State & Brown v. WBAL-TV

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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1938 September Term, 2007 STATE OF MARYLAND, ET AL. v. WBAL-TV No. 0014 September Term, 2008 JOSIE BROWN, ET AL. v. WBAL-TV Barbe ra,* Woodward, Kenney, James A ., III (retired, specially assigned), JJ. Opinion by Kenney, J. Filed: July 17, 2009 * Mary Ellen Barbera, now serving on the Court of Appeals, participated in the hearing and conference of this case while an active member of this Court; she participated in the adoption of this opinion as a specially assigned member of this Court. These appeals require us to examine Maryland Rules 1 6-100 1, et seq., which became effective on October 1, 2004. The issue s presented involve ba lancing the media s righ t to access and copy court records in a criminal trial against the interests of the criminal defen dant, the State, an d the fa mily of th e victim in limitin g acce ss to tho se reco rds. 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 B rown (the Brow ns ), the pare nts of Josie Brown, filed a motion under Rule 16-1009 to seal or limit inspection of the record (the Motion to Se al ). 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 Bro wns app eal the cour t s denial of th e Motion to Seal. 2 In this Cou rt, WBAL has filed a motion to dismiss the State s and Gaumer s appeals, and has agreed to the 1 The circuit court granted WBAL access to copy certain photographs depicting Gaumer with family membe rs. Because appellants ha ve not disputed W BAL s right to those photog raphs, w e addre ss only the DVD and au diotape d conf essions in this O pinion . 2 The circuit court s March 5, 2008, order denied the Browns Motion to Seal and granted WBAL permission to copy portions of the DVD and audiotape as requested in the Motion for Access. For this reason, we sometimes refer to both the October 23, 2007, order and the Marc h 5, 200 8, order as the O rder. 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 a nd denying th e 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 exh ibits in accord ance with WBA L s represe ntations bef ore this Co urt. 4 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 Baltim ore Cou nty. We need not set out the details of the crime in this Opinion. It is sufficient to state that Gaumer s videotaped confession 3 WBAL requests those portions of the DVD that correspond to page 2-20 (ending at hitting her back ), 41-52 (ending at everything like that ), 62-65, 90-94 (ending at stronger than the average person ), 97-105 (ending at did this to me ), and 107-118 of the transcript of Gaumer s confession. In addition, WBAL requests only those portions of the audiotape played by the state s attorney during its closing arguments in the sentencing phase, w hich ca n be de termine d by the tria l transcrip t. 4 This Opinion is not dependent upon the further redaction agreed to by WBAL on appeal. -2- ( the DVD ) and his separate audiotape d confes sion ( the au diotape ) a re disturbing ly 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 rep orters subm itted inform al 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 requ ested copies of ce rtain trial e xhib its. O n M ay 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 req uests, we refer to the statement of facts in the Opinion and O rder: 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 Too hey, the Department s Director of Media Relations, provided a written resp onse den ying this reques t, stating that, since Judge Norma n denied th e request of the media to have a copy of the DV D, their attorn eys should appeal [that] decision, and we w ill await a final de cision . . . before releasing the DVD reques ted. On May 23, 2007, W BAL filed the M otion for A ccess. Ga umer app ealed 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 Ac cess. G aume r did no t file a w ritten resp onse. Based o n the Crim inal Appe al, the court rec ord was tra nsferred b y the circuit court to this -3- Court o ne we ek bef ore the A ugust 1 3, 2007 , hearing on the m otion. The circuit court granted WB AL s M otion for Access an d ordered that WBAL be provided with copie s, 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 fam ily. 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 Nove mber 8 , 2007, the Browns filed the Motion to Seal. WBAL filed an opposition in response. Following a hearing on February 29, 2008, the c ircuit court, by its March 5, 2008, order denied the Browns M otion 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 pho tographs o f the [d]ef endant, depicted alone or with family membe rs only. It extended its earlier stay pending the outcome of an appeal. The Browns appealed this orde r. Gaumer s criminal conviction was affirm ed by this C ourt on Dece mber 2 2, 2008 . His petition for certiorari was den ied by the Co urt of Ap peals on April 10, 2009.5 We are not aware of any fu rther pro ceedin gs chal lenging his con viction. 5 Gaum er v. State, No. 0829, Sept. Term 2007 (Md. App. Dec. 22, 2008) , cert. denied, No. 62 3, 2009 Md. L EXIS 167 (M d. Apr . 10, 200 9). -4- DISCUSSION I. WBAL s Motion to Dismiss WBAL contends that neither the State nor G aumer is entitled to appeal the Order and has moved to dismiss their appeals (the Motion to Dismiss ). WBAL argues that th e circuit court s order adjud icated all of its in terests in the ca se, but as to the State and Gaumer, it was neither a final judg ment nor an appealable collateral order, and that even if it were an appealab le order, the S tate would not have th e right to app eal. A. Final, Appealable Order 1. Final Judgment Maryland Code (1973, 2006 Repl. Vol.) § 12-301 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 judgmen t, 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 (2007) (quoting Cant v. Bartlett, 292 Md. 611, 614 (1982)). The Court of Appeals has re cognized three defining a ttributes of a f inal judgm ent: (1) it must be intended by the cou rt as an unqualified, final disposition of the matter in controversy, (2) unless the c ourt properly acts pursuant to Md. Rule 2-602(b), it must adjudicate or complete the adjudication of all claims against all parties, and -5- (3) the clerk must make a proper record of it in accordan ce with Md. Rule 2-601. Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989). Here, all of the defining attributes of a final judgment are present. Th e court clearly intended its ruling to be final and complete , with no qu alifications. T he interests of the State and Gaum er in the underlying criminal case, subject to Gau mer s appeal to this Cou rt, 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 in the proceeding.7 The docket entry of October 24, 2007, confirms 6 See Lew is v. State, 289 M d. 1, 4 (1980) ( In a criminal case, a final judgment consists of a verdict and either the pronounc ement of a sentence or the suspe nsion of its imposition or execution. ) 7 Md. Rule 2-602 states: (a) Gene rally. Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the a ction: (1) is not a fin al judgme nt; (2) does not terminate the action as to any of the claims or any of the parties; and (3) is subject to revision at any time before the (continued...) -6- 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 hav e held that the Order qu alified as a fin al judgment in this case, we will address, alternatively, WBAL s argument that the Ord er was no t an appea lable collateral order. We do so because access issues are often likely to arise under circum stances where the underlying criminal case is not complete. A s WBA L points out, orders governing access (...continued) entry of a judgment that adjudicates all of the claims by and against all of the parties. (b) When allowed. If the court e xpressly determ ines in a written order that there is no just reason for delay, it may direct in the order th e entry of a fina l judgmen t: (1) as to one o r more bu t fewer tha n all of the claims or parties; or (2) pursuant to Rule 2-501(f)(3), for some but less than all of the amount requested in a claim seekin g mon ey relief o nly. 8 Md. Rule 2-601 prov ides that for a court to ma ke prope r record of a judgme nt, it must mak[e ] a record o f it in writing o n the file jack et, or on a docket within the file, or in a docket bo ok, accord ing to the pra ctice of eac h court, and shall record the a ctual date of the entry. That date shall be the date of the judgment. -7- matters do not adju dicate the on ly interests that the parties have in the case, and they rarely if ever c omple te the ad judicatio n of all c laims ag ainst all p arties . . . . To qualif y as an appea lable collateral o rder, the orde r must: (1) conclusively determine[] the disputed question, (2) resolve[] an important issue, (3) resolve[] an issue that is completely separate from the merits of the action, and ( 4) . . . be effec tively unreview able if the appeal had to await the entry of a final judgmen t. Ehrlich v. Grove, 396 Md. 550, 563 (2007) (quoting Pittsburgh Corning Corp. v James, 353 Md. 657, 66 0-61 (1 999)). A qualifyin g collate ral orde r is imm ediately ap pealab le. See Hudson v. Hous. Auth., 402 M d. 18, 25 -26 (20 07). Even if the Order did not qualify as a final ord er, it would qualify as an im mediately 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 com pletely separate from the merits of the underlying criminal action, i.e., whether Gaum er was guilty of th e crime charge d and, if so, his p unishm ent. The Order was effectively unreviewable in an appeal from the final judgment in Gaumer s criminal case. See Ma nn v. State s A ttorney for M ontgom ery Cou nty, 298 Md. 160, 164-65 (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 w ould -8- have been too late to cure any damage to the defendant from what w as 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 th at 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. When the Order granting the Motion for Access was issued, the appeal in the criminal case had been filed and the time for appea l had pa ssed. B. The State s Right to Appeal WBAL argues that the State may not appeal the Orde r because its r ight to appe al in a criminal proceeding is limited by CJ § 12-302(c). 9 The Court of Appeals has stated, [t]he 9 CJ § 12-302(c) provides that in a criminal case, the State may appeal for the following reasons: (1) The S tate may appe al from a f inal judgm ent granting a motion to dism iss or quashing or dismiss ing any in dictme nt, infor mation , presentment, or inquisition. (2) The State may appeal from a final judgment if the State alleges that the trial judge: (i) Failed to impose the sentence specifically mandated by the Code; or (ii) Imposed or modified a sentence in violation of the Maryland Rules. (continued...) -9- State s right to a ppeal in crimina l 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 (2005 ). The State, however, has the same right under CJ § 12-301 as other parties to appeal in a civil procee ding. See, e.g., State v. Hicks, 139 Md. App. 1, 6 (2001) ( Because a petition for a writ of coram n obis is a civil proceeding, the State is not limited to the circumstances described in CJ § 12-302(c). ). Mo reover, [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, 42 Md. Ap p. 357, 359 (1979 ). In Strickland, the State was permitted to ap peal 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 sta ted, id. at 360: (...continued) (3) (i) In a case involving a crime of violence as defined in § 14-101 of the Criminal Law Article, and in cases under §§ 5-602 through 5-609 and §§ 5-612 through 5-614 of the Criminal Law Article, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United Stat es, th e M aryl and Constitution, or the Maryland Declaration of Rights. -10- 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 o f the case is c ivil, not crimina l, 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 proceedin g in the circuit court to recover money that was introduced into evidence, in a bribery trial, was civil in n ature, and th at the State ha s the right to appeal an order of court directing that the money be paid over to the briber. We are also guid ed in this ana lysis by the Court o f Appe als explanation in News American Division, Hearst Corp. v. State, 294 Md. 30, 40 (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 in fringes up on its First A mendm ent rights: 1. By an application to an appellate court for review, by extraordina ry writ, of the actio n of the ord er-entering c ourt; 2. By appearin g before th e order-en tering 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 a nother trial court, or to the orderentering court in a separate civil action, for an injunction or declaratory jud gment, w ith further rev iew by direct a ppeal. The Hearst Court stated that intervention in the criminal c ase was m ore appro priate than pursuin g the issu e in ano ther cou rt. Id. at 41. In that case, a newspaper was granted leave to intervene in a crimina l case and to be heard in opposition to the defen se counsel s request for an ord er to prohib it prosecutors from disc ussing the c ase with the media. Id. -11- Hearst appealed the circuit court s decision to order those involved in the case to refrain from making extra-judicial statements. The defendant cross-appealed the court s order to allow Hears t to interv ene. 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 interven tion. Id. The Co urt of Ap peals explained that a quest for an order in a separate ca se wou ld have be en highly inappropriate because it would be an incongruous and dangerous situation [if] o ne Circuit Court judge of th is State could paralyze the entire administration of justice in the law c ourts thereof, both civil and criminal, by way of injunction. Id. at 41-42 (quoting Kardy v. Shook, 237 Md. 524, 533 (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 bee n entered, h as the adva ntage of in itially presenting the issues to th e trial judge for h is considera tion in the circu mstanc es of th e particu lar case . The trial judge is in a better position than an appellate court to eva luate matters which may be rapidly unfolding before him and in the comm unity in which the criminal case is pending. The trial judge is also the one who m ust initially consider how effective alternative methods of protectin g the fair trial right of the accused might be under the circumstances. Allow ing 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 o ppose it. Id. at 44-45. -12- WBAL does not rest its position in this case on the First Amen dment. 10 It states, instead, that [w]hile the special and compelling reason standard established by the Rules has parallels to the te st applied to F irst Amen dment a ccess questions, the source of the standard is the Mar yland Rules, n ot the First Amendment. Notwithstanding the basis for WBA L s claim, the issues presented are sufficiently similar to a First Ame ndment c laim to apply the Hearst Court s analysis. Although the Motion for Access was made p ost-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 th e public for inspection and copying and for which access has been den ied. 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 th e benefit of argument by an advocate of [the intervener s] interests . Hearst, 294 Md. at 42. Certainly the trial judge was in the best p osition to evalua te the req uest an d balan ce any co mpetin g interes ts. 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. 10 The Browns asked: Whether the media has a constitutional right to obtain a copy of defendants [sic] DVD and audiotape confession? Similarly, the State argues that [n]either the common law right of access to court records nor the First Amendment should deter courts from protecting against the oppressive use of judicial records. The right to privacy stands on equal foo ting with First Amendment rights and may compel a denial of access to cour t record s. -13- Therefore, we hold that th e State s right to appeal in this case was not limited by CJ § 12302(c). The Motion to Dismiss is denied. II. Order Granting the M otion for Access A. Circuit Court s Jurisdiction After WBA L filed the M otion fo r Acce ss in the c ircuit co urt, the case record was transferred to this C ourt pu rsuant to the Crim inal Ap peal. The State and Gaumer argue that, under Rule 16-1011, transfer of the record to this Court one week prior to the hearing diveste d the circ uit cour t of jurisd iction to consid er the m otion. Rule 16-1011(a)(1) - (2) provides: (a) If, upon a request for inspection o f a cou rt record , a custodian is in doubt whether the record is subject to inspection under the Rules in this Chapter, the custodian, after making a reasonab le effort to notify the person seeking inspection and each person to whom the court record pertains, shall a pply 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 (2007), explained: We begin ou r ana lysis b y first looking to the n ormal, plain meaning of the language of the statute, reading the statute as a whole to ensure that no word, clause, sentence or phrase is -14- 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 en ds. If how ever, the lang uage is sub ject to more than on e interpr etation, it i s ambig uous, and we resolve that ambiguity by looking to the statute s legislative history, case law, and statutory purpose. (Citatio ns omi tted.) We have stated that [t]he same f undame ntal principles of statutory con struction app ly to the interpretation of a rule[,] Hoan g v. He witt Av enue A ssociate s, LLC , 177 Md. App. 562, 588 (2007), and that the cardinal rule of statutory construction is to ascertain and effectuate legislative intention. Chesapeake Bank of Maryland v. Monroe Muffler/Brake, Inc., 166 M d. App . 