Couch, J.,
delivered the opinion of the Court. Menchine, J., dissents and filed a dissenting opinion at page 19 infra. Per Curiam on Motion For Reconsideration at page 21 infra.
Having been found guilty, in a jury trial in the Criminal Court of Baltimore, of felony murder, robbery, and use of a handgun in the commission of a crime of violence, Glenn Jones appealed to the Court of Special Appeals. We granted his petition for a writ of certiorari prior to consideration by that court in order to resolve a question of public importance. In doing so, we are of necessity compelled to consider all issues raised by Jones in his appeal, which are as follows:
1. Did the trial court err in refusing to permit defense counsel to inspect the grand jury testimony of two key prosecution witnesses for purposes of cross-examination and impeachment?
2. Was the out-of-court photographic identification of Appellant so suggestive and conducive to misidentification as to deny him due process of law?
3. Did the trial court abuse its discretion in failing to take any corrective action after the prosecution referred to matters not in evidence during closing argument?
4. Was Appellant improperly convicted of, and sentenced for, both felony murder and the underlying felony?
Because of the nature of the questions raised, little need be said regarding the underlying facts of the crime giving [10]*10rise to Jones’s conviction. Suffice it to say that Leonard Holland was shot and killed during the course of a robbery witnessed by Kevin Lawson. Lawson subsequently picked Jones’s picture from a photographic array as the person who shot Holland, and later made a similar in-court identification. He explained he had gone to school with Jones and had known him for some time.
(1)
Although Jones, prior to trial, had sought to inspect the grand jury testimony of the State’s principal witnesses, Clanton and Lawson, he makes no issue here of the denial of that motion. He does assert error, however, in the denial of a similar motion made after each of these witnesses had completed his direct testimony for the State. The record reveals that the trial judge had denied the motion as to Clanton after reviewing Clanton’s grand jury testimony in camera and concluding that it was not "substantially or significantly different” from that given at trial. As to Lawson, however, the trial judge concluded that his grand jury testimony did vary, in some respects, from his trial testimony and thus made available to Jones those portions of the grand jury testimony of Lawson which did vary. We note that no use of such testimony was made during cross-examination by Jones’s counsel. The record makes clear that the trial judge reasoned that since his examination of the grand jury testimony of Clanton showed no significant inconsistencies, there was no "particularized need” for access to such testimony. In our view, the trial judge, albeit well-meaning, misconceived the meaning of "particularized >need,” requiring us to reverse the convictions in this case. We explain.
The parties appear to be in agreement that, consistent with the need for secrecy surrounding grand jury proceedings, there is no absolute right to inspect grand jury testimony prior to trial. Jones argues, however, that he had the right to such inspection once the witnesses had testified [11]*11on direct. He also argues, alternatively, that once a "particularized need” was shown, he then had the right to inspect. The State, on the other hand, argues that automatic disclosure of grand jury material is not required, but if a "particularized need” is shown, such disclosure may be had after the witness has testified on direct. We perceive from the record and briefs that what constitutes "particularized need” is misunderstood by the parties and the trial judge. Furthermore, there is disagreement with respect to the mechanism to be used for disclosure.
Heretofore we have not had the occasion to deal with this precise problem 1 directly although it has been alluded to. See Attorney Grievance Comm’n v. Strathen, 287 Md. 111, 117, 411 A.2d 102, 105-106 (1980), where Chief Judge Murphy said for the Court:
"Attorney disciplinary proceedings before an Inquiry Panel upon a complaint that an attorney has committed an act of misconduct are similar in purpose to the accusatory proceedings conducted by a grand jury. See Attorney Griev. Comm’n v. McBurney, 282 Md. 116, 383 A.2d 58 (1978). It is true, of course, that in a proper case an accused may, at trial, be afforded access to grand jury minutes for purposes of cross-examination or impeachment if he demonstrates a 'particularized need’ for disclosure. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Silbert v. State, 12 Md. App. 516, 280 A.2d 55 (1971).”
