Adkins v. State

BLACKWELL, Judge. Our primary concern in this homicide case involves the propriety of calling an accomplice as a state’s witness in the jury’s presence when it is known by the court and counsel that the witness will invoke the privilege against compelled self-incrimination. The Petition for Writ of Certiorari presented the following additional issues: (1) whether a recorded conversation between the defendant’s nontestifying accomplice and an ³ undercover informant is admissible as a declaration against penal interest; (2) does the admission of a recorded conversation between the nontestifying accomplice and the informant violate the defendant’s right to confrontation under the Federal and Maryland Constitutions; and (8) whether the informant’s written memorandum concerning a conversation with the defendant, discussing the alibi of the defendant, is inadmissible hearsay. Because we shall conclude the duplicating of Fifth Amendment procedures before the jury constitutes prejudicial error, we reverse the judgment of the Court of Special Appeals.

Due to our disposition of this case based on the erroneous invocation of the Fifth Amendment before the jury, we further find it unnecessary to discuss the merits of the remaining evidentiary questions. A jury in the Circuit Court for Washington County convicted Petitioner, David Cleveland Adkins (Adkins), of felony murder and robbery. The Court of Special Appeals affirmed Adkins’ conviction for felony murder but vacated the robbery conviction, agreeing with petitioner that it merged with the murder conviction, Adkins v. State, 72 Md.App. 493 , 531 A.2d 699 (1987). Pursuant to former Maryland Rule 828(g), (now 8-501(g)), the parties have submitted an Agreed Statement of Facts.

According to this Statement, the victim, Joseph Michael Teal (Teal), was last seen alive in a Hagerstown tavern in the company of Adkins and Darryl Troxell (Troxell). Teal bought the rounds and the three men drank together for approximately two hours. Teal’s body was found the next day floating face down in a creek outside of town. His wallet and watch were never recovered.

The initial autopsy report listed the cause of death as coronary insufficiency. Dr. Kaufman testified as an expert witness in forensic pathology. Based on a hypothetical containing much of the evidence introduced at trial, Kaufman opined that Teal’s death resulted from a heart attack caused by an attempted strangulation. ⁴ Lester Beach (Beach), a brother-in-law of Adkins and also related to Troxell, was in custody in Pennsylvania at the time of the ongoing investigation concerning Teal’s death. Pennsylvania authorities agreed to drop pending charges against Beach in return for Beach’s cooperation in the homicide investigation. 1 As part of the agreement, Beach visited Troxell in the Washington County Detention Center where Troxell was detained on other charges.

Beach donned a body wire, allowing Corporal Mullendore to monitor and record the conversation. By the time of Adkins’ trial, Troxell had been convicted and sentenced for the murder of Teal. Troxell was in the process of appealing his conviction to the Court of Special Appeals. During the trial, an evidentiary hearing was held on Adkins’ Motion in Limine to bar introduction of the recorded Beach-Troxell conversation. 2 At the hearing, held out of the jury’s presence, Troxell invoked his Fifth Amendment privilege against self-incrimination after conferring with his lawyer.

The trial judge admonished Troxell stating “the Fifth Amendment is not available to you and I would instruct you to answer the questions.” In finding Troxell to be a compellable witness despite his pending appeal, the court apparently relied on the Court of Special Appeals’ decision in Ellison v. State, 65 Md.App. 321 , 500 A.2d 650 (1985), which held “that the risk of incrimination terminates at the moment the sentence is pronounced and the judgment thereby becomes final.” Id. at 338 , 500 A.2d at 658 . We ⁵ subsequently overruled this holding in Ellison v. State, 310 Md. 244, 258-59 , 528 A.2d 1271, 1278 (1987). 3 Nonetheless, Troxell refused to respond to the prosecutor’s interrogation. The court found Troxell in contempt and sentenced him to six months incarceration consecutive to his other sentences. Troxell indicated that he would also assert his privilege if recalled at trial.

The following morning, the court ruled that portions of the recorded Beach-Troxell conversation were admissible as declarations against Troxell’s penal interest. The parties debated whether Troxell’s invocation of the Fifth Amendment out of the jury’s presence was sufficient to establish his unavailability. The court then permitted the State to call Troxell in the presence of the jury over the objection of the defendant. Troxell asserted he was afraid anything he said might jeopardize his pending appeal.

