Court, State of New Jersey v. Farber, 94 Misc.2d 886, 405 N.Y.S.2d 989 (1978). See also Ex parte Armes, 582 S.W.2d 434 (Tex.Cr.App.1979).

Maryland, in Appel v. New York, 243 Md. 218, 220 A.2d 301 (1966), did not decide whether the issuance of the certificate of relevance and materiality was all that was needed, inasmuch as the Maryland hearing judge in Appel found from evidence that the witness was "material and necessary" to the New York probe.

In the instant case the certificate of Judge Ideman was bolstered by an affidavit from the deputy district attorney for Los Angeles County that Rees's appearance together with the discs, tape, and printouts was necessary, relevant and material to the grand jury's inquiry into the Western Goals's suspected covert connection to the LAPDID. The testimony of Detective Lovato before Judge Karwacki was largely hearsay, but we think no more than that is required in the instant case.

Courts Art. § 9-302 provides:

"(a) If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in the State ³ certifies under seal of the court that there is a criminal prosecution pending in the court, or that a grand jury investigation has commenced or is about to commence, that a person being within the State is a material witness in the prosecution, or grand jury investigation, and that his presence will be required for a specified number of days, upon presentation of the certificate to any judge of a court of record, in the county in which the person is, the judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.

(b) If at the hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence, and of any other state through which the witness may be required to pass by ordinary course of travel, will give to him protection from arrest and the service of civil and criminal process he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the summons. In the hearing the certificate shall be prima facie evidence of all the facts stated therein." (Emphasis supplied.)

The Maryland Uniform Act to Secure Attendance of Witnesses from Without a State in a Criminal Proceeding is related by rationale and principles of comity to the Uniform Criminal Extradition Act, Md.Ann.Code art. 41, §§ 16-43. ⁴ The principal difference is that in the latter the person demanded by the requesting State will be returned to that State to face criminal prosecution, while in the former the person requested is to testify and is specifically exempted from prosecution for matters that "arose before ... entrance into ... [the] State under the summons." Courts Art. § 9-304; California Penal Code § 1334.4.

It has been held in Maryland that the strict rules of evidence are not applicable to extradition proceedings. Shields v. State, 257 Md. 384, 263 A.2d 565 (1970); Johnson v. Warden, 244 Md. 384, 223 A.2d 584 (1966); Koprivich v. Warden, 234 Md. 465, 200 A.2d 49 (1964). 1 Wigmore Evidence § 4 (Tillers rev. 1983) declares, "No jury being involved, extradition proceedings are not governed in strictness by jury trial rules of evidence .... Moreover, here the additional reason obtains that the evidence is brought from outside the jurisdiction, and the procurement of evidence is thus likely to be hampered by lack of power or practicability, as well as by the possible differences of law in another system." (Footnote omitted.)

This Court, speaking through Judge Morton in Campbell v. State, 10 Md.App. 406, 413, 271 A.2d 190 (1970), commented, "If we assume that ... [the] affidavit [of the Commonwealth of Virginia's attorney] was based entirely upon hearsay evidence ... we find no violation of [Campbell's] rights." Implicit in that remark is the conclusion that hearsay evidence is admissible in extradition proceedings. What was implicit in Campbell is explicit in In re David, 395 F.Supp. 803 (E.D.Ill.1975) (hearsay admissible at extradition hearing even though it would not be admissible at trial); Graham v. Vanderhoof, 185 Colo. 334, 524 P.2d 611 (1974) (hearsay admissible); People v. Miller, 74 Misc.2d 806, 342 N.Y.S.2d 288 (1973) (issuance of warrant of extradition may be grounded upon hearsay); President of the United States v. Kelly, 19 F.Supp. 730 (S.D.N.Y.1937) (properly authenticated depositions or affidavits admissible in evidence in extradition proceeding irrespective of hearsay content); Klein v. Mulligan, 50 F.2d 687 (2nd Cir.1931) (that evidence is hearsay is...