We recognize that throughout our sister jurisdictions, three distinct positions have been taken regarding disclosure of [12]*12grand jury testimony. Some courts have concluded that once a state’s witness has testified on direct examination, his grand jury testimony is subject to inspection by a defendant for the purpose of cross-examination or impeachment. See, e.g., State v. Superior Court In and For County of Maricopa, 95 Ariz. 319, 390 P.2d 109 (1964); People v. Johnson, 31 Ill.2d 602, 203 N.E.2d 399 (1964); Antrobus v. State, 253 Ind. 420, 254 N.E.2d 873 (1970); State v. Cuevas, 282 N.W.2d 74 (Iowa 1979); Commonwealth v. Edgerly, 372 Mass. 337, 361 N.E.2d 1289, 1292 n.3 (1977); People v. Wimberly, 384 Mich. 62, 179 N.W.2d 623 (1970); State v. Tate, 47 N.J. 352, 221 A.2d 12 (1966); State v. Felter, 85 N.M. 619, 515 P.2d 138 (1973); People v. Rosario, 9 N.Y.2d 286, 173 N.E.2d 881, 213 N.Y.S.2d 448 (1961); State v. Miner, 128 Vt. 55, 258 A.2d 815 (1969).
On the other hand, certain jurisdictions have held that a defendant is not entitled to inspection of a witness’s grand jury testimony, even for cross-examination purposes. See, e.g., State v. Prestridge, 399 So.2d 564 (La. 1981); State v. Porter, 303 N.C. 680, 281 S.E.2d 377 (1981).
Finally, a number of courts have held that a defendant is not entitled to inspection for impeachment on cross-examination unless a "particularized need” is shown. See, e.g., State v. Doody, 432 A.2d 399 (Me. 1981); State v. Baca, 85 N.M. 55, 508 P.2d 1352
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Couch, J.,
delivered the opinion of the Court. Menchine, J., dissents and filed a dissenting opinion at page 19 infra. Per Curiam on Motion For Reconsideration at page 21 infra.
Having been found guilty, in a jury trial in the Criminal Court of Baltimore, of felony murder, robbery, and use of a handgun in the commission of a crime of violence, Glenn Jones appealed to the Court of Special Appeals. We granted his petition for a writ of certiorari prior to consideration by that court in order to resolve a question of public importance. In doing so, we are of necessity compelled to consider all issues raised by Jones in his appeal, which are as follows:
1. Did the trial court err in refusing to permit defense counsel to inspect the grand jury testimony of two key prosecution witnesses for purposes of cross-examination and impeachment?
2. Was the out-of-court photographic identification of Appellant so suggestive and conducive to misidentification as to deny him due process of law?
3. Did the trial court abuse its discretion in failing to take any corrective action after the prosecution referred to matters not in evidence during closing argument?
4. Was Appellant improperly convicted of, and sentenced for, both felony murder and the underlying felony?
Because of the nature of the questions raised, little need be said regarding the underlying facts of the crime giving [10]*10rise to Jones’s conviction. Suffice it to say that Leonard Holland was shot and killed during the course of a robbery witnessed by Kevin Lawson. Lawson subsequently picked Jones’s picture from a photographic array as the person who shot Holland, and later made a similar in-court identification. He explained he had gone to school with Jones and had known him for some time.
(1)
Although Jones, prior to trial, had sought to inspect the grand jury testimony of the State’s principal witnesses, Clanton and Lawson, he makes no issue here of the denial of that motion. He does assert error, however, in the denial of a similar motion made after each of these witnesses had completed his direct testimony for the State. The record reveals that the trial judge had denied the motion as to Clanton after reviewing Clanton’s grand jury testimony in camera and concluding that it was not "substantially or significantly different” from that given at trial. As to Lawson, however, the trial judge concluded that his grand jury testimony did vary, in some respects, from his trial testimony and thus made available to Jones those portions of the grand jury testimony of Lawson which did vary. We note that no use of such testimony was made during cross-examination by Jones’s counsel. The record makes clear that the trial judge reasoned that since his examination of the grand jury testimony of Clanton showed no significant inconsistencies, there was no "particularized need” for access to such testimony. In our view, the trial judge, albeit well-meaning, misconceived the meaning of "particularized >need,” requiring us to reverse the convictions in this case. We explain.
