Choi v. State

ELDRIDGE, Judge. On January 4,1987, Tai-Sun Choi was arrested for killing his wife, Suf-Lin Choi, earlier that day. Suhseojuently Tai-Sun Choi was charged, in the Circuit Court for Montgomery County, with murder. The State served a subpoena on Nancy, the Choi’s 19-year-old daughter, and the defendant in the case at bar, requiring her to appear as a witness at Tai-Sun’s trial.

At the trial in October 1987, Nancy refused to answer questions by the State on the ground that her answers would incriminate her. The circuit court, without deciding whether Nancy would have been entitled ⁵³² to assert the privilege against self-incrimination absent waiver, held that she had waived any right to claim the privilege. The court directed Nancy to answer the State’s questions, but she reasserted her privilege against compelled self-incrimination. Thereafter, the court adjudicated Nancy guilty of contempt, and Nancy appealed to the Court of Special Appeals.

Before any proceedings in the intermediate appellate court, we issued a writ of certiorari to determine whether it was error for the trial court to have required that Nancy Choi answer the questions and to have adjudicated her in contempt for refusing to answer. We shall hold that it was error. The pertinent facts underlying Nancy Choi’s assertion of the privilege against compelled self-incrimination are as follows. On January 4, 1987, from a neighbor’s phone, Michael Choi, the brother of Nancy and son of Tai-Sun Choi, called the police and informed them that his father had shot his mother.

At the same time the Emergency Operation Center received a call, but, when an operator picked up the receiver, the caller had hung up. After tracing the number, the operator called back. Tai-Sun Choi answered the phone and said that he had shot his wife. When the police and medical units arrived at the Choi’s house, Suf-Lin Choi was dead.

That night, upon being questioned by a detective of the Montgomery County Police Department, both Michael and Nancy gave written statements to the detective. Nancy’s statement recited a long history of marital problems and violence between her parents. With respect to the night of the shooting, Nancy stated that she had been taken to the emergency room of a hospital by her mother because she was ill. When they returned, her mother went downstairs to see Tai-Sun.

Then, according to Nancy’s statement, “[i]t wasn’t five minutes and I heard a gunshot. First we sat there and then I heard something fall—like a body, and then we went downstairs. My mom was on the kitchen floor on her back. Her eyes were wide open and she said something but I don’t know what____ His back ⁵³³ was turned to us and he closed the door on my face.

I tried to open them but he wouldn’t let me in. He had his back against them. Then I heard another shot. That’s when I ran out.

The only thing he said was ‘get out.’ ” Shortly before Tai-Sun Choi’s trial, an attorney representing both Nancy and Michael informed the circuit court that, if called as witnesses, both children would invoke the privilege against compelled self-incrimination. In an in camera proceeding, Nancy’s attorney informed the court that Nancy’s testimony at trial would be materially different, with respect to both the marital disputes and the sequence of gunshots, from the statement which she had given the detective. 1 Consequently, according to the attorney, Nancy might be subject to prosecution for making a false statement to a police officer. See Code (1957, 1987 Repl.Vol.), Art. 27, § 150. 2 At the trial, the State called Nancy Choi as a witness. Because she had been advised by her attorney to assert the privilege on a question-by-question basis, Nancy answered some preliminary questions including the following: “Q All right.

Your cousin’s name? “A Tony Choi. “Q Age? “A Twelve. ⁵³⁴ “Q Okay. How long has he been living with you? “A Oh, about—since the accident happened. “Q What do you mean, the accident? The death of your mother? “A Yes, sir. “Q Is that what you are referring to? “A Yes, sir.” After some questions concerning Nancy’s education and her father’s occupation, the questioning turned to the death of her mother. Nancy declined to answer any questions about her mother’s death on the ground that her answers would incriminate her.

After Nancy refused to heed the court’s direction that she answer and warnings that she would “go to jail,” the court found Nancy in contempt. The court then instructed the deputy sheriff to take Nancy Choi to jail. Thereafter, she was released on bond and instructed to appear before the court the following week. On that date, Nancy again refused to answer questions relating to her mother’s death.

