Bartram v. State

Smith, J., delivered the opinion of the Court. In a final desperate attempt to void convictions of second degree murder and a related handgun offense, appellant, Marilyn Susan Bartram (Mrs. Bartram), framed as an issue to us on her petition for the writ of certiorari, “Did the State’s conduct with regard to the Grand Juries which considered the petitioner’s case mandate that the indictment of September 9, 1974 [sic] be dismissed?” 1 We answer the question in the negative. The full facts surrounding this case art set forth in the opinion of the Court of Special Appeals in Bartram v. State, 88 Md. App. 115 , 864 A. 2d 1119 (1976). Mrs. Bartram’s husband died as a result of gunshot wounds.

Some nine months later she was indicted by the Grand Jury of Baltimore County. Apparently, three witnesses were in the grand jury room at the same time and ⁶¹⁸ testified in turn in the presence of each other. A motion to dismiss the indictment was filed. The State then entered a nolle prosequi.

The matter was submitted to a subsequent grand jury which returned a second indictment. On a motion to dismiss that second indictment the Deputy State’s Attorney involved in the first incident advised the court: “We told the Grand Jury that we had had an error in our previous proceedings, which we freely admitted, and probably even explained the nature of the error. That is to say that we had more than two witnesses in the Grand Jury at one time. We fully understood, at the time, that we were making what amounted to a technical error that we could correct at anytime.” He further explained with reference to the proceedings before the grand jury leading to the return of the first indictment: “Corporal Wise, Detective Todd, and Dr. Fisher, I think, were all in the Grand Jury at the same time.

If I may say to the Court, because of the technical nature of this case and because of the availability of Dr. Fisher, that and the investigative part of this case, at that time, that is why that was done.” 2 In many of the counties of Maryland grand jury testimony is not recorded. In Mrs. Bartram’s case a transcript was made of the proceedings leading to the return of the first indictment but not of the second. At the hearing on her motion to dismiss when the parties were unable to agree as to what had taken place prior to the return of the second indictment the individual who at the time of that second indictment was the Deputy State’s Attorney for Baltimore County, but who had since left that office, was brought into ⁶¹⁹ the courtroom and questioned by the trial judge. He said relative to the proceedings before the grand jury leading to the second indictment: “At the second one, it is my recollection that we summarized what the State’s case was to the Grand Jury.

I think we had one police officer there. That was the usual custom and practice in the case. The first time was entirely different from what we normally would do in front of a Grand Jury because of the technical nature of this particular case.” Mr. Bronstein, the former Deputy State’s Attorney, was questioned as to whether or not Dr. Fisher’s testimony was given to the second grand jury: “My recollection is that it wasn’t. Dr. Fisher’s testimony, I don’t think we read any transcript.

We merely spoke to the Grand Jury and I think with one of the detectives and summarized what the State’s evidence was, which is perfectly proper. The Grand Jury is not a judicial body it is strictly investigative.” The proceedings further reflect: “THE COURT: I understand. Basically, then, what was done was that the State itself summarized the testimony they had? “MR. BRONSTEIN: Yes.

If I remember correctly, Your Honor, I am speaking of course without notes and — * * * “THE COURT: All right. On the second Grand Jury the evidence was given by a summation of the evidence that the State had. “MR. BRONSTEIN: And only one witness being present. “THE COURT: One witness gave testimony to that Grand Jury of that witness’s evidence? ⁶²⁰ “MR. BRONSTEIN: That is correct, Your Honor. “THE COURT: Is that correct? “MR.

BRONSTEIN: Yes. If the Court please, the State’s attorney’s office, at least at that time, made up a witness sheet for the Grand Jury, and I am looking at the witness sheet for that date and it indicates that Corporal Frederick Wise was the only witness summonsed to appear before the Grand Jury on that particular day. I don’t have any recollection of anybody being there. I can hardly remember whether Detective Wise was there.

I specifically remember him being there the first time and I think he was there for the second one.” In response to a question from the trial judge to defense counsel as to whether he desired to ask anything, the record reflects the following: “MR. GILLECE:... Mr. Bronstein, when you say that you summarized, does that mean the State's attorney who was present read a summary of what the State’s evidence was, read it to the Grand Jury? “MR. BRONSTEIN: No, I think I narrated it. “MR.

GILLECE: You did it and not the witness? “MR. BRONSTEIN: I think the combination thereof. You know, in using Detective Wise to explain certain things. “MR. GILLECE: You presented other things yourself and told the Grand Jury about it? “MR.

