In re Criminal Investigation No. 51,843

HARRELL, Judge. On 9 December 1996 appellees Jeffrey Gilbert (“Gilbert”), David Randall, Eddie Jones, Dana Williams, Jermaine May-hew, Carlos Marshall, Yolanda Hamlet, Jason Mobley, Steve McAbee, Jerry Swint, Eloise Jones, Tamara Marshall, Jerry Vance, and John Williams (the latter referred to collectively hereinafter as the “Randall appellees”) filed motions in the Circuit Court for Prince George’s County, pursuant to Maryland Rule 4-642(c), seeking the disclosure of all testimony and evidence presented to Grand Jury Number 51,843, which had been convened to investigate the shooting death of Prince George’s County Police Officer John Novabilski. The court held a hearing on the motions on 26 February 1997. On 27 February 1997 the court ordered the State’s Attorney for Prince George’s County to disclose the transcript of testimony of all witnesses testifying before that grand jury.

The State of Maryland and Prince George’s County, Maryland (“the County”) then filed this timely appeal. ISSUE One issue is presented for our consideration, which we have rephrased: Did the trial court abuse its discretion in ordering the disclosure of all the grand jury testimony? FACTS On 26 April 1995, Prince George’s County Police Officer John Novabilski was murdered. Within a day of the murder, the Randall appellees were arrested, transported to a police station, and questioned about appellee Gilbert’s role in Sgt.

Novabilski’s death. After Mr. Gilbert’s arrest, the Randall ¹¹⁶ appellees were released. Shortly thereafter, Grand Jury Number 51,843 was convened to review the evidence and consider an' indictment against Mr. Gilbert. On 2 June 1995, however, the police dropped all charges against Mr. Gilbert when evidence was discovered that Ralph McLean committed Sgt.

Novabilski’s murder. Mr. Gilbert filed a civil action against several individual police officers, the County, and the City of Greenbelt, alleging that his federal and state constitutional rights had been violated because the police lacked probable cause to arrest him and used excessive force during the arrest. The Randall appellees also filed a civil action alleging civil rights violations. Both actions are now pending in the United States District Court for the District of Maryland, Southern Division.

At the time the instant case was before the circuit court, Mr. Gilbert’s civil damages suit had been stayed pending resolution of a federal criminal investigation, and no discovery had been conducted. Discovery in the Randall appellees’ federal case had just begun. At the motions hearing on 26 February 1997 the Randall appellees sought disclosure of all the grand jury transcripts, arguing that the disclosure of the grand jury testimony was essential to their civil claims. Access to the grand jury testimony, they asserted, would enable them to learn material facts relevant to their civil claims, was the most reliable evidence available as to what occurred in April 1995, and was necessary to identify the police officers involved.

Appellee Gilbert added that the grand jury testimony would show that he was arrested without probable cause and that the need for the grand jury testimony was heightened because memories of witnesses would fade due to the amount of time that had passed since the incident. The State and County argued that appellees were on a fishing expedition, that they had not demonstrated a particularized need for disclosure, and that their motion to disclose was premature given the status of the civil cases. ¹¹⁷ After considering the arguments for and against disclosure, the trial court took the matter under advisement and, the following day, 27 February, ordered the State to disclose the transcript of testimony of all witnesses who appeared before the grand jury. DISCUSSION Secrecy of grand jury proceedings is essential to the proper functioning of the criminal justice system. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 , 99 S.Ct. 1667, 1672 , 60 L.Ed.2d 156 (1979).

Preserving grand jury secrecy serves several purposes: First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.

In re Criminal Investigation No. 437, 316 Md. 66, 76-77 , 557 A.2d 235 (1989) (quoting Douglas Oil, 441 U.S. at 219 , 99 S.Ct. at 1673 ). Sometimes, however, disclosure of grand jury materials will promote justice. In re Criminal Investigation No. 437, 316 Md. at 79 , 557 A.2d 235 (citing Dennis v. United States, 384 U.S. 855, 870 , 86 S.Ct. 1840, 1849 , 16 L.Ed.2d 973 (1966)). The Maryland Rules provide for disclosure of grand jury materials when necessary.

