Piracci v. State

Henderson, J., delivered the opinion of the Court. These appeals are from judgments and sentences in each case of a year in jail for Piracci, to run consecutively, suspended upon payment of a fine of $2,000 and costs in each case. These cases arose out of alleged irregularities in connection with the authorization and construction of a parking garage at Hanover and Redwood Streets, in Baltimore City, one of the projects mentioned in Jones v. State, 207 Md. 481 , just decided. In No. 162, Piracci was charged in two counts with conspiring with one Ashley and others, to obstruct justice by altering and falsifying certain records of the Piracci Construction Co., Inc., for portions of the years 1951, 1952 and 1953, which he had been summoned to produce before the Grand Jury.

In No. 163, Piracci and Piracci Construction Co., Inc. were charged in three counts with conspiring with Haar, Winik and Baltimore Garages, Inc., to fraudulently obtain from the City $42,966 “by means of divers false pretenses and representations, and other false, subtle means and devices”. In both cases the appellants elected a jury trial, but in No. 163, the defendants other than Piracci and Piracci Construction Co., Inc., elected a court trial, and there was a severance. In each of the instant cases the appellants filed a petition for removal, which whs denied. The correctness of that ruling is the only question argued in No. 162, and the brief in that case combines argument on ⁵⁰⁷ the point with argument on the similar point raised in No. 163.

Presentments in both cases were returned on October 21, 1953, and indictments were filed on October 30, 1953. Motions to dismiss both indictments were filed on December 18, 1953, on the ground, among others, that an undue amount of publicity had been given the Grand Jury proceedings, resulting in undue pressure and influence upon the Grand Jurors and in a violation of the rule of secrecy. In overruling these motions on January 19, 1954, the trial judge considered exhibits that summarized the publicity up to that date. A trial schedule was then arranged.

The case' against Haar, Winik and Baltimore Garages, Inc. was heard by the court and concluded on March 18, 1954, with a verdict of guilty. The trial of Piracci and Piracci Construction Co., Inc., No. 163, began on March 19. A petition for removal was filed on that date. The case resulted in a verdict of guilty on April 1.

The trial of Piracci on the obstruction of justice charge, No. 162, began on April 5, and a petition for removal was filed on that date. The petition for removal in No. 163 alleged that a public controversy over the Rivoli Theater project, in which Piracci was concerned, had begun in June, 1953, developed into a Grand Jury investigation, and culminated in a number of indictments, all of which had been extensively publicized, almost daily over a period of nine months, with comments “suggestive, if not accusative, of improper or unlawful dealings in connection with the said Off-Street Parking Program”. It was further alleged that the verdict of guilty in the case against Haar and Winik had been announced on the previous day, accompanied by an oral opinion reviewing the evidence in some detail and determining that these defendants had conspired to defraud the City; “that the conclusions to be drawn by the public and prospective Jurors in these circumstances are necessarily and inescapably harmful and prejudicial to these Petitioners”. The State did not file any specific pleading traversing the allega ⁵⁰⁸ tions, but expressed its opposition to the removal and counsel were heard in argument.

The court declined to postpone the hearing, as requested, to enable, the petitioners to prepare exhibits covering newspaper clippings over the previous nine months. The court said: “it is clear that until yesterday no petition was filed and counsel did not regard the factors that were to be considered as sufficient grounds to justify them in praying for removal. The change which has taken place by reason of yesterday’s proceedings does not seem to us to be sufficient to make this petition reasonable or not unreasonable. We feel that the [decision of the] Court of Appeals in the Newton case which has been cited is very close to the point here, and our decision follows that.” The petition in No. 162 alleged that the publicity concerning the convictions in No. 163, and the previous case against Haar and Winik, made it impossible for the petitioners to obtain a fair trial.

