GILBERT, Chief Judge.
This Court on October 7, 1983, issued a per curiam order affirming an order by the Circuit Court for Baltimore City (Karwacki, J.) that commanded John Rees to "appear before the Grand Jury of the County of Los Angeles, State of California ...."
From the record we learn that the Grand Jury of the County of Los Angeles is inquiring into the unauthorized removal and theft of intelligence information from the Intelligence Division of the Los Angeles Police Department (LAPDID) by Detective Jay Paul (Paul).
There was testimony in the record that Paul, who was assigned to the LAPDID, was under a contractual relationship with Western Goals Foundation in which he was paid thirty thousand dollars a year "to maintain a computer for Western Goals Foundation and develop a computer program to input information in the Western Goals computer." Detective Ben Lovato of the LAPD testified that, "Western Goals is a private intelligence gathering foundation ...." The computer for Western Goals was maintained in the "office of ... Paul's wife, in Long Beach, California."
Apparently Paul would feed information gleaned from the LAPDID records into the Western Goals computer.
The editor of Western Goals, John Rees, allegedly removed from the office of Paul's wife, "thirty discs and one tape which contained" LAPDID "intelligence information." Rees refused to turn over the discs and tape to the LAPDID and left California. Obviously, he made his way to Maryland.
Because the Grand Jury of the County of Los Angeles desired Rees's appearance before it, a subpoena was issued on August 9, 1983, which commanded that Rees present himself before that body on September 29, 1983. In addition to appearing personally before the grand jury, Rees was directed to produce:
Pursuant to the terms of the "Uniform Act to Secure Attendance of Witnesses from Without a State in Criminal Proceedings,"
The judge's certificate, along with the subpoena of the grand jury, was transmitted to Maryland. Rees resisted returning to Los Angeles. The State of California, acting through the state's attorney for Baltimore City, moved pursuant to Md.Cts. & Jud.Proc.Code Ann. § 9-303 to have the Circuit Court for Baltimore City order Rees's appearance before the Los Angeles County Grand Jury. Following a hearing in the circuit court, Judge Karwacki issued that order, and Rees promptly appealed.
Because of the time restraints, we advanced oral argument.
In this Court Rees asserted four reasons why he believed that the order of the circuit court should be reversed. We shall discuss each of the arguments in the order in which Rees posited them to us, adding such additional facts as may be necessary.
As we have previously commented, Judge Ideman, a California jurist, certified that Rees and the tangible evidence allegedly possessed by Rees were "material, and relevant to the issues considered by the Los Angeles Grand Jury."
Some States have held that such a certification when supported by an affidavit is itself sufficient to require that the witness be delivered to the requesting State. See e.g. Epstein v. People of State of New York, 157 So.2d 705 (Fla.App. 1963); In re Cooper, 127 N.J.L. 312, 22 A.2d 532 (1941); Superior Court, State of New Jersey v. Farber, 94 Misc.2d 886, 405 N.Y.S.2d 989 (1978). See also Ex parte Armes, 582 S.W.2d 434 (Tex.Cr.App. 1979).
Maryland, in Appel v. New York, 243 Md. 218, 220 A.2d 301 (1966), did not decide whether the issuance of the certificate of relevance and materiality was all that was needed, inasmuch as the Maryland hearing judge in Appel found from evidence that the witness was "material and necessary" to the New York probe.
In the instant case the certificate of Judge Ideman was bolstered by an affidavit from the deputy district attorney for Los Angeles County that Rees's appearance together with the discs, tape, and printouts was necessary, relevant and material to the grand jury's inquiry into the Western Goals's suspected covert connection to the LAPDID. The testimony of Detective Lovato before Judge Karwacki was largely hearsay, but we think no more than that is required in the instant case.
Courts Art. § 9-302 provides:
The Maryland Uniform Act to Secure Attendance of Witnesses from Without a State in a Criminal Proceeding is related by rationale and principles of comity to the Uniform Criminal Extradition Act, Md. Ann. Code art. 41, §§ 16-43.
It has been held in Maryland that the strict rules of evidence are not applicable to extradition proceedings. Shields v. State, 257 Md. 384, 263 A.2d 565 (1970); Johnson v. Warden, 244 Md. 384, 223 A.2d 584 (1966); Koprivich v. Warden, 234 Md. 465, 200 A.2d 49 (1964). 1 Wigmore Evidence § 4 (Tillers rev. 1983) declares, "No jury being involved, extradition proceedings are not governed in strictness by jury trial rules of evidence .... Moreover, here the additional reason obtains that the evidence is brought from outside the jurisdiction, and the procurement of evidence is thus likely to be hampered by lack of power or practicability, as well as by the possible differences of law in another system." (Footnote omitted.)
This Court, speaking through Judge Morton in Campbell v. State, 10 Md.App. 406, 413, 271 A.2d 190 (1970), commented, "If we assume that ... [the] affidavit [of the Commonwealth of Virginia's attorney] was based entirely upon hearsay evidence ... we find no violation of [Campbell's] rights." Implicit in that remark is the conclusion that hearsay evidence is admissible in extradition proceedings. What was implicit in Campbell is explicit in In re David, 395 F.Supp. 803 (E.D.Ill. 1975) (hearsay admissible at extradition hearing even though it would not be admissible at trial); Graham v. Vanderhoof, 185 Colo. 334, 524 P.2d 611 (1974) (hearsay admissible); People v. Miller, 74 Misc.2d 806, 342 N.Y.S.2d 288 (1973) (issuance of warrant of extradition may be grounded upon hearsay); President of the United States v. Kelly, 19 F.Supp. 730 (S.D.N.Y. 1937) (properly authenticated depositions or affidavits admissible in evidence in extradition proceeding irrespective of hearsay content); Klein v. Mulligan, 50 F.2d 687 (2nd Cir.1931) (that evidence is hearsay is only a "factor to be considered in determining the weight to be accorded it."); In re LoDolce, 106 F.Supp. 455 (W.D.N.Y. 1952) (statute controlling evidence in extradition proceedings permits hearsay evidence).
