Allen v. State

¹⁶⁸ COLE, Judge. In this case we shall decide whether the trial judge erred when he called a prosecution witness as the court’s witness when both the court and the prosecutor knew that the witness intended to claim his privilege against self-incrimination. Petitioner, Lloyd David Allen, was tried by a jury in the Circuit Court for Prince George’s County for his alleged involvement in the February 3, 1986, robbery of an establishment known as Godfather’s Pizza. Specifically, he was charged with (1) robbery with a deadly weapon; (2) robbery; (3) use of a handgun in the commission of a crime of violence; (4) assault with intent to commit robbery; (5) possession of a pistol after a conviction of a crime of violence; (6) assault; and (7) theft over and under $300.00. 1 Prior to jury selection, Petitioner’s counsel proffered that one of the proposed witnesses, Antonio Buie, intended to invoke his Fifth Amendment right to remain silent.

Antonio Buie, in a prior trial, had testified against his cousin, a co-defendant, Jerome Buie. In response to Petitioner’s proffer, the prosecutor responded that the State could not say it would not prosecute Antonio for perjury because “if someone commits perjury, we are obligated to prosecute him, or the whole system goes.” Petitioner requested a pre-trial hearing on his motion in an effort to obviate such information from being presented to the jury in opening statement. At that hearing, the State indicated that it intended to have Antonio Buie called as a court’s witness because the prosecutor could not vouch for Antonio’s credibility 2 based on different versions of the ¹⁶⁹ events in question and because the prosecutor had, in the past, prosecuted Antonio Buie. Antonio’s counsel stated that his client insisted upon asserting his Fifth Amendment privilege.

The prosecutor announced that he intended to waive future prosecution of Antonio regarding the armed robbery of Godfather’s Pizza and offered to confer immunity on him. Antonio’s counsel disputed that the State had the authority to confer immunity. The court withheld its ruling. The prosecutor in his opening statement told the jury that Antonio would be a witness, that Antonio was employed at Godfather’s Pizza the night of the robbery, and suggested that Antonio would involve Petitioner as one of the robbers.

He further told the jury that one of the robbers was Jerome Buie, a cousin of Antonio Buie. At trial, Laurie Graham, manager of Godfather’s Pizza, testified that she and Antonio, who was employed as a cook at the time, were working the evening the robbery occurred. She testified that two men walked in about 12:05 a.m., one was six-foot-one, dark skinned, and the other about five-feet five inches, and light skinned. The taller man was dressed in a running suit with a hood over his head and a handkerchief tied over his face.

The lighter skinned male (alleged to be Petitioner) also had a hood over his head and a handkerchief tied over his face. Ms. Graham stated that the tall dark skinned man had a gun which “looked like a nine millimeter [handgun]____” She was told to hang up the telephone and “go in the back and open up the safe.” She obeyed the instructions to open the safe. After doing so, she and Antonio were instructed to lie down on the floor. She estimated that $340.00 was in the safe.

The entire transaction took about “five to seven minutes at the most.” She made an in-court identification of the Petitioner as one of the robbers. ¹⁷⁰ After Ms. Graham’s testimony, the prosecutor requested that the court call Antonio as its own witness, again stating that he could not vouch for Antonio’s credibility. Because Antonio’s counsel could not be contacted, the court deferred his testimony and received other testimony in the case. After Antonio’s counsel 3 was located, the court called Antonio to the stand. Antonio’s counsel objected to the court calling him as a witness.

The objection was overruled, however, and the questioning proceeded in the presence of the jury. After Antonio stated his name, the State asked him his date of birth. At that point, Antonio’s attorney objected once again: * * * * * * By MR. McCARTHY: I am going to object and ask my client to refer to the note that I have passed to him.

He had asked for it so he will not make a mistake. THE COURT: All right. Did you look at it? THE WITNESS: Yes, sir.

THE COURT: Okay. Now, the question is, when were you born. THE WITNESS: I decline to testify on the ground it may incriminate me. THE COURT: All right, come up, Mr. McCarthy.