Again, there was no answer filed by the State, but the court heard argument and examined the exhibits submitted.' However, the petition in this case, as in No. 163, was not filed until the case was actually called for trial. We do not suggest that the petitions were not timely, but the lateness of their filing explains the State’s failure to file formal pleadings. Except in capital cases, the right of removal is not absolute, but is controlled by Art. IV, Sec. 8 of the Maryland Constitution as amended by Ch. 364, Acts of 1874, ratified in November, 1875. This section provides that in addition to a suggestion that the accused cannot have a fair and impartial trial in the court in which the case is pending, “it shall be necessary for the party making such suggestion to make it satisfactorily appear to the Court that such suggestion is true, or that there is reasonable ground for the same ;***.” We may assume, without deciding, that in a proper case the court might properly grant a removal upon a finding that there was reasonable ground for the suggestion, even if the court ⁵⁰⁹ did not believe that the petition established beyond question that a fair and impartial trial could not be had.

Cf. Lee v. State, 161 Md. 430, 442 . But in either case the burden of persuasion is upon the party making the suggestion. Here the trial court, assuming the truth of the facts alleged as distinguished from the conclusions to be drawn therefrom, found that there was not reasonable ground for the suggestion.

The appellants contend that this is a factual issue, not addressed to the discretion of the trial court. The argument runs counter to the holdings in a long line of Maryland cases. In the leading case of Downs v. State, 111 Md. 241, 248 , the court said: “As it is now necessary to make it satisfactorily appear to the Court in which the suggestion is made that the party charged in the presentment or indictment is entitled to the order for removal, and as no other tribunal can determine ■when it does so appear to that Court, it follows as a logical conclusion that in the absence of evidence to show that the Court below acted arbitrarily and abused or refused to exercise the discretion given it by the amendment, this Court cannot say that the removal should or should not have been granted, and can only affirm the action of the lower Court.” See also Tidewater Port. Cement Co. v. State, 122 Md. 96, 100 ; Alters v. State, 144 Md. 75, 78 ; Newton v. State, 147 Md. 71, 77 ; Lee v. State, supra, 433; Jones v. State, 185 Md. 481, 485 ; Auchincloss v. State, 200 Md. 310, 314 ; Larch v. State, 201 Md. 52, 55 ; Heslop v. State, 202 Md. 123, 126 ; Wanzer v. State, 202 Md. 601, 607 .

We adhere to the views expressed in these cases, which recognize, of course, that the action of the trial court is reviewable to determine whether there has been an abuse of discretion. The appellants stress the fact that the State did not file any pleading in reply to the petitions for removal, citing Jones v. State, supra ( 185 Md. 481 ). In that case it was stated that the court could not ignore or summarily dismiss a petition for removal, and that in the absence of an answer its allegations must be taken as ⁵¹⁰ true. . The case was remanded in order that the State might traverse the facts alleged in the petition and the court determine the truth or falsity of the allegations.

It may be noted, however, that the allegations of the petition in that case, as in Lee v. State, supra, related to mob actions and racial prejudice, and were not confined to publicity, as such. We are not prepared to hold that the State’s failure to reply in the instant case, if a procedural error, was a reversible one. The State did not contest the fact that the publications had been made as represented, but argued that the situation did not call for the action requested. Nor are we prepared to hold that the court’s refusal to postpone the case, to permit the assembly of clippings covering the publications over the previous nine months, was an abuse of discretion under the circumstances.

Matters of continuance are ordinarily within the discretion of the trial judge. Cf. Laque v. State, 207 Md. 242 . It does not appear that the court was not aware of, or failed to .give consideration to, the nature and extent of the newspaper comments.

The court had previously considered exhibits covering the period up to January 19, 1954, and a sampling of the clippings in the record indicates that the publicity reached its peak with an announcement on October 22, 1958, of a “Fraud Conspiracy is Charged to Piracci.” The petition in No. 163 was based primarily on the announcement of the verdict in the Haar and Winik case on the previous day. The petition did not allege that that verdict or the opinion filed, had been falsely represented, but merely that the verdict and findings “have been and will continue to be reported and headlined in the widely circulated newspapers of this City”. Of course, the court was aware of its own announced verdict and findings. It based its refusal on the case of Newton v. State, supra.

