State v. Panagoulis

• Decision Date: 30 May 1969
• Docket Number: No. 288,288
• Citation: 253 A.2d 877,253 Md. 699
• Parties: STATE of Maryland v. George J. PANAGOULIS.
• Court: Maryland Court of Appeals

Page 699

253 Md. 699

253 A.2d 877

STATE of Maryland v. George J. PANAGOULIS.

No. 288.

Court of Appeals of Maryland.

May 30, 1969.

John J. Garrity, Assty. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Donald Needle, Asst. Atty. Gen., Baltimore, Arthur A. Marshall, Jr., and Vincent J. Femia, State's Atty., and Asst. State's Atty., respectively, for Prince George's County, Upper Marlboro, on the brief), for appellant.

Jerrold V. Powers, Upper Marlboro (Martin H. Freeman and Sasscer, Clagett, Powers & Channing, Upper Marlboro, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

SINGLEY, Judge.

On February 6, 1967, the Prince George's County grand jury returned indictments for bribery on two counts against George J. Panagoulis, the County's superintendent of police. Panagoulis moved to dismiss the indictments on the ground, that, having testified before the grand jury on November 4, 1966 without formally waiving his privilege against self-incrimination, he had acquired an immunity from prosecution under Maryland Code (1957, 1967 Repl.Vol.) Art. 27, §§ 23 and 39. From the order of the circuit court dismissing the indictments, the State appealed to the Court of Special Appals, which affirmed. State v. Panagoulis, 3 Md.App. 330, 239 A.2d 145 (1968). We granted certiorari.

Evidence was adduced at the hearing on the motion to dismiss to show that a 'congressional candidate' had presented information to the grand jury of Prince George's County concerning alleged irregularities in zoning matters and that Panagoulis was among those persons alleged to be 'involved'. A newspaper article admitted in evidence quoted the state's attorney as saying that 'every name' given by the informant would be questioned by the grand jury. Panagoulis testified that he was aware of this. He said that on November 3, 1966, Vincent J. Femia, then an assistant state's attorney for Prince George's County, called him about making a statement to the state police investigators. About 11:30 P.M. that evening, Femia again called Panagoulis, who as a result of the call went to the Seat Pleasant police station. He arrived there around midnight and found Femia and two state police corporals present and was interrogated by them 'on matters pertaining to these zoning irregularities' for about two and one-half hours. At the conclusion of the interrogation, Panagoulis asked Femia 'if it would be necessary for me to appear before the Grand Jury since I had already given this testimony to the police officers, and he answered yes * * * I then asked him when and he said, 'this morning."

Femia's account of the conversation was somewhat different:

'I believe the Chief's (Panagoulis') words were, 'Would it help if I appeared before the Grand Jury?'

Then he changed it before I had a chance to say anything. He said, 'Would it help the Grand Jury if I appeared before the Grand Jury?'

'I said, 'Well, to tell the truth, George, from what I have heard tonight (referring to Panagoulis' statement taken by Femia) it sure can't hurt you and it has to help them, any information they can get".

Later in his testimony in response to a question, 'At any time, Mr. Femia, did you tell Major Panagoulis it was necessary for him to appear before the Grand Jury?' Femia said, 'Absolutely not', and added, 'But I do know this, that at no time did I indicate that he had to testify. At no time did I indicate this to him. Now, I have been a prosecutor long enough to know that if a man stands accused of anything the last place you take him is in the Grand Jury room. This sort of puts you out of business.'

Each of the state police officers present during the interrogation of Panagoulis had some recollection of the conversation between Femia and Panagoulis about the grand jury. Neither could recall the exact words. One testified that Panagoulis 'said something to the effect that he wanted to appear and get this whole mess straightened out.' The other stated he heard Panagoulis saying that 'he was anxious to clear this matter up, that he wanted to do anything possible to clear the matter up, and that he was-wanted to know if he could help the Grand July in any way by testifying, and that he was anxious to testify before the Grand Jury if that would help in any way clear it up.'

