State v. Holton

HARRELL, J., concurring and dissenting, in which ADKINS, J., joins. The indictment in the present case alleges that Councilwoman Helen L. Holton (“Holton” or “Respondent”) accepted the in-kind value of a campaign poll, valued at $12,500, in exchange for her favorable votes benefitting the actual payor’s interest in two Baltimore City Council (“the Council”) real property development bills. The evidence presented to the grand jury included evidence of Holton’s votes related to the bills. The questions presented for our consideration involve whether legislative immunity extends to local legislators, either through interpretation of the Maryland Constitution’s version of the Speech and Debate Clause, Md. Const.

Art. Ill, § 18, 1 or Maryland Code (1974, 2006 Repl. Vol.), Courts and Judicial Proceedings (“C.J.”) Article, § 5-501. 2 In my view, the Majority Opinion concludes properly that § 5-501 applies to disallow the use in criminal prosecutions of evidence of legislative acts against local legislators. After laying out in some detail why dismissal of an indictment is not a favored remedy, however, the Majority Opinion concludes (unjustifiably) that “[t]he case at bar presents a rare exception to the general rule that suppression of inadmissible evidence, rather than dismissal of the indictment, is the appropriate relief.” 420 Md. 530 , 24 A.3d 678 (2011) (Majority op. at 543, 24 A.3d at 685 ). As the Majority Opinion points out, this Court long ⁵⁴⁵ has recognized that dismissal of an indictment is disfavored.

Dismissal of an indictment is appropriate only in the most extreme of circumstances, as the potential for harm outweighs greatly the benefits. Because, in my view, this case is not such an extreme circumstance, I dissent. I. The U.S. Supreme Court long has held that the bar for handing down a valid indictment under the Fifth Amendment is not set very high. See Costello v. United States, 350 U.S. 359, 363 , 76 S.Ct. 406, 409 , 100 L.Ed. 397 , 402-03 (1956) (“An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.

The Fifth Amendment requires nothing more.”) (footnote omitted). The facial validity vel non of an indictment hinges only on the composition of the grand jury, and if that is found valid, courts will not inquire generally beyond the four corners of the indictment. See United States v. Mills, 995 F.2d 480, 487 (4th Cir.1993) (“The longstanding rule of law that courts may not ‘look behind’ grand jury indictments if ‘returned by a legally constituted and unbiased grand jury[ ]’ is the touchstone for any inquiry into the legality of indictments.”) (quoting Costello, 350 U.S. at 363 , 76 S.Ct. at 409 , 100 L.Ed. at 402-403). Accordingly, the validity of an indictment does not hinge upon whether the facts advanced there are sufficient.

See State v. Taylor, 371 Md. 617, 645 , 810 A.2d 964, 980 (2002) (“A motion to dismiss the charges in an indictment ... is not directed to the sufficiency of the evidence, i.e., the quality or quantity of the evidence that the State may produce at trial, but instead tests the legal sufficiency of the indictment on its face.”); id. (“A pretrial motion to dismiss an indictment .. . may not be predicated on insufficiency of the State’s evidence because such an analysis necessarily requires consideration of the general issue.”); State v. Bailey, 289 Md. 143, 150 , 422 A.2d 1021, 1025 (1980) (“[T]he motion to dismiss attacks the sufficiency of the indictment, not the sufficiency of the evidence.”). ⁵⁴⁶ For instance, in Holt v. United States, 218 U.S. 245 , 31 S.Ct. 2 , 54 L.Ed. 1021 (1910), testimony held ultimately to be inadmissible was offered by the Government to the grand jury. Despite the fact that “there was very little evidence against the accused,” other than the inadmissible testimony, the Supreme Court held that dismissal of the indictment was not the proper disposition. Holt, 218 U.S. at 247 , 31 S.Ct. at 4 , 54 L.Ed. at 1028 .

The Court “refused to hold that such an indictment should be quashed, pointing out that ‘[t]he abuses of criminal practice would be enhanced if indictments could be upset on such a ground.’ ” Costello, 350 U.S. at 363 , 76 S.Ct. at 408 , 100 L.Ed. at 402 (quoting Holt, 218 U.S. at 248 , 31 S.Ct. at 4 , 54 L.Ed. at 1028 ). The proposition that an indictment, otherwise valid on its face, is dismissed rarely on an evidentiary technicality is, therefore, long-settled. See, e.g., United States v. Blue, 384 U.S. 251, 255 , 86 S.Ct. 1416, 1419 , 16 L.Ed.2d 510, 514 (1966) (holding that evidence presented to the grand jury and obtained in violation of defendant’s Self-Incrimination right is cause for suppression of the evidence, but not dismissal of the indictment); Lawn v. United States, 355 U.S. 339 , 78 S.Ct. 311 , 2 L.Ed.2d 321 (1958) (holding that it was improper to inquire into the legality of evidence presented to a grand jury that returned an indictment valid on its face); Gelbard v. United States, 408 U.S. 41, 60 , 92 S.Ct. 2357, 2367 , 33 L.Ed.2d 179, 194 (1972) (“The ‘general rule,’ as illustrated in Blue, is that a defendant is not entitled to have his indictment dismissed before trial simply because the Government ‘acquire[d] incriminating evidence in violation of the [law],’ even if the ‘tainted evidence was presented to the grand jury.’ ”); Hopkins v. State, 19 Md.App. 414, 426 , 311 A.2d 483, 490 (1973) (“That an indictment is founded on tainted evidence is no ground for dismissal----”). Maryland, until the present case, followed the lead of Supreme Court jurisprudence regarding the dismissal of indictments.

