Chester v. State

Menchine, J., delivered the opinion of the Court. Paul L. Chester (appellant), an elected Clerk of the Court of Common Pleas, went to trial before a jury in the Criminal Court of Baltimore under indictment 17401949 (Rasin, J., specially assigned, presiding). Initiated as a three count indictment, the State entered a nolle prosequi as to the second count prior to commencement of trial. At the conclusion of the State’s evidence a Motion for Judgment of Acquittal as to the third count was granted.

The jury convicted under the first count and the appellant was sentenced to fine and imprisonment. ⁵⁹⁵ On appeal, appellant makes the following contentions: “I. The Special Prosecutor Was Appointed Illegally.

II

Denial Of Access To Grand Jury Minutes Was Unwarranted.

III

The Evidence Was Insufficient To Support A Charge Of Malfeasance In Office.

IV

Submission Of Count One To The Jury After Dismissal Of Counts Two And Three Was Error.” I. The Prosecutor On November 27, 1974, the State’s Attorney of Baltimore City filed a petition requesting the court to appoint “an Assistant State’s Attorney” pursuant to the Annotated Code of Maryland, Courts and Judicial Proceedings Article, § 2-102. On the same date twelve judges then assigned to and serving in the twelve parts of the Criminal Court of Baltimore, by joint order appointed John Henry Lewin, Jr., Esquire, as “Assistant Counsel for the State for the purpose of prosecuting the [Chester] case with full powers authorized under the laws of Maryland.” Under the signature of each of the said judges there was typed “JUDGE CRIMINAL COURT OF BALTIMORE.” Appellant contends that Mr. Lewin’s appointment and subsequent service as assistant counsel for the State constituted reversible error. He maintains: (a) that appointment to such an office must be made by the Supreme Bench of Baltimore City — not by the Criminal Court of Baltimore; (b) that the failure to accord him notice and hearing prior to the appointment denied him due process under the Maryland and United States Constitutions; (c) that an order passed by the Chief Judge of the Court of Appeals on November 22, 1974 designating 1 the Honorable George B. Rasin, Jr. (who was not a signatory to the ⁵⁹⁶ appointment order) to preside as the trial judge in the case, operated to deprive the other judges of the Criminal Court of the power to appoint assistant counsel in that case; and (d) that Mr. Lewin was qualified to act as assistant counsel for the State only during the regime of the Honorable Milton B. Allen as State’s Attorney, his authority terminating as a matter of law with the qualification of the successor State’s Attorney. (a) The Appointment The case of State v. Ensor and Compton, 277 Md. 529 , 356 A. 2d 259 , is dispositive of this contention.

The judges of the Criminal Court of Baltimore possessed the power to appoint assistant counsel for the State. (b) Due Process One accused of crime has no constitutional right to notice or hearing upon the question of who shall prosecute the case against him, when the assigned prosecutor regularly was appointed pursuant to a valid general law. (c) The Designation of Judge Rasin The designation of Judge Rasin in pertinent part authorized him “.. . to sit, either alone or with one or more other Judges, as a Judge of the Supreme Bench of Baltimore City assigned to the Criminal Court of Baltimore in the case of State of Maryland v. Paul L. Chester....” The order of designation neither diminished the powers of the other judges assigned to the Criminal Court of Baltimore nor limited essential judicial action in the case exclusively to Judge Rasin. (d) Duration of the Appointment The appointment of Mr. Lewin was stated to be “for the purpose of prosecuting the [Chester] case with full powers authorized under the laws of Maryland.” The statute authorizing passage of that order plainly intended the powers of such an appointee to extend through the completion of the assigned duty.