The court informed her that her earlier answer describing the death of her mother as an “accident,” was “of such a nature that you effectively have waived your privilege against self-incrimination.” Nancy contended that she had mistakenly said “accident” and that she had intended to say “incident.” Concluding that Nancy’s intent was irrelevant, the court held her in contempt. The court imposed a sentence of six months in the Montgomery County Detention Center and placed her on $1,000.00 personal bond pending appeal. In this Court, Nancy argues that the contempt adjudication was erroneous and that her privilege against compelled self-incrimination entitled her to refuse to answer. She maintains that her answer might have produced evidence that she had violated Art. 27, § 150.

The State makes two alternate arguments in response. First the State insists that Nancy was not entitled to invoke the privilege against self-incrimination. In making this argument, the State takes the position that, if her January ⁵³⁵ 4, 1987, statement to the police detective was false, Nancy would have violated Art. 27, § 150. The State asserts, however, that Nancy could not invoke the privilege because she “had no reasonable basis for fearing prosecution for the crime of making a false statement to a police officer____” (Respondent’s brief, 10).

The State relies on the trial judge’s statement that “witnesses often changed versions of an incident and are never prosecuted for making a false statement to a police officer.” (Id. at 11). The State also relies on the prosecuting attorney’s representation in the court below that Nancy “was not at risk of prosecution.” (Ibid.). Second, the State contends that, even if Nancy was entitled to invoke the privilege, the trial court’s order was nonetheless proper. It is the State’s position that her previous answer, characterizing her mother’s death as an “accident,” constituted a waiver of her privilege against compelled self-iricrimination.

I. Recently Judge Blackwell for the Court, in Adkins v. State, 316 Md. 1, 6-7 , 557 A.2d 203, 205-206 (1989), reiterated that “[t]he 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____ Upon assertion of the privilege by a witness, the court must determine whether there is a reasonable basis for the invocation of the privilege and whether the privilege is invoked in good faith.” 3 ⁵³⁶ As previously indicated, the State’s first argument is that Nancy Choi had no reasonable basis to invoke the privilege. Nevertheless, the State construes Art. 27, § 150, so as to cover Nancy’s January 4, 1987, statement to the police detective. The State agrees with Nancy’s counsel that, if the January 4th statement were false, Nancy would have violated the criminal statute. The thrust of the State’s argument is that there was little likelihood that Nancy would actually have been prosecuted under § 150.

This Court has repeatedly emphasized that the privilege against compelled self-incrimination, under both the Fifth Amendment and Art. 22 of the Declaration of Rights, “must be accorded a liberal construction in favor of the right that it was intended to secure.” Adkins v. State, supra, 316 Md. at 8 , 557 A.2d at 206 ; In re Maurice M., 314 Md. 391, 397 , 550 A.2d 1135 (1988), cert. granted, — U.S.-, 109 S.Ct. 1636 , 104 L.Ed.2d 152 (1989); Ellison v. State, 310 Md. 244, 258 , 528 A.2d 1271 (1987); State v. Comes, 237 Md. 271, 282 , 206 A.2d 124 (1965); Allen v. State, 183 Md. 603, 607 , 39 A.2d 820 (1944). We have consistently applied the standards of Hoffman v. United States, 341 U.S. 479 , 71 S.Ct. 814 , 95 L.Ed. 1118 (1951), that a witness is entitled to invoke the privilege against self-incrimination if “the'witness has reasonable cause to apprehend danger from a direct answer” ( 341 U.S. at 486 , 71 S.Ct. at 818 ) and that ( 341 U.S. at 486-487 , 71 S.Ct. at 818 ): ⁵³⁷ “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 Court in Hoffman concluded that, in the case before it, the claim of privilege should have been allowed because the witness “could reasonably have sensed the peril of prosecution” and because “it was not ‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ to incriminate.” 341 U.S. at 488 , 71 S.Ct. at 819 , emphasis in original, quoting from Temple v. Commonwealth, 75 Va. 892, 898 (1881). For cases applying the Hoffman standards, see, e.g., Adkins v. State, supra, 316 Md. at 8 , 557 A.2d at 206 ; In re Maurice M., supra, 314 Md. at 397 , 550 A.2d at 1138 ; Ellison v. State, supra, 310 Md. at 252 , 528 A.2d at 1275 ; Richardson v. State, 285 Md. 261, 266-267 , 401 A.2d 1021, 1024-1025 (1979); Smith v. State, 283 Md. 187, 193 , 388 A.2d 539, 542 (1978), cert. denied, 489 U.S. 1130 , 99 S.Ct. 1050 , 59 L.Ed.2d 92 (1979); Payne v. Payne, 33 Md.App. 707, 714-715 , 366 A.2d 405, 410 (1976), cert. denied, 280 Md. 733 (1977). In light of these principles, we conclude that Nancy Choi was entitled, under both the Fifth Amendment and Art. 22 of the Maryland Declaration of Rights, to invoke her privilege against compelled self-incrimination.