As was said in that case (p. 76) : “If the traverser’s contention is sound, then in nearly every case in which two or more persons are jointly indicted for the same joint offense, and where there is a sever ⁵¹¹ anee for any reason, and one of the defendants has been tried and convicted, the untried case against the others must be removed as a matter of course, because all the judges and all persons eligible for jury service in that jurisdiction would be so much affected by the conviction in the first case that they would be unable to fairly and impartially try the other cases. Such a contention in our opinion goes too far.” It was held that there was no abuse of discretion under the circumstances. To the same effect, see Lockhart v. State, 145 Md. 602, 612 . We find no abuse of discretion in denying the petitions for removal in the instant case.

The publicity here was of a less sensational character than that set out in Baltimore Radio Show, Inc. v. State, 193 Md. 300, 308 , et seq. What was said in Downs v. State, supra (p. 250), is apposite here: “We have examined these clippings from the newspapers and do not find in them conclusive evidence of the existence of such an intense public prejudice against the accused as would enable this Court to say that the Court below abused the discretion given it in refusing to grant a removal of the case. They do show that great publicity was given to the appellant’s supposed connection with the larceny of the City’s money, but it does not necessarily follow that by reason thereof there existed such a prejudice against the accused as to render it impossible for him to secure a fair and impartial trial in Baltimore City. Crimes of the nature of the one with which the appellant is charged naturally give rise to much newspaper and other comment, but such comment does not always arouse such a general prejudice against the accused as to render it impossible for him to secure a fair trial * * *.” In Grammer v. State, 203 Md. 200, 209 , it was said: “We think the appellant attributes to the undoubtedly very extensive public knowledge of and interest in the case and its component facts a prejudice which can neither be shown nor fairly and reasonably be assumed to have existed. * * * The newspaper accounts give no hint of anger, of hatred, or of intense resentment in the community, ⁵¹² such as exists when a child or woman is atrociously molested or raped, or there has been a series of such incidents or there is a racial element which has aroused abiding prejudice or passion in the public.” In the instant case the publicity indicated a continuing public interest in an alleged crime affecting the public funds and the development of off-street parking facilities.

But each juror who served was closely questioned on the voir dire concerning the publicity given the case and declared that it would not affect his verdict, a fact which was stressed in Newton v. State, supra. In No. 163, the appellants contend that the court erred in overruling the motion to dismiss the indictment. The only contention here pressed relates to the conduct of Hyman Pressman, who appeared before the Grand Jury, and the conduct of certain newspaper reporters who are alleged to have invaded the privacy of the Grand Jury. As we have noted, the presentment was returned by the Grand Jury on October 21, 1953, and the indictment followed on October 30.

On or about October 26, 1953, Pressman, a lawyer who had been active in charging irregularities in the off-street parking projects, and had filed certain civil suits in connection therewith, made public demand to appear before the Grand Jury, by a letter and telegram to that body and by letters addressed to the City calling for an appropriation to finance a further investigation, which were published in the press. The Grand Jury invited him to appear, and he did so. In support of the motion to dismiss, the appellants made a proffer to prove these facts, which the court overruled. In denying the motion the court said: “The letter and telegram do not indicate that he [Pressman] was going to address the Grand Jury or express views about matters on which presentments had already been filed, but I think it is fair to the defendants to assume that in. view of his previous activities he would not be sparing in expressing his views on those indictments too.

Does that invalidate them? It is perfectly clear that he was invited by the Grand Jury to appear as the result of his letter, ⁵¹³ and that the Grand Jury had the right to hear him or refuse to hear him. It is also clear that a private person has a right to address the Grand Jury, and that the Grand Jury may act at the instance of a private prosecutor.” Since the court assumed the truth of the facts, as distinguished from the conclusions of law, alleged in the motion and the proffer in support of the motion, we find no error in the rejection of the proffer. The appellants urge that Pressman’s conduct, as set out in the motion and proffer, was such an interference with the Grand Jury procedure as to invalidate the indictment.

