State v. WBAL-TV

JAMES A. KENNEY, III, Judge (retired, specially assigned). These appeals require us to examine Maryland Rules 16-1001, el seq., which became effective on October 1, 2004. The issues presented involve balancing the media’s right to access and copy court records in a criminal trial against the interests of the criminal defendant, the State, and the family of the victim in limiting access to those records. WBAL-TV (“WBAL”), appellee, filed a Motion to Intervene and for Access to Trial Exhibits (the “Motion for Access”), in the criminal case of John Gaumer, to access and copy portions of a DVD and an audio recording of Gaumer’s two extensive and detailed confessions concerning the murder of Josie Brown.

The State and Gaumer, appellants, opposed WBAL’s motion. Appellants Teresa and Hugh Brown (the “Browns”), the parents of Josie Brown, filed a motion under Rule 16-1009 to seal or limit inspection of the record (the “Motion to Seal”). ¹⁴⁰ The State and Gaumer appeal the circuit court’s October 23, 2007, Opinion and Order granting WBAL’s motion to access and copy the DVD and the audiotape (the “Order”). 1 The Browns appeal the court’s denial of the Motion to Seal. 2 In this Court, WBAL has filed a motion to dismiss the State’s and Gaumer’s appeals, and has agreed to the further redaction of the DVD and audiotape. 3 The appeals have been consolidated and we have condensed and reframed the questions presented as follows: I. Are the State and Gaumer entitled to appeal an order granting WBAL access to court records?

II

Did the circuit court err by granting the Motion for Access and denying the Motion to Seal? As we explain below, we shall: (1) deny the Motion to Dismiss; (2) affirm the circuit court’s decision to grant the Motion for Access; and (3) affirm the court’s denial of the Motion to Seal. We shall, however, remand to the circuit court with instructions to amend the. respective orders to reflect a further redaction of the subject exhibits in accordance with WBAL’s representations before this Court.' 4 ¹⁴¹ FACTUAL AND PROCEDURAL HISTORY Gaumer was convicted of first-degree murder and first-degree rape of Josie Brown by a jury sitting in the Circuit Court for Baltimore County. We need not set out the details of the crime in this Opinion.

It is sufficient to state that Gaumer’s videotaped confession (“the DVD”) and his separate audiotaped confession (“the audiotape”) are disturbingly graphic, and that concerns raised, especially by the Browns, are understandable. During Gaumer’s trial, the State introduced the DVD and the audiotape into evidence. Several news reporters submitted informal requests to the court to copy the DVD, which the court denied without prejudice. On May 15, 2007, the day of Gaumer’s sentencing, a WBAL reporter requested copies of certain trial exhibits.

On May 16, 2007, WBAL, through counsel, submitted a letter to the court in support of its request to obtain copies of the exhibits. In addition, on May 17, 2007, a number of news organizations requested full copies of the DVD. In regard to these media requests, we refer to the statement of facts in the Opinion and Order: Pursuant to Maryland Rule § 4-322(a), this Court ordered that the DVD and the audiotaped confession be returned to the custody of the Baltimore County Police along with other exhibits. Noting that the exhibits had been returned to the custody of the Baltimore County Police, the Court denied [WBAL’s] request [for copies of the exhibits] ...

William Toohey, the Department’s Director of Media Relations, provided a written response denying this request, stating that, “since Judge Norman denied the request of the media to have a copy of the DVD, their attorneys should appeal [that] decision, and we will await a final decision ... before releasing the DVD requested.” On May 23, 2007, WBAL filed the Motion for Access. Gaumer appealed his conviction on June 5, 2007 (the “Criminal Appeal”), and, on June 8, 2007, the State filed a response in opposition to the Motion for Access. Gaumer did not file a written response. Based on the Criminal Appeal, the court ¹⁴² record was transferred by the circuit court to this Court one week before the August 18, 2007, hearing on the motion.