The fact that a change in ⁵⁹⁷ the office of the State’s Attorney occurred subsequent to the passage of the court order in no way attenuated its legal effect. Grand Jury Minutes On June 11, 1975, approximately four weeks prior to the commencement of trial, counsel for appellant filed a Motion for Disclosure of Grand Jury Minutes. The motion, after asserting that such Minutes were “needed for the purposes of impeaching and/or testing the credibility of key prosecution witnesses,” alleged: (a) that “all the testimony bearing on the alleged unlawful acts will be concerning numerous private meetings and conversations over many months”; (b) “That from the posture of the case it is rather obvious that such key prosecution witnesses have already committed perjury”; and (c) “That a ‘particularized need’ for disclosure has been shown, as more fully set forth in the accompanying Memorandum of Law.” 2 In Silbert v. State, 12 Md. App. 516 , 280 A. 2d 55 (1971), cert. den. 263 Md. 720 ,Chief Judge Murphy (now Chief Judge of the Court of Appeals of Maryland) for this Court collected and discussed the cases dealing with the circumstances under which grand jury transcripts will be required to be disclosed to an accused. After pointing out that a “particularized need” must be demonstrated before access to grand jury minutes may be had, Judge Murphy declared that the issue “is one of fact to be decided in each case; there is and can be no general test.” Id. at 523, 280 A. 2d at 60 .

We shall examine the record to determine whether a “particularized need” has been shown. It appears from the record that the State, pursuant to an order of the trial judge, filed in the proceedings a bill of particulars of the first count of the indictment reading in pertinent part as follows: “1. The names of those persons whom the State contends were the subjects of Defendant’s attempt ⁵⁹⁸ to coerce and intimidate are: Roland Keller, Peggy J. Washington, Patricia Bertorelli, John Wankmiller, Francis Sherry, Randall Carroll, Arthur Sindler, Nicholas Possidente, Lolita Fales, Genevieve Salfner, John Henry Winkler and Krystal Marie Garner Halloway. 2. The circumstances under which the State contends that Defendant engaged in the conduct and acts charged are a meeting held at approximately 4 p.m. on January 11, 1974 in his office on the first floor of the Courthouse at which time Defendant made some of the statements which are described generally in the State’s Answer to Item 2 of Defendant’s Motion for Discovery.” Moreover, the record shows that upon application of the appellant, the trial judge, inter alia, required the State (a) to furnish the names and addresses of the witnesses against him whom the State intended to call to prove its case in chief; 3 (b) to furnish the defendant with the substance of the alleged oral statements attributed to the defendant; 4 and (c) to furnish the defendant with all evidence whether verbal or written which is exculpatory in nature. 5 It was manifest that all of the witnesses disclosed in the State’s bill of particulars and in the State’s answer to the discovery motion were available for interviews by the appellant prior to trial.

There is no substantial departure by the witnesses from the particularization of the events as recited in the State’s bill of particulars, or answer to Motion for Discovery. The witnesses at trial were sequestered. Extensive cross-examination produced neither substantial ⁵⁹⁹ conflict in the testimony of any witness individually nor substantial disagreement in the totality of the testimony of all witnesses inter sese. No witnesses were called in behalf of the appellant.

In sum, the evidence of what was said and done by the appellant is without contradiction. Claim to a “particularized need” requires delineation of the facts tending to support the contention. Something more must be shown than mere surmise or speculation that the testimony of a witness at trial may be inconsistent with his testimony before the grand jury. In the subject case no factual base supporting the claim has been shown.

In such circumstances, what we said in Grimm v. State, 6 Md. App. 321, 331-32 , 251 A. 2d 230, 236-37 (1969), cert. den. 255 Md. 741 (1969), U. S. cert. den. 397 U. S. 1001 (1970), is particularly applicable here: “Finally, appellant contends that the trial court erred in denying his motion for the production of the Grand Jury testimony of Sergeant Louis Roemer. The contention appears based on the proposition that Roemer’s testimony at trial revealed that he was the only witness who testified before the Grand Jury and that his testimony was insufficient to justify the indictment. Appellant claims that he was therefore seriously prejudiced by his inability to impeach Roemer at the trial through use of his testimony before the Grand Jury. “It is the well settled rule that the competency of testimony before the Grand Jury will not be inquired into by the courts and the alleged insufficiency of such evidence is no ground to dismiss an indictment. Costello v. United States, 350 U. S. 359 ; Pick v. State, 143 Md. 192 ; Wilson v. State, 4 Md. App. 192 .

