Ellison v. State

ELDRIDGE, Judge. We granted a petition for a writ of certiorari in this criminal case to review an opinion and decision by the Court of Special Appeals concerning the right of a non-party witness, who has been found guilty and sentenced on a criminal charge, to invoke the privilege against self-incrimination and refuse to testify on matters relating to that criminal charge. It appeared that the Court of Special Appeals’ opinion in the present case was in conflict with that court’s earlier opinion in McClain v. State, 10 Md.App. 106, 114 , 268 A.2d 572 , cert. denied, 259 Md. 733 (1970), and with our opinion in Smith v. State, 283 Md. 187 , 388 A.2d 539 (1978), cert. denied, 439 U.S. 1130 , 99 S.Ct. 1050 , 59 L.Ed.2d 92 (1979). The petitioner in this case, Clinton W. Ellison, was an inmate in the Maryland Penitentiary at the time of the criminal offenses giving rise to this case.

Ellison and another inmate, Tyrone Little, were charged in the Circuit ²⁴⁶ Court for Baltimore City with the murder and robbery of a third inmate, Charles Sneed. The indictments also charged lesser included substantive offenses; there were, however, no charges of conspiracy to murder or rob Sneed. In both the Ellison case and the Little case, the State filed notices of intent to seek the death penalty. The two prosecutions were severed, and the case against Little was tried first.

During jury deliberations at the guilt/innocence phase of Little’s trial, the State and Little negotiated a plea agreement which was approved by the court. See Maryland Rule 4-243. Under the plea bargain, Little agreed to plead guilty to second degree murder; the State agreed to nol pros the first degree murder, robbery and lesser charges in the indictment, and the State agreed to recommend a twenty-five year sentence for second degree murder, to run concurrently with the sentence Little was then serving. Thereafter, in accordance with the agreement, Little pled guilty to second degree murder and received a twenty-five year concurrent sentence, and the State nol prossed the other charges in the indictment.

At the conclusion of Little’s trial, immediately following the imposition of sentence, Little was specifically advised that he could apply to the Court of Special Appeals for leave to appeal, and he was further advised, in the event leave to appeal were granted, of the issues which could be raised on appeal notwithstanding his guilty plea. He was also advised, inter alia, that he had thirty days in which to request a three-judge panel of the circuit court to review his sentence. See Code (1957, 1982 Repl.Vol.), Art. 27, §§ 645JA-645JG; Rule 4-344. Little’s trial had concluded with the imposition of sentence and the advice concerning further review, on June 18, 1984.

The petitioner Ellison’s trial began one week later, on June 25, 1984. During the guilt/innocence phase of Ellison’s trial, and before the expiration of the thirty-day period within which Little could have filed an application for leave to appeal ²⁴⁷ under Rule 1096 or an application for sentence review under Rule 4-344, Ellison called Little to the stand as a witness for the defense. Little, however, refused to testify "on the grounds that it might incriminate me.” The trial court, out of the jury’s presence, heard from Little’s attorney, examined Little, and heard extensive argument from the prosecuting and defense attorneys. The defense attorney made clear the subject about which he wanted to question Little: “I want to ask him what his involvement was with Charles Sneed [the victim] or anything to do with Sneed’s death.” Thereafter, the trial court upheld Little’s claim of privilege.

Ellison was found guilty of first degree murder and robbery. After a separate sentencing proceeding, the jury determined that the sentence for murder should be life imprisonment rather than death. In addition, the trial court imposed a consecutive ten year sentence for robbery. Ellison appealed, contending, inter alia, that the trial court erred in upholding Little’s invocation of the privilege against self-incrimination.

Ellison argued in the Court of Special Appeals that Little could not have incriminated himself in connection with the charges for which he had been indicted because he had already been sentenced on the murder charge, and the other charges had been nol prossed. Ellison further argued that Little had no basis to fear new criminal charges growing out of the same matter, such as conspiracy, as any new charges would be precluded by double jeopardy principles or by the plea bargain. The State argued in the Court of Special Appeals that Little was entitled to invoke the privilege against self-incrimination with regard to matters underlying the criminal case that had been brought against him. Relying on this Court’s opinion in Smith v. State, supra, 283 Md. 187 , 388 A.2d 539 , the State’s primary contention was that, because of the possibility of appellate reversal and a new trial on the same charges, Little had reasonable cause to fear that his testimony might incriminate him with regard to those charges.