The parties appear to be in agreement that, consistent with the need for secrecy surrounding grand jury proceedings, there is no absolute right to inspect grand jury testimony prior to trial. Jones argues, however, that he had the right to such inspection once the witnesses had testified [11]*11on direct. He also argues, alternatively, that once a "particularized need” was shown, he then had the right to inspect. The State, on the other hand, argues that automatic disclosure of grand jury material is not required, but if a "particularized need” is shown, such disclosure may be had after the witness has testified on direct. We perceive from the record and briefs that what constitutes "particularized need” is misunderstood by the parties and the trial judge. Furthermore, there is disagreement with respect to the mechanism to be used for disclosure.
Heretofore we have not had the occasion to deal with this precise problem 1 directly although it has been alluded to. See Attorney Grievance Comm’n v. Strathen, 287 Md. 111, 117, 411 A.2d 102, 105-106 (1980), where Chief Judge Murphy said for the Court:
"Attorney disciplinary proceedings before an Inquiry Panel upon a complaint that an attorney has committed an act of misconduct are similar in purpose to the accusatory proceedings conducted by a grand jury. See Attorney Griev. Comm’n v. McBurney, 282 Md. 116, 383 A.2d 58 (1978). It is true, of course, that in a proper case an accused may, at trial, be afforded access to grand jury minutes for purposes of cross-examination or impeachment if he demonstrates a 'particularized need’ for disclosure. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Silbert v. State, 12 Md. App. 516, 280 A.2d 55 (1971).”
We recognize that throughout our sister jurisdictions, three distinct positions have been taken regarding disclosure of [12]*12grand jury testimony. Some courts have concluded that once a state’s witness has testified on direct examination, his grand jury testimony is subject to inspection by a defendant for the purpose of cross-examination or impeachment. See, e.g., State v. Superior Court In and For County of Maricopa, 95 Ariz. 319, 390 P.2d 109 (1964); People v. Johnson, 31 Ill.2d 602, 203 N.E.2d 399 (1964); Antrobus v. State, 253 Ind. 420, 254 N.E.2d 873 (1970); State v. Cuevas, 282 N.W.2d 74 (Iowa 1979); Commonwealth v. Edgerly, 372 Mass. 337, 361 N.E.2d 1289, 1292 n.3 (1977); People v. Wimberly, 384 Mich. 62, 179 N.W.2d 623 (1970); State v. Tate, 47 N.J. 352, 221 A.2d 12 (1966); State v. Felter, 85 N.M. 619, 515 P.2d 138 (1973); People v. Rosario, 9 N.Y.2d 286, 173 N.E.2d 881, 213 N.Y.S.2d 448 (1961); State v. Miner, 128 Vt. 55, 258 A.2d 815 (1969).
On the other hand, certain jurisdictions have held that a defendant is not entitled to inspection of a witness’s grand jury testimony, even for cross-examination purposes. See, e.g., State v. Prestridge, 399 So.2d 564 (La. 1981); State v. Porter, 303 N.C. 680, 281 S.E.2d 377 (1981).
Finally, a number of courts have held that a defendant is not entitled to inspection for impeachment on cross-examination unless a "particularized need” is shown. See, e.g., State v. Doody, 432 A.2d 399 (Me. 1981); State v. Baca, 85 N.M. 55, 508 P.2d 1352 (1973); State v. Palmigiano, 112 R.I. 348, 309 A.2d 855 (1973); Mott v. State, 543 S.W.2d 623 (Tex. Crim. App. 1976).