We do not agree. The appellants rely strongly upon Coblentz v. State, 164 Md. 558 . There an attorney who was representing plaintiffs in civil litigation against a bank, was present as a “special assistant counsel for the State” during the entire presentation to a grand jury of the matter of the possible criminal consequences of the actions of the bank’s officers. He was not there as a witness, but was present while others testified.

It was held that he had no right to be present, in his capacity of special assistant counsel for the State, and hence his unlawful presence violated the rule of secrecy in Grand Jury proceedings, from which outsiders must be excluded, even though it is not shown that through their presence they exerted, or attempted to exert, pressure upon that body. But the case is readily distinguishable. Pressman was not present during the testimony of other witnesses. He was invited to appear after the presentment had been filed, and the Grand Jury had charged the appellants with specific acts amounting, in its judgment, to a violation of the criminal law.

Except for the subsequent indorsement of “A True Bill” upon the indictment prepared by the State’s Attorney, the Grand Jury had completed its action on the case. In re Report of Grand Jury, 152 Md. 616, 622 . Presumably the Grand Jury wanted to learn what Pressman knew about other claimed irregularities in connection with off-street parking. But if we assume that he was interrogated about the pending case, it does not follow that this was a viola ⁵¹⁴ tion of the rule of secrecy.

In Brack v. Wells, 184 Md. 86 , it was held that any citizen who claims to have knowledge tending to show the commission of crimes has a right to ask permission to appear before the Grand Jury. In the instant case permission was granted. It is true that in the Brack case it was stated that the citizen should first exhaust his remedy before the magistrate and State’s Attorney, as was done in that case, but the amplification of the opinion on that point was made because of the representation of the Attorney General that an unlimited right of recourse might interfere with the orderly administration of justice, not because of any doubt as to the right of the Grand Jury to interrogate whom it pleased. The appellants rely upon the case of People v. Parker, 374 Ill. 524 , 30 N. E. 2d 11 , cert. den. 313 U. S. 560 , holding that a citizen attempting to communicate with the Grand Jury is in contempt, where he has not first imparted his information to the State’s Attorney, and, if that official refuses to act, made a complaint before a magistrate.

This case was distinguished in Brack v. Wells, supra, and criticism of the case was cited. In the instant case, prior to the hearing of the motion to dismiss, Pressman had been held not in contempt by the same trial judge who heard the motion. But even if we assume, without deciding, that Pressman’s previous conduct was contemptuous, it would not follow that the Grand Jury was precluded from inviting him to appear, in the exercise of its common law inquisitory and investigatory powers. Cf.

Brack v. Wells, supra (pp. 93, 96). In regard to the conduct of newspaper reporters, the motion alleged that they stationed themselves in the ante-room and observed and identified all persons who entered or left, publicized the appearance and departure of many, and reported the time witnesses spent in the room. It was not alleged that any reporter entered the Grand Jury room, or eavesdropped upon its proceedings or deliberations. We find no merit in the suggestion that their conduct constituted a “constructive presence” in ⁵¹⁵ the Grand Jury room.

Close coverage of a case of public interest is not enough to vitiate an indictment, even if persisted in to the point of contempt. It may be that the reporters could have been excluded from the court house precincts if their conduct interfered with the orderly exercise of the Grand Jury’s function, but here there is no evidence that such an order was passed or sought. The appellants made a proffer of testimony by certain reporters that they were sometimes informed, by persons undisclosed, of happenings within the room and of the persons who were to be presented before presentments were filed. We find no error in the denial of the proffer.

As the trial court indicated, the fact that some persons may have talked too freely, and even laid themselves open to contempt proceedings, would not vitiate the indictment. As we have indicated, the rule