Adkins v. State

WILNER, Judge. Appellant David Adkins was convicted in the Circuit Court for Washington County of felony murder and robbery, for which he was given consecutive sentences of life imprisonment and eight years imprisonment. Both convictions stemmed from the State’s assertion and the jury’s implicit finding that, in company with one Darryl Troxell, appellant robbed and murdered Joseph Teal on the evening of June 26, 1985. Some of the most damaging evidence against appellant came from his brother-in-law, Lester Beach.

Beach had been incarcerated in Pennsylvania on charges unrelated to this case. At some point, Corporal Douglas Mullendore of the Washington County Sheriff’s Department worked out an arrangement with Beach and the Pennsylvania police authorities whereby, in consideration of Beach’s cooperating with Mullendore on the Teal case, Pennsylvania dropped its charges against him and released him from prison. Implementing his part of the agreement, Beach (1) visited Troxell in the Washington County Detention Center on December 21, 1985, and allowed Corporal Mullendore to monitor and record his conversation with Troxell, and (2) had his girlfriend, Tina Carter, make a memorandum of a second conversation he had with appellant on December 29. It is principally the evidence of these events that appellant challenges in this appeal. 1 (1) Beach’s Conversation With Troxell By the time of trial, Troxell had already been tried, convicted, and sentenced for his role in the killing; his appeal to this Court was then pending.

He was called as a ⁴⁹⁷ witness by the State, out of the presence of the jury, but refused to answer any substantive questions on Fifth Amendment grounds. Relying on this Court’s opinion in Ellison v. State, 65 Md.App. 321 , 500 A.2d 650 (1985), the trial court concluded that Troxell was no longer in any danger of incrimination, and it ordered him to testify. He again refused, whereupon the court found him in contempt and sentenced him to six months in prison. Troxell made very clear to counsel and to the court that, if recalled before the jury, he would continue to refuse to testify, notwithstanding the finding of contempt.

The prosecutor urged that, in order to have a valid finding of “unavailability” sufficient to allow admission of the recorded conversation between Troxell and Beach, Troxell would have to be recalled, given another opportunity to testify, and decline. Defense counsel objected to that occurring before the jury, and initially the court agreed to conduct the further inquiry outside the presence of the jury. Counsel then made clear that he would object to a finding of “unavailability” whether or not Troxell was recalled before the jury, which led the court to change its view and permit Troxell to be recalled before the jury. The next morning, before the jury, the State again called Troxell who, at the first question (after giving his name and address), invoked his Fifth Amendment privilege and announced that he would answer no further questions, whereupon the court found him in contempt and excused him.

Immediately, the court (1) declared Troxell to be unavailable as a witness, thus setting the stage for testimony from Beach and Mullendore about the December 21 conversation at the county detention center, and (2) found no prejudice from the recalling of Troxell before the jury and denied appellant’s motion for mistrial based on that procedure. Through Beach and Mullendore, the State then placed into evidence a court-edited tape and transcript of the conversation. Troxell’s statements, parts of which clearly implicated both him and appellant in the robbery and killing, ⁴⁹⁸ were admitted as declarations against Troxell’s penal interest. Appellant makes three complaints about this evidence and the manner of its production.

He contends that the court erred procedurally in allowing the State to recall Troxell before the jury, knowing that he would refuse to answer questions and would be found in contempt of court. Substantively, he attacks the admission of the tape and transcript as a violation of his Sixth Amendment right of confrontation and on the ground that Troxell’s statements do not qualify as declarations against penal interest. (a) Procedure In Namet v. United States, 373 U.S. 179 , 83 S.Ct. 1151 , 10 L.Ed.2d 278 (1963), the Supreme Court made clear that the calling before a jury of a witness who the prosecutor knows will refuse to testify raises no Constitutional issue and does not necessarily constitute reversible error on evidentiary grounds. The Court did recognize, however, that there were circumstances under which such a procedure could constitute error.

Drawing from lower court decisions, it identified two areas of concern: one, where the government “makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege,” in which event error can be based on prosecutorial misconduct, and, two, where “inferences from a witness’ refusal to answer [add] critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly [prejudice] the defendant.” Id., 186-87 , 83 S.Ct. at 1155 . Error on neither ground is to be presumed but must be judged from the attending circumstances. In Vandegrift v. State, 237 Md. 305 , 206 A.2d 250 (1965), the Court of Appeals seemingly adopted, as “requirements for a court’s finding of prejudicial error” (id., 308, 206 A.2d 250 ), the five standards set forth in an A.L.R. annotation (Prejudicial Effect of Prosecution’s Calling As Witness, To Extract Claim of Self-Incrimination Privilege, One Involved in ⁴⁹⁹ Offense With Which Accused Is Charged, 86 A.L.R.2d 1443 , 1444 (1962)): “ ‘1. that the witness appears to have been so closely implicated in the defendant’s alleged criminal activities that the invocation by the witness of a claim of privilege when asked a relevant question tending to establish the offense charged will create an inference of the witness’ complicity, which will, in turn, prejudice the defendant in the eyes of the jury; ‘2. that the prosecutor knew in advance or had reason to anticipate that the witness would claim his privilege, or had no reasonable basis for expecting him to waive it, and therefore, called him in bad faith and for an improper purpose; ‘3. that the witness had a right to invoke his privilege; ‘4. that defense counsel made timely objection and took exception to the prosecutor’s misconduct; and ‘5. that the trial court refused or failed to cure the error by an appropriate instruction or admonition to the jury.’ ” Vandegrift, supra, at 308-09 , 206 A.2d 250 . See also Conway v. State, 15 Md.App. 198, 217-18 , 289 A.2d 862 (1972), where, following Vandegrift , we also employed those standards.

