State v. Levesque

• Decision Date: 29 September 1971
• Citation: 281 A.2d 570
• Parties: STATE of Maine v. George Alfred LEVESQUE.
• Court: Maine Supreme Court

Page 570

281 A.2d 570

STATE of Maine v. George Alfred LEVESQUE.

Supreme Judicial Court of Maine.

Sept. 29, 1971.

William H. Clifford, Jr., Androscoggin County Atty., Jack O. Smith, Asst. County Atty., Auburn, for plaintiff.

Platz & Day, by J. Peter Thompson, Lewiston, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY and WERNICK, JJ.

DUFRESNE, Chief Justice.

The defendant Levesque was tried by jury and found guilty of the crime of robbery at the January term, 1970, of the Superior Court in the County of Androscoggin. He appeals from the judgment of conviction and sentence to a term of not less than 5 years and not more than 12 years in the Maine State Prison. His appeal is denied.

The defendant's initial contention is that the State's failure to have an official court reporter present at the grand jury session at which he was indicted and to have a record made of the testimony given against him before that body deprived him of a fair trial guaranteed by the due process clauses of our State and Federal Constitutions and denied him as well the equal protection of the laws mandated by these constitutional provisions. See, Article I, Section 6-A of the Constitution of Maine and Amendment XIV to the Constitution of the United States. His violation of due process claim is grounded on the assertion that absence of a record of the grand jury proceedings taints the fairness of his subsequent trial since it denies him the opportunity of full confrontation of the witnesses against him by precluding their impeachment through inconsistent statements which they may have made at the grand jury session. He bases his equal-protection-of-the-law violation upon the fact that Rule 6(d), M.R.Crim.P., permits the presence of an official court reporter at grand jury sessions in the discretion of the court upon the showing of good cause by persons who, by reason of their having been held to answer on probable cause hearing, know that the grand jury will be determining whether an indictment should be found against them, while denying the same opportunity to persons who first learn of the grand jury's interest in them following their actual indictment by the grand jury.

'While the possibility of having the testimony produced before the grand jury reported by a court reporter is new to Maine procedure, the principle of inquiring into the proceedings before the grand jury under appropriate circumstances is not.' (Glassman, Maine Practice, Commentary, § 6.6, at page 59-emphasis added). The rule of secrecy, however, long established in this State remains. We recently had occasion to re-affirm at when we said in State v. Fitzherbert, 1969, Me., 249 A.2d 760:

'(I)n this jurisdiction courts are not authorized to inquire into the sufficiency of the evidence on which the grand jury acted. Such, we believe, is the better reasoned rule adhered to by a majority of those appellate tribunals which have had occasion to pass upon the issue.'

In State v. Perkins, 1971, Me., 275 A.2d 586, we further added:

'We have no rule or statute which allows such an inquiry, nor do we feel inclined to do so by judicial fiat.'

This Court recognized that where the secrecy rule would unjustifiably thwart the search for truth and impede the proper administration of justice, it would have to give way and disclosure of grand jury testimony would be permissible for impeachment purpose. In State b. Benner, 1874, 64 Me. 267, we said:

'When a witness testifies differently in the trial before the petit jury from what he did before the grand jury, the grand jurors may be called to contradict him whether his testimony is favorable or adverse to the prisoner. So, in all cases when necessary for the protection of the rights of parties, whether civil or criminal, grand jurors may be witnesses.'

But our Court never addressed itself specifically to the constitutional issues raised by the defendant. We note initially that Rule 6(d) merely authorizes the presence of an official court reporter at a grand jury session in the court's discretion and upon good cause being shown. Transcription of the testimony is made permissive, not mandatory. The federal rule, after which our own rule has been patterned, has been so construed by the federal authorities. United States v. Caruso, 1966, 2d Cir., 358 F.2d 184; McCaffrey v. United States, 1967, 10th Cir., 372 F.2d 482; Jack v. United States, 1969, 9th Cir., 409 F.2d 522. See, however, Rule 16(a), M.R.Crim.P., as amended December 1, 1969 which provides, when a court reporter is present in the grand jury room under Rule 6(d) that-

