State v. Panagoulis

• Decision Date: 12 March 1968
• Docket Number: No. 127,127
• Citation: 239 A.2d 145,3 Md.App. 330
• Parties: STATE of Maryland v. George J. PANAGOULIS.
• Court: Court of Special Appeals of Maryland

Page 330

3 Md.App. 330

239 A.2d 145

STATE of Maryland v. George J. PANAGOULIS.

No. 127.

Court of Special Appeals of Maryland.

March 12, 1968.

Frank A. DeCosta, Jr., Asst. Atty. Gen., Baltimore, for appellant; Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty. for Prince George's County, Vincent J. Femia, Asst. State's Atty. for Prince George's County, Upper Marlboro, on brief.

Jerrold V. Powers, Upper Marlboro, for appellee; Edward J. Bagley, Upper Marlboro, on brief.

Before ANDERSON, MORTON, ORTH, and THOMPSON, JJ., and EUGENE MACKALL CHILDS, Special Judge.

ORTH, Judge.

On February 6, 1967 two indictments were returned against the appellee charging that he bribed and conspired to bribe a member of a municipal corporation of this State. He moved to dismiss the indictments and, after hearing, the motions were Evidence was adduced at the hearing 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 among those persons alleged to be 'involved' was the appellee. In a newspaper article admitted in evidence it was stated that the State's Attorney said that 'every name' given by the informant would be questioned by the grand jury. The appellee 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. Later that day, about 11:30 P.M., Femia again called the appellee, who, as a result of the call, went to the Seat Pleasant Station, arriving there about midnight. Femia and two State Police corporals were present. He was interrogated 'on matters pertaining to these zoning irregularities' for about two and one-half hours. At the conclusion of the interrogation the appellee 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." The appellee called Femia about 9:15 A.M. on November 4th, 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 The appellee 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. It showed that the appellee was sworn and requested that he be permitted to make an opening statement. His remarks were transcribed as follows:

grnated by the Circuit Court for Prince George's County, the court finding that the appellee was immune from prosecution. The State appealed.

'May I say that at the outset I wish to express my sincere appreciation to the staff of the State's Attorney's At the hearing in the instant case the appellee testified that he had appeared before grand juries at least twice a year since 1955 and always made an introductory statement similar to the one he made on November 4th.

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 clarify 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.'

Femia's testimony confirmed the circumstances surrounding the interrogation of the appellee in the early morning hours of November 4th. His recollection was that the appellee said upon the conclusion of the interrogation, 'Would it help if I appeared before the Grand Jury?' Before receiving a reply, the appellee changed the question to 'Would it help the Grand Jury if I appeared before the Grand Jury?' Femia replied, 'Well, to tell you the truth, George, from what I heard tonight it sure can't hurt you and it has to help them, any information they can get.' He denied telling the appellee that it was necessary for the appellee to appear before the grand jury and did not recall the appellee asking if it was necessary for him to go before that body. '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. That sort of puts you out of business.' The Court said to Femia, 'As I understood a while ago (the appellee) didn't in so many words say, 'I want to go before the Grand Jury,' and Femia replied, 'that is correct, not to me anyway.'

Each of the State Police officers present during the interrogation of the appellee had some recollection of the conversation between Femia and the appellee about the grand jury. Neither could recall the exact words. One said that the appellee 'said something to the effect that he wanted to appear and get this whole mess straightened out.' The other stated he heard the appellee 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 Jury 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 the appellee offered 'to turn over all 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.' Between October 25, 1966 and November 4, 1966 during a telephone conversation between Marshall and the appellee, the appellee 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 the appellee 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.

It is clear that the appellee appeared before the grand jury of Prince George's County on November 4, 1966 and testified. We think, and it is not contended to the contrary, that his testimony was with regard to the investigation by the grand jury of zoning matters, and that the indictments returned against him were a result of that investigation. The question is whether the appellee was exempt from prosecution On March 30, 1868 the General Assembly approved Chapter 369 of the Acts of 1868, enacted in compliance with the requirements of Article 3, § 50 of the Constitution of Maryland of 1867. As now codified, with amendments, in Md. Code (1967 Repl.Vol.), Art. 27, § 23, it proscribes, in part here relevant, bribing public officials, including a member of any municipal corporation of this State, and the demand or receipt of a bribe by such officials. The section continues:

trial and punishment because he appeared before the grand jury and so testified. ²

'and any person so bribing * * * or so demanding or receiving a bribe shall be a competent witness, and compellable to testify against any person or persons who may have committed any of the aforesaid offenses; provided, that any person so compelled to testify in behalf of the State in any such case shall be exempt from prosecution, trial and punishment for any such crime of which such person so testifying may have been guilty or a participant therein, and about which he was so compelled to testify.' ³

The exemptions in § 23 extend to proceedings before grand

juries. Brown v. State, 233 Md. 288, 196 A.2d 614. In resolving the question, therefore, it must be determined whether the appellee was compelled to testify, and, if so, whether, under the circumstances present, he obtained immunity. We think that State v. Comes, 237 Md. 271, 206 A.2d 124, is controlling.

THE COMPULSION OF THE WITNESS

In State v. Comes, supra, the Court had before it whether a subpoena was an indispensable factor in compelling a witness to testify under the statute. It said, p. 278, 206 A.2d p. 128:

'Many lengthy and able opinions have been written dealing with the compulsoriness or the voluntariness of the disclosure made. However, we see no necessity for laboring this question unduly. The following is, we think, a short but complete answer thereto. Every person is presumed to know the law; hence, the appellee, once he got before the grand jury whether by subpoena or otherwise, presumptively knew that he was subject to contempt proceedings and imprisonment, if he refused to answer questions relative to the bribery laws. Brown v. State, supra. As we stated in Sullivan v. Sullivan, 234 Md. 67, 197 A.2d 910 (a divorce case):

'Acquiescence to or assent to what one cannot prevent does not amount to a voluntary agreement thereto". ⁴

We must take this language to mean what it clearly says. Therefore, with regard to the question of a witness being compelled to testify, it is immaterial how he got before the grand jury. ⁵ Once he is there, is sworn and testifies, he has been

compelled to testify within the meaning of the statute. We hold that the appellee was 'compelled to testify in behalf of the State.'

THE...