695, 72 3 (200 6), cert. denied, 392 M d. 726 ( 2006) . Rule 16-1011(a) states that, [i]f . . . a custodian is in doubt w hether the re cord is subject to inspection under the Rules in this Chapter, the custodian . . . shall apply in writing for a preliminary judicial determination wh ether the court re cord is s ubject to inspec tion. (Emphasis added.) For the purposes of the Rule, the custodian is the clerk of a court[ ] and any other authorized individual who h as physic al custo dy and co ntrol of a court r ecord. 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 prelimina ry judicial determ ination. -15- Th e Rule do es not app ly 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 (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 no t affecting, th e appellate proceeding[.] Cottma n v. State, 395 Md. 729, 741 (2006) (quoting State v. Peterson, 315 Md. 73, 80 (1989)). In other words, [i]f the trial court does . . . decide to proceed during the pendency of 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 (quoting Pulley v. State, 287 Md. 406 , 419 (1980)). The State and Gaumer argue that, even if the circuit court retained jurisdiction over the Motion for Access, it should have refrained from exe rcising jurisdiction while Gau mer s criminal appeal was pen ding. According to the State, disse mination o f the exhib its could -16- hamper this Court s consideration of the issues in Gaumer s criminal appeal by affecting a potential jury if a new trial should be granted.11 We ar e not pe rsuade d. In its post-trial Ord er, the court d id not re-decid e the merits o f the case o r rule upon any of the issues pending before this Court on appeal. Cottman, 395 Md. at 741. As we discuss below, the impact of media dissemination of the DVD and the audiotape on a potential jury pool can be an appro priate 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 consid er the iss ue. We hold that the circuit c ourt had jur isdiction to consider WBAL s motion, and was not bou nd to re frain fr om ex ercising that jurisd iction. B. Abuse of Discretion We will only disturb a circuit court s d iscretionary dec isions wh en it has abu sed its discretion. In explaining the abuse of discretion standard, the Court of Appeals in King v. State, 407 Md. 682, 697 (2009), recently cited this Court s analysis in North v. N orth, 102 Md. App . 1, 13-14 (1994): Abuse of discre tion is one of tho se ve ry general, amorphous terms that ap pellate courts use and a pply with great frequency but which they have defined in many different ways. It has been said to occu r where no reaso nable person would take the view adopted by the [trial] court, or when the court acts without reference to a ny guiding rules or principles. It has also been said to exist when the ruling under consideration 11 In this case, the stay of the Order would mitigate that concern. -17- 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 r eason a nd wo rks an in justice. There is a certain com monality in all the se definition s, 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 unde r considera tion 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 announ ced objec tive. That, we think, is included within the notio n of u ntenab le grou nds, violative of fact and logic, and against the logic and effect of facts and inferences before the court. (Altera tions in o riginal) (I nternal c itations o mitted). 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 Brow ns conten d 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 tr ial rights. All appellants contend that transcripts of the DVD and the audiotape, which had been released in full, were sufficient to satisfy the Acce ss to Court Reco rds Ru les. We addres s each c ontentio n in turn . -18- 1. Victims Righ ts 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 Declaratio n of Righ ts outweighed the media s right to access and copy the court records. Article 47(a) provides, in pertinent pa rt, that [a] victim of crime sh all be treated b y agents of the state with dign ity, respect, and sensitivity during all phases of the crim inal j ustic e pro cess . M ore s peci fica lly, a victim has to be inform ed of the criminal justice proc eeding and up on request and if practicable, to be notified of, to attend, a nd to be heard at such a proceeding as such rights are implemented an d the terms crime[,] criminal justice proce eding[,] and victim are all speci fied 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 fam ily were subjected to such broadcasts, they would be reminded of the tragedy that the Defendan t has visited upon them. H owever, 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 iden tify the victim s fa mily members, so their identities would not be compromised by releasin g the D VD a nd aud iotape f or copyin g. Against the understandable co ncerns for the victim s fam ily, the Court must also weigh the significant public interest in fully disclosing wha t transpired in court. The public has a legitimate interest to ensure that its judicial and criminal justice systems a