State v. Aquilla

⁴⁸⁹ Orth, C. J., delivered the opinion of the Court. On 14 September 1970 the Grand Jurors for the State of Maryland, for the body of the City of Baltimore, returned two true bills against JOSEPH A. AQUILLA, 1 presenting in No. 5457 that he committed acts of misconduct during the conduct of his office of Clerk of the Municipal Court of Baltimore City, and in No. 5458 that he committed a larceny after trust. On 8 December 1972 Aquilla filed a motion to dismiss the indictments. The motion was heard in the Criminal Court of Baltimore on 18 December 1972 and on 18 January 1973 the court granted the motion.

The State appealed. State v. Hunter, 10 Md. App. 300 . The court below granted the motion to dismiss the indictments because it found that Special Assistant State’s Attorneys for Baltimore City were without authority for their participation in the examination of witnesses before the Grand Jury which returned the indictments. 2 The court erred. The motion was presented below on an agreed statement of facts: 3 “By letter dated October 21, 1969, Charles E. Moylan, Jr., then State’s Attorney requested ⁴⁹⁰ a Supreme Bench to deputize certain attorneys for the purpose of permitting said attorneys to ‘have access to the files, . . . and to interview witnesses before the Grand Jury.’ (Exhibit 1) 4 There were ten attorneys in all, one from each of the ten largest law firms in the city of Baltimore.

The services of each special attorney were offered and accepted free of any charge to the city or State, and each committed himself for approximately five to eight hours per week for the duration of the investigation. Among the ten who were deputized were the following persons: Herbert Better James Dausch of Weinberg and Green of Frank, Bernstein, Conaway and Goldman William Hylton Stanley Rohd of Semmes, Bowen and Semmes of Due, Whiteford, Taylor and Preston John Carroll Byrnes of Gordon, Feinblatt and Roth-man None of the above attorneys at any time received any remuneration from the City of Baltimore or the State of Maryland for their services rendered during the course of the Special Grand Jury investigation. They received none of the usual and normal benefits from the City or the State customarily or by law provided an attorney duly sworn as assistant to the State’s Attorney of Baltimore City. They were not answerable to the State’s Attorney for the various amounts of time which they voluntarily offered to expend on their special duties.

They were not answerable to the State’s Attorney for any and all time spent on tasks not related to the Special Grand Jury investigation even though such other tasks accounted for the majority of their productive work schedule. ⁴⁹¹ On November 10, 1969, a petition by Charles E. Moylan, Jr., then State’s Attorney for Baltimore City, was submitted to the Supreme Bench of Baltimore City requesting the said court to convene a Special Grand Jury to investigate alleged irregularities in the Traffic Division of the Municipal Court of Baltimore. On the same date a court order issued authorizing the convention of a special grand jury. The aforementioned petition and order are attached hereto as exhibit 2. 5 On November 13, 1969, the above named attorneys, except Mr. Hylton were sworn in as special assistant State’s attorneys, but each was given the oath of office which all regular assistants are given. On November 17, 1969, Mr. Hylton was sworn in, in the same manner as the aforementioned.

During the course of the investigation several regular and permanent assistant State’s attorneys were assigned to supervise the interviewing of witnesses, the perusal of all records and papers connected with the investigation, and the examination of witnesses actually appearing before the Grand Jury. The Special Assistants were primarily responsible for examining the files and interviewing witnesses prior to their testimony before the Grand Jury. The preliminary interviews were necessary to eliminate worthless knowledge or testimony and therefore conserve time and effort of the Special Grand Jury each time it sat. Everyone who testified before the Special Grand Jury gave his or her information to a Special Assistant first so that a determination could be made concerning the necessity for the witness to appear before the Grand Jury.

Approximately 280 different witnesses testified before the Special Grand Jury during the 62 sep ⁴⁹² arate days that the said Grand Jury was actually hearing testimony. Although the normal duties of the Special Assistants did not include taking witnesses into the Grand Jury, five Special Assistants did in fact participate in the examination of fifteen different witnesses during the course of six separate days. Mr. Dausch examined two witnesses and he appeared on two days. Mr. Better examined two and appeared on two days.