The State in this case has persistently construed Art. 27, § 150, to encompass statements such as the one Nancy gave to the investigating police detective on January 4, 1987. It was apparent, and the State does not suggest otherwise, that, had Nancy testified at trial, her testimony would have differed materially from her earlier statement given to the police detective. Thus, either she made a false statement to the police detective on January 4th, or she would have been testifying falsely in court. ⁵³⁸ Although one may not claim the privilege against compelled self-incrimination out of fear that she will be prosecuted for perjury for what she is about to say, it is equally possible that the falsity was in Nancy’s earlier January 4th statement. A witness is entitled to invoke the privilege against compelled self-incrimination when her testimony would contradict testimony at an earlier proceeding and could lead to a prosecution based on the prior testimony.

See, e.g., United States v. Partin, 552 F.2d 621, 632 (5th Cir.), cert. denied, 434 U.S. 903 , 98 S.Ct. 298 , 54 L.Ed.2d 189 (1977) (“a witness may not claim the privilege out of fear that he will be prosecuted for perjury for what he is about to say, although he may claim the privilege if his new testimony might suggest that he had perjured himself in testifying on the same subject at a prior proceeding”); United States v. Wilcox, 450 F.2d 1131, 1141 (5th Cir.1971), cert. denied, 405 U.S. 917 , 92 S.Ct. 941 , 30 L.Ed.2d 787 (1972) (“the aphorism that one cannot take the Fifth Amendment on the ground that if he testifies he will perjure himself ... does not mean that having once testified, the Fifth Amendment is not available to avoid giving further testimony which might expose the witness to ... risk of prosecutions growing out of the prior testimony”); People v. Borjas, 191 Colo. 218 , 552 P.2d 26 (1976); State v. Zamora, 84 N.M. 245 , 501 P.2d 689 (N.M.App.1972). The thrust of the State’s argument, as earlier mentioned, is that there is in fact little likelihood of Nancy Choi’s prosecution under Art. 27, § 150, because prosecutions for violation of § 150 under these circumstances are rare and because the prosecuting attorney indicated that he would not prosecute her. The rarity of prosecutions under a particular statute, or a prosecuting attorney’s indication in a particular case that he will not prosecute, are not sufficient to defeat a claim of privilege under the standards of Hoffman and other cases. In United States v. Miranti, 253 F.2d 135, 139 (2d Cir.1958), for example, the United States Court of Appeals for the Second Circuit stated: ⁵³⁹ “We find no justification for limiting the historic protections of the Fifth Amendment by creating an exception to the general rale which would nullify the privilege whenever it appears that the government would not undertake to prosecute.

