Bhagwat v. State

BELL, Judge. Today we are asked to consider two questions: (1) Whether the proper procedure concerning the invocation of a witness’s privilege against self-incrimination was followed in the case sub judice; and (2) whether a plea agreement which precludes one co-defendant from testifying at the other co-defendant’s trial violates public policy. These questions are closely interrelated. Treated together, they require that another related issue be addressed: the propriety of the court permitting the privilege to be invoked premised on an invalid plea agreement.

This issue necessitates an assessment of the adequacy ²⁶⁷ of the inquiry and procedure employed by the court to determine that the privilege was properly invoked. Having inquired of counsel for the witness, who was not present, as to the advice he gave the witness, the trial court refused to allow the witness to be called for any purpose. Roger Lawrence Bhagwat, the appellant, appealed to the Court of Special Appeals. We granted certiorari, on our own motion, prior to that court considering the matter.

The facts of this case are rather simple. On November 13, 1992, pursuant to a search and seizure warrant, members of the Prince George’s County police department and federal officers conducted a search of 804 Maury Avenue, # 106, Oxon Hill, Maryland, premises undisputedly owned by the appellant’s parents, Norma and Lai Ranrattan Bhagwat. Glassine baggies, a triple beam scale, a handgun, a shotgun, two separately packaged quantities of crack cocaine, and $400.00 in currency were seized from the premises. Crack cocaine (4.3 grams), $266.00 in cash, and a cellular phone were seized from the person of the appellant, when he approached the premises. 1 The appellant was charged, together with his brother, Christopher Bhagwat (hereinafter “Christopher”), in a multicount indictment alleging possession of cocaine with intent to distribute; possession of cocaine; conspiracy to distribute ²⁶⁸ cocaine; 2 and use of a firearm in drug trafficking. 3 Christopher accepted the State’s plea offer, 4 but the appellant chose to go to trial.

The first time the trial court discussed whether Christopher could be called as a witness was just prior to trial, when the court was apprised that Christopher had accepted the plea offer and that the appellant had subpoenaed Christopher as a witness. In response to the court’s inquiry whether he had advised, Christopher of his Fifth Amendment rights, Christopher’s attorney replied: Yes. The plea agreement is contingent on him not exonerating his brother, but also not implicating his brother. I have so advised him not to testify.

If, in fact, he would be called he would be taking his Fifth Amendment, exercising his Fifth Amendment rights. Because the matter was not then ripe for decision, 5 the court did not rule on the. issue at that time, deciding, instead, to allow the matter to “develop as it develops.” The record reflects, however, that the court believed that Christopher could invoke his privilege against self-incrimination without ²⁶⁹ personally taking the witness stand; it was sufficient that his attorney advised the court of his decision not to testify. The issue surfaced again during the trial. The appellant having subpoenaed Christopher, a hearing was held outside the presence of the jury to determine whether Christopher would testify.

Christopher was not present 6 at the hearing at which the following colloquy occurred: THE COURT: ... The posture we are in at the moment is as I understand it Mr. Petros has subpoenaed brother Chris. MR. CONWAY: Yes, Your Honor.

THE COURT: It is my understanding from the State that whatever their plea offer was to brother Chris included a condition that he not testify for either side, defense or State, in brother Roger’s case. In spite of that agreement Mr. Petros has subpoenaed him and intends to call him. I want to point out to you, however, there has been evidence in this case — what is the number, the black jacket? MR.

PETROS: Defense 2. THE COURT: Defendant’s Number 2, the dark jacket there belongs to Chris, and there has also, been evidence that cocaine was seized from that jacket. MR. CONWAY: I understand, Your Honor.

MR. PETROS: There is also State’s Exhibit 18 which was Chris’ and came in over objection. The pager. Which the State ties in— MR.

CONWAY: I was not aware of those developments, but I am aware, and I have been advised by my client that he would be invoking his Fifth Amendment privilege so as ²⁷⁰ to not to vitiate the agreement that he has with the government. Rejecting the appellant’s argument, the court refused to allow the appellant to call Christopher noting that his counsel “has indicated he has advised him to plead the Fifth,” and that “[t]he evidence so far by putting him on the stand, by calling him to the stand incriminates him.” The court was not impressed with the appellant’s argument that the limited inquiry he intended to make with respect to the ownership of a coat found in the raid and the Jeep Cherokee could not incriminate Christopher. 7 Indeed, the court asserted that, “If you ask him his name he has a right to plead the Fifth.” Moreover, to the appellant’s lament that the refusal to allow him to call Christopher “is highly prejudicial,” the court responded, “[i]t is highly prejudicial to Christopher, that is who it is highly prejudicial to.” The appellant was convicted of possession with the intent to distribute cocaine and possession of cocaine. He received a mandatory sentence of ten years imprisonment, without the possibility of parole. 8 I. The privilege against self-incrimination is guaranteed under both Maryland and federal law. 9 It only protects ²⁷¹ against self-incrimination compelled by the government or its agents. See Choi v. State, 316 Md. 529, 536 , 560 A.2d 1108, 1111 (1989); Allen v. State, 183 Md. 603, 607 , 39 A.2d 820, 821-22 (1944); Marshall v. State, 182 Md. 379, 383 , 35 A.2d 115, 117 (1943); Jacobs v. State, 45 Md.App. 634, 653-54 , 415 A.2d 590, 601 , cert. denied, 288 Md. 737 (1980).