The circuit court granted WBAL’s Motion for Access and ordered that WBAL be provided with copies, or, at its expense, to have copies made of the requested trial exhibits with the exception of photographs depicting Gaumer in the company of people other than his family. The State immediately filed a motion to stay. The court granted a temporary motion to stay the court’s order pending a further hearing. The State and Gaumer appealed the Order.

On November 8, 2007, the Browns filed the Motion to Seal. WBAL filed an opposition in response. Following a hearing on February 29, 2008, the circuit court, by its March 5, 2008, order denied the Browns’ Motion to Seal and granted WBAL “permission to copy portions of the DVD and the audiotape, as requested in their Motion” as well as permission to “copy photographs of the [defendant, depicted alone or with family members only.” It extended its earlier stay pending the outcome of an appeal. The Browns appealed this order.

Gaumer’s criminal conviction was affirmed by this Court on December 22, 2008. His petition for certiorari was denied by the Court of Appeals on April 10, 2009. 5 We are not aware of any further proceedings challenging his conviction. DISCUSSION I. WBAL’s Motion to Dismiss WBAL contends that neither the State nor Gaumer is entitled to appeal the Order and has moved to dismiss their appeals (the “Motion to Dismiss”). WBAL argues that the circuit court’s order adjudicated all of its interests in the case, but as to the State and Gaumer, it was neither a final judgment nor an appealable collateral order, and that even if ¹⁴³ it were an appealable order, the State would not have the right to appeal.

A. Final, Appealable Order 1. Final Judgment Maryland Code (1978, 2006 Repl. Vol.) § 12-801 Courts and Judicial Proceedings Article (“CJ”) provides that “[t]he right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, [or] statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law.” To qualify as a final judgment, the judgment must be “ ‘so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding.’ ” Quillens v. Moore, 399 Md. 97, 115 , 923 A.2d 15 (2007) (quoting Cant v. Bartlett, 292 Md. 611, 614 , 440 A.2d 388 (1982)). The Court of Appeals has recognized three defining attributes of a final judgment: (1) it must be intended by the court as an unqualified, final disposition of the matter in controversy, (2) unless the court properly acts pursuant to Md. Rule 2-602(b), it must adjudicate or complete the adjudication of all claims against all parties, and (3) the clerk must make a proper record of it in accordance with Md. Rule 2-601.

Rohrbeck v. Rohrbeck, 318 Md. 28, 41 , 566 A.2d 767 (1989). Here, all of the defining attributes of a final judgment are present. The court clearly intended its ruling to be final and complete, with no qualifications. The interests of the State and Gaumer in the underlying criminal case, subject to Gaumer’s appeal to this Court, were concluded by the rendering of a verdict and pronouncement of Gaumer’s sentence. 6 There was, therefore, no reason to invoke Maryland Rule 2-602(b) because the Order adjudicated all of the claims pending ¹⁴⁴ in the proceeding. 7 The docket entry of October 24, 2007, confirms that the clerk properly recorded the judgment in accordance with Md. Rule 2-601. 8 Even though a ruling governing access matters in a criminal case might not always be a final judgment as to the State and the criminal defendant, the Order was a final judgment in this case. 2.

Collateral Order Although we have held that the Order qualified as a final judgment in this case, we will address, alternatively, WBAL’s argument that the Order was not an appealable collateral order. We do so because access issues are often likely to arise under circumstances where the underlying criminal case is not complete. As WBAL points out, “orders governing access matters do not adjudicate the only interests that the parties have in the case, and they rarely if ever complete the adjudication of all claims against all parties.... ” To qualify as an appealable collateral order, the order must: ¹⁴⁵ (1) conclusively determine!] the disputed question, (2)re~ solve! ] an important issue, (3) resolve! ] an issue that is completely separate from the merits of the action, and (4) ... be effectively unreviewable if the appeal had to await the entry of a final judgment. Ehrlich v. Grove, 396 Md. 550, 563 , 914 A.2d 783 (2007) (quoting Pittsburgh Corning Corp. v. James, 353 Md. 657, 660-61 , 728 A.2d 210 (1999)).