'(a) Discovery and Inspection. Upon timely motion of a defendant and upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph designated books, papers, documents, or tangible objects which are within the possession, custody, or control of the state, including * * * transcripts of the testimony of witnesses before the grand jury, * * *'

Failure to transcribe grand jury proceedings and provide the accused with a transcript of grand jury testimony is not a denial of due process. United States v. Watson, 1970, 9th Cir., 421 F.2d 1357. Nor is it an unconstitutional practice or an invasion of a constitutional right. Schlinsky v. United States, 1967, 1st Cir., 379 F.2d 735; United States v. Cianchietti, 1963, 2d Cir., 315 F.2d 584; United States v. Labate, 1959, 3d Cir., 270 F.2d 122, cert. denied sub nom. Sussman v. United States, 361 U.S. 900, 80 S.Ct. 211, 4 L.Ed.2d 157; Baker v. United States, 1969, 5th Cir., 412 F.2d 1069; United States v. Hensley, 1967, 6th Cir., 374 F.2d 341; Loux v. United States, 1968, 9th Cir., 389 F.2d 911; Maestas v. United States, 1965, 10th Cir., 341 F.2d 493.

The defendant's argument for an absolute constitutional right to the presence of an official court reporter to transcribe grand jury testimony and for a transcript of the minutes of the proceedings is based on the theory that such practice would be conducive to more even justice since grand jury witnesses having the knowledge that their words may thereafter be reproduced against them are more likely to tell the unqualified truth. Though we do admit that such considerations might be an additional safeguard to protect the accused from untruthful accusations, grand jury proceedings do provide sufficient safety devices. Witnesses are sworn to tell the truth and they are subject to the pains and penalties of perjury if they testify falsely. As stated in State v. Dimodica, 1963, 40 N.J. 404, 192 A.2d 825:

'The grand jury's function as a constitutional safeguard is only to determine whether the evidence placed before it is sufficient to warrant the return of an indictment, so that persons may be protected from being forced to stand trial on unfounded criminal charges. Whether a record is kept of the testimony produced at the grand jury proceeding can have no bearing on the fulfillment of this function, and hence the absence of such a record does not affect the defendant's constitutional right.'

Rule 6(d), M.R.Crim.P., which gives an accused bound over after probable cause hearing an opportunity to request for good cause the presence of an official court reporter in the grand jury room, is not violative of the equal protection clause of our Constitutions because it denies that possibility to others who are not accorded preliminary hearings prior to indictment. The contention that this procedure sets up an arbitrary and capricious classification is without merit. See, State v. King, 1936, 135 Me. 5, 188 A. 775.

'The fact that a statute (here-a rule) discriminates in favor of a certain class does not make it arbitrary, if the discrimination is founded upon a reasonable distinction * * *. Or if any state of facts reasonably can be conceived to sustain it * * *. 'If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of the equal protection of the law. " State Board of Tax Commissioners of Indiana v. Jackson, 283 U.S. 527, 537, 51 S.Ct. 540, 543, 75 L.Ed., 1248.

'A classification must not be arbitrary. It must be natural and reasonable * * *. It must be based upon an actual difference in the classes bearing some substantial relation to the public purpose sought to be accomplished by the discrimination in rights and burdens * * *. If a classification, though necessarily discriminatory, stands these tests, it is not a denial of equal protection of the laws.' York Harbor Village Corporation v. Libby, 1928, 126 Me. 537, 140 A. 382.

The reasons for grand jury secrecy, which the presence of an official court reporter in the grand jury room will for good cause shown under the rule tend to dissipate in whole or in part, may be listed as they appear in United States v. Rose, 1954, 3d Cir., 215 F.2d 617, 628-629:

'(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.'

Although the secrecy rule may be subject to legitimate criticism in that it may be said to impede on occasion the search for truth, nevertheless it firmly rests on genuine state interests recognized at the very institution of...