See also McLain, Maryland Evidence, § 514.1, at 603 (1987 & Supp. 1994). The privilege is waivable, affording no protection for statements voluntarily given. See McLain, supra, § 514.1, at 603. See also, Choi v. State, 316 Md. at 542-43 , 560 A.2d at 1114-15 ; Adams v. State, 200 Md. 133, 144 , 88 A.2d 556, 561 (1952).

Moreover, it is well-settled that the privilege is personal to the witness and, thus, must be exercised by the witness. Royal v. State, 236 Md. 443, 447 , 204 A.2d 500, 502 (1964). And “because the privilege is not a prohibition of inquiry, but is an option of refusal,” 10 id., ²⁷² [t]he witness should first be called to the stand and sworn. Midgett v. State, 223 Md. 282, 289 , 164 A.2d 526, 529 (1960), cert. denied, 365 U.S. 853 , 81 S.Ct. 819 , 5 L.Ed.2d 817 (1961).

Interrogation of the witness should then proceed to the point where he [or she] asserts his [or her] privilege against self-incrimination as a ground for not answering a question. Shifflett v. State, 245 Md. 169, 173-74 , 225 A.2d 440, 443 (1967). If it is a jury case, the jury should then be dismissed and the trial judge should attempt to ‘determine whether the claim of privilege is in good faith or lacks any reasonable basis.’ Midgett v. State, supra, 223 Md. at 289 [, 164 A.2d at 530 ]. If further interrogation is pursued, then the witness should either answer the questions asked or assert his [or her] privilege, making this decision on a question by question basis.

Royal v. State, 236 Md. 443, 447 , 204 A.2d 500, 502 (1964). Richardson v. State, 285 Md. 261, 265 , 401 A.2d 1021, 1024 (1979). The test of the witness’s entitlement to invoke the privilege against self-incrimination — (1) whether there is a reasonable basis for the invocation of the privilege; and (2) whether the privilege is invoked in good faith, see Adkins v. State, supra, 316 Md. at 6-7 , 557 A.2d at 205-06; Richardson v. State, supra, 285 Md. at 265 , 401 A.2d at 1024 ; Midgett v. State, 223 Md. at 288-92 , 164 A.2d at 529-31 ; McLain, Maryland Evidence, supra, § 514.1, at 605 — was well stated in Choi v. State, 316 Md. 529 , 560 A.2d 1108 (1989). It is whether “the witness has reasonable cause to apprehend danger from a ²⁷³ direct answer,” id. at 536 , 560 A.2d at 1111 , and whether it is “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.” Id. at 537 , 560 A.2d at 1111 .

Although the privilege is a personal one, under some circumstances, the witness’s counsel may focus the witness’s attention to the privilege, or acting as the witness’s agent, plead it on his or her behalf. See Farmer v. State, 5 Md.App. 546, 551 , 248 A.2d 809, 812 (1968), cert. denied, 253 Md. 733 (1969); McCormick on Evidence, § 120, at 289 (E. Cleary 3d ed. 1984). See also Rowe v. State, 62 Md.App. 486, 499 , 490 A.2d 278, 284 , cert. denied, 303 Md. 684 , 496 A.2d 683 (1985); Pope v. State, 7 Md.App. 533, 538 , 256 A.2d 529, 532 (1969); Poling v. State, 6 Md.App. 45, 47 , 250 A.2d 126, 127 , cert. denied, 255 Md. 743 (1969). Thus, an attorney representing a witness by objecting to a question on the grounds that it may incriminate the witness, initiates and essentially invokes the witness’s privilege, if the witness adopts the objection by refusing to answer the question.

Farmer, 5 Md.App. at 551 , 248 A.2d at 812 . Where there is a clear indication, reflected on the record, that the witness intends to invoke the privilege against self-incrimination if called to the witness stand, the Richardson procedure need not be strictly applied. See Adkins, supra, 316 Md. at 8 n. 7, 557 A.2d at 206 n. 7. In that case, if it is a jury trial, “[t]he mechanical procedure of first calling the witness before the jury” should be omitted.

Id. In other words, the witness should be called and sworn, but without the jury being present, 11 and questioned before or by the court. In this way, the court is enabled to perform its function of determining whether the privilege has been invoked in good ²⁷⁴ faith or has a reasonable basis. Midgett v. State, supra, 223 Md. at 289 , 164 A.2d at 530 .

