State v. Ensor and Compton

Smith, J., delivered the opinion of the Court. We granted certiorari in this case “limited solely to the question whether the Assistant Attorney General appearing before the Grand Jury of Baltimore City which returned the indictments in this case was lawfully qualified as a Special Assistant State’s Attorney of Baltimore City and therefore authorized to appear before the Grand Jury . . ..” We conclude that he was, thus mandating a reversal of the decision of the Court of Special Appeals in State v. Ensor and Compton, 27 Md. App. 670 , 342 A. 2d 1 (1975), which affirmed the determination of a trial judge (Grady, J.) in the Criminal Court of Baltimore that he was not lawfully qualified to appear. As a result of that determination their motion to dismiss the indictments was granted. Appellees, Ralph E. Ensor (Ensor) and Charles Edward Phelps Compton (Compton), were indicted by the Grand Jury of Baltimore City on March 29, 1974.

A total of 13 indictments were handed down. One indictment charged both men with conspiracy to violate the false pretense laws. Six indictments were returned against each of them charging acts of forgery and attempts to obtain money under false pretenses. All of the charges arose out of alleged alterations made in change orders in connection with State construction contracts.

The facts are succinctly stated in the opinion of Judge Grady: “The following facts relevant to the Motion are not in dispute. The indictments against the defendants were returned by the Grand Jury for Baltimore City on March 29, 1974. Evidence leading to these indictments was presented to the Grand Jury at various times starting on February 1, 1974. Mr. [Arrie W.] Davis appeared before the Grand Jury during the presentation of this evidence on February 1, 1974, and on several other occasions ⁵³² before March 29, 1974.

Before, during and after the period of February 1, 1974, to March 29, 1974, Mr. Davis was an Assistant Attorney General of Maryland. The Attorney General of Maryland was not directed by the Governor of Maryland to assist the State’s Attorney for Baltimore City in prosecuting any of the matters which are the subject of the indictments in question. On February 1, 1974,’before a Judge of the Criminal Court of Baltimore and before his first Grand Jury appearance Mr. Davis was administered the oath of office given an Assistant State’s Attorney in Baltimore City and was sworn in as a Special Assistant State’s Attorney. There is no claim that Mr. Davis was present during any deliberations or voting by the Grand Jury.

There is no claim that Mr. Davis’ presence before the Grand Jury resulted in any actual prejudice to the defendants.” The record as to Davis’ appointment is not as precise as one might prefer. No written order appointing him appears in the record. Apparently, it is not the custom of the Criminal Court of Baltimore to keep minutes of all its proceedings as is done in some of the trial courts of the State. A Deputy State’s Attorney for Baltimore City testified that on the morning of February 1, 1974, when he entered his office he was presented by the State’s Attorney with a letter to the Chief Judge of the Supreme Bench of Baltimore City.

He was instructed to see that Davis was “sworn in as a special prosecutor” on that day. The deputy concluded that the request should not go to the Chief Judge of the Supreme Bench. Instead, he said he appeared in Part I of the Criminal Court of Baltimore and requested the judge then presiding “in accordance with [Maryland Code (1957, 1973 Repl. Vol.)] Article 26, Section 11, that Mr. Arrie Davis be appointed as an Assistant State’s Attorney to assist in the prosecution of a criminal case.” He stated that he specifically remembered asking the court reporter to make a record of the proceedings since there was no letter being presented to the court, only a verbal request of the State’s ⁵³³ attorney.

The judge then presiding, according to the testimony, “instructed the [deputy] Clerk of the [Criminal] Court [of Baltimore] ... to administer the oath of office to Mr. Davis in accordance with the request of the State’s Attorney.. . . [T]hat was done. [The deputy State’s attorney] was a witness to it.” 1 No one seems to have been able to produce the transcript of the proceedings relative to this appointment and the administration of the oath. The facts as related by the deputy State’s attorney are not disputed, however. Relying upon Coblentz v. State, 164 Md. 558 , 166 A. 45 (1933), and citing Maryland Constitution Art. IV, §§ 3 and 9, counsel for Ensor and Compton moved to dismiss the indictment. We shall discuss Coblentz in more detail later.

There our predecessors, in an opinion by Chief Judge Bond, held that an indictment was invalidated by the presence of an unauthorized person in the grand jury room during the inquiry leading up to the indictment, regardless of whether this presence was shown to have injured the defendant. Constitution Art. V, § 3 provides in pertinent part relative to the duties of the Attorney General: “[W]hen required by the Governor or General Assembly, 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 General Assembly, or the Governor, acting according to law, shall direct to be commenced, prosecuted or defended ... .” It is conceded that neither the Governor nor the General Assembly “required” or “directed” the Attorney General to intervene in this matter. 2 ⁵³⁴ In reaching his conclusion the trial judge relied upon Johnson v. Duke, 180 Md. 434 , 24 A. 2d 304 (1942). As Judge Grady put it: “The Court there referred to two constitutional provisions. Article II, Sections 11-13, set forth certain procedures to be followed ‘in the case of any vacancy ... in any office which the Governor has power to fill . . ..’ Article IV, Sections 42-43, set forth the procedure by which the Governor was to fill a vacancy in the office of justice of the peace.