Such a rule would require the trial court, in each case, to assess the practical possibility that prosecution would result from incriminatory answers. Such assessment is impossible to make because it depends on the discretion exercised by a United States Attorney or his successor.” In re Corrugated Container Antitrust Litigation, 661 F.2d 1145, 1150-1151 (7th Cir.1981), aff'd sub. nom., Pillsbury Co. v. Conboy, 459 U.S. 248 , 103 S.Ct. 608 , 74 L.Ed.2d 430 (1983), was a case where the trial judge denied a witness’s claim of Fifth Amendment privilege on the ground that the judge did not believe that the witness would face prosecution under a state statute because the judge was unaware of any state litigation under that statute. In reversing, the United States Court of Appeals for the Seventh Circuit emphasized ( 661 F.2d at 1150-1151 ): “First, and most fundamental, as this court recently held, the protection of the Fifth Amendment applies so long as there is a possibility of prosecution, regardless of a judge’s assessment of the likelihood of prosecution. In re Folding Carton Antitrust Litigation, Appeal of R. Harper Brown, 609 F.2d 867 (7th Cir.1979).

We concluded in Brown: ‘Short of the existence of one of these indicia [viz., statute of limitations, immunity, double jeopardy] of an absolute bar to subsequent prosecution, a judge’s prediction as to the likelihood of a prosecutor filing an indictment is not dispositive in ascertaining the permissible scope of a claim of Fifth Amendment privilege.’ 609 F.2d at 872 (footnotes omitted) (emphasis added).” The same point was made by the Supreme Court of Wisconsin in Matter of Grant, 83 Wis.2d 77 , 264 N.W.2d 587 (1978). The witness in that case was asked whether she had engaged in sexual intercourse with an individual, and ⁵⁴⁰ the witness declined to answer, claiming the privilege against self-incrimination and referring to statutes dealing with crimes against sexual morality; The trial Court held the witness in contempt. In reversing, the Supreme Court of Wisconsin referred to the government’s argument that “few if any prosecutions” under the sexual morality statute are brought based on testimony in a case. The Court then said ( 264 N.W.2d at 591 ): “Despite the fact that it may be less than probable that Sheila Grant will be prosecuted ..., her fear of self-incrimination is sufficiently real and appreciable to be a valid exercise of her right.” To the same effect are cases upholding the refusal of witnesses to testify concerning sexual intercourse because of criminal adultery statutes, even though prosecutions under those statutes may be rare.

See, e.g., Payne v. Payne, supra, 33 Md.App. at 713-715 , 366 A.2d at 409-410 ; de Antonio v. Solomon, 42 F.R.D. 320, 323 (D.Mass.1967); Vail v. Vail, 360 So.2d 985, 989-990 (Ala.Civ.App.1977), remanded on other grounds, 360 So.2d 992 (Ala.1978). In re Master Key Litigation, 507 F.2d 292 (9th Cir.1974), was an antitrust case in which one of the defendants’ employees invoked the privilege against self-incrimination and refused to testify. The plaintiff, like the State in the instant case, argued that the witness “has no right to assert his privilege against self-incrimination because there is not the remotest chance that he could be criminally prosecuted for his part in the antitrust violations” ( 507 F.2d at 293 ). In response, the United States Court of Appeals for the Ninth Circuit stated (ibid.)-. “Although the federal government and the states do not appear particularly interested in bringing criminal actions against the defendant corporations or their employees, the right to assert one’s privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution.

See Hoffman v. United States, 341 U.S. 479, 486-487 , 71 S.Ct. 814 [818- ⁵⁴¹ 19], 95 L.Ed. 1118 (1951); Isaacs v. United States, 256 F.2d 654, 658 (8th Cir.1958) See also, e.g., United States v. Jones, 703 F.2d 473, 478 (10th Cir.1983) (“Once the court determines that the answers requested would tend to incriminate the witness, it should not attempt to speculate whether the witness will in fact be prosecuted”); In re Corrugated Container AntiTrust Litigation, 620 F.2d 1086, 1091 (5th Cir.1980), cert. denied, 449 U.S. 1102 , 101 S.Ct. 897 , 66 L.Ed.2d 827 (1981) (“even a remote risk, that the witness will be prosecuted for the criminal activities that Ms testimony might touch on,” is sufficient to sustain a privilege claim); United States v. Johnson, 488 F.2d 1206 , 1209 n. 2 (1st Cir.1973) (“Neither the practical unlikelihood of further prosecution, nor the Assistant United States Attorney’s denial of an intention to charge [the witness], negated [the