Brown v. State

Brune, C. J., delivered the opinion of the Court. This is an appeal from a judgment of the Circuit Court for Anne Arundel County finding the appellant, James Dawson Brown, guilty of contempt by reason of his refusal to obey an order of that court to answer before the Grand Jury for Anne Arundel County certain questions which had been propounded to him before that body, and fining him $500.00 and sentencing him to jail until he should purge himself of contempt by answering the questions. He was released on bail pending this appeal. The questions which the appellant refused to answer were ²⁹² propounded to him in the course of a grand jury investigation into the alleged bribery of a Trial Magistrate for Anne Arundel County “for the purpose of squelching or dismissing” a traffic charge against the appellant.

Most of the questions pertained to a direct charge of bribery, but one pertained to conspiracy to bribe this official. The appellant’s fundamental basis for refusing to answer was and is the privilege against self-incrimination under Article 22 of the Maryland Declaration of Rights. 1 The State contends that the testimony of the appellant was compellable and that he was entitled to immunity in respect thereof under Section 23 of Article 27 of the Code (1957), enacted pursuant to Section 50 of Article 3 of the Maryland Constitution. The appellant contends: first, that the statutory immunity afforded is not broad enough to “abridge” the privilege against self-incrimination contained in Article 22 of the Declaration of Rights; and second, that the statutory immunity is not applicable to a proceeding before the grand jury. The State accepts the issues as tendered by the appellant, except that it substitutes “displace” for “abridge” in the first of them.

Article 22 of the Maryland Declaration of Rights reads as follows: “That no man ought to be compelled to give evidence against himself in a criminal case.” It is very similar in language to the corresponding clause of the Fifth Amendment to the Constitution of the United States providing that “No person * * * shall be compelled in any criminal case to be a witness against himself.” The appellant relies on cases decided under the Fifth Amendment and urges that its interpretation should control the interpretation of Article 22 of the Declaration of Rights, but he ²⁹³ does not assert that the Fifth Amendment is itself applicable here. Section 50 of Article 3 of the Constitution of Maryland of 1867 provides in part: “It shall be the duty of the General Assembly * * * to provide by Raw for the punishment * * * of any person, who shall bribe, or attempt to bribe, any Executive, or Judicial officer of the State of Maryland, or any member, or officer of the General Assembly of the State of Maryland * * *; and also to provide by law for the punishment, * * * of any of said officers, * * * who shall demand or receive any bribe, * * *; and, also, to provide by law for compelling any person, so bribing or attempting to bribe, or so demanding, or receiving a bribe, fee, reward, or testimonial, to testify against any person, or persons, who may have committed any of said offenses; provided, that any person, so compelled to testify, shall be exempted from trial or punishment for the offense, of which he may have been guilty.” Section 23 of Article 27 of the Code (1957) enacted in compliance with the above requirements provides for the punishment of any person bribing or attempting to bribe public officers, including any judge, justice of the peace or other judicial officer of the State, and of any such officer demanding or accepting a bribe, fee, reward, or testimonial for the purpose of influencing his performance of his official duties or of neglecting or failing to perform the same. It then continues: “[A]ny person so bribing or attempting to bribe or so demanding or receiving a bribe shall be a competent witness, and compellable to testify against any person or persons who may have committed any of the aforesaid offenses; provided, that any person so compelled to testify on behalf of the State in any such case shall be exempt from prosecution, trial, and punishment for any such crime of which such person so testifying may have been guilty or a participant therein and about which he was so compelled to testify.” ²⁹⁴ Both .sides, of course, cite Section 23 of Article 27, supra, but neither refers to Section 39 of that Article, which deals with compelling testimony of participants in conspiracies to violate Section 23 (and certain other offenses). 2 Since one question here asked pertained in part to such a suggested conspiracy, we set forth below the pertinent part of this statute: “No person shall refuse to testify concerning the crime of conspiring to commit any of the offenses set forth in § 23 of this article, * * *, and any person shall be a competent witness and compellable to testify against any person or persons who may have conspired to commit any of the aforesaid offenses, provided that any person so compelled to testify in behalf of the State in any such case, shall be exempt from prosecution, trial and punishment for any and all such crimes and offenses of which such person so testifying may have been guilty or a participant or conspirator therein and about which he was so compelled to testify.” The State contends with considerable force that Section 50 of Article 3 of the Constitution and Section 23 of Article 27 of ²⁹⁵ the Code (1957) have so completely occupied the field as to immunity from prosecution for offenses as to which testimony in bribery cases is compelled that Article 22 of the Declaration of Rights has no applicability in such cases. It relies on Anderson v. Baker, 23 Md. 531 , holding that the Registry Act of 1865, passed pursuant to certain provisions of the Constitution of 1864 imposing a test oath and requiring persons seeking registration as voters to answer under oath questions pertaining to their loyalty to the United States, did not fall within what was then Article 23 of the Bill of Rights, and further, that if the voting privilege were within the contemplation of Article 23, it was withdrawn or excepted from its operation by the express provisions of the Constitution relating to voting.