As stated above, we have previously indicated that we looked with approval on the "particularized need” requirement. Strathen, supra. See also Thomas v. State, 50 Md. App. 286, 437 A.2d 678 (1981), cert. denied, 292 Md. 639, 437 A.2d 678 (1982). The Supreme Court of the United States likewise has opted for the "particularized need” requirement. See Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); United States v. [13]*13Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). It is observed that, as noted in these cases, rule 6(e) of the Federal Rules of Criminal Procedure provides, inter alia, that disclosure of grand jury testimony may be made "preliminarily to or in connection with a judicial proceeding . ..” and that the matter lies within the discretion of the trial judge. No such similar rule exists in Maryland and, of course, we are not bound to follow the federal rule here. The problem is what does a defendant have to offer to demonstrate a "particularized need,” keeping in mind that until a witness’s grand jury testimony is disclosed, there is no way a defendant can determine whether such testimony varied from the trial testimony so as to be of any use on cross-examination.
In Proctor & Gamble, supra, Mr. Justice Douglas stated in pertinent part:
"We do not reach in this case problems concerning the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like.7 Those are cases of particularized need where the secrecy of the proceedings is lifted discretely and limitedly. ” 356 U.S. at 683, 78 S.Ct. at 986-87, 2 L.Ed.2d at 1082 (emphasis supplied).
Again, in Dennis, supra, the Supreme Court quoted from its opinion in Procter & Gamble to the effect that:
" '[Pjroblems concerning the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility...’, are 'cases of particularized need where the secrecy of the proceedings is lifted....’ ” 384 U.S. at 870, 86 S.Ct. at 1849, 16 L.Ed.2d at 984 (citation omitted).
[14]*14Accord Douglas Oil, supra, where the Supreme Court observed, "the typical showing of particularized need arises when a litigant seeks to use 'the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like.’ ” 441 U.S. at 222 n. 12, 99 S.Ct. at 1674, 60 L.Ed.2d at 167 (quoting Procter & Gamble). Moreover, in Pittsburgh Plate Glass, supra, the Supreme Court concluded that "a preliminary showing [of contradiction between the witness’s trial and grand jury testimony] would not, of course, be necessary.” 360 U.S. at 400-01, 79 S.Ct. at 1241, 3 L.Ed.2d at 1327. In Pittsburgh Plate Glass, the Court held that the defense had failed to show the existence of a "particularized need,” pointing out that "the petitioners [had] failed to show any need whatever for the testimony of the witness[,]” Id. (emphasis added).2 Rather, the petitioners’ contention was that they had an absolute right to disclosure of the grand jury testimony. We believe the reasoning of these cases to be persuasive, for in the usual situation, without seeing the grand jury testimony first, a defendant would be incapable of showing a more detailed particularized need. Accordingly, we hold that [15]*15after a State’s witness has testified on direct examination, a defendant is entitled to inspect the grand jury testimony for cross-examination purposes without any requirement that he show any other need.
Furthermore, we hold that the procedure suggested by the State, and followed in some jurisdictions, of having the trial judge inspect the grand jury testimony to determine whether inconsistencies exist or whether that testimony would be of use to the defendant, as was done in this case, is improper. Because what the Supreme Court said on this point in Dennis is so persuasive, we set it out in full:
"In Pittsburgh Plate Glass, [360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959)] the Court reserved decision on the question whether in camera inspection by the trial judge is an appropriate or satisfactory measure when there is a showing of a 'particularized need’ for disclosure. 360 U.S. at 401 [, 79 S.Ct. at 1241]. This procedure, followed by production to defense counsel in the event the trial judge finds inconsistencies, has been adopted in some of the Courts of Appeals. In the Second Circuit it is available as a matter of right. While this practice may be useful in enabling the trial court to rule on a defense motion for production to it of grand jury testimony — and we do not disapprove it for that purpose — it by no means disposes of the matter. Trial judges ought not to be burdened with the task or the responsibility of examining sometimes voluminous grand jury testimony in order to ascertain inconsistencies with trial testimony. In any event, 'it will be extremely difficult for even the most able and experienced trial judge under the pressures of conducting a trial to pick out all of the grand jury testimony that would be useful in impeaching a witness.’ Pittsburgh Plate Glass, 360 U.S. at 410 [, 79 S.Ct. at 1246] (dissenting opinion). Nor is it realistic to assume that the trial court’s judgment as to the utility of material for [16]*16impeachment or other legitimate purposes, however conscientiously made, would exhaust the possibilities. In our adversary system, it is enough forjudges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.” 384 U.S. at 874-75, 86 S.Ct. at 1851, 16 L.Ed.2d at 986 (footnotes omitted).