Still in the jury’s presence, the trial judge instructed Troxell that he had no right to refuse to testify and pronounced Troxell in contempt of court for the second time. On appeal, the Court of Special Appeals affirmed Adkins’ conviction. Central to the intermediate appellate court’s findings were: (1) the calling of Troxell in the jury’s presence was not reversible error; and (2) Troxell’s statements qualified as declarations against penal interest and their admission did not violate appellant’s rights under the Confrontation Clause. 4 The Supreme Court has identified two principal theories in analyzing prejudicial error where it is known that a ⁶ witness will refuse to testify based on the privilege against self-incrimination. First, “error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.” Namet v. United States, 373 U.S. 179, 186 , 83 S.Ct. 1151, 1154-55 , 10 L.Ed.2d 278 (1963).

Second, it may be appropriate to consider whether “inferences from a witness’ refusal to answer added critical weight to the prosecution’s case____” Id. at 187 , 83 S.Ct. at 1155 . Under this theory the Supreme Court noted the danger of allowing the jury to consider inferences in a form not subject to cross-examination. Adkins maintains that his defense was prejudiced by the calling of Troxell in the presence of the jury when it was known that he would invoke the privilege against self-incrimination. The State contends that there was no actual prejudice to the defense as a result of the calling of Troxell, and that the procedure was based on a legitimate need to establish the unavailability requirement under the declaration against penal interest exception to the hearsay rule.

Based on the standards set forth in Vandegrift v. State, 237 Md. 305 , 206 A.2d 250 (1965), we agree with petitioner’s position and shall reverse. The privilege against compelled self-incrimination is guaranteed under both the Fifth Amendment of the United States Constitution and Art. 22 of the Maryland Declaration of Rights. The Maryland Constitution provides “that no man ought to be compelled to give evidence against himself in a criminal case.” 5 Md. Const., Decl. of Rts., Art. 22. Upon assertion of the privilege by a witness, the court must ⁷ determine whether there is a reasonable basis for the invocation of the privilege and whether the privilege is invoked in good faith.

McLain, Maryland Evidence § 514.1, at 605 (1987); McCormick on Evidence § 139, at 341 (E. Cleary 3d ed. 1984); see also Richardson v. State, 285 Md. 261, 265 , 401 A.2d 1021, 1024 (1979); Hoffman v. United States, 341 U.S. 479, 486-87 , 71 S.Ct. 814, 818 , 95 L.Ed. 1118 (1951); United States v. Klauber, 611 F.2d 512, 514 (4th Cir.1979), cert. denied, 446 U.S. 908 , 100 S.Ct. 1835 , 64 L.Ed.2d 261 (1980). “Ordinarily, the court will make the necessary determination in open court but outside the presence or hearing of the jury.” McClain, Maryland Evidence § 514.1, at 606 (1987) (footnotes omitted and emphasis added). 6 ⁸ In Richardson v. State, supra, we outlined the proper procedure to be followed in determining when a witness may refuse to testify on grounds that the evidence adduced may incriminate him. 7 The Court noted the standard for a trial judge in assessing the privilege as set forth in Hoffman v. United States, supra: To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim ‘must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.’ Id. at 266-67, 401 A.2d at 1024 ; 341 U.S. 479, 486-87 , 71 S.Ct. 814, 818 , 95 L.Ed. 1118 (1951). The privilege must be accorded a liberal construction in favor of the right that it was intended to secure. Id. at 486 , 71 S.Ct. at 818 ; see also In re Maurice M., 314 Md. 391, 397 , 550 A.2d 1135 , 1138 ⁹ (1988), cert. granted in part, Baltimore City Dept. of Social Serv. v. Bouknight, 490 U.S.-, 109 S.Ct. 1636 , 104 L.Ed.2d 152 (1989).

The availability of the privilege generally depends upon the status of the witness. In Maryland, we have recently firmly adopted the majority rule “that a witness who has been found guilty and sentenced on criminal charges is entitled to claim the privilege against self-incrimination with regard to matters underlying those charges while the time for appeal or sentence review is running, or while a direct appeal or sentence review is pending.” Ellison v. State, 310 Md. 244, 253-54 , 528 A.2d 1271, 1275-76 (1987) (other citations omitted). Ellison held an accomplice who had previously been convicted may invoke the privilege as a witness at defendant’s subsequent trial as long as the appeal period or sentence review period had not expired. Id. at 258-59, 528 A.2d at 1278 ; see generally Smith v. State, 283 Md. 187 , 388 A.2d 539 (1978), cert. denied, 439 U.S. 1130 , 99 S.Ct. 1050 , 59 L.Ed.2d 92 (1979); McClain v. State, 10 Md.App. 106 , 268 A.2d 572 (1970), cert. denied, 259 Md. 733 (1970).