re fair an d effe ctive. One of the best ways to ensure public confidence in its judicial system is to perm it public access to its operations. The Petitioner seeks copies of certain portions -19- of the DVD and audiotape to broadcast to the public. Any member of the public who attended the trial would have seen and heard, in their complete form, the DVD and audiotape when they wer e played to the jury. . . . Given w hat the victim s family has had to endure because of the Defendant s crime, concerns that a media broadcast of the DVD and/or the audiotape might have a greater negative impact on them is speculative at best. Considering the facts of the pending matter, public interest in the full disclosure of judicial proceedings, and Maryland R ule §16-1000 [sic] et seq., the Court finds that there is no compelling need to prohibit the media from o btaining copies of the D VD a nd aud iotape. The Browns argue that airing the recordings of the graphic details of [the] mu rder would cause extreme damage[,] extreme distress[,] and substantial and irreparable harm to them and especially to Josie Brown s daughter, now age 11, who has so far been shielde d from the ho rrific fa cts of t he mu rder. The State argues that the victim s family s interests in lessening harmful and painful publicity should be a signif icant factor in assessing w hether cop ies of crimin al exhibits should be hand ed out after the trial[,] and, bec ause the trial co urt gave sh ort shrift to the family s right to privacy, it abused its discretion. It sta tes that the trial co urt improp erly dismissed the concerns for invasion of the family s privacy that would accompany the publication of [] Gaumer s murder confessions, suggesting that the family could simply ignore any broadcast. It also argues that there was nothing speculative about the greater negative impact that airing the recordings would have on the Browns in comparison to what they hav e alread y endure d. -20- Maryland courts hav e not previo usly addressed the interplay between Article 47 and a court s discre tion to limit or se al a case reco rd, but, in State v. Broberg, 342 Md. 544, 56566 (1996), the Court of Appeals ruled that Article 47 does not preclude [a] trial judge from exercising discretion regarding the admission of photogra phic evide nce. Sim ilarly, we hold that Article 47 did not preclude the trial judge from exercising discretion regarding access to and the copying of exhibits at issue in this case. We explain. In Cianos v . State, 338 Md. 406, 413 (1995), the Court of Appeals stated that trial judges must give appropriate consideration to the impact of crime upon the victims . (Empha sis in original.) The Court also stated that Article 47 represents th e strong pu blic policy that victims sh ould have more righ ts and shou ld be informed of the proceedings, that they should be treated fairly, and in certain cases, that they should be heard. Hoile v. Sta te, 404 Md. 591, 605 (2008) (quoting Lopez-Sa nchez v. Sta te, 388 Md. 214 , 229 (2005)). Add ition ally, the General Assembly has demonstrated a sound commitment to the rights of victims in criminal cases with legislation speaking to the rights of victims in numerous statutes.12 12 See, e.g ., Maryland Code Annotated (1999), §§ 7-803 7-805 of the Correctional Services Article (prov iding notice to victims of parole releas e agreem ents, violations, and commutation, pardon, or remission of sentence); Maryland Code Annotated (2001), § 6-106 of the Crimin al Procedu re Article ( C P ) (provid ing the victim the right to notice of a hearing for a motio n for a new trial and the righ t to attend such a hearing); CP § 11-102 (providing the victim the right, if practicable, to attend any proceeding where the defendant has a right to appear). -21- Rules 16-10 01, et seq., clearly reflect the common law presumption of the openn ess of court records that, as a general rule, can only be overcome by a special and compelling reason[.] Rule 16-1009(d)(4)(A); See Baltimore Sun Co. v. Mayor & City Council of Baltimore, 359 Md. 653, 660-61 (2 000); Group W Televis ion v. State, 96 Md. App. 712, 716 (1993); Baltimore Sun v. Thanos, 92 M d. App . 227, 22 9 (199 2). The DVD and the audiotape are presumed to be ope n to the p ublic fo r inspec tion. Rule 16-1002(a). 13 Because WBA L seeks a ccess to court record s that, by Rule, are n ormally subject to inspection, its request for access need not be supported by a special and compelling reason. Instead, under Rule 16-1009(d)(4), it is appellants who must demons trate a special and compelling reason as to why the court should deny or limit inspection of the exhibits sought by WBAL. Prior to the adoption of the Rules, we held that the court could seal all or part of the record when compelling interests to maintain the confidentiality of the record outweighed the right of access to it. Thanos, 92 Md. App. at 246-47. We explained the balancing process required to seal a court record as follows: In engaging in this difficult balancing process, the trial court will obviously find some interests of mo re importance in some 13 Rule 16-1001(e)(3) includes within the definition of a court record a record that is a case record[.] A case record, in turn, is a document, information, or other thing that is collected, received, or maintained by a court in connection with one or more specific judicial actions or proceedings[.] Rule 16-1001(c)(1)(A). The DVD and the audiotape are case records and, therefore, court records that are presumed to be open to the public for inspection. Rule 16-10 02(a). -22- cases than others, depending on the nature of the crime, defenda nt, victim, and report itself. If, upon co mpletion o f this process, the court