A qualifying collateral order is immediately appealable. See Hudson v. Hous. Auth., 402 Md. 18, 25-26 , 935 A.2d 395 (2007). Even if the Order did not qualify as a final order, it would qualify as an immediately appealable collateral order for both the State and Gaumer.

By permitting WBAL to copy portions of the audiotape and the DVD, the court conclusively determined the disputed and important issue presented by the Motion for Access. That determination resolved an issue that was completely separate from the merits of the underlying criminal action, i.e., whether Gaumer was guilty of the crime charged and, if so, his punishment. The Order was effectively unreviewable in an appeal from the final judgment in Gaumer’s criminal case. See Mann v. State’s Attorney for Montgomery County, 298 Md. 160, 164-65 , 468 A.2d 124 (1983) (holding that an order granting the media the right to interview a defendant in a capital murder case was unreviewable upon appeal in the criminal trial, and therefore immediately appealable as a collateral order, because the review on appeal would have been too late to cure any damage to the defendant from what was said in the interview).

As WBAL notes, “since the [the Order] was entered after [Gaumer] noted an appeal of his conviction, [Gaumer] may not be able to contest the Order through that appeal or claim that the trial court’s decision infected the conviction in some way.” We agree that the grant of the Motion for Access could not have been considered an error in the criminal case because the criminal trial had been concluded before the Order was issued. In fact, WBAL did not make its formal request until the day of Gaumer’s sentencing. ¹⁴⁶ When the Order granting the Motion for Access was issued, the appeal in the criminal case had been filed and the time for appeal had passed. B. The State’s Right to Appeal WBAL argues that the State may not appeal the Order because its right to appeal in a criminal proceeding is limited by CJ § 12-302(c). 9 The Court of Appeals has stated, “[t]he State’s right to appeal in criminal cases [is] based entirely on statute[, and,] [u]nless the issue presented may be properly categorized as one of the actions enumerated in [CJ § 12-302(c)], the State has no power to seek appellate review.” State v. Manck, 385 Md. 581, 597-98 , 870 A.2d 196 (2005). The State, however, has the same right under CJ § 12-301 as other parties to appeal in a civil proceeding.

See, e.g., State v. Hicks, 139 Md.App. 1, 6 , 773 A.2d 1056 (2001) (“Because a petition for a writ of coram nobis is a civil proceeding, the State is not limited to the circumstances described in CJ § 12-302(c).”). Moreover, “[s]imply because a motion is filed in a court that exercises criminal jurisdiction” does not mean “that the proceeding arising from the motion must, ipso facto, be criminal in nature[.]” State v. Strickland, ¹⁴⁷ 42 Md.App. 357, 359 , 400 A.2d 451 (1979). In Strickland , the State was permitted to appeal a circuit court’s grant of a motion for the a return of seized money because the motion was “more akin to a replevin, a civil action, than criminal proceeding.” Id. We stated, id. at 360 , 400 A.2d 451 : We think Strickland’s petition, even though filed in the criminal case, was a request that the court determine title to personal property.

As such, regardless of what Strickland chooses to call it, that aspect of the case is civil, not criminal, and it matters not one whit that the money was introduced as evidence in a trial for violation of a criminal statute. We hold that the proceeding in the circuit court to recover money that was introduced into evidence, in a bribery trial, was civil in nature, and that the State has the right to appeal an order of court directing that the money be paid over to the briber. We are also guided in this analysis by the Court of Appeals’ explanation in News American Division, Hearst Corp. v. State, 294 Md. 30, 40 , 447 A.2d 1264 (1982), that there are at least three separate judicial avenues available to the press to oppose an order issued in a criminal case that it believes infringes upon its First Amendment rights: 1. By an application to an appellate court for review, by extraordinary writ, of the action of the order-entering court; 2.