The issue before the Court concerned the validity of the Governor’s action in appointing two justices of the peace to fill vacancies. At page 440 the Court said: ‘It is an elementary rule of interpretation that effect should be given, if possible, to every section and clause of a written Constitution; and where there is a special provision in conflict with a general provision, the special provision should be given effect to the extent of its scope, leaving the general provision to control in cases where the special provision does not apply. Manly v. State, 7 Md. 135, 147 ; People v. Field, 66 Colo. 367 , 181 P. 526 ; 11 Am. Jur., Constitutional Law, Sec. 55; 16 C.J.S., Constitutional Law, Sec. 25.’ The Court concluded that the special provision governing appointment to a vacancy in the office of justices of the peace took precedence over the general provision governing appointment to a vacancy ‘in any office which the Governor has power to fill.’ ” He said that “[t]he situation here presented . . . raise[d] the question of whether the presence of a single person before the Grand Jury can be both authorized and unauthorized at ⁵³⁵ one and the same time.” He “conclude[d] that Mr. Davis’ acquisition of general prosecutorial authority as an Assistant State’s Attorney did not validate his presence before the Grand Jury which was considering the indictments against these defendants,” and thus “under the inflexible rule adopted in Coblentz the Defendants’ Motion to Dismiss the Indictments must be granted.” He went on, however, to examine Constitution Art. V, § 9 which we shall discuss in greater detail, said that “[i]n [his] opinion [that section] requires the State’s Attorney to obtain the authorization of the Supreme Bench for the number of assistants deemed by the State’s Attorney to be necessary in the discharge of the duties of his office, but does not require the Bench to approve the individuals whom the State’s Attorney selects to fill the authorized positions,” found “no compelling reason for the Supreme Bench to approve individually the person whom the State’s Attorney selects to fill an authorized position,” said that “there [was] no showing that the position to which Mr. Davis was appointed was not an authorized position,” and that “[i]n the absence of such a showing the validity of Mr. Davis’ appointment remained] uncompromised and the Defendants’ contention that Mr. Davis was not authorized to appear before the Grand Jury ha[d] not been proven.” Therefore, he “f[ound] the other grounds upon which the Motion to Dismiss [was] based to be without merit.” The Court of Special Appeals based its decision upon Constitution Art. V, § 9 which states in pertinent part: “The State’s Attorney shall perform such duties and receive such salary as shall be prescribed by law; . . . provided, 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 and until otherwise provided by the General Assembly, the said State’s Attorney, Deputy and Assistants shall receive the following annual salaries: State’s Attorney, seven thousand five hundred dollars; Deputy State’s Attorney, five ⁵³⁶ thousand dollars; Assistant State’s Attorneys, four thousand dollars each; said salaries, or such salaries as the General Assembly may subsequently provide, and such expenses for conducting the office of the State’s Attorney as the Supreme Bench of Baltimore City may authorize or approve shall be paid by the Mayor and City Council of Baltimore to the extent that the total of them exceeds the fees of his office, or as the General Assembly shall otherwise provide, and the Mayor and City Council of Baltimore shall not be liable for appearance fees to the State’s Attorney.” 3 The Court of Special Appeals said in its opinion: “In our opinion, the facts do not show that Mr. Davis qualified as an Assistant State’s Attorney. ⁵³⁷ The facts show only that earlier in the first day of his participation in the proceedings of the grand jury, Mr. Davis appeared before a single judge of the Supreme Bench and took an oath of office as an Assistant State’s Attorney.

The oath was a nullity, unless his appointment had first been approved as required by the Constitution, Art. V, § 9. There is nothing in the record to show that his appointment was approved by the Supreme Bench of Baltimore City, either as a specific individual, or as an authorized position on the staff of the State’s Attorney. Action by the Supreme Bench was required — action by a single member did not suffice. “Under the Constitution Mr. Davis could have been authorized to participate in the proceedings of the grand jury of Baltimore City, either as an Assistant Attorney General or as an Assistant State’s Attorney. Qualification as either would have been enough.

Authorization in one capacity would not be nullified by lack of authorization in the other. But on the facts in this case he had no authority in any capacity. His participation invalidated the indictments.” Id. 679-80 of 27 Md. App. The language in Constitution Art. V, § 3 relative to the duty of the Attorney General to aid State’s attorneys in prosecutions “when required by the Governor or General Assembly” is as that provision was reported to the floor of the Constitutional Convention of 1867 by the Committee on the Attorney General. See Proceedings Maryland State Convention of 1867, 117 and P. Perlman, Debates of Maryland Constitutional Convention of 1867 (1923) 145-46.