concludes that one or more compelling interests served by maintaining the confidentiality of all or part of the report outweigh the First Amen dment righ t of access to it, then the co urt may seal all or part of the re port. Fina lly, in making its determination, [t]he cou rt should consider alternatives to a broad seal, including the option of redactin g portio ns of p leading s or trans cripts. Id. at 247 (quoting Baltimore Sun Co. v. Colbert, 323 M d. 290, 3 06 (19 91)). Under the Rules, a court record that is presumed to be open for inspection and copying may be sealed only for special and compelling reasons. The Rules favor access, but they do not deny discretion to the trial judge to seal or to limit access. In the exercise of that discretion, the n ature of t he balan cing proc ess rema ins essen tially the sa me. A ccor ding ly, even if we w ere to assum e that all of the asserted rights or interests are of equal importance at the beginning of the balancing process, the particular circumstances of each case, including the crime, the defendant, the victim, and the posture of the case, will cause some interests to rise an d other s to fall in importa nce du ring the proces s. Contrary to the State s assertion, the court did not improperly dismiss the Browns privacy concerns . The cou rt clearly recogniz ed those concerns in the difficult process of balancing their interests against the public s right of access to court records. The court considered the Browns argument that they will be irreparably harmed by the airing of the horrific facts of Josie Brown s murder, but found the argument speculative in light of the fact that W BAL did not seek those portio ns of the co nfession th at contain the horrific -23- facts of the murder and that extensive coverage of the murder trial had already occurred. In the court s view, because full transcripts of both the DVD and the audiotape were already released, the airing of redacted versions of the DVD and the audiotape sought by WBAL could hardly have much more of a negative impact on the Browns then what they had already endure d. Article 47 requires due consideration of the impact of crimes u pon the vic tims in all phases of the crim inal justice pro cess. It does not, however, provide victims with an absolute right to veto a request to access and copy court records. The issue remains one of balancing competing interests. In light of t he circu mstanc es and t he app licable ru les and princip les invo lved, we cannot say that the decision in this case was unreasonable or so far removed from any imaginab le center mark that it was untenable. Nor can we say that, in its balancing of the competing interests, the court did not treat the Browns with dignity, respect, and sensitiv ity. WBAL addresses the merits of the Browns arguments, but asserts an alternative basis for affirming the circuit court. It questions the Browns standing to file the Motion to Seal and challenges the filing of the Motion to Seal as a collateral attack on the Ord er. Our review of the record indicates that the circuit cou rt, in denying the M otion to Sea l, did not con sider the standin g, collate ral attack , or res jud icata arg umen ts raised by WB AL. -24- The Browns filed the Motion to S eal on behalf of their da ughter, as the victim s represe ntative, and indiv idually, on beh alf of them selves, and a s grandp arents and next best friend of their grandd aughter. R ule 16-10 09(a)(1)(A ) permits a party to an action in which a case record is filed, including a person who has been permitted to intervene as a party, and a person who is the subject o f or is specif ically identified in a case record to file a motion to seal or otherwise limit inspection of a case record filed in that action. According to WBAL, the Browns standing to file the Motion to Seal is somewhat unclea r. They are no t parties to the criminal trial and they and their granddaughter are not identified or referred to in the records at issue. The Browns contend that the victim, Josie Brown, was identified in the records at issue and that they have standing as the victim s representative[s]. In add ition, they assert that, as family members of the victim, they are also victims of the crime, and they are entitled to rights unde r Article 47. B oth parties recognize the Browns as v ictims and as the victim s representative[s] in this case. The term victim s representative is a statutory designation that provides certain specified rights. Victims and deceased victims representatives are provided with the right to notification, the right to be presen t at certain proceedings, and, in some circumstances, the right to be heard in the criminal trial, in addition to the right to apply for leave to appeal the denial of specifi ed righ ts. See, e.g., CP § 11-103, § 11-302, §§ 11-402 S 11-403. The right to notice may extend to subsequent proceedings defined in CP § 11-503(a), and may -25- include any o ther postsentencing court proceeding. These rights, which serve to implement Article 47, do not, however, make a victim or the victim s representative a party to the criminal action. See Cian os v. State, 338 Md. 40 6, 410-11 (1995); Lopez-Sa nchez v. Sta te, 388 Md. 214, 224 (2005). Neither the Rules n or the statutory pro visions cited o nly generally by the Browns as CP Title 11 create automatic standing for the purpose of participating in an acc ess disp ute. In our view , intervention w ould have been appropriate under the Rules to protect the privacy interests of the Brown family in this case, and WBAL concedes that the Browns would have suc ceeded o n a motion to intervene. We agree that the Browns would have had sufficient interest to justify intervention for the purposes of either filing a motion to seal or limit access or to oppose WBAL s Motion for Access. 