Maryland Rule 4-642 states: (a) Court Records. — Files and records of the court pertaining to criminal investigations shall be sealed and shall be open to inspection only by order of the court. ¹¹⁸ (c) Motion for Disclosure. — Unless disclosure of matters occurring before the grand jury is permitted by law without court authorization, a motion for disclosure of such matters shall be filed in the circuit court where a grand jury convened---- [T]he moving party shali serve a copy of the motion upon the State’s Attorney, the parties to the judicial proceeding if disclosure is sought in connection with such a proceeding, and such other persons as the court may direct. The court shall conduct a hearing if requested within 15 days after service of the motion. Thus, to obtain grand jury materials, the court must order the disclosure. Rule 4-642, however, does not offer or suggest a standard for the trial court to follow when deciding to issue a disclosure order.

In re Criminal Investigation No. 137, 316 Md. at 81 , 557 A.2d 235 . The Court of Appeals has filled this void by holding that “when a court order for disclosure is requested, there must be a strong showing of a ‘particularized need’ before disclosure is permitted.” Id. at 82 , 557 A.2d 235 . See also United States v. John Doe, Inc. I, 481 U.S. 102, 112 , 107 S.Ct. 1656, 1662 , 95 L.Ed.2d 94 (1987); United States v. Sells Engineering, 463 U.S. 418, 443-445 , 103 S.Ct. 3133, 3148-3149 , 77 L.Ed.2d 743 (1983); Illinois v. Abbott & Associates, Inc., 460 U.S. 557, 567 , 103 S.Ct. 1356, 1361 , 75 L.Ed.2d 281 (1983); Douglas Oil, 441 U.S. at 221 , 99 S.Ct. at 1674 ; Dennis, 384 U.S. at 870 , 86 S.Ct. at 1849 ; Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 , 79 S.Ct. 1237, 1241 , 3 L.Ed.2d 1323 (1959); United States v. Procter & Gamble, 356 U.S. 677, 683 , 78 S.Ct. 983, 987 , 2 L.Ed.2d 1077 (1958). The Court of Appeals has also provided the standard movants must meet in order for the court to order disclosure of grand jury material: Parties seeking a court order for disclosure under Md. Rule 4-642(c) must show that: 1) the material they seek is needed to avoid a possible injustice; and ¹¹⁹ 2) the need for disclosure is greater than the need for continued secrecy; and 3) their request is structured to cover only material so needed.

In re Criminal Investigation No. 437, 316 Md. at 85 , 557 A.2d 235 . This showing of particularized need must be made even when the grand jury has concluded. Id. at 85 , 557 A.2d 235 (citing Douglas Oil, 441 U.S. at 222 , 99 S.Ct. at 1674 ), Although reduced, the considerations supporting grand jury secrecy do not disappear the moment the grand jury concludes: “For in considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties.

Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties. Concern as to the future consequences of frank and full testimony is heightened where the witness is an employee of a company under investigation. Thus, the interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities.” In re Criminal Investigation No. 437, 316 Md. at 85-86 , 557 A.2d 235 (quoting Douglas Oil, 441 U.S. at 222 , 99 S.Ct. at 1674 ) Because “ ‘disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy,’ a balancing is invoked.” In re Criminal Investigation No. 437, 316 Md. at 86 , 557 A.2d 235 (quoting Douglas Oil, 441 U.S. at 223 , 99 S.Ct. at 1675 ). The burden of demonstrating that the need for disclosure outweighs the public interest in secrecy is on the party seeking disclosure.