The debates on Article V are recorded by Perlman at pages 204-12. If any of them touched on an interpretation of this language it is not recorded by Perlman. This particular provision of the Constitution was virtually the same, if not the same, as that found in the Constitution of 1864. It came to the Convention floor in that form in the report of the ⁵³⁸ Committee on State’s Attorney.

See Proceedings Maryland Constitutional Convention of 1864, 501 and Debates Maryland Constitutional Convention of 1864, 1330. The latter record reflects at 1464 an effort to strike out of the proposed article that portion which required the Attorney General to give opinions to the State’s attorneys. No recorded debate reflects upon an interpretation of this provision, however. Likewise, no interpretation of this particular provision is found in the discussion of this section by A. Niles, Maryland Constitutional Law (1915) 290-92.

We agree with the conclusion of the Court of Special Appeals that had Davis been qualified to appear before the grand jury in one capacity that qualification would not be nullified by lack of authorization in the other. We see the provision of Constitution Art. V, § 3 as susceptible of an inference that the framers of the Constitution intended to do two things: to assure that a possibly recalcitrant Attorney General would aid and assist a State’s attorney who sought assistance, and to bar the Attorney General from going off on an investigation of his own in any particular county, in possible conflict with the elected State’s attorney of the county, unless this action was first authorized by the Governor as the head of the excutive branch or the General Assembly as the legislative branch of the State. Although to avoid the very question we now have before us the Attorney General and the State’s attorney would have been much wiser to have sought prior authorization for participation in this matter, we do not regard that failure as barring the appearance of Davis before the grand jury under the facts and circumstances of this case. Constitution Art. V, § 9 is not applicable to this case for the simple reason that the appointment here was not made by the State’s attorney, but by the judge presiding in the Criminal Court of Baltimore, Part I, pursuant to a request that he appoint counsel under Art. 26, § ll. 4 ⁵³⁹ Art. 26, § 11 was repealed by Chapter 2 of the Acts of the first special session of 1973 effective January 1, 1974.

Accordingly, it was not in effect at the time of the appointment of Davis, having been supplanted by another section which we shall discuss. Immediately prior to its repeal it read: “The circuit courts for the several counties and the Criminal Court of Baltimore may appoint assistant counsel for the State, to aid in the trial of criminal or other State cases in said courts, whenever in the judgment of the court in which any such case is pending public interest requires it.” It had but one amendment between 1886 and 1973. That was the amendment by § 4 of Chapter 558 of the Acts of 1963 which eliminated the provision that “the said courts may likewise appoint counsel to defend any person in the trial of any criminal case in said courts whenever in the judgment of the court in which any such case is pending a just regard for the rights of the accused requires it.” 5 It was this statute, prior to its amendment in 1963, which was before the Court in Coblentz . Coblentz was tried and 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.

An individual who was the private attorney for certain persons challenging on the grounds of fraud the purchase by the bank with which Coblentz was connected of one with which they had formerly been connected was alleged to have been “with the grand jury, while it was conducting its inquiry and investigation, by an ... order of court appointing him .. . ‘special assistant counsel for the State of Maryland,’ to aid in the inquiry and examination into the subject-matter of the indictments . . . .” It was claimed that he “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 ⁵⁴⁰ the defendant.” The presence of this attorney was challenged both on the basis of the claim that he was improperly appointed as well as the fact that a conflict of interest was created. Chief Judge Bond in the opinion for the Court first referred to what was then Code (1924) Art. 10, § 27 (now, without change, Code (1957) Art. 10, § 41) which states: “Whenever it shall become necessary from the absence, sickness, resignation or death of any State’s attorney, the several courts of this State shall have power to appoint some competent person to perform the duties of State’s attorney in conducting criminal or civil cases depending in such court until a State’s attorney shall be appointed and qualify, or be able to attend and act in person, as the case may be, and the person so appointed shall receive the same compensation as the State’s attorney.” He observed that § 27 could not be involved “because there was no absence, death, or disability of the state’s attorney regularly serving, and it does not fit the description of the order passed.” He said that it was Art. 26, § 7 that provided for the appointment of assistant counsel for the State “to aid in the trial of criminal or other State cases ... whenever in the judgment of the court in which any such case is pending public interest requires it.” He stated that § 7 “would make it legal for the court to appoint assistant counsel in a pending case to aid in the trial; but in [the Court’s] opinion appointment under its authority could give the appointee none of the power of a state’s attorney to enter and be present in the room with the grand jury while they are investigating a case with a view to possible indictment.” Therefore, if the appointment in this case had been made under the provisions of Art. 26, § 11 as it existed up until December 31, 1973, we would be obliged to conclude that the holding in Coblentz is controlling, mandating dismissal of the indictment. The statute in effect on February 1, 1974, the date of the ⁵⁴¹ appointment of Davis, was Code (1974) § 2-102 (a) Courts and Judicial Proceedings Article which provides: “(a) In general. — If advisable in a specific proceeding, a court may appoint an auditor, surveyor, court reporter, assistant counsel for the state, counsel for a party if authorized by law or rule, accountant, master, examiner, or other officer, and may require his presence in court.” It supplanted Art. 26, § 11. In Stack v. Marney, 252 Md. 43 , 248 A. 2d 880 (1969), Judge Barnes said for the Court: “It is well settled that in determining the legislative intent it will be presumed that the General Assembly is aware of previous construction of particular statutory language by this Court and if in a subsequent reenactment of the statute, the General Assembly uses the same language already construed by this Court, it intends that the same language in the reenacting legislation have the meaning we have given it.