Equally well settled is the proposition that there is no absolute right to inspect the testimony of a witness before a Grand Jury. Dennis v. United States, 384 U. S. 855 ; Pittsburgh Plate Glass Company v. United States, 360 U. S. ⁶⁰⁰ 395. At the very most, Dennis makes clear that it is only upon a showing of a ‘particularized need’ that an accused might be entitled in a proper case to such disclosure. See Wilson v. State, supra (Footnote 10), and Chesley v. State, 3 Md. App. 588 (Footnote 7).

We think the trial judge was entirely correct when, in denying appellant’s motion, he said: ‘* * * there is no showing in this case of any particularized need nor anything about this case that would bring it within the exception. If this defendant is entitled to a transcript of the Grand Jury proceedings then I cannot think of any criminal cases, be it felony or misdemeanor, where a defendant could not obtain the Grand Jury testimony, and that is not the law of Maryland.’ ” See also: Sutton v. State, 25 Md. App. 309 , 334 A. 2d 126 (1975). We perceive no error.

III

Sufficiency of the Evidence There was evidence from which the jury could find: That Paul Chester, elected Clerk of the Court of Common Pleas, in January 1974 called a meeting of the clerical staff of his office in room 140 of the Court House in Baltimore City. After preliminary comments about office policy respecting absenteeism and tardiness, he advised the group that he was running for re-election; that he intended to win the election and that he expected his employees to purchase $150 worth of tickets for a political fund raising affair. He indicated disappointment with his employees’ response to an earlier fund raising attempt and declared that he would not be undermined from within. He terminated the meeting with a statement to the effect that he would be in office after the next election and that if the clerks did not cooperate they would not be, and declared that an earlier ⁶⁰¹ memorandum that he circulated to the employees indicating that nothing would happen to the clerical staff by reason of the forthcoming election “was strictly for the press, television and radio.” Appellant contends that an essential element of the offense charged is a showing that the misconduct of a public officer related solely to the conduct of official matters or interfered with the administration of his public duties and responsibilities.

From this premise he argues that where “no direct interference with public duties has been proven, even if the conduct in question constitutes criminal behavior, the public official, albeit responsible for his acts, has not, however, committed the crime of malfeasance.” His principal reliance for that position stems from the decision of the Superior Court of Pennsylvania in the case of Commonwealth v. Blatstein, 332 A. 2d 510 (1974), wherein the Court said at 515: “In order to show misconduct in office, it is not sufficient to show that Blatstein solicited or even accepted a bribe. The commonwealth must demonstrate that Blatstein followed the course of conduct which the bribe sought to secure. As Professor Perkins has said: ‘The corrupt receipt of a bribe by an officer, for example, is criminal misconduct of one while in office, but such a recipient is clearly not acting in the exercise of the duties of his office, nor is this wrongful act under color of his office, and bribery has always been recognized as a separate offense. In fact, if an officer corruptly receives a bribe and then corruptly does what he has been bribed to do, he is guilty of both bribery and misconduct in office.’ (Emphasis added.) R. Perkins, Criminal Law 482 (1969).