BRONSTEIN: We told them, you know, basically, that this was the case and it was either murder or a triple shot suicide and that was the sura and substance of it. “MR. GILLECE: You told the Grand Jury that there had been a previous indictment and it had to be dismissed because of a technical violation? “MR. BRONSTEIN: I am almost sure I did but I can’t say positively that I did that. It was my view, ⁶²¹ at that time, and I still think it is the law, that, basically, the Grand Jury is privileged to hear anything except two witnesses at one time.

It is an investigative body and can hear and say anything. We are perfectly free to narrate or anything that we want to.” From all of the above Mrs. Bartram presents three arguments as a basis for dismissal of the indictment: (1) “[t]he statement of the prosecutor that a previous grand jury had indicted [Mrs. Bartram], but that the indictment had to be dismissed because of a ‘technicality’ was clearly improper”; (2) “[t]he recitation by the prosecutor of his own narration of the case was manifestly unlawful”; and (3) “[t]he conclusory statement by the prosecutor that this case ‘was either murder or a triple shot suicide’ was argumentative and an impermissible attempt to influence the grand jury.” The quoted arguments of Mrs. Bartram do not constitute an accurate statement of the facts as a review of that portion of the record which we have quoted will reveal. Aside from that, however, she loses sight of the fact that a grand jury is an accusatory body, not a trier of fact. Judge McSherry said for our predecessors in Blaney v. State, 74 Md. 153 , 21 A. 547 (1891): “However restricted the functions of grand juries may be elsewhere, we hold that in this State they have plenary inquisitorial powers, and may lawfully themselves, and upon their own motion, originate charges against offenders though no preliminary proceedings have been had before a magistrate, and though neither the court nor the State’s Attorney has laid the matter before them.

The peace, the government and the dignity of the State, the well-being of society and the security of the individual demand, that this ancient and important attribute of a grand jury should not be narrowed or interfered with when legitimately exerted. That it may in some instances be abused is ⁶²² no sufficient reason for denying its existence. Though far-reaching and seemingly arbitrary this power is at all times subordinate to the law, and experience has taught that it is one of the best means to preserve the good order of the Commonwealth and to bring the guilty to punishment. “Holding as we do that grand juries may, in this State, lawfully upon their own motion originate prosecutions against offenders, it is of no consequence how the case at bar was brought to their attention.” Id. at 156-57 . Most of this language was repeated with approval by Judge W. Mitchell Digges for the Court in the case entitled In re Report of Grand Jury, 152 Md. 616, 621-22 , 137 A. 370 (1927).

Our predecessors in Owens v. Owens, 81 Md. 518, 522 , 32 A. 247 (1895), in an opinion by Judge Boyd, refused to permit a grand jury foreman to be queried on cross-examination as to why a grand jury had dismissed a proceeding. The Court there quoted with approval from Elbin v. Wilson, 33 Md. 135 (1870). In the latter case the Court said that a trial judge “erred in requiring the witness, Elbin, to state whether, as grand juror, he did not endeavor to have the appellee indicted for perjury, or whether he did not furnish names of witnesses to the foreman to be summoned for that purpose.” Judge Robinson pointed out for the Court in Elbin “obvious reasons” for the rule relative to grand jury secrecy: ‘[F]irst, in order to secure the utmost freedom of deliberation on the part of the Grand Jury, and freedom of disclosure on the part of informers; secondly, to prevent the escape of the party should he know that proceedings were in train against him; and thirdly, to prevent the testimony before them from being contradicted at the trial before the traverse jury by subornation of perjury on the part of the accused. 1 Greenl. Ev. sec. 252.” 3 Id. at 144 . ⁶²³ The language in Mbm quoted in Owens was: “[A]ll the authorities concur in saying that the juror will not be permitted to state how any member voted, or the opinion expressed by his fellows or himself, or the individual action of any juror in regard to the subject-matter before them.

