State v. Ensor and Compton

Powers, J., delivered the opinion of the Court. This appeal by the State brings up for review an order entered by Judge J. Harold Grady in the Criminal Court of Baltimore dismissing a series of indictments against the appellees. The grand jury of Baltimore City, on 29 March 1974, returned six indictments each against Ralph E. Ensor and Charles Edward Phelps Compton, 1 charging acts of forgery and attempts to obtain money under false pretenses. One of ⁶⁷² the total of thirteen indictments charged both men with conspiracy to violate the false pretense laws.

The charges arose out of alleged alterations made in change orders in connection with State construction contracts. A motion to suppress certain evidence and a motion to dismiss all of the indictments were filed by the defendants below. After full evidentiary hearings on both motions, Judge Grady filed a memorandum and order granting, in part, the motion of the defendants for suppression, and filed a memorandum and order dismissing all of the indictments. Both orders were dated 6 November, and both were filed on 7 November 1974.

The State filed an appeal from both orders of the court. The appellees, in their brief, urge that the order of the trial judge dismissing the indictments was correct, and further argue, not only that the order of the trial judge granting their motion to suppress evidence was correct, but that the suppression order is not reviewable in this appeal. The defendants below filed a cross appeal, asserting error in certain findings and conclusions of the judge which were adverse to them. In its brief as cross appellee, the State moved to dismiss the cross appeal on the ground that the cross appellants’ brief raises issues not raised or decided below, and because it refers to facts which are not part of the record on appeal.

We are persuaded that the order dismissing the indictments was correct and must be affirmed. This view of the case makes it unnecessary to consider or rule upon any other issues raised. The entire case turns on whether there was participation of an unauthorized person in the proceedings of the grand jury which returned the indictments. There can be no doubt that it is the law in Maryland that such participation invalidates an indictment or indictments returned by the grand jury in those proceedings.

Applicability of that law has been considered in two recent decisions of this Court, Maloney v. State, 17 Md. App. 609 , 304 A. 2d 260 , cert. denied, 269 Md. 761 , 762, 767 (1973), and State v. Aquilla, 18 Md. App. 487 , 309 A. 2d 44 , cert. denied, 269 Md. 755 (1973). ⁶⁷³ In Maloney there were motions to dismiss the indictments, grounded upon the appearance of two Assistant Attorneys General before the grand jury of Charles County which returned the indictments. In our opinion in that case Chief Judge Orth, speaking for the Court, said, at 614-16: “The powers and duties of the Attorney General prescribed in Art. V, § 3 of the Constitution of Maryland include that ‘ * * * when required by the Governor * * *, he shall aid any State’s Attorney in prosecuting any suit or action brought by the State in any Court of this State, and he shall commence and prosecute or defend any suit or action in any of said Courts, on the part of the State, which * * * the Governor, acting according to law, shall direct to be commenced, prosecuted or defended * * *.’ The Governor, acting explicitly under this constitutional authority, directed the Attorney General, by a written, definitive request, to commence and prosecute any action appropriate to the matter of the alleged overpayment in State and County funds to school bus contractors in Charles County, and to aid the State’s Attorney for Charles County in any such action brought by the State. It is apparent that the investigation conducted by the Attorney General, through the two assistants, indicated that crimes had been committed. We find it to be clearly within the ambit of the constitutional provision that the authority of the Attorney General to ‘commence’ an action includes his presence to attend the grand jury to aid in the examination of witnesses and advise on questions of law.

Without this concomitant authority, the mandate to ‘commence and prosecute’ any action which the Governor shall direct ‘to be commenced and prosecuted’ would be sterile indeed. We refuse to construe the constitutional provisions requiring the Attorney General to commence and prosecute an action so narrowly as to preclude him from presenting the case to a grand jury. Under the ⁶⁷⁴ constitutional provisions the Attorney General became the prosecuting officer in the cases before us. We are in accord with the generally prevailing opinion that the prosecuting officer may, and it is his duty as well as his privilege, 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, without, however, being present while the grand jury is deliberating on the evidence or voting on a matter under investigation. 4 Wharton’s Criminal Law and Procedure, § 1716 (1957).

See Grand Jury, 38 Am. Jur. 2d §§ 34-35; People v. Zara, 255 N.Y.S.2d 43 (1964). Because the Attorney General was authorized to so appear before the grand jurors, Borgerding and Eichhorn could so appear. As we have concluded that the appearance of the Assistant Attorneys General before the Grand Jury for Charles County was authorized, their presence and participation had no adverse effect on the indictments returned.

We hold that the court below did not err in denying the motions to dismiss the indictments. “Both of the Assistant Attorneys General, before attending the grand jurors, were appointed Special Assistant State’s Attorneys for Charles County and were administered the oath of that office. In view of our holding that their appearance before the Grand Jury as Assistant Attorneys General was authorized, we have no need to reach the question whether they were also so authorized in the capacity of Special Assistant State’s Attorneys. We take the view that appointments of them as Special Assistant State’s Attorneys were immaterial, and did not, in any event, render their appearance as Assistant Attorneys General improper.” In State v. Aquilla, supra, we were called upon to consider the effect upon indictments returned by the grand jury of ⁶⁷⁵ Baltimore City, of appearances before the grand jury by individuals whose sole authority to appear was derived from their having been appointed and sworn in as unpaid Special Assistant State’s Attorneys for Baltimore City. The Constitution of Maryland, Art. V, § 9, contains the special provision, not applicable in the counties, that “ * * * the State’s Attorney for Baltimore City shall have the power to appoint a Deputy and such other Assistants as the Supreme Bench of Baltimore City may authorize or approve * * In that case, we said, at 494: “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.” We further said, at 495-96: “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 ⁶⁷⁶ State’s Attorney seeking the authorization and approval of the Supreme Bench for the appointments, it was made clear that 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.” The lower court order dismissing the indictments in Aquilla , reversed by us on appeal, had been required, as the trial judge saw it, by the case of Coblentz v. State, 164 Md. 558 , 166 A. 45 (1933). In the opinion for this Court in Aquilla Chief Judge Orth, speaking of Coblentz , said, at 498: “But it is crystal clear that the nub of the decision was that the lawyer’s appointment as a special assistant was deemed illegal, and therefore his presence before the grand jury was unauthorized.

It is on this predicate that the Court, at [164 Md.] 568, quoted with approval Latham v. United States (C.C.A.), 226 Fed. 420 , 424: 'The right of the citizen to an investigation by a grand jury pursuant to the law of the land is invaded by the participation of an • unauthorized person in such proceedings, be that participation great or small. It is not necessary that participation should be corrupt, or that unfair means were used. If the person participating was unauthorized, it was unlawful.’ ” ⁶⁷⁷