Alternatively, the State suggested the possibility ²⁴⁸ that additional charges, for example a charge of conspiracy to murder Sneed, might be brought against Little. The Court of Special Appeals affirmed Ellison’s conviction, Ellison v. State, 65 Md.App. 321 , 500 A.2d 650 (1985). While ultimately deciding that Little was entitled to invoke the privilege against self-incrimination.( 65 Md.App. at 345 , 500 A.2d 650 ), the greater part of the Court of Special Appeals’ opinion on this matter (id. at 324-345, 500 A.2d 650 ) was devoted to rejecting the State’s principal argument. The Court of Special Appeals began with a premise that testimonial privileges, including the privilege against self-incrimination, are disfavored and that, therefore, when a court is “close to the line,” it should “ ‘tilt’ toward finding the privilege inapplicable,” 65 Md.App. at 327 , 500 A.2d 650 .

After pointing out that the witness Little had been sentenced when he claimed the privilege in Ellison’s trial, the appellate court stated that the issue in the case was “[a]t what point on the continuum is the process of incrimination sufficiently complete that the risk of incrimination is relegated to the past tense?” Id. at 329 , 500 A.2d 650 . The Court of Special Appeals concluded by holding, with regard to the offenses Little had been charged with, “that the risk of incrimination terminates at the moment the sentence is pronounced” (id. at 338, 500 A.2d 650 ) and that “[a]s to this aspect of his contention, ... the appellant is absolutely right” (id. at 345, 500 A.2d 650 ). The intermediate appellate court stated that the imposition of sentence is the “logical termination point” for the witness’s risk of incrimination and right to invoke the privilege, because the danger of future “jeopardy” after the moment of sentence is a “mere remote possibility” and “beyond the contemplated pale of the constitutional privilege” (id. at 344, 500 A.2d 650 ). Nevertheless, the Court of Special Appeals, agreeing with the State's alternate. argument, decided that the witness Little had been entitled to invoke the privilege against self-incrimination.

The appellate court explained ( 65 Md. App. at 345 , 500 A.2d 650 ): ²⁴⁹ “... Tyrone Little still ran a real risk of incrimination, if compelled to testify, because he might be revealing his complicity in other crimes not yet charged. Easily foreseeable, ... was the possibility that the State could charge him with conspiracy to murder Charles Sneed. United States v. Miranti, 253 F.2d 135 (2d Cir.1958); United States v. Johnson, 488 F.2d 1206 (1st Cir.1973).

There was also a real possibility that the testimony would have revealed the existence of an unlawful homosexual relationship between the witness Little and the appellant, with a variety of criminal charges possibly stemming therefrom.” As previously indicated, we granted Ellison’s petition for a writ of certiorari in order to review the self-incrimination question. Both parties in this Court advance the same arguments that were made to the Court of Special Appeals. In our view, the State correctly argues that, under this Court’s reasoning in Smith v. State, supra, the witness Little was entitled to invoke the privilege against self-incrimination because the thirty-day period for further review of his conviction and sentence had not expired. Therefore, there was a sufficient possibility of a new trial or new sentencing on the charges which had been brought against him.

Thus, while we shall affirm the Court of Special Appeals’ decision, we disapprove of its opinion on this matter. In Smith v. State, supra, the defendant Smith and the witness Montgomery had been arrested together and charged with various substantive drug offenses. As in the instant case, Montgomery entered a plea bargain with the State and pled guilty to one of the drug charges. Smith was then tried, and Montgomery was called as a witness by the defense.

At this time, Montgomery, although convicted, had not been sentenced. Montgomery refused to testify, invoking the privilege against self-incrimination under the Fifth Amendment to the federal constitution, and the trial court sustained the claim of privilege. The Court of Special Appeals in an unreported opinion held that Mont ²⁵⁰ gomery’s claim of privilege was properly sustained, relying upon an earlier opinion in the Court of Special Appeals in which Chief Judge Murphy had stated for that court (McClain v. State, supra, 10 Md.App. at 114 , 268 A.2d 572 ): “It is well settled that a witness may invoke his privilege against self-incrimination where, as here, the criminal action against him is still pending, as where an appeal is outstanding. See State v. Johnson [, 77 Idaho 1 ,] 287 P.2d 425 ; People v. Den Uyl [, 318 Mich. 645 ,] 29 N.W.2d 284 ; Knight v. Maybee [, 44 Misc.2d 152 ,] 253 N.Y.S.2d 59 ; Prentice v. Hsu, 280 F.Supp. 384 (S.D.N.Y.); Stallings v. State [, 136 Ga. 131 ,] 70 S.E. 1015 (motion for new trial pending).

