State v. Ensor

• Decision Date: 19 April 1976
• Docket Number: No. 102,102
• Citation: 277 Md. 529,356 A.2d 259
• Parties: STATE of Maryland v. Ralph E. ENSOR et al.
• Court: Maryland Court of Appeals

Page 529

277 Md. 529

356 A.2d 259

STATE of Maryland v. Ralph E. ENSOR et al.

No. 102.

Court of Appeals of Maryland.

April 19, 1976.

Clarence W. Sharp, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Baltimore, on the brief) for appellant.

Paul F. Strain, Baltimore (Joseph H. H. Kaplan, Baltimore, on the brief, for Ralph E. Ensor, Arnold M. Weiner and Francis S Brocato, Baltimore, on the brief, for Charles Edward Phelps Compton) Baltimore, for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE and O'DONNELL, JJ., ^* and MATTHEW S. EVANS, Associate Judge of the Fifth Judicial Circuit, specially assigned.

SMITH, Judge.

We granted certiorari in this case 'limited solely to the question whether the Assistant Attorney General appearing before the Grand Jury of Baltimore City which returned the indictments in this case was lawfully qualified as a Special Assistant State's Attorney of Baltimore City and therefore authorized to appear before the Grand Jury . . ..' We conclude that he was, thus mandating a reversal of the decision of the Court of Special Appeals in State v. Ensor and Compton, 27 Md.App. 670, 342 A.2d 1 (1975), which affirmed the determination of a trial judge (Grady, J.) in the Criminal Court of Baltimore that he was not lawfully qualified to appear. As a result of that determination their motion to dismiss the indictments was granted.

Appellees, Ralph E. Ensor (Ensor) and Charles Edward Phelps Compton (Compton), were indicted by the Grand Jury of Baltimore City on March 29, 1974. A total of 13 indictments were handed down. One indictment charged both men with conspiracy to violate the false pretense laws. Six indictments were returned against each of them charging acts of forgery and attempts to obtain money under false pretenses. All of the charges arose out of alleged alterations made in change orders in connection with State construction contracts.

The facts are succinctly stated in the opinion of Judge Grady:

'The following facts relevant to the Motion are not in dispute. The indictments against the defendants were returned by the Grand Jury for Baltimore City on March 29, 1974. Evidence leading to these indictments was presented to the Grand Jury at various times starting on February 1, 1974. Mr. (Arrie W.) Davis appeared before the Grand Jury during the presentation of this evidence on February 1, 1974, and on several other occasions before March 29, 1974. Before, during and after the period of February 1, 1974, to March 29, 1974, Mr. Davis was an Assistant Attorney General of Maryland. The Attorney General of Maryland was not directed by the Governor of Maryland to assist the State's Attorney for Baltimore City in prosecuting any of the matters which are the subject to the indictments in question. On February 1, 1974, before a Judge of the Criminal Court of Baltimore and before his first Grand Jury appearance Mr. Davis was administered the oath of office given an Assistant State's Attorney in Baltimore City and was sworn in as a Special Assistant State's Attorney. There is no claim that Mr. Davis was present during any deliberations or voting by the Grand Jury. There is no claim that Mr. Davis' presence before the Grand Jury resulted in any actual prejudice to the defendants.'

The record as to Davis' appointment is not as precise as one might prefer. No written order appointing him appears in the record. Apparently, it is not the custom of the Criminal Court of Baltimore to keep minutes of all its proceedings as is done in some of the trial courts of the State. A Deputy State's Attorney for Baltimore City testified that on the morning of February 1, 1974, when he entered his office he was presented by the State's Attorney with a letter to the Chief Judge of the Supreme Bench of Baltimore City. He was instructed to see that Davis was 'sworn in as a special prosecutor' on that day. The deputy concluded that the request should not go to the Chief Judge of the Supreme Bench. Instead, he said he appeared in Part I of the Criminal Court of Baltimore and requested the judge then presiding 'in accordance with (Maryland Code (1957, 1973 Repl.Vol.)) Article 26, Section 11, that Mr. Arrie Davis be appointed as an Assistant State's Attorney to assist in the prosecution of a criminal case.' He stated that he specifically remembered asking the court reporter to make a record of the proceedings since there was no letter being presented to the court, only a verbal request of the State's attorney. The judge then presiding, according to the testimony, 'instructed the (deputy) Clerk of the (Criminal) Court (of Baltimore) . . . to the administer the oath of office to Mr. Davis in accordance with the request of the State's Attorney. . . . (T)hat was done. (The deputy State's attorney) was a witness to it.' ¹ No one seems to have been able to produce the transcript of the proceedings relative to this appointment and the administration of the oath. The facts as related by the deputy State's attorney are not disputed, however.