Other courts have articulated the standards somewhat differently—see, for example, Zeigler v. Callahan, 659 F.2d 254, 272 (1st Cir.1981)—but the difference seems more in language than in substance. In a supplementary annotation to that relied upon in Vandegrift , found in 19 A.L.R.4th 368 (1983), the commentator does not mention the five factors but instead concludes, in relevant part: “[I]t has been recognized expressly or by apparent implication in numerous cases throughout the annotation that it is improper for the prosecution to call as a witness one whom it knows will certainly invoke the privilege against testifying on the ground of self-incrimination, with the sole purpose or design of having the jury observe that ⁵⁰⁰ invocation. Obviously, it is difficult to demonstrate that the prosecution had this sole purpose or design, and it would be necessary, in any event, to demonstrate prejudice to the accused in order to effect the reversal of a conviction. Hence, the cases most commonly turn on the extent of the prejudice resulting to the accused, in all the circumstances, from the fact that the witness called did invoke the privilege, whether or not it is clear that the prosecution’s sole or main purpose or design was to provoke such invocation.” Id., 373.

As the recent annotation indicates, this is becoming a more common problem plaguing both trial and appellate courts. Perhaps as a prophylactic rule—to avoid even an argument of prosecutorial misconduct or an inappropriate reliance on inferences drawn from invocation of the privilege—some courts have recommended and followed the procedure, at least in cases where the existence of the privilege is questionable, of ascertaining the witness’s availability outside the presence of the jury. See, for example, United States v. MacCloskey, 682 F.2d 468 , 478 n. 19 (4th Cir.1982): “We think that the best procedure to follow after a witness has improperly invoked the Fifth Amendment or any privilege in such a situation, is to issue an order, outside of the jury’s presence, directing him to testify and admonishing him that his continued refusal to testify would be punishable by contempt.” See also United States v. Zappola, 646 F.2d 48, 54 (2d Cir.1981); Annot., supra, 19 A.L.R.4th, at 418-20. We agree that that is the better approach, for it solves the problem in a practical way, especially when the State intends to use the exercise of the privilege as the basis for a finding of “unavailability.” The critical requirement in such a case is a clear decision by the witness to maintain his silence after being informed that the court has rejected his claim of privilege and ordered him to testify. ⁵⁰¹ There is no reason why that final decision must be made in the jury’s presence, much less why the court’s order to the witness to testify or its consequent finding of contempt need be announced before the jury. 2 As most of the cases make clear, however, the failure of a court to follow that procedure does not, of itself, constitute reversible error.

One must still look at the circumstances, focusing on the purpose and consequences of the event. We are persuaded that there was no reversible error here. It is clear, in the first instance, that there was no prosecutorial misconduct. The prosecutor did not drag Troxell before the jury in order to create an impermissible inference of appellant’s guilt from Troxell’s refusal to testify.

His concern was only that Troxell’s refusal to testify be sufficiently well established, in light of defense counsel’s objection, to warrant a finding of “unavailability” and thus permit the introduction of hearsay evidence. 3 Indeed, once Troxell invoked his privilege, the questioning ceased and he was excused. Nor did the prosecutor argue, or even suggest, to the jury that any inference of appellant’s guilt should be drawn from Troxell’s refusal to testify. As to that, he said no more than “it’s too bad that [Troxell] would not oblige us all by repeating from the witness stand what ⁵⁰² he told Lester Beach on December 21, 1985, but nonetheless, you’ve heard the tapes and you’ve got copies of the transcripts.” The emphasis was on the affirmative evidence in the recorded conversation, not the invocation of the privilege. Whether we apply the particular factors enumerated in Vandegrift or the more general standard enunciated in the later A.L.R. annotation, there was simply insufficient prejudice to appellant to justify a reversal.

(b) Substance As we observed, appellant’s substantive attack on the admission of the tape and transcript is in two parts. He complains first that Troxell's statement does not qualify under the hearsay rule as a declaration against penal interest, and second that the admission of the tape and transcript denied him his Sixth Amendment right of confrontation. There is, of course, a significant overlap in these issues. As a starting point, we turn to Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), where the Supreme Court discussed in general terms the interplay between the Confrontation Clause and the hearsay rule.

It summarized its conclusions at 66: “In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate 'indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at