By appearing before the order-entering court in the case in which the order is entered, with further review on direct appeal by the press from an adverse determination in that forum; and 3. By applying to another trial court, or to the order-entering court in a separate civil action, for an injunction or declaratory judgment, with further review by direct appeal. The Hearst Court stated that intervention in the criminal case was more appropriate than pursuing the issue in another court. Id. at 41 , 447 A.2d 1264 .

In that case, a newspaper was granted leave to intervene in a criminal case and to be heard in opposition to the defense counsel’s request for an ¹⁴⁸ order to prohibit prosecutors from discussing the case with the media. Id. Hearst appealed the circuit court’s decision to order those involved in the case to refrain from making extrajudicial statements. The defendant cross-appealed the court’s order to allow Hearst to intervene.

Id. This Court held that Hearst was not permitted to intervene in a criminal case, but the Court of Appeals granted certiorari and affirmed the intervention. Id. The Court of Appeals explained that a “quest for an order in a separate case” would have been “highly inappropriate” because it would be “ ‘an incongruous and dangerous situation [if] one Circuit Court judge of this State could paralyze the entire administration of justice in the law courts thereof, both civil and criminal, byway of injunction.’ ” Id. at 41-42 , 447 A.2d 1264 (quoting Kardy v. Shook, 237 Md. 524, 533 , 207 A.2d 83 (1965)).

In concluding that intervention was appropriate, the Court stated: A procedure under which the press appears by motion in the criminal case when an order restricting pretrial publicity is requested, or has been entered, has the advantage of initially presenting the issues to the trial judge for his consideration in the circumstances of the particular case. The trial judge is in a better position than an appellate court to evaluate matters which may be rapidly unfolding before him and in the community in which the criminal case is pending. The trial judge is also the one who must initially consider how effective alternative methods of protecting the fair trial right of the accused might be under the circumstances. Allowing the press to appear by motion in the criminal case also furnishes the trial court with the benefit of argument by an advocate of First Amendment interests.

Typically the request for a restrictive order will be made by the defense and there is little incentive on the part of the State to oppose it. Id. at 44-45, 447 A.2d 1264 . WBAL does not rest its position in this case on the First ¹⁴⁹ Amendment. 10 It states, instead, that “[w]hile the ‘special and compelling reason’ standard established by the Rules has parallels to the test applied to First Amendment access questions, the source of the standard is the Maryland Rules, not the First Amendment.” Notwithstanding the basis for WBAL’s claim, the issues presented are sufficiently similar to a First Amendment claim to apply the Hearst Court’s analysis. Although the Motion for Access was made post-trial, we are persuaded that intervention in the criminal trial was a viable and appropriate judicial avenue to gain access to the court records that are presumed “open to the public for inspection and copying and for which access has been denied.” Rule 16-1002(a); Rule 16-1003.

By intervention, the issues would be presented “to the trial judge for his consideration in the circumstances of the particular case ... with the benefit of argument by an advocate of [the intervener’s] interests.” Hearst, 294 Md. at 42 , 447 A.2d 1264 . Certainly the trial judge was in the best position to evaluate the request and balance any competing interests. Although the Motion for Access was filed in the criminal proceeding, the relief sought was civil in nature and could have been sought in “a separate civil action.” Id. at 30 , 447 A.2d 1264 . Therefore, we hold that the State’s right to appeal in this case was not limited by CJ § 12-302(c).

The Motion to Dismiss is denied.