As the State points out, not all plea agreements which cause a witness to invoke the right against self-incrimination are constitutionally flawed. Absent an indication that the State was thereby seeking to discourage or prevent the witness from testifying, a plea agreement contemplating that the guilty plea be entered after the co-defendant’s trial has been upheld in the face of a compulsory process challenge, even though its effect may be to cause that defendant to refuse to testify on Fifth Amendment grounds when called by the co-defendant. See United States v. Munoz, 957 F.2d 171, 173 (5th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 332 , 121 L.Ed.2d 250 (1992); State v. Rivera, 124 Ariz. 123 , 602 P.2d 504, 506 (Ct.App.1979). It has also been held that merely informing a defendant, called by his co-defendant and to whom the State had tendered an offer of a plea agreement, that the offer “might be rescinded if [his testimony] connected [him] more to the crime than the police believed” did not establish that that defendant had been induced not to testify, since he “certainly was entitled to exercise his Fifth Amendment right to avoid self-incrimination and not to testify for the appellant.” Daniel v. State, 623 So.2d 438, 442-43 (Ala.Crim.App.1993).

Where, by the terms of the plea agreement, a co-defendant is precluded from testifying for the defendant, courts recognize that as a denial of the defendant’s right to compulsory process. See Jones v. United States, 386 A.2d 308 , 316 n. 7 (D.C.App.1978), ce rt. denied, 444 U.S. 925 , 100 S.Ct. 263 , 62 L.Ed.2d 181 (1979) (“There is no question that the government’s use of a plea bargain in order to induce or encourage a witness’ silence cannot be tolerated.”); United States v. Bell, 506 F.2d 207, 222 (D.C.Cir.1974) (“Inarguably, governmental impairment of the accused’s ability to call witnesses in his [or her] behalf cannot be tolerated.”); People v. Fryer, 247 Ill.App.3d 1051 , 187 Ill.Dec. 786, 795 , 618 N.E.2d 377, 386 (1993) (“It is one thing to condition a plea agreement on a witness’ abstaining from testifying falsely; it may be quite another thing to condition a plea agreement on the witness’ abstaining from testifying at ²⁷⁵ all.”); 12 or due process, United States v. Henricksen, 564 F.2d 197, 198 (5th Cir.1977) (per curiam); State v. Fort, 101 N.J. 123 , 501 A.2d 140, 144 (1985). In Fort, supra — not unlike the case sub judice — the State’s plea agreement with two of the defendant’s co-defendants provided that the co-defendants would not testify on behalf of the two defendants on trial. The defendants contended that such a “no testimony agreement” deprived them of the testimony of the co-defendants and thereby violated their federal and state compulsory process rights.

The Supreme Court of New Jersey opined that a “no testimony agreement” has the clear capacity to prejudice a defendant. 501 A.2d at 144 . Moreover, the court noted that once the State extracts, as a condition of his or her plea agreement, a promise from a witness not to testify, then it is nearly impossible to determine whether the witness’s refusal to testify is based on the privilege against self-incrimination or the desire to satisfy the plea agreement. Id. The court concluded: [T]he ‘no testimony’ agreement violated defendants’ constitutional rights to due process and to present witnesses in their favor.

Underlying this conclusion is our belief that the trial, although inevitably an adversarial proceeding, is above all else a search for truth. That quest is better served when the State does not suppress the truth by sealing the lips of witnesses. Id. Although we have not previously had the occasion to consider this issue, our review of the authorities persuades us that a plea agreement with a co-defendant conditioned upon that co-defendant’s not testifying for the defense, may deny the defendant on trial both the Sixth Amendment right to ²⁷⁶ compulsory process and due process.

While not so proscriptive as a state rule disqualifying an alleged accomplice from testifying on behalf of his partner in crime, see Washington v. Texas, 388 U.S. 14 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967), or as blatantly coercive as a “lengthy and intimidating warning” by a trial judge, threatening the potential witness with a grand jury investigation for perjury, see Webb v. Texas, 409 U.S. 95, 97 , 93 S.Ct. 351, 353 , 34 L.Ed.2d 330, 333 (1972) (per curiam), such a plea agreement does implicate the defendant’s fundamental right to present witnesses. Moreover, as the Fort court pointed out, a trial is more than an adversarial proceeding, it is, more importantly, a search for the truth. Fort, 501 A.2d at 144 . If the State is permitted singlehandedly to silence witnesses, that search is seriously impeded and the credibility of the entire judicial system is seriously undermined.