14 Neverth eless, it is not nec essary to decide the stan ding iss ue to rea ch the m erits in thi s case. We have held that the State was entitled to appeal the grant of the Motion for Access and, in its brief, the State addresses the Browns concerns. Therefore, there is one party on each side of the access dispute with standing, making it unnecessary to address the standing issue in orde r to decid e the ca se on th e merits . See, e.g., Garner v. Archers Glen Partners, 14 It appears that the Browns were aware of the Motio n for Access, but, perhaps relying on the State, did not intervene at that time. It is questionable whether intervention would be permitted after appeal of the grant of the Motion for Access, and, therefore, there may be merit to WBA L s collateral attack argumen t. On the oth er hand, W BAL seems to recognize that the partic ular circum stances her e might pose a closer question than other examples of collateral attacks on court orders. Because the issue was not fully developed below or within the briefs, we will not decide the case on this alternative basis. -26- Inc., 405 M d. 43 (200 8); Sugarloaf Citizens Assn. v. Ne. Maryland Waste Disposal Auth., 323 Md. 64 1 (1991). In addition, W BAL has stated in its brief that it acknowledged in the trial court that it would not object to the Browns filing a brief amicus curiae in this appeal[.] Were we to dismiss their appeal on the basis of lack of standing to file the Motion to Seal or were we to treat the Motion to Seal as a collateral attack on the Order, we would, under the circumstances, permit the B rowns to p articipate in this appeal as amicus curiae. Rule 8-511. 2. Fair Trial Gaumer argues that the court abused its discretion by granting the Motion for Access in violation of his right to receive a fair trial. To support his contention, he cites a number of cases where trial courts refused to allow the media to have access to court records, including Grou p W., 96 Md . App. at 7 12; United States v. Beckham & Post-Newsweek Solutions, 789 F.2d 401 (6th Cir. 1986) ; Belo Broad. Corp. v. Clark, 654 F.2d 423 (5th C ir. 1981); United States v. Edwards, 672 F.2d 1289 (7th Cir. 1982); and United States v. Webbe, 791 F.2d 103 (8th C ir. 1986). The State adds that th e trial court erro neously ruled that a defendant s right to a fair trial is not a factor to weigh in the analysis. In each of the cited cases, the media sought and were denied copies of audio and/or videotapes in a criminal trial. As Gaumer no ted, in each case, future proc eedings were anticipated because the individual w as facing s eparate but related untried charges, a jury had failed to reach a unanimous verdict, or because other individuals faced future trials arising -27- from the same event. Accord ing to Gaumer, in those cases the court held that either the defendant s or the other potential defend ant s Sixth Amendment fair trial rights outweighed the interest in copying and disseminating at least a portion of the disputed evidence, or that a trial jud ge did n ot abus e discre tion in so conclu ding. An essential fac tor distinguish ing this case f rom those cited by Gau mer is that his criminal trial had concluded when WBAL filed its Motion for Access. In the cases cited, either the jury was still sitting in the criminal trial or another defendant s trial was pending at the tim e the m edia so ught th e evide nce. According to Gaumer, future proceedings could occur in his case, and [r]elease of highly dramatic audio and video depictions of experienced detectives interrogations of a college student w ith no expe rience with the criminal ju stice system carrie s a real poten tial for tainting a futu re jury pool. Even if the Criminal Appeal were pending, we would not find this argument particularly persuasive.15 Instead, we find instructive the view of the United States Co urt of Ap peals for the District of Columbia, as articulated in In re NBC, 653 F.2d 6 09, 614 (D.C. C ir. 1981 ). In NBC, the court addressed the risk of post-trial access to court records causing prejudice in the even t of a retrial. In tha t case, the trial court based its denial of a 15 Gaum er, as noted, lo st his direct crim inal appeal, b ut we do not consid er the fair trial issue presented to be moot, as he might continue to challenge his conviction through other avenues. Moreover, even if the fair trial issue were moot, we believe that the issue presented is an impo rtant issu e[] of p ublic int erest . . . which merit[s] an expression of our views for the guid ance of c ourts and litigants in the future." Cottman, 395 Md. at 745 (citations omitted). -28- broadcaster s application for access to court records on the defendants interest in securing a fair and impartia l jury shou ld the ca se be re tried. In its analysis of the issue, the court stated, id. at 615: Protecting the rights of [the defendants] in the event of new trials is a perfectly valid consideration, but our decision in [United States v. M itchell, 551 F .2d 1252 (D.C. Cir. 1976), rev d on other grounds, Nixon v. Warner Communications, 435 U.S. 589 (1978))] makes it clear that restricting the common law right to inspect and copy judicial records is rarely the proper protection. In discussing their decision in Mitchell, the NBC court stated: [T]he trial court abused its discretion in refusing to release the tapes [in evidence] merely to avoid the risk of causing p ossible prejudice at a hypothetic al second trial. [We] doubted whether the risk of potential prejudice at a hypothetical second trial could ever justify infringing upon the common law right of access to judicial