(Counsel approached the bench and the following ensued). THE COURT: What did you put on the note? MR. MCCARTHY: That.

THE COURT: To every question? MR. McCARTHY: Yes, because I don’t know what the questions are going to be that are going to be asked and other than his name, I would indicate to the court, that through my conversations with him, from my review of the transcript of the prior trial, it is my position that he does have a fifth amendment ground, and that he stands ¹⁷¹ in jeopardy of possibly incriminating himself on the criminal charge, if he testifies. THE COURT: Okay.

Take the jurors into the jury room. We will be about three minutes. (The jury was excused from the courtroom). (Counsel returned to the trial tables and the following ensued).

THE COURT: All right, Mr. Buie, I instruct you to answer every question that is asked of you by either lawyer in this case, and to disregard what your lawyer has advised you. Do you understand that? THE WITNESS: Yes, sir. THE COURT: Now, do you intend to follow my instructions?

THE WITNESS: No, sir. THE COURT: All right. I am going to find you in contempt of this court, and I will set this matter in for trial after this case is over, and we will have a trial. All right?

MR. MCCARTHY: Yes. THE COURT: You are free to go. * % S[S 5}. % S{t The following day, Antonio’s counsel, Allen’s counsel, and the Assistant State’s Attorney met with the judge outside the presence of the jury to decide whether or not Antonio could assert his Fifth Amendment privilege not to testify. The court decided that it would call Antonio as its witness because it would be able to protect Antonio from any subsequent prosecution arising from the robbery, thereby eliminating Antonio’s basis for claiming his Fifth Amendment privilege.

In discussing the procedure to be followed in questioning the witness, Antonio’s attorney suggested that the court use the procedure set forth in Richardson v. State, 285 Md. 261 , 401 A.2d 1021 (1979). Under Richardson , the integrity of Allen’s trial would be preserved if the questions which Antonio answered with a claim of his Fifth Amendment privilege were not asked before the jury. Defense counsel ¹⁷² stated that if Antonio took the stand, defendant would reserve the right to cross-examine Antonio. The trial judge ruled that questions and answers could occur before the jury despite Antonio’s Fifth Amendment claims, and that defense counsel was prohibited from asking any questions of the witness.

Over defense counsel’s objection, the court called Antonio to the stand as a court’s witness, and permitted the prosecutor to question him. Whereupon, Antonio asserted his Fifth Amendment privilege before Petitioner’s jury in response to several questions from the prosecutor as follows: Q. Would you state your full name please? A. Antonio Jethro Buie. Q. How old are you, Mr. Buie?

A. Twenty. Q. And where did you live back in February of 1986? A. 5400 67th Avenue, Riverdale, Maryland. Q. Did you live with a gentleman by the name of Jerome Buie in that household?

A. I would like to speak with my attorney before I answer that question. I decline to testify on the ground it might incriminate me. Q. Did you have a job back in February of 1986, Mr. Buie? A. I would like to speak with my lawyer before I answer that question.

THE WITNESS: Yes, I did. Q. Was that job at the Godfather’s Pizza Place on Annapolis Road? A. I decline to answer that question on the ground it might incriminate me. Q. Do you see a gentleman by the name of Lloyd David Allen in the courtroom today?

A. Yes, I presume. Q. Could you point to him and tell us for the record what he is wearing in court today, please? ¹⁷³ A. I would like to speak to my lawyer before I answer that question. Yes, he has on a blue shirt, blue Calvin Kleins. Q. Would you point to him so we can be clear?

A. He is sitting at the table right here. Q. The record should reflect the witness has identified the defendant, Lloyd Allen. Were you present when an armed robbery took place at a Godfather’s Pizza on February 3, 1986? A. I would like to speak with my lawyer before I answer the question.

I decline to testify on the ground that it might incriminate me. At the conclusion of the evidence, the jury found Petitioner guilty and he was sentenced pursuant to Md.Code Ann. Article 27, § 643B(c) (1987 Repl.Vol.) to a mandatory 25 years on the robbery with a deadly weapon count, and also to an additional 15 year consecutive sentence for the handgun violation. Petitioner appealed to the Court of Special Appeals which subsequently affirmed the judgment of the trial court in an unreported opinion. We granted certiorari to address three interrelated issues: 1.