II

The State concedes that Richardson outlines the procedure to be followed when a witness invokes the privilege against self-incrimination, and it does not disagree with the appellant’s contention that the trial court did not follow that procedure in this case. Characterizing the appellant’s complaint as “technical,” it submits that the refusal of the trial court to allow Christopher to be called to invoke the privilege personally, after questioning, and instead, allowing Christopher’s attorney to invoke it for him, does not require reversal. The State relies on Midgett, supra. In that case, the defendant called his co-defendant as his witness.

When the trial court advised the co-defendant, who was not sworn, that he had the right not to incriminate himself and that if he waived that right and testified, he might be asked questions and then give answers which might incriminate him in his own subsequent proceedings, he elected not to testify. The trial court excused the co-defendant. The defendant challenged not only the propriety of the co-defendant’s exercise of the privilege, but also the procedure by which he was allowed to do so. In rejecting both challenges, this Court noted, “[although it would have ²⁷⁷ been better practice that the witness should first have been put under oath, we cannot find any prejudice to the defendant from the manner in which [the invocation of his privilege] was handled.” 223 Md. at 292 , 164 A.2d at 531 .

We pointed out that the co-defendant’s statement that “ ‘[w]ell, in that case, then, I won’t be able to testify because it would cause irreparable damage to my case,’ ” id. at 291 , 164 A.2d at 531 , was a sufficient statement of a claim of privilege and that “[t]he oath of the witness would have added nothing to the information ... which was before the court....” Id. at 292 , 164 A.2d at 531 . The State argues, therefore, that where the purpose underlying the rule that the privilege against self-incrimination must be exercised personally has been satisfied, the violation is technical and the defendant is not prejudiced; hence, reversal is not required. 13 It stresses that those purposes were stated in Midgett as being to allow the witness to determine whether to invoke the privilege, “not that the rule is for the exclusion of unreliable evidence,” and to permit the court to determine ²⁷⁸ whether the claim is made in good faith and has a reasonable basis. 223 Md. at 289 , 164 A.2d at 530 . With regard to the appellant’s argument concerning the validity of the plea agreement, the State argues that it is not preserved for appellate review. To support that argument, it points to the fact that at no time did the appellant argue that the plea agreement violated his Sixth Amendment right to compulsory process.

The appellant argued only that the witness had no right to invoke the privilege against self-incrimination and, in any event, should have personally invoked the privilege, after questioning. Because “[a]n argument not made at trial in support of the admission of evidence cannot be asserted for the first time on appeal,” the State concludes, citing White v. State, 324 Md. 626, 640 , 598 A.2d 187, 194 (1991), that the appellant has waived the compulsory process issue as an appellate issue.

III

The precise terms of the plea agreement between Christopher and the State did not appear in the record. The record references to that agreement, by the trial court and Christopher’s counsel, however, make clear that one of its provisions was that Christopher not be a defense witness. When the matter first came up, Christopher’s attorney characterized the agreement as being “contingent on him not exonerating his brother, but also not implicating his brother.” At trial, the trial court characterized it as including “a condition that he not testify for either side, defense or State, in brother Roger’s case.” Later, after Christopher had been subpoenaed as a defense witness and the court had apprised him of evidentiary developments of significance to his client, Christopher’s attorney’s comments once again provided insight into the terms of the plea agreement, when he informed the court, “I have been advised by my client that he would be invoking his Fifth Amendment privilege so as to not to vitiate the agreement that he has with the government.” (Emphasis added.) ²⁷⁹ There is, to be sure, as the State argues, evidence in the record sufficient to permit the trial court to conclude that Christopher invoked the privilege against self-incrimination in good faith and on a reasonable basis. Indeed, upon examining the inquiry the appellant proffered he wanted to make concerning admissible evidence connecting Christopher to the cocaine seized on the premises in light of the test of self-incrimination, see Choi, 316 Md. at 536-37 , 560 A.2d at 1111 , the court properly could find that Christopher reasonably apprehended danger from either a direct answer or an explanation as to why a direct answer could not be given.

On the other hand, the existence of a pending plea agreement between Christopher and the State, contingent upon Christopher not testifying for the appellant, presents another consideration which obscures the basis for Christopher’s decision. That fact, viewed in light of the statement by Christopher’s counsel that the privilege was being invoked “so as to not to vitiate the agreement that he has with the government,” provides evidence that it was the proscription of the plea agreement, rather than the privilege, that motivated Christopher’s decision not to testify. If there were no plea agreement and, thus, the only issues before the court were whether the court correctly determined that Christopher appropriately invoked the privilege against self-incrimination and employed the proper procedure for making that determination, the State’s argument that a mere technical violation had occurred would be directly presented for our review. 14 Where, however, as here, there is ²⁸⁰ more than one conceivable basis for the witness’s refusal to testify, one of which is improper, the court has more to do than simply determine whether the witness has a good faith basis for invoking his or her privilege against self-incrimination; it must determine which of the possible reasons actually prompted the response. In this case, Christopher could have acted for the purpose of avoiding making incriminating statements,