records. [We] noted that this argument, taken to its logical conclusion, could result in the tapes never being released since any con viction is always subje ct to the possibility of succes sful co llateral atta ck. More importantly, however, [we] found that the risk of prejudice was not sufficiently grave in that case to ju stify the dis trict cou rt's action . Id. (internal footnotes omitted). Here, the court considered Gaumer s right to receiv e a fair trial in its analysis but concluded that, based on the post-trial posture of the proceedings, it was no longer a factor to be weighed in deciding whether WBAL was to receive the copies it requested. A concern for Gaumer s fair trial rights in a speculative future trial can be a valid co nsideration, b ut it is a concern that pales in the light of the public s interest in access to court records and a -29- consideratio n that would rarely overcome the right to access and copy court records.16 Therefo re, it was not u nreasona ble, in this case , for the circuit c ourt to conc lude: The Defendant has already been tried, convicted and sentenced and, although the matter is currently pending on appeal, he was afforded and received his right to a fair trial. Since the Defendant s trial has been concluded, the court s concerns for the Defendant s rig ht to a fair trial is no t a factor to w eigh in deciding whether to allow the Petitioner to received the copies of the evidence they requested. 3. Sufficiency of T ranscripts The State, Gaumer, and the Browns argue that, if the court is required to allow the media access to the records at issue, copies of the full transcripts of the DVD and the audiotape, already received by WBAL, are sufficient, and compliance with the Access to Court Records Rules does not demand actual copying of the DVD and the audiotape. As noted, Rule 16-1001(c) defines a case record , in part, as a document, information, or other thing th at is collected, received, or maintained by a court in connection with one or more specific judicial actions or proceedings. Rule 16-1006(f) specifically refers to audio, video, and digital recording[s] as case records, and, as case records, the DVD and the audiotape are court records that are open to the public for inspection, unless the court expressly orders othe rwise. Ru le 16-100 1(e); Rule 16-1002. A person entitled to inspect a 16 In the ev ent of a future r etrial, a court can consider any steps which may be necessary to protect Gaumer s fair trial rights as a result of the release of copies of the DVD and the aud iotape. See, e.g., Nebraska Press Assn. v. Stuart, 427 U.S. 539, 563-65 (1976); In re Application of Nat l Broad. Co., 635 F.2d 949, 95 3 (1980). -30- court record is entitled to have a copy or printout of the court record, which may be in paper form or, subject to certain conditions, in electronic form. Rule 16-1003. The State argues that providing the trial exhibits in the form o f printed tran scripts adequate ly serves the in terest in providing access to judicial proceedings, and satisfies the rules governin g access to a nd inspec tion of court records. Gaumer argues that, because WBAL has received a transcript of the videotaped confession, any obligation to provide copies has been satisfied. The Browns argue that WBAL has received a copy of the transcripts and had th e opportu nity to observe the confession played at trial and report on the events of the p roceed ings. W BAL has all th e inform ation it n eeds .... As appellate courts frequently comment when referring to a cold record, a transcript ordinarily reflects only the words spoken, and not how they were said or the physical actions and reactions of the participants present. The circuit court explained: One of the best ways to ensure public confidence in its judicial system is to permit public access to its operation. [WBAL] seeks copies of certain po rtions of the D VD an d audiotap e to broadcast to the public. Any member of the public who attended the trial would have seen and heard , in their complete form, the DV D an d audiotape w hen they w ere p layed to the jury. In sh ort, a transcrip t of th e DV D an d audiotape i s not a cop y. In Group W., we stated that [u]ltima tely, the decision to permit cop ying of exhib its is best left to the s ound disc retion of the trial court, and th e trial court is to exercise its discretion in light of the relevant facts and circumstances of the particular case. 96 Md. App. at 720 (citing Nixon, 435 U.S. at 589). Here, the circuit court, un der Rule 16-1009, had -31- the discretion to determine what level of copying was appropriate. In exercising that discretion, the court co nsidered th e fact that the media ha d already receiv ed the full transcripts of the DVD and the audiotape. In ba lancing the public s right to access c ourt records with Gaum er s fair trial concerns a nd the Bro wns priv acy and victim s rights concerns, the court s d ecision to pe rmit copies o f the redac ted DV D and a udiotape, in addition to the tra nscripts , was n ot an ab use of discretio n. CONCLUSION In conclusion, we deny WBAL s M otion to Dismiss the State s and Gaumer s appeals. We hold that the circuit court had jurisdiction to consider the Motion for Access a nd that it did not abuse its discretion by granting the Motion for Acc ess or by denying the Mo tion to Seal. We shall, however, remand the case to the circuit court for further redaction of the DVD and audio tape as agre ed to by WB AL in this Court. JUDGMENT AFFIRMED; CASE REMANDED TO THE CIRCUIT COURT F O R BALTIM ORE COUNTY FO R FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION; COSTS 1/4 TO APPELLANTS; 3/4 TO APPELLEES. -32-
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