Mr. Hylton examined four and appeared on three days. Mr. Byrnes examined one and appeared on one day. Mr. Rohd examined six and appeared on three days. During the six days in which the Special Assistants actively participated before the Special Grand Jury, the testimony and investigation pertained to wrongful conduct of various attorneys, bondsmen, court clerks and judges of the Municipal Court.

The wrongful conduct included fixing tickets and specific persons were mentioned at times. On three of the six days referred to above, Mr. Aquilla was specifically mentioned and at times he was the focus of concern. On one of the three days when Mr. Aquilla was mentioned, Mr. Rohd personally examined four witnesses. Mr. Rohd at the time was employed and on loan to the State’s Attorney’s Office by the law firm of Due, Whiteford, Taylor and Preston.

Said law firm was composed of several attorneys among whom were W. Hamilton Whiteford, William B. White-ford, and Richard C. Whiteford. Mr. Charles White-ford at the time was employed by the Sun papers, and his articles on the alleged corruption of the Traffic Division of the Municipal Court were the impetus for the special investigation. Mr. Charles Whiteford is the brother of W. Hamilton Whiteford, and he is the uncle of William and Richard White-ford. No one was present during the actual deliberation of the Special Grand Jury except the sworn members of said body.” ⁴⁹³ I The office of State’s Attorney is constitutionally prescribed: “There shall be an Attorney for the State in each county, and the City of Baltimore, to be styled ‘The State’s Attorney’, who shall be elected by the voters thereof, respectively . . .

Constitution of Maryland, Art. V, § 7. “The State’s Attorney shall perform such duties ... as shall be prescribed by law . . . .” Id. § 9. In implementation of these constitutional provisions, Code, Art. 10, § 34 provides: “The State’s attorney for each county and the City of Baltimore shall, in such county or city, prosecute and defend, on the part of the State, all cases in which the State may be interested.” The office of State’s Attorney, being unknown at common law, is possessed of no other powers than those prescribed by the constitutions and statutes of the State, Kilgour v. Evening Star Co., 96 Md. 16 , Hawkins v. State, 81 Md. 306 , but these powers are nowhere enunciated and defined, Wells v. Price, 183 Md. 443, 446 . The Court of Appeals said, however, that State’s Attorneys are vested “with broad official discretion to institute and prosecute criminal causes . . . .” Brack v. Wells, 184 Md. 86, 90 . We traced the history of the office of the State’s Attorney in Maryland in footnote 5, pp. 305-307, State v. Hunter, supra, concluding that responsibility for prosecuting criminal cases at the trial level devolved upon the State’s Attorney by reason of his constitutional mandate as implemented by statute. “According to the generally prevailing opinion, the prosecuting officer may, and it is his duty as well as his privilege to, attend on the grand jurors with matters on which they are to pass, aid in the examination of witnesses, and give such general instructions as they may require.” 4 Wharton’s Criminal Law and Procedure, § 1716 (1957). 6 We stated in Maloney v. State, supra, at 615, that we were in accord with this prevailing opinion, and applied it in determining that case, where, in the circumstances, the Attorney General was the ⁴⁹⁴ prosecuting officer.

As a State’s Attorney is charged by the Legislature to prosecute criminal cases, and as he is vested with broad official discretion to institute and prosecute such cases, it is implicit in the constitutional provisions as implemented by the statute, that a State’s Attorney, as the prosecuting officer, has the right to attend on the grand jurors with matters on which they are to pass, aid in the examination of witnesses, and give such general instructions as they may require. As we observed in Maloney, at 615, without such concomitant authority to so present a case to a grand jury, the duty to initiate and prosecute a criminal action would be sterile indeed. We think it evident that a State’s Attorney generally may assign to his deputies and assistants the performance, subject to his discretion and control, of the duties required of him by law with respect to the institution and prosecution of criminal actions. Thus, the deputies and assistants may attend on the grand jurors at the assignment of the State’s Attorney.