See also Jencks v. United States, 353 U.S. 657, 669, 77 S.Ct. 1007, 1014, 1 L.Ed.2d 1103, 1112 (1957), where the Court specifically disapproved a "practice of producing government documents to the trial judge for his determination of relevancy ... without hearing the accused....”
In Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219, 1225 (1977), the Supreme Court of Pennsylvania, when considering whether an in camera review of prior statements of prosecution witnesses by the trial court was adequate to protect a defendant’s interest, concluded that it was not. In pertinent part, that Court stated:
"We believe that defense counsel can better evaluate whether the prior statements relate to the subject matter of a witness’ direct testimony. Statements which on their face do not appear to bear upon the direct testimony may actually be relevant once defense counsel brings to the court’s attention other information counsel has developed through his investigation and preparation of the defense. We recognize that the trial court has the ultimate responsibility to determine whether the prior statements may be used in cross-examining the witness or are otherwise admissible. However, like other evidentiary rulings, these determinations are properly made in an adversary context/' We do not believe that the trial court can determine the value that prior statements may have to the defense without hearing defense argument after inspection.”
[17]*17Accord, Commonwealth v. Stewart, 365 Mass. 99, 309 N.E.2d 470, 474-75 (1974) (involving a witness’s grand jury testimony).
We see no difficulty with the trial judge reviewing the witnesses’ grand jury testimony and excising those matters which do not relate to the subject case, but he should not be making decisions as to what is or is not inconsistent or immaterial to the defendant’s case.
In view of the above, it follows that the trial judge erred here. We do not believe it appropriate for this Court to review the trial testimony of Clanton and Lawson for the same reasons outlined above with respect to the trial judge; not doing so, we cannot apply the harmless error rule. Accordingly, we must reverse.
(2)
Jones contends that he has been denied due process because the photographic identification by Lawson was impermissibly suggestive. This is so, it is argued, because the identification occurred some two and a half months subsequent to the shooting incident and because the photographic array, consisting of five photographs, did not include photographs of Perkins Clanton or Kevin Scofield.3 Jones further asserts that Lawson’s in-court identification was tainted and evidence of both the extrajudicial and judicial identifications should be excluded.
We have reviewed the record, including the photographs, and find no merit to Jones’s argument. Considering the facts of this case, the photographic identification procedure was not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968). See also Foster & Forster v. State, 272 Md. 273, 287, 323 A.2d 419, 426 (1974), cert. [18]*18denied, 419 U.S. 1036, 95 S.Ct. 520, 42 L.Ed.2d 311 (1974); Meyer v. State, 43 Md. App. 427, 440, 406 A.2d 427, 436 (1979), cert. denied, 446 U.S. 938, 100 S.Ct. 2159, 64 L.Ed.2d 792 (1980). The testimony at the hearing on the motion to suppress was that after Lawson made a statement to Detective Segreti, he was shown five photographs and asked if "[he] recognize[d] any of them.” He selected Jones as being the one who committed the shooting. Defense counsel was afforded the opportunity to cross-examine both Lawson and Segreti. The testimony of Lawson and Segreti was substantially consistent regarding the procedures followed and the fact that Segreti did not suggest which photograph Lawson should select. Moreover, Lawson testified that he was acquainted with Jones prior to the shooting incident and in fact had gone to school with him. Accordingly, the trial judge did not err in denying Jones’s motion to suppress the identification.
(3)
In light of our conclusion on issue one above, we need not address appellant’s complaint concerning improper argument by the prosecutor.
(4)
As to the appellant’s final argument that he was improperly convicted of both felony murder and the underlying felony, the State concedes error and agrees that the appellant’s conviction and sentence should be vacated. We agree.
Convictions for felony murder and use of a handgun in the commission of a crime of violence reversed and case remanded for a new trial.
Conviction and sentence for robbery vacated.
Costs to be paid by Mayor and City Council of Baltimore.