As the Majority Opinion recognizes, quoting Everhart v. State, 274 Md. 459, 486-87 , 337 A.2d 100, 116 (1975): Although in State v. Siegel, 266 Md. 256 , 292 A.2d 86 (1972), aff'g State v. Siegel, 13 Md.App. 444 , 285 A.2d 671 (1971), ⁵⁴⁷ this Court sustained the dismissal of an indictment because of an invalid order authorizing an electronic surveillance, it seems clear under the decisions of the United States Supreme Court that “a defendant is not entitled to have his indictment dismissed before trial simply because the government ‘acquire(d) incriminating evidence in violation of the [law],’ even if the ‘tainted evidence was presented to the grand jury.’ ” 420 Md. 530 , 24 A.3d 678 (2011) (Majority op. at 543, 24 A.3d at 685 ). This alignment with the views of the Supreme Court is recognized as far back as Pick v. State, 143 Md. 192 , 121 A. 918 (1923). In Pick , Bessie Pick was charged with “larceny of certain sums of money and with receiving stolen goods.” Id. Pick argued that, having been subpoenaed to testify in front of the grand jury, she testified against herself and her co-defendant without being informed that her testimony would be used against her.

Pick, 143 Md. at 194 , 121 A. at 919 . The indictment, she argued, “was directly found upon said testimony so given ... under compulsory process and under the other circumstances and conditions aforesaid, and that said indictment and the proceedings upon which it was found were in violation of the Declaration of Rights and the Constitution and Laws of the State of Maryland.” Pick, 143 Md. at 195 , 121 A. at 919 . This Court, citing Holt with approval, held that incompetent testimony of the type presented there before a grand jury was not enough to quash the indictment. See Pick, 143 Md. at 196 , 121 A. at 919 (“The law is well settled, that the competency of testimony before the grand jury will not be inquired into by the courts.”).

More recently, in Everhart, 274 Md. at 486 , 337 A.2d at 116 , although there was no motion to dismiss the indictment filed in the trial court, this Court “included, within the scope of our writ of certiorari, [a] question ... whether the petitioner was indicted and arrested on the basis of a search and seizure warrant without probable cause.” Everhart filed a motion to suppress the property seized during a search which he claimed was beyond the boundaries of the warrant. Everhart, 274 Md. at 463 , 337 A.2d at 103 . This Court, addressing whether a ⁵⁴⁸ motion to dismiss the indictment would have been a proper motion and remedy, explained that, “even the submission unto the grand jury of evidence obtained in violation of [the petitioner’s] constitutional rights would not impair the validity of his indictment____” Everhart, 274 Md. at 487-88 , 337 A.2d at 116 . The Court concluded that, “[a]s we see it, the only proper manner in which to present the issue raised by the petitioner was—as he did—through a motion to suppress----” Everhart, 274 Md. at 488 , 337 A.2d at 116 .

The general rule in Maryland, therefore, is that dismissal of an indictment is improper where the indictment is supported by inadmissible evidence. See Bailey, 289 Md. at 149 , 422 A.2d at 1025 (noting that a motion to dismiss an indictment “is not a proper vehicle for testing the admissibility of ... evidence at trial”); see also Bartram v. State, 280 Md. 616 , 374 A.2d 1144 (1977) (discussing the lengthy history of disfavoring dismissal of indictments on evidentiary grounds under Maryland Law). The disfavoring of dismissals of indictments is supported by sound policy. In Costello, 350 U.S. at 363 , 76 S.Ct. at 408-09 , 100 L.Ed. at 402, the Supreme Court, although asked to formulate a rule instructing federal courts that an indictment based solely upon hearsay is invalid, explained that “[t]he result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury.” The ability to challenge the sufficiency of the evidence presented to the grand jury would create effectively the possibility of mini-trials to test the strength of the State’s evidence.

In my view, there is no convincing reason why § 5-501 should allow such a preliminary evidentiary disposition as the Majority dispenses here. The potentiality of these “preliminary trials” would impair judicial efficiency. See Costello, 350 U.S. at 363 , 76 S.Ct. at 408 , 100 L.Ed. at 402 (“If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay ⁵⁴⁹ would be great indeed.”). Defendants could protract the trial process by first challenging the sufficiency of the evidence presented to the grand jury and/or evidentiary references in the indictment, and if unsuccessful, follow that with a traditional motion to suppress evidence or perhaps a later motion in limine to exclude evidence.

In effect, sanctioning the dismissal of the indictment here may disrupt the orderly administration of justice by encouraging proliferation of yet another form of pre-trial motion. In addition, the purpose behind the use of a grand jury would be eroded if a party were allowed to challenge indictments more freely based on the sufficiency of the evidence. The grand jury serves the “ ‘dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.’ ” United States v. Sells Eng’g, Inc., 463 U.S. 418, 423 , 103 S.Ct. 3133, 3137 , 77 L.Ed.2d 743, 752 (1983) (quoting Branzburg v. Hayes, 408 U.S. 665, 686-687 , 92 S.Ct. 2646, 2659 , 33 L.Ed.2d 626, 644 (1972)) (footnote omitted). In order to perform these important functions, the grand jury, therefore, is not constricted by the formal rules of evidence.

See United States v. Calandra, 414 U.S. 338, 343 , 94 S.Ct. 613, 617 , 38 L.Ed.2d 561, 568-69 (1974) (“The grand juryf’s] ... operation generally is unrestrained by the technical procedural and evidentiary rules