Relying upon Coblentz v. State, 164 Md. 558, 166 A. 45 (1933), and citing Maryland Constitution Art. IV, §§ 3 and 9, counsel for Ensor and Compton moved to dismiss the indictment. We shall discuss Coblentz in more detail later. There our predecessors, in an opinion by Chief Judge Bond, held that an indictment was invalidated by the presence of an unauthorized person in the grand jury room during the inquiry leading up to the indictment, regardless of whether this presence was shown to have injured the defendant.

Constitution Art. V, § 3 provides in pertinent part relative to the duties of the Attorney General:

'(W)hen required by the Governor or General Assembly, he shall aid any State's Attorney in prosecuting any suit or action brought by the State in any Court of this State, and he shall commence and prosecute or defend any suit or action in any of said Courts, on the part of the State, which the General Assembly, or the Governor, acting according to law, shall direct to be commenced, prosecuted or defended . . ..'

It is conceded that neither the Governor nor the General Assembly 'required' or 'directed' the Attorney General to intervene in this matter. ²

In reaching his conclusion the trial judge relied upon Johnson v. Duke, 180 Md. 434, 24 A.2d 304 (1942). As Judge Grady put it:

'The Court there referred to two constitutional provisions. Article II, Sections 11-13, set forth certain procedures to be followed 'in the case of any vacancy . . . in any office which the Governor has power to fill . . ..' Article IV, Sections 42-43, set forth the procedure by which the Governor was to fill a vacancy in the office to justice of the peace. The issue before the Court concerned the validity of the Governor's action in appointing two justices of the peace to fill vacancies. At page 440 (24 A.2d at page 307) the Court said:

'It is an elementary rule of interpretation that effect should be given, if possible, to every section and clause of a written Constitution; and where there is a special provision in conflict with a general provision, the special provision should be given effect to the extent of its scope, leaving the general provision to control in cases where the special provision does not apply. Manly v. State, 7 Md. 135, 147; People v. Field, 66 Colo. 367, 181 P. 526; 11 Am.Jur., Constitutional Law, Sec. 55; 16 C.J.S., Constitutional Law, Sec. 25.'

The Court concluded that the special provision governing appointment to a vacancy in the office of justices of the peace took precedence over the general provision governing appointment to a vacancy 'in any office which the Governor has power to fill.'

He said that '(t)he situation here presented . . . raise(d) the question of whether the presence of a single person before the Grand Jury can be both authorized and unauthorized at one and the same time.' He 'conclude(d) that Mr. Davis' acquisition of general prosecutorial authority as an Assistant State's Attorney did not validate his presence before the Grand Jury which was considering the indictments against these defendants,' and thus 'under the inflexible rule adopted in Coblentz the Defendants' Motion to Dismiss the Indictments must be granted.' He went on, however, to examine Constitution Art. V, § 9 which we shall discuss in greater detail, said that '(i)n (his) opinion (that section) requires the State's Attorney to obtain the authorization of the Supreme Bench for the number of assistants deemed by the State's Attorney to be necessary in the discharge of the duties of his office, but does not require the Bench to approve the individuals whom the State's Attorney selects to fill the authorized positions,' found 'no compelling reason for the Supreme Bench to approve individually the person whom the State's Attorney selects to fill an authorized position,' said that 'there (was) no showing that the position to which Mr. Davis was appointed was not an authorized position,' and that '(i)n the absence of such a showing the validity of Mr. Davis' appointment remain(ed) uncompromised and the Defendants' contention that Mr. Davis was not authorized to appeal before the Grand Jury ha(d) not been proven.' Therefore, he 'f(ound) the other grounds upon which the Motion to Dismiss (was) based to be without merit.'

The Court of Special Appeals based its decision upon Constitution Art. V, § 9 which states in pertinent part:

'The State's Attorney shall perform such duties and receive such salary as shall be prescribed by law; . . . provided, that the State's Attorney for Baltimore City shall have the power to appoint a Deputy and such other Assistants as the Supreme Bench of Baltimore City may authorize or approve and until otherwise provided by the General Assembly, the said State's Attorney, Deputy and Assistants shall receive the following annual salaries: State's Attorney, seven thousand five hundred dollars; Deputy State's Attorney, five ...