Com. v. Hill, 11 Cush. 137 .” Id. at 144. In Hooker v. State, 98 Md. 145, 156 , 56 A. 390 (1903), Judge Boyd said for the Court, “[W]e cannot sanction the practice adopted in some jurisdictions, and contended for in this case, of permitting the accused to call the members of the grand jury to impeach indictments returned by them, after they have become and continue to be part of the records of the Court.” Judge Henderson stated for the Court in Bernard v. Warden, House of Cor., 187 Md. 273, 279 , 49 A. 2d 737 (1946), “This Court has held that the competency of testimony before a Grand Jury will not be inquired into by the courts. Pick v. State, 143 Md. 192 , [196-97,] 121 A. 918 [(1923)].” 4 In Pick , cited in Bernard , our predecessors observed, “The law is well settled, that the competency of testimony before the grand jury will not be inquired into by the courts,” giving as their authority Holt v. United States, 218 U. S. 245 , 31 S. Ct. 2 , 54 L. Ed. 1021 (1910), and United States v. Swift, 186 F. 1002 (N.D. Ill. 1911). In Pick this Court quoted the language of the Supreme Court in Holt where.Mr. Justice Holmes said for that Court: “It is pressed with more earnestness that the court erred in not granting leave to withdraw the plea of Not Guilty, and to interpose a plea in abatement and motion to quash.

The ground on which leave was asked was an affidavit of the prisoner’s counsel that they had been informed by Captain Newton, of the Coast Artillery Corps, that ⁶²⁴ he testified before the grand jury to admissions by the prisoner, but that these admissions were obtained under circumstances that made them incompetent. The affidavit added that aside from the above testimony there was very little evidence against the accused. Without considering how far, if at all, the court is warranted in inquiring into the nature of the evidence on which a grand jury has acted, and how far, in case of such an inquiry, the discretion of the trial court is subject to review, United States v. Rosenburgh, 7 Wall. 580 , it is enough to say that there is no reason for reviewing it here. All that the affidavit disclosed was that evidence in its nature competent, but made incompetent by circumstances, had been considered along with the rest.

The abuses of criminal practice would be enhanced if indictments could be upset on such a ground. McGregor v. United States, 134 Fed. Rep. 187, 192, 430. Radford v. United States, 129 Fed. Rep. 49, 51. Chadwick v. United States, 141 Fed. Rep. 225, 235.” Id. 218 U. S. at 247-48 .

In Swift there was' a claim that incompetent evidence had been presented to a grand jury. Our predecessors in Pick quoted the first two paragraphs of the following: “The cases are uniform to the effect that, except in those states in which, by statute, indictments are required to be returned on ‘legal’ or ‘competent’ evidence, the courts will not review the evidence received by a grand jury for the purpose of passing upon its competency. In the first place, no official record of the evidence introduced before the grand jury ordinarily is kept. In the second place, if, on a motion to quash, the competency of the evidence presented could be inquired into, the trial courts would be obliged to sit as courts of review, to examine into the correctness of every ruling made upon the evidence by the grand jurors.

The obstructions to justice and the unnecessary and ⁶²⁵ uncalled- for waste of time, and consequent expense to the state as well as to defendants, which would result from such a course, are too obvious to need comment. “In addition to this, the grand jurors are laymen. They do not know, and cannot be expected to know, the technical rules of evidence; and while, no doubt, it is the duty of the prosecutor to give them such aid as he may in that respect, he has no control over them. As a matter of fact, under the common law, and in the state of Illinois, where the common law prevails, grand jurors are entitled to indict upon their personal knowledge, and upon their experience as men of affairs, upon what has transpired in the community with reference to the case under their investigation. They cannot be expected to know what evidence is or is not legally competent.

If, therefore, indictments are to be quashed because incompetent evidence was heard by the grand jury, the return of a true bill practically will become an impossibility. “The authorities cited by defendants, in which indictments were quashed because the accused was called before the grand jury and examined, or because private counsel was permitted to appear and address the grand jury, are not in point. In those cases the indictments were quashed, not because incompetent evidence was received, but because the proceedings of the grand jury were unconstitutional and unlawful. Clearly, if the grand jury were improperly impaneled, or if certain classes of persons unlawfully were excluded from serving thereon, the matter could be brought to the attention of the court, and disposed of, by a motion to quash the indictment. “The two propositions are radically different. It is one thing to quash an indictment because the accused, in violation of his constitutional right, is brought before the grand jury and browbeaten or ⁶²⁶ maltreated, or because private counsel is permitted to harangue the jurors, or because other like fundamental wrongs are permitted, and quite another thing to quash an indictment because a witness is asked concerning facts which mayhap do not tend to prove the charge which the grand jury is to inquire into.

The one reaches to the organization or fundamental power of the grand jury to act; the other, granting that the grand jury