As the reasons for preserving grand jury become less weighty, the party seeking ¹²⁰ disclosure will have a lesser burden in showing need. In re Criminal Investigation No. 437, 316 Md. at 86 , 557 A.2d 235 (citing Douglas Oil, 441 U.S. at 223 , 99 S.Ct. at 1675 ). Thus, the trial court must consider the circumstances of each case in balancing the interests and deciding whether to order disclosure. The trial court has wide discretion in deciding whether the party seeking disclosure has met the burden of demonstrating that the need for disclosure outweighs the need for secrecy.

In re Criminal Investigation No. 437, 316 Md. at 88-89 , 557 A.2d 235 (citing Pittsburgh Plate Glass, 360 U.S. at 399 , 79 S.Ct. at 1240 ). As the Court of Appeals noted, “a court called upon to determine whether grand jury transcripts should be released necessarily is infused with substantial discretion.” In re Criminal Investigation No. 437, 316 Md. at 89 , 557 A.2d 235 (citing Douglas Oil, 441 U.S. at 223 , 99 S.Ct. at 1675 ). Appellate courts define the term “abuse of discretion” in many different ways: [Abuse of discretion] has been said to occur “where no reasonable person would take the view adopted by the [trial] court,” or when the court acts “without reference to any guiding rules or principles.” It has also been said to exist when the ruling under consideration “appears to have been made on untenable grounds,” when the ruling is “clearly against the logic and effect of facts and inferences before the court,” when the ruling is “clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result,” when the ruling is “violative of fact and logic,” or when it constitutes an “untenable judicial act that defies reason and works and injustice.” North v. North, 102 Md.App. 1, 13-14 , 648 A.2d 1025 (1994) (citations omitted). These definitions all “express the notion that a ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling.” Id. at 14 , 648 A.2d 1025 . ¹²¹ We must evaluate the trial court’s decision “ ‘from the standpoint of the soundness of the exercise of discretion.’ ” Thodos v. Bland, 75 Md.App. 700, 712 , 542 A.2d 1307 (1988) (quoting Ogburn v. State, 71 Md.App. 496, 509 , 526 A.2d 614 (1987)).

This means that when the consequences of a particular exercise of discretion are clear, i.e., one result is clearly unjust and the other, clearly not, the limits of the exercise of discretion are narrow. On the other hand, when the consequences are not so clear, i.e., no result is clearly just or unjust, the limits of the exercise of discretion are considerably broader. Indeed, in the latter situation, we will not find an abuse of discretion whichever way the trial court may choose to exercise discretion. Id. at 712, 542 A.2d 1307 (citing Ogbum, 71 Md.App. at 510 , 526 A.2d 614 ).

We now apply these standards to the issue before the Court. Appellants argue that the trial court abused its discretion in ordering disclosure of the grand jury testimony because appellees failed to show that a particularized need existed. As the Court of Appeals stated in In re Criminal Investigation No. 437: In the light of all we have discussed concerning the grand jury process, we approach the determination whether the trial court erred in ordering disclosure and authorizing the letter of transmittal with the following givens: 1) Secrecy is inherent in the grand jury system. 2) The general rule of secrecy may be breached by an order of court pursuant to Md. Rule 4-642(c). 3) Disclosure of grand jury proceedings vel non is within the sound discretion of the trial judge. The trial judge is to be guided by the following principles in the exercise of his discretion: a) The party seeking disclosure by an order of court must show a particularized need for breaching the general rule of secrecy. ¹²² b) The standard for the particularized need requirement is: i) the material sought to be disclosed is needed to avoid a possible injustice; and ii) the need for disclosure is greater than the need for continued secrecy; and iii) the request to disclose covers only materials so needed.

The standard for the particularized need requirement involves a balancing. The standard is a criterion of degree; it accommodates any relevant considerations that weigh for or against disclosure in a given case. Generally, among the considerations which may be placed on the scale are 1) the need to protect the unindicted individual from disclosure; 2) the grand jury has concluded its operations; 3) the particularized need requirement applies to civil governmental agencies as well as to