The possibility of incrimination relates to the verdict as well as the sentence imposed. In Ellison, supra, Judge Eldridge writing for the Court commented: “While a majority of appeals by defendants in criminal cases may not result in reversals and further proceedings, a criminal defendant’s chance of overturning a verdict or sentence on appeal certainly does not fall into the category of a mere remote possibility.” 310 Md. at 257 , 528 A.2d at 1277 . There is sufficient possibility of a new trial as a result of a pending appeal. When an appeal or application for leave to appeal is filed, the right to claim the privilege continues during the pendency of the appellate process.

In Taylor v. Best, 746 F.2d 220, 222 (4th Cir.1984), cert. denied, 474 U.S. 982 , 106 S.Ct. 388 , 88 L.Ed.2d 340 (1985), the United States Court of Appeals for the Fourth Circuit recognized that “it is possible that post-conviction incriminating evidence could be used against an inmate who had been convicted and sentenced but whose conviction was being ¹⁰ appealed.” Rather than determining the availability of the privilege on the type of proceeding involved, “we must base it on the nature of the statement or admission and the exposure which it invites,” 746 F.2d at 223 , quoting In re Gault, 387 U.S. 1, 9 , 87 S.Ct. 1428, 1434 , 18 L.Ed.2d 527 (1967) (emphasis in original). The Fourth Circuit has also applied this principle where the witness is an alleged accomplice of the defendant. In Mills v. United States, 281 F.2d 736, 741 (4th Cir.1960), the court held that where a witness had pled guilty to robbery but had not yet been sentenced, nor had her appeal time run, the witness could not be compelled to testify against her accomplice. The court reasoned that statements made by the witness, if she were required to testify, could impact upon the disposition of her appeal or the fixing of sentence.

See also Ottomano v. United States, 468 F.2d 269 (1st Cir.1972), cert. denied, 409 U.S. 1128 , 93 S.Ct. 948 , 35 L.Ed.2d 260 (1973). Consistent with our reasoning in Ellison, supra, and with the federal authorities cited above, Troxell had the right to invoke the privilege against self-incrimination as his appeal was pending before the Court of Special Appeals. Troxell’s intention to assert the privilege was originally manifested after a hearing was held on Adkins’ Motion in Limine to bar the introduction of the recorded Beach-Troxell conversation. Troxell invoked the privilege at the evidentiary hearing and refused to testify concerning events related to his pending appeal.

The court found him in contempt and sentenced him to six months’ imprisonment, consecutive to his current sentence. Troxell expressly indicated that he would refuse to testify if subsequently called, notwithstanding the finding of contempt, and the possibility of an additional sentence being imposed upon a second contempt order. At the conclusion of the hearing, the prosecutor stated, “I think still to satisfy the unavailability issue, I will have to call Mr. Troxell to the witness stand before the jury to get his refusal to testify.” Defense counsel immediately objected to the prosecutor’s suggestion. ¹¹ The following morning, the trial judge allowed the State to recall Troxell in the presence of the jury, requiring the Fifth Amendment to be invoked on a question by question basis. Upon direct examination, he clearly revealed Ms intent to invoke the privilege and an unwillingness to testify. 8 Despite TroxelFs insistence on refusing to testify, the trial judge ordered Mm to answer the prosecutor’s ojuestions before the jury.

The following inquiry was conducted before the jury: THE COURT: The Court has considered that at an evidentiary hearing, and I have reviewed the case of Ellison v. State [ 65 Md.App. 321 , 500 A.2d 650 ] and am satisfied, under Ellison v. State [Id.] that the state of the law is that your case which is on appeal could not be jeopardized by your testifying in this trial, and I therefore would instruct you to answer the question. WITNESS [TROXELL]: I’m sorry, your honor, I guess I will have to take a contempt of court. THE COURT: Alright. You are in direct contempt of court by reason of refusing to answer the question that was put to you.

What’s your next question? Q: [MR. NORMAN, STATE’S ATTORNEY]: Mr. Troxell, are you going to answer any further questions that I have about the activities of you and the defendant, David Adkins, on the nights of June 26th and June 27th, 1985? A: No, Sir, I will not.

THE COURT: Mr. Troxell, the Court will direct you, instruct you that under law you are required to answer these questions and that if you refuse [t® answer] these questions, you will be in contempt of court. Now I direct you to answer the question. What is your question, Mr. Norman? ¹² Q: Mr. Troxell, where were you on the nights of June 26th and June 27th, 1985, after 10 P.M.? (No Response).

MR. NORMAN: Your Honor, I request that the Court direct