II

Order Granting the Motion for Access A. Circuit Court’s Jurisdiction After WBAL filed the Motion for Access in the circuit court, the case record was transferred to this Court pursuant to the ¹⁵⁰ Criminal Appeal. The State and Gaumer argue that, under Rule 16-1011, transfer of the record to this Court one week prior to the hearing divested the circuit court of jurisdiction to consider the motion. Rule 16—1 Oil (a) (1)—(2) provides: (a) If, upon a request for inspection of a court record, a custodian is in doubt whether the record is subject to inspection under the Rules in this Chapter, the custodian, after making a reasonable effort to notify the person seeking inspection and each person to whom the court record pertains, shall apply in writing for a preliminary judicial determination whether the court record is subject to inspection. (1) If the record is in an appellate court or an orphan’s court, the application shall be to the chief judge of the court.

(2) If the record is in a circuit court, the application shall be made to the county administrative judge. In regard to statutory interpretation, the Court of Appeals in Barbre v. Pope, 402 Md. 157, 172-73 , 935 A.2d 699 (2007), explained: We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that “ ‘no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.’ ” Further, whenever possible, an interpretation should be given to the statutory provisions which does not lead to absurd consequences. If the language of the statute is clear and unambiguous, we need not look beyond the statute’s provisions and our analysis ends. If however, the language is subject to more than one interpretation, it is ambiguous, and we resolve that ambiguity by looking to the statute’s legislative history, case law, and statutory purpose.

(Citations omitted.) We have stated that “[t]he same fundamental principles of statutory construction apply to the interpretation of a rule[,]” Hoang v. Hewitt Avenue Associates, LLC, 177 Md.App. 562 , ¹⁵¹ 588, 936 A.2d 915 (2007), and that the “cardinal rule of statutory construction is to ascertain and effectuate legislative intention.” Chesapeake Bank of Maryland v. Monro Muffler/Brake, Inc., 166 Md.App. 695, 723 , 891 A.2d 384 (2006), cert. denied, 392 Md. 726 , 898 A.2d 1005 (2006). Rule 16-1011(a) states that, “[i]f ... a custodian is in doubt whether the record is subject to inspection under the Rules in this Chapter, the custodian ... shall apply in writing for a preliminary judicial determination whether the court record is subject to inspection.” (Emphasis added.) For the purposes of the Rule, the “custodian” is “the clerk of a court[ ] and any other authorized individual who has physical custody and control of a court record.” Rule 16—1001(f). According to its plain language, Rule 16-1011(a) applies to requests for inspection of a court record made to a clerk or physical holder of the record, and, if a custodian is in doubt as to whether the court record is subject to inspection, the custodian may apply for a “preliminary judicial determination.” The Rule does not apply to proceedings filed to compel access, and the transfer of the case record to this Court in the Criminal Appeal did not divest the circuit court of jurisdiction to decide the pending Motion for Access. The Court of Appeals has made clear that a circuit court retains fundamental jurisdiction in cases where an appeal is pending so long as the exercise of that jurisdiction does not “preclude[ ] or hamper[ ] the appellate court from acting on the matter before it,” and “[a]ny post-judgment ruling by a circuit court that [precludes or hampers judicial review] may be subject to reversal on appeal, but it is not void ab initio for lack of jurisdiction to enter it.” Jackson v. State, 358 Md. 612, 620 , 751 A.2d 473 (2000).

Therefore “ ‘when an appeal is taken, the trial court may continue to act with reference to matters not relating to the subject matter of, or matters not affecting, the appellate proceeding!.]’ ” Cottman v. State, 395 Md. 729, 741 , 912 A.2d 620 (2006) (quoting State v. Peterson, 315 Md. 73, 80 , 553 A.2d 672 (1989)). In other words, “[i]f the trial court does ... decide to proceed during the pendency of ¹⁵² the appeal, absent a stay required by law, or one obtained from an appellate court, it has the authority to exercise the ‘fundamental jurisdiction’ which it possesses.” Peterson, 315 Md. at 81 , 553 A.2d 672 (quoting Pulley v. State, 287 Md. 406, 419 , 412 A.2d 1244 (1980)). The State and Gaumer argue that, even if the circuit court retained jurisdiction over the Motion for Access, it should have refrained from exercising jurisdiction while Gaumer’s criminal appeal was pending. According to the State, dissemination of the exhibits could “hamper” this Court’s consideration of the issues in Gaumer’s criminal appeal by affecting a potential jury if anew trial should be granted. 11 We are not persuaded.