( 23 Md. at 591 .) See also Mayor and City Council of Baltimore v. State, 15 Md. 376, at p. 459 , holding that a specific constitutional provision prevails as a limitation upon a general principle set forth in the Declaration of Rights. Other states having constitutional immunity provisions similar to ours have held that they limit the constitutional privilege against self-incrimination. See State v. Rodrigues, 219 La. 217 , 52 So. 2d 756 ; State v. Dominguez, 228 La. 284, 82 So. 2d 12 ; Commonwealth v. Bell, 145 Pa. 374, 389 , 22 Atl. 641 ; Commonwealth v. Cameron, 229 Pa. 592, 79 A. 169 ; Commonwealth v. Haines, 171 Pa. Super. 362 , 90 A. 2d 842 ; Maguire, Evidence of Guilt, 70 n. 13.

It may be noted, however, that the Louisiana constitutional immunity provision involved in the Rodrigues and Dominguez cases is in terms self-executing and does more than establish a duty in the legislature to implement it. In addition, the self-incrimination provision of the Louisiana constitution, unlike Section 22 of our Declaration of Rights, contains the phrase “except as otherwise provided in this constitution.” The self-incrimination provision of the Pennsylvania constitution is likewise self-executing, and it does not contain a clause relating to exceptions. Such a view also finds some support in the debates on the constitutional provision here involved. See Perlman, Debates of the Maryland Constitutional Convention, of 1867, p. 286.

One objection made to Section 50 of Article 3 was “that it violated the principle of the Declaration of Rights, which declares that ²⁹⁶ no man shall be compelled to give evidence against himself.” A proposed amendment to strike the clause compelling persons offering bribes to testify against those receiving them was, however, defeated. We think that Section 23 of Article 27 of the Code (1957) undertakes to give in full the immunity contemplated by Section 50 of Article 3 of the Constitution, and in terms is somewhat broader, but is not beyond the constitutional authorization. We might rest our opinion on the ground that this statutory provision founded upon the constitutional mandate (as in Anderson v. Baker, supra) limits the scope of Article 22 of the Declaration of Rights, if there were any conflict between them. We think, however, that there is no real conflict between Article 22 of the Declaration of Rights and the statutory immunity here granted.

The general rule (apart from a constitutional provision, whether self-executing or implemented by statute, which in terms or by implication limits the privilege against self-incrimination) is that in order to be valid, the immunity granted must be as broad as the privilege against self-incrimination which it supplants or displaces. Our Article 22 is in pari materia with the provisions of the Fifth Amendment to the Federal Constitution against self-incrimination, and it should, we think, receive a like construction. Adams v. State, 202 Md. 455, 460, 97 A. 2d 281 , reversed on another ground, 347 U. S. 179 ; Bass v. State, 182 Md. 496, 500 , 35 A. 2d 155 ; Blum v. State, 94 Md. 375, 382 , 51 Atl. 26 . 3 Historically, at least, Counselman v. Hitchcock, 142 U. S. 547 , is the foundation of the general rule as to immunity statutes above stated, although in that case the particular Act involved was held not to grant a sufficiently broad immunity. In Brown v. Walker, 161 U. S. 591 , the statute before the Su ²⁹⁷ preme Court was apparently drafted on the basis of the Counselman opinion, and provided that “no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing, concerning which he may testify.” This was held by a divided Court sufficiently broad to displace the privilege accorded by the Fifth Amendment.

The statute sustained in Brown has been taken as a model by many later state and federal statutes. See Model State Witness Immunity Act, 9 C Uniform Laws Ann. 186 (with the qualification that the immunity is to be no broader than the privilege) and the commentary on it in the 1952 Handbook of The National Conference of Commissioners on Uniform State Laws, pp. 256-57; 8 Wigmore, Evidence (McNaughton Rev.), § 2284. These statutes derive from a suggestion by the Supreme Court in the Counselman case that statutes thus drawn would be valid. The Counselman case and its statutory progeny have been criticized by the commentators, notably Wigmore and McCormick.

See 8 Wigmore, Evidence (McNaughton Rev.), at pp. 522-25 and n. 4; McCormick, Evidence, pp. 285-86. The commentators maintain that the court could easily have construed the Counselman statute as barring the indirect as well as the direct use of compelled testimony, and could have held that it barred the use of evidence obtained as a result of “leads” derived from compelled testimony. In our opinion an immunity statute, in order to be valid, need not be couched in precisely the same terms as that suggested in Counselman and upheld in Brown v. Walker, supra, if its effect is to grant protection as broad as that afforded by the privilege which it displaces. We think that such protection is afforded by the immunity granted by Section 23 of Article 27 of the Code (1957).

The immunity thereby granted to the witness compelled to testify from “prosecution, trial, and punishment for any such crime of which such person so testifying may have been guilty or a participant therein and about which he was so compelled to testify” is a broad immunity. Since it bars “prosecution,” it effectively bars the use of “leads” to convict the witness of the offense as to which he testifies, and it covers the offense of attempting to bribe as well as actual bribing. We further think that the broad language referring to “any ²⁹⁸ such crime of which” he “may have been guilty” may fairly be construed and should be construed as including conspiracy to violate the bribery law; but even if it were not, this gap in statutory protection would be closed by Section 39 of Article 27, supra. Brown v. Walker, supra, relies on a number of early state court cases upholding the validity of immunity statutes worded more narrowly than the statute here in suit.

Reference was there made to cases upholding statutes limiting immunity from prosecution to “any offence committed at the time and