Since proof of solicitation of a bribe does not necessarily entail proof of misconduct in office, the Commonwealth had to show that Blatstein acted upon his offer to Sherry in advising the committee. ⁶⁰² In failing to do so, which the Commonwealth virtually admitted at trial, it failed to prove that Blatstein was guilty of misconduct in office. The Commonwealth having failed in its proof of this necessary, additional element, the lower court erred when it dismissed appellant’s motion in arrest of judgment on the indictment charging malfeasance, misfeasance and nonfeasance in office.” A quite different view of the offense was taken in Wallace v. State, 211 A. 2d 845 (S. Ct. Del., 1965), wherein the Court said at 850-51: “The crime of malfeasance in office is intended to deter public officers acting in their official capacities from committing corrupt and unlawful acts in disregard of the high standard of integrity to which such officers are held by virtue of the fiduciary nature of their duties. To hold, as the defendant contends, that there was no evidence of malfeasance in this case simply because there was no evidence of wrongful performance of a required official act, i. e., the casting of a vote, would be to take an unduly narrow view of malfeasance in office. Sufficient evidence to support a charge of malfeasance is presented when it is shown that the defendant has committed an unlawful act and such act may affect or is connected with his official duties.

State ex rel. Martin v. Burnquist, 141 Minn. 308 , 170 N. W. 201, 609 (1918); State ex rel. v. Ward, 163 Tenn. 265 , 43 S.W.2d 217 (1931).” The late Judge Ogle Marbury, speaking for the Court of Appeals of Maryland, in State v. Carter, 200 Md. 255 , 89 A. 2d 586 (1952), discussed in considerable depth the common law offense of misconduct in office, in the course of which he said at 262, et seq. [589]: “The indictment in this case is captioned: ‘Malfeasance in Office’, but as the Court of Appeals of Georgia has well said in a similar situation: ‘ * * * it is well established by numerous decisions ⁶⁰³ of the Supreme Court and this court that the name of a crime given in an indictment does not determine the offense alleged to have been committed by the accused, but the offense is determined by the facts stated in the indictment.’ Cargile v. State. 67 Ga. App. 610 , 21 S. E. 2d 326, 327 . Nearly one hundred years ago (1855), the Supreme Judicial Court of Massachusetts announced the following definitions, with its authority therefor: ‘Nonfeasance is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do; and malfeasance is the doing of an act which a person ought not to do at all. 2 Inst.

Cler. 107. 2 Dane Ab. 482.1 Chit. Pl. (6th Amer. ed.) 151. 1 Chit. Gen.

Pract. 9.’ Bell v. Josselyn, 69 Mass. 309, 311 , 3 Gray 309 , 311. These are the definitions which, with some enlargement, seem to run through all of the text books and cases. See Words and Phrases, Permanent Edition, Vol. 26, p. 139, et seq., Title, Malfeasance, and Vol. 28, p. 722, et seq., Title, Nonfeasance, and the numerous cases cited which make the same distinction. In Webster’s International Dictionary, 2nd Edition, malfeasance is defined as: ‘The doing of an act which a person ought not to do; evil conduct; an illegal deed; — often used of official misconduct or an instance of it.’ Misfeasance is defined as: ‘The doing wrongfully and injuriously of an act which a person might do in a lawful manner; the doing of a lawful act in an unlawful manner, or the wrongful and injurious exercise of lawful authority.’ The State contends that malfeasance carries with it the connotations of wilfulness, evil intent or motive, and corruption, and cites a number of cases to support this view, but all of these cases contain in one form or another the definitions above mentioned.

Carlisle v. Burke, 82 Misc. 282 , 144 N. Y. S. 163, 164. State, ex rel. Knabb v. Frater, 198 Wash. 675 , 89 Pac. 2d 1046 . Lucas v. Central Missouri Trust Co., 350 Mo. 593 , ⁶⁰⁴ 166 S. W. 2d 1053, 1056 .

State v. Bolitho, 103 N. J. L. 246, 136 A. 164, 172 . State, ex rel. Hardie v. Coleman, 115 Fla. 119 , 155 So. 129 , 92 A. L. R. 988. It is undoubtedly true that the doing by a public official of an act which he ought not to do carries with it some measure of wilfulness and bad intent, and may be induced by corrupt motive, but these are only necessary or probable accompaniments.

They may also accompany the doing of a lawful act unlawfully, which is misfeasance. The test seems to be in the nature of the act, and not in the motive by which it is done. “The cases in this court do not always call misconduct in office by either one of the two terms, malfeasance or