In its post-trial Order, the court “did not re-decide the merits of the case or rule upon any of the issues pending” before this Court on appeal. Cottman, 395 Md. at 741 , 912 A.2d 620 . As we discuss below, the impact of media dissemination of the DVD and the audiotape on a potential jury pool can be an appropriate factor to consider in deciding whether to deny or grant a motion for access, but it does not affect the court’s fundamental jurisdiction to consider the issue. We hold that the circuit court had jurisdiction to consider WBAL’s motion, and was not bound to refrain from exercising that jurisdiction.

B. Abuse of Discretion We will only disturb a circuit court’s discretionary decisions when it has abused its discretion. In explaining the abuse of discretion standard, the Court of Appeals in King v. State, 407 Md. 682, 697 , 967 A.2d 790 (2009), recently cited this Court’s analysis in North v. North, 102 Md.App. 1, 13-14 , 648 A.2d 1025 (1994): “Abuse of discretion” is one of those very general, amorphous terms that appellate courts use and apply with great frequency but which they have defined in many different ¹⁵³ ways. It has been said to occur “where no reasonable person would take the view adopted by the [trial] court,” or when the court acts “without reference to any guiding rules or principles.” It has also been said to exist when the ruling under consideration “appears to have been made on untenable grounds,” when the ruling is “clearly against the logic and effect of facts and inferences before the court,” when the ruling is “clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result,” when the ruling is “violative of fact and logic,” or when it constitutes an “untenable judicial act that defies reason and works an injustice.” There is a certain commonality in all these definitions, to the extent that they express the notion that a ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.

That kind of distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective. That, we think, is included within the notion of “untenable grounds,” “violative of fact and logic,” and “against the logic and effect of facts and inferences before the court.” (Alterations in original) (Internal citations omitted). The State, the Browns, and Gaumer argue that the court abused its discretion in granting the Motion for Access and in denying the Motion to Seal. More particularly, the State and the Browns contend that, in the context of this case, the protection of the victims’ rights outweighs the rights of the public to access court records.

Gaumer contends that the Order violated his fair trial rights. All appellants contend that transcripts of the DVD and the audiotape, which had been released in full, were sufficient to satisfy the Access to Court Records Rules. We address each contention in turn. ¹⁵⁴ 1. Victims’ Rights The State and the Browns contend that the court abused its discretion by not recognizing that the Browns’ rights under Article 47 of the Maryland Declaration of Rights outweighed the media’s right to access and copy the court records.

Article 47(a) provides, in pertinent part, that “[a] victim of crime shall be treated by agents of the state with dignity, respect, and sensitivity during all phases of the criminal justice process.” More specifically, a victim has to be informed of the “criminal justice proceeding” and “upon request and if practicable, to be notified of, to attend, and to be heard” at such a proceeding as such rights “are implemented and the terms ‘crime[,]’ ‘criminal justice proceeding[,]’ and ‘victim’ are all specified by law.” Article 47(b). The circuit court, in making its determination to grant the Motion for Access, stated: The Court is mindful that people do.not willingly choose to become victims of violent crimes and that, if the victim’s family were subjected to such broadcasts, they would be reminded of the tragedy that the Defendant has visited upon them. However, if either the DVD or audiotape are broadcast, now or in the future, the victim’s family can choose not to receive those broadcasts. The audiotape and those portions of the DVD sought by the media do not identify the victim’s family members, so their identities would not be compromised by releasing the DVD and audiotape for copying.

Against the understandable concerns for the victim’s family, the Court must also weigh the significant public interest in fully disclosing what transpired in court. The public has a legitimate interest to ensure that its judicial and criminal justice systems are fair and effective.