Maryland-National Capital Park and Planning Comm’n v. Silkor Development Corp., 246 Md. 516, 524 , 229 A. 2d 135, 140 (1967); St. Joseph Hospital v. Quinn, 241 Md. 371, 379 , 216 A. 2d 732, 736 (1966).” Id. at 49. Here, however, the same language was not used. In Bureau of Mines v. George’s Creek, 272 Md. 143 , 321 A. 2d 748 (1974), Chief Judge Murphy said for the Court: “[I]t is well settled that because ‘the principal function of a Code is to reorganize the statutes and state them in simpler form, changes are presumed to be for the purpose of clarity rather than for a change in meaning.’ Welsh v. Kuntz, 196 Md. 86, 97 , 75 A. 2d 343 (1950). Even a change in the phraseology of a statute in a codification will not as a general rule modify the law, unless the change is so radical or material that the intention of the Legislature to modify the law appears ⁵⁴² unmistakably from the language of the Code.

Welch v. Humphrey, 200 Md. 410, 417 , 90 A. 2d 686 (1952).” Id. at 155. In this instance the change was radical and material. The intention of the General Assembly to modify the law appears unmistakably from the language of the section and from the revisor’s note which states: “This section is new language, and allows a court to appoint temporary officers when necessary for the conduct of a specific proceeding. Although several frequent appointments are listed, a blanket provision is included rather than attempting to list all possible appointments to avoid an ‘inclusio unius est exclusio alterius’ construction. “This section is based on Article IV, § 9 of the Constitution which grants judges broad authority to appoint personnel and on a number of statutes and rules which provide for such appointments.” The note then goes on to refer to a number of sections pertaining to various offices including Art. 26, § 11, which was proposed for repeal.

Therefore, we must examine the meaning of the term “specific proceeding” to ascertain whether it has the same meaning for purposes of this case as “aid in the trial of criminal ... cases in said courts,” as used in the former law. In Hale v. Henkel, 201 U. S. 43 , 26 S. Ct. 370 , 50 L. Ed. 652 (1906), the Court had before it a proceeding which had been begun as a habeas corpus action to test the legality of the imprisonment of Hale pursuant to a court order adjudging him guilty of contempt for failure to produce certain documents and writings and answer certain questions before a grand jury. The inquiry proceeded under the antitrust laws. Hale had invoked the self-incrimination provisions of the Fifth Amendment.

The Court said: “The answer to this is found in a proviso to the General Appropriation Act of February 25, 1903, 32 Stat. 854 , 904, that ‘no person shall be prosecuted or ⁵⁴³ be subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit, or prosecution under said acts/ of which the Anti Trust Law is one, providing, however, that ‘no person so testifying shall be exempt from prosecution or punishment for perjury committed in so testifying/ “While there may be some doubt whether the examination of witnesses before a grand jury is a suit or prosecution, we have no doubt that it is a ‘proceeding1 within the meaning of this proviso. The word should receive as wide a construction as is necessary to protect the witness in his disclosures, whenever such disclosures are made in pursuance of a judicial inquiry, whether such inquiry be instituted by a grand jury, or upon the trial of an indictment found by them. The word ‘proceeding’ is not a technical one, and is aptly used by courts to designate an inquiry before a grand jury. It has received this interpretation in a number of cases.

Yates v. The Queen, 14 Q.B.D. 648 [(1885)]; Hogan v. State, 30 Wisconsin, 428 [(1872)].”Id. at 66. That case was reported in the trial court as In Re Hale, 139 F. 496 (Cir. Ct. S.D. N.Y. 1905). Relative to this contention the trial judge had reasoned; “The argument that a proceeding before a grand jury is not such a proceeding as is meant by the provision has been ingeniously presented, and is not without plausibility. But the word ‘proceeding’ is a broad term, and was apparently intended to include some form of judicial inquiry other than a ‘suit or prosecution.’ In one sense it is true a criminal proceeding is not instituted against an