This has been recognized by the Legislature. In authorizing from time to time the appointment of Deputy State’s Attorneys and Assistant State’s Attorneys for the various counties, 7 it has, as to certain counties, expressly provided that the deputies and assistants shall have the same legal powers as the State’s Attorney to represent the State before grand juries. We consider this to be no more than an expression of what is implicit in Code, Art. 10, § 34. The fact that the power is not explicitly given to some counties does not mean that the Deputy State’s Attorneys and Assistant State’s Attorneys of those counties may not be assigned the duty by the State’s Attorney of attending on the grand jurors and appearing in the trial of criminal proceedings. 8 ⁴⁹⁵ II Having determined that duly appointed Deputy State’s Attorneys and Assistant State’s Attorneys as well as State’s Attorneys may attend on grand jurors, we consider the Assistant State’s Attorneys whose authority to do so is here challenged.

Although they were styled Special Assistant State’s Attorneys, they took the oath of office which all regular Assistant State’s Attorneys are given. We think they enjoyed a status sufficiently comparable with other Assistant State’s Attorneys for Baltimore City to enable the State’s Attorney to assign them the duty of attending on the grand jurors investigating the alleged irregularities in the Traffic Division of the former Municipal Court of Baltimore City. It is apparent that they were appointed by the State’s Attorney for Baltimore City under the authorization and with the approval of the Supreme Bench of Baltimore City pursuant to the Maryland Constitution. In the letter from the State’s Attorney seeking the authorization and approval of the Supreme Bench for the appointments, it was made clear that ⁴⁹⁶ the duties of the Assistants would include interviewing witnesses before the Grand Jury.

We think it immaterial with respect to their attendance on the grand jurors that they were not paid by the City or State for their services or that they did not spend full time on their prosecutorial duties and were not answerable to the State’s Attorney for time spent on duties not assigned by him. As far as the constitutional and statutory provisions with respect to the office of State’s Attorney are concerned, we think that the activities carried out by the Special Assistants before the Grand Jury were not proscribed. Ill The court below was of the opinion that Coblentz v. State, 164 Md. 558 was dispositive of the motion to dismiss. We do not see Coblentz that way.

Emory L. Coblentz was convicted on a charge that, as president of a banking institution, he had accepted a deposit of money when the institution was, to his knowledge, insolvent. A plea in abatement to the indictment was filed. It alleged: “The Central Trust Company had purchased on June 30th, 1931, assets of the Washington Trust Company, situated in Ellicott City, and had assumed the liabilities to its depositors. On November 28th, 1931, after the Central Company had been taken in charge by the bank commissioner as receiver, a proceeding was filed by Jerome A. Loughran and others, as attorneys for the Washington Company and certain of its depositors and stockholders, seeking to have the transaction set aside and annulled upon a charge of fraud; that on March 2nd, 1932, a bill of complaint in equity was filed by Mr. Loughran and others, making charges substantially the same as those contained in the indictments returned on February 29th, 1932, two days earlier; that Mr. Loughran was private attorney of the Washington Company, and not a member of the grand jury, but was permitted to be with ⁴⁹⁷ the grand jury, while it was conducting its inquiry and investigation, by an illegal order of court appointing him (Mr. Loughran) ‘special assistant counsel for the State of Maryland,’ to aid in the inquiry and examination into the subject-matter of the indictments; and finally, that Mr. Loughran, privately employed as stated, did hear, see, and ascertain the proceedings of the grand jury in connection with the indictments, except at the time of the grand jury’s vote, all to the prejudice and detriment of the defendant.” There was a demurrer to the plea on the grounds that the presence of the attorney under the circumstances described in the plea would not be sufficient to invalidate the indictment, and that the plea was filed too late.

The demurrer was sustained. Coblentz was tried under the indictment and convicted. The Court of Appeals reversed the judgment. On appeal the question here relevant was “the effect on an indictment of the presence with the grand jury, during their inquiry prior to taking their vote, of an attorney who represented plaintiffs in civil litigation against the banking institution.” The Court of Appeals first concluded that the plea in abatement was properly filed and then found that it was error to sustain the demurrer to it.

As we construe the opinion of the Court, the primary reason for reversing the judgment was that the appointment of the lawyer as a “special assistant counsel for the State of Maryland” was illegal. It thought that two statutory provisions determined the legality of the order of appointment, Code,