We are convinced that admission of hearsay in a case involving the attendance of a witness at a criminal trial or before a grand jury in another State is permissible. Such evidence is no more or no less than another factor to be considered in determining whether to grant the requesting State's motion to compel the attendance of the witness.
We hold that Judge Karwacki did not err in receiving that hearsay testimony.
Rees's second issue relies heavily on his argument that the hearsay evidence was inadmissible. He obviously reasons that if that evidence is stricken from the record, the remainder, that is the certificate and accompanying affidavit, is insufficient to require his attendance before the Los Angeles Grand Jury. The fallacy in Rees's logic is that the hearsay evidence from Detective Lovato was admissible. Consequently, Rees's contention collapses inasmuch as its foundation has been undermined.
Rees seeks to take refuge behind the "Maryland Press Shield Law," Courts Art. § 9-112, which provides:
Rees avers that since he is a Maryland resident he is entitled to the protection of the Maryland act and, therefore, he should not be compelled to disclose the source of the information obtained by him.
Aside from the significant fact that the "source" of Rees's information seems to be already known to the Los Angeles Grand Jury, Rees, in his appearance before that august body will have to look to California law for protection,
The Maryland Press Shield Law was designed to protect newsmen and newswomen in this State; it has no extraterritorial application. The legislature did not enact the Press Shield Law so as to create a sanctuary to which out-of-state newspersons could flee and thereby avoid disclosure of news sources. Rees's attempted utilization of the Maryland Press Shield Law is disingenuous. We reject it.
Rees's argument relative to the inability of the Los Angeles County Grand Jury to issue a subpoena duces tecum for an out-of-state witness is likewise devoid of merit.
Courts Art. § 9-301 provides:
Conspicuously absent from the provision of § 9-301 is the term subpoena duces tecum. Inasmuch as the statute does not use that term, Rees concludes that the certifying State is without power to issue such a subpoena. In short, Rees asserts that because the subpoena duces tecum is not specifically authorized under the act, its issuance is unauthorized. He employs a slight variance on the old saw, "out of sight is out of mind."
Although Maryland has not heretofore considered the issue,
New Jersey, in In re Saperstein, 30 N.J.Super. 373, 104 A.2d 842 (1954), cert. denied, 348 U.S. 874, 75 S.Ct. 110, 99 L.Ed. 688, said that "the term `subpoena' ... embrace[d] `subpoena duces tecum.'" See also Davis v. Lehigh Valley Railroad Co., 97 N.J.L. 412, 117 A. 716 (Sup. Ct. 1922). In Application of a Grand Jury of the State of New York, 8 Mass. App. 760, 397 N.E.2d 686 (1979), the same argument as that made by Rees was before the court. There was a bank upon whom was served a subpoena duces tecum from a New York Grand Jury sought to avoid compliance by asserting that the word "summons" as defined in the Uniform Act did not include a "subpoena duces tecum." The Massachusetts court opined:
The court, after noting that the general power to subpoena witnesses includes the authority to compel the production of documents, citing, inter alia, Catty v. Brockelbank, 124 N.J.L. 360, 12 A.2d 128 (1940), Marston's Inc. v. Strand, 114 Ariz. 260, 560 P.2d 778 (1977), State ex rel. Pollard v. Marion Crim. Ct., 263 Ind. 236, 329 N.E.2d 573 (1975), concluded that the Uniform Act should be so interpreted as "to authorize the issuance of subpoenas duces tecum."
Similarly, the Supreme Court of New York in deciding In re Bick, 372 N.Y.S.2d 447, 82 Misc.2d 1043 (1975), said that a New Jersey Grand Jury's subpoena duces tecum for books, paper, and business records that were located in New York would be honored. The court held that "the term `subpoena' subsumes a subpoena duces tecum requiring the production of books and records."
Illinois, on the other hand, in In re Grothe, 59 Ill.App.2d 1, 208 N.E.2d 581 (1965), held that the Uniform Act does not authorize the issuance of a subpoena duces tecum. That Illinois case, however, has since been overruled by statute. See 1965 Ill. Laws at 2694 § 1, effective August 6, 1965. Grothe, we note, was not followed by the Court of Appeals in Appel v. New York, 243 Md. 218, 220 A.2d 301 (1966), and was expressly rejected in Application of a Grand Jury of the State of New York, supra.
Patently, the ability to compel Rees, who apparently has possession of certain relevant, material evidence, to appear before the grand jury, but the inability to compel the production of that evidence, borders on the absurd. Unless Rees was able to testify as to the content of discs, a tape, and printouts, his appearance before the grand jury would be a decided waste.
We believe the weight of authority to be clear. The power to issue a subpoena includes the power to issue a subpoena duces tecum, and we so hold.