Arthur A. Marshall, Jr., the state's attorney for Prince George's County testified that during the investigation Panagoulis offered 'to turn over all of his books and records, I think he did, and income tax statements. I believe he has done that. He offered to meet with these state police investigators, and I do know offered to do anything that was possible to bring this to a conclusion.' He also testified that, between October 25, 1966 and November 4, 1966, during a telephone conversation with Panagoulis, Panagoulis asked '* * * if there was anything he could do, and he offered to come before the Grand Jury or do anything further that he could possibly do to cooperate. I think his words would have been something to the effect like, 'Would it help to come before the Grand Jury, would it satisfy them,' and I think my response would have been something like 'It certainly wouldn't hurt you." Marshall said he never directed Panagoulis to appear before the grand jury, did not issue a summons for him to appear and did not, either by letter or orally, direct his appearance.

Panagoulis called Femia about 9:15 A.M. on November 4, and Femia asked him to 'come down.' He met Femia at the police office and they went to the grand jury room by way of the 'back door' to avoid publicity. ¹ Panagoulis testified before the grand jury on the zoning matters. A transcript of a part of the proceedings before the grand jury was read into evidence:

'The Grand Jury was convened, pursuant to recess, at 10:59 o'clock a. m., all twenty-three members being present, at which time the witness George J. Panagoulis entered the room.

'The Foreman: Do you have any objection to taking an oath recognizing a superior being?

'Major Panagoulis: I most certainly do not, sir.

'The Foreman: Would you raise your right hand?

'Major Panagoulis: I certainly will.

'The Foreman: In the presence of Almighty God do you solemnly promise and declare the evidence you shall give the grand inquest of the State of Maryland for the body of Prince George's County shall be the truth, the whole truth and nothing but the truth?

Major Panagoulis: I do.

'The Foreman: Have a seat please.

'Mr. Femia: Ladies and gentlemen, may I start off by saying that the Chief, myself and the staff investigators have been up until three o'clock, 3:30, whatever it was, this morning recording all of what you are about to hear in great detail.

'Whereupon

George J. Panagoulis

was called as a witness, and having been first duly sworn, was examined and testified as follows:

'The Witness: May I, Mr. Foreman, make an opening statement?

'By Mr. Femia:

'Q Chief, I am going to ask you first, for the record, please, your name and occupation.

'A George J. Panagoulis, Superintendent of Police, Prince George's County.

'Q Chief, you are apparently well aware of why we are here today?

'A That is correct, sir.

'Q Chief, would you like to lay some groundwork with some sort of opening statement?

'A Yes. May I say that at the outset I wish to express my sincere appreciation to the staff of the State's Attorney's office'-excuse me-the staff of the State's Attorney, Mr. Marshall, Mr. Femia, and to the members and foreman of the Grand Jury for affording me this opportunity to appear before you this morning to clarity any allegations that may have been made concerning me in the past several weeks. I previously had instructed my accountant to make all his records available to you. I gave your investigators a very comprehensive statement as early as this morning and turned over any records that I had to them for any verification of any facts, and I shall try to answer any questions that may be propounded to me as truthfully and as conscientiously as I possibly can.

'Think you very much.'

Panagoulis then testified that this was 'the same statement that I have made to Grand Juries for the past twelve years at least twice a year when I was called in there for discussion of general conditions.' Here, however, there was a difference. In his previous appearances, Panagoulis had testified as chief of the county's police force. In this appearance, he was testifying about a matter in which he had a direct, and very personal interest. Whether he was motivated by a desire to be helpful, whether this was an exclulpatory endeavor, or whether he believed that he was under some compulsion to appear remains conjectural. He remained, in fact, for some two hours after making the opening statement, apparently answering questions posed by the jurors.

The lower court, in an effort to preserve the inviolate character of the grand jury proceedings, see United States v. Johnson, 337 F.2d 180 (4th Cir. 1964): aff'd 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); United States v. Johnson, 215 F.Supp. 300 (D.Md., 1963); United States v. Amazon Industrial Chemical Corp., 55 F.2d 254 (D.Md., 1931); Piracci v. State, 207 Md. 499, 115 A.2d 262 (1955); Bernard v. Warden of Md. House of Correction, 187 Md. 273, 49 A.2d 737 (1946), declined to admit the transcript of the remainder of Panagoulis' testimony into evidence. This lay within its sound discretion. United States v. Scott Paper Co., 254 F.Supp. 759 (W.D.Mich., 1966). The testimony was apparently read by the court, however, which concluded:

'Concededly (Panagoulis) went before the grand jury when they were investigating a matter concerning zoning and in which his name was at least involved, and it was out of that investigation that this indictment resulted. So that I have no difficulty in finding as a fact that the two are together. * * * He was there to testify in connection with the investigation that they in...