Whether the trial court erred when it permitted the prosecutor to question Antonio Buie before the jury when the court knew or had reason to know the witness would assert his Fifth Amendment right to remain silent. 2. Whether the trial court erred when it called Antonio Buie as a court’s witness. 3. Whether the trial court erred when it denied Petitioner’s motion for mistrial. Petitioner’s principal contention is that the trial court committed reversible error when it permitted the prosecutor to question Antonio Buie before the jury when the court knew beforehand that he would assert the privilege against self-incrimination. ¹⁷⁴ It has long been held that, under most circumstances, it is improper for a prosecutor to require a witness to claim his privilege against self-incrimination in the presence of the jury when, as in this case, the prosecutor knows or has reason to anticipate that the witness will assert the privilege in front of the jury.

Namet v. United States, 373 U.S. 179 , 83 S.Ct. 1151 , 10 L.Ed.2d 278 (1963); Vandegrift v. State, 237 Md. 305 , 206 A.2d 250 (1965); Busby v. State, 412 So.2d 837 (Ala.Crim.App.1982); Burkley v. United States, 373 A.2d 878 (D.C.App.1977); People v. Giacalone, 399 Mich. 642 , 250 N.W.2d 492 (1977). In Namet v. United States, the United States Supreme Court addressed this issue, although the Court concluded that it is not always reversible error for the prosecution to call a witness whom it has reason to believe will refuse to testify based upon the Fifth Amendment. 373 U.S. at 187 , 83 S.Ct. at 1155 , 10 L.Ed.2d at 284 . The Court recognized that in determining whether a defendant’s substantial rights have been affected, the courts must examine the surrounding circumstances in each case, focusing primarily on two factors, each of which suggests a distinct ground of error. The Court stated that: First, some courts have indicated that 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. 373 U.S. at 186 , 83 S.Ct. at. 1154-55, 10 L.Ed.2d at 283 (citations omitted).

The second ground noted by the Court seems to rest upon the conclusion that in the circumstances of a given case, inferences from a witness’s refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination and thus unfairly prejudiced the defendant. 373 U.S. at 187 , 83 S.Ct. at 1155 , 10 L.Ed.2d at 284 . Maryland courts have recognized these principles and have found that error on neither ground is to be presumed but must be judged from the attending circumstances nar ¹⁷⁵ rowly focusing on the purpose and consequences of the event in question. Adkins v. State, 316 Md. 1 , 557 A.2d 203 (1989). It is our view that the present case is one where the prejudice to the Petitioner is contrary to the principles with the standards we set forth in Vandegrift .

There we held that the calling of an accomplice or co-conspirator as a witness was prejudicial error. 237 Md. at 308 , 206 A.2d at 252 . Although Vandegrift was decided in a somewhat different factual context from the case at bar, we find the rationale used there instructive. Vandegrift was convicted of assault and battery by a jury in the Circuit Court for Cecil County and was sentenced to five years in the House of Corrections. The State’s Attorney called to the witness stand several co-defendants who had not as yet been tried, knowing that they would refuse to testify on the ground of self-incrimination.

The State’s Attorney made remarks in the presence of the jury relating to their refusal to testify upon the ground of self-incrimination. During the testimony of the witnesses, the State asked questions related to the crime charged. One witness’s counsel objected to a series of questions and instructed his client not to answer. The record indicated that the State’s Attorney did not act in good faith since it could reasonably be inferred that he knew the witnesses would not answer his questions relating to the crime.

The trial judge in Vandegrift did not cure the error by an appropriate instruction or admonition to the jury. Id. at 309-310 , 206 A.2d at 253 . We held that the jury was potentially prejudiced because it was allowed to hear the assertion of the testimonial privilege against self-incrimination asserted by the alleged accomplices. These prosecutorial maneuvers strongly implied that the accused was also guilty of the crimes charged.

We concluded that when a judge allows the prosecutor to call a