See also Pope v. State, 7 Md.App. 533 [, 256 A.2d 529 ] Poling v. State, 6 Md.App. 45 [, 250 A.2d 126 ] Farmer v. State, 5 Md.App. 546 [, 248 A.2d 809 .] Cf. Knox v. State, 234 Md. 203 [, 198 A.2d 285 ] and note, 9 A.L.R.3d 990 . This Court in Smith agreed with the position of the Court of Special Appeals and decided, that the privilege against self-incrimination was available to one in the position of the witness Montgomery. Initially, our Smith opinion pointed to the general rule that the privilege against self-incrimination with respect to particular charges is not available to a witness whose prosecution on those charges has terminated by a guilty verdict and sentence, and we cited United States v. Gernie, 252 F.2d 664, 670 (2d Cir.), cert. denied, 356 U.S. 968 , 78 S.Ct. 1006 , 2 L.Ed.2d 1073 (1958), as illustrative of the general rule.

Smith v. State, supra, 283 Md. at 190 , 388 A.2d 539 . We went on, however, to quote with approval the Fourth Circuit’s distinction of Gernie in Mills v. United States, 281 F.2d 736, 741 (4th Cir.1960), as follows ( 283 Md. at 190-191 , 388 A.2d 539 ): “ ‘The fact that [the subject witness had pleaded guilty but] ... had not been sentenced distinguishes this case from United States v. Gernie, 2 Cir.1958, 252 F.2d 664, 670 , where the witness had been convicted of the crime with which charged and sentenced. It was held he no longer was able to claim the privilege of the Fifth Amend ²⁵¹ ment and could be compelled to testify. The theory in that case was that, having been convicted and sentenced, the witness could not be further incriminated by his answers.

However, at the time of these proceedings in the case at bar, the period within which ... [the witness ] could prosecute an appeal of her own conviction had not expired.’ ” (Emphasis added). Consequently, a witness whose time for appeal had not expired was deemed to fall within an exception to the general rule and was entitled to claim the privilege against self-incrimination. The Smith opinion then cited numerous cases in accord, including many where the privilege against self-incrimination was held available to a witness who had been sentenced but where the time for appeal had not expired or where there was an appeal pending. 283 Md. at 191 , 388 A.2d 539 . This Court went on in Smith to agree with the Mills opinion and the other cases (id. at 191-192, 388 A.2d 539 , emphasis added): “The Fourth Circuit in Mills v. United States, supra, suggested two reasons why a guilty plea does not operate as a waiver of the Fifth Amendment privilege against self-incrimination, at least until sentence has been imposed.

First, as the above quotation indicates, despite the guilty plea there could be an appeal of the conviction. Second, if a person who had pleaded guilty to a crime but who had not been sentenced were compelled by his testimony to disclose the extent or nature of his participation in the crime, the trial court might be affected in determining the extent and severity of the sentence to be imposed, 281 F.2d at 741 . That is, the witness might be forced to give testimony which could subject him to a more severe penalty. “We agree, for both reasons suggested in the Mills case, that the Fifth Amendment privilege against self-incrimination is available to one in the position of the witness Montgomery. ²⁵² “Although a guilty plea waives many rights and precludes making successfully many arguments on appeal, nevertheless there are occasionally reversals of convictions based upon guilty pleas. Thus, before one is sentenced, so that the time for an appeal has not begun to run, there is an element of danger of a new trial on the same charge.” The Smith opinion continued by discussing illustrative situations where convictions based on plea bargains and guilty pleas had been reversed on appeal and new trials on the original charges had been ordered.

Id. at 192-193 , 388 A.2d 539 . The Court in Smith concluded that, under the principles enunciated by the Supreme Court in Hoffman v. United States, 341 U.S. 479, 486-487 , 71 S.Ct. 814, 818 , 95 L.Ed. 1118 (1951), the possibility of a subsequent trial on the same criminal charges was sufficient to uphold the witness’s invocation of the privilege against self-incrimination. We stated ( 283 Md. at 193 , 388 A.2d 539 ): “This possibility is sufficient to justify Montgomery’s claim of privilege. For a witness to be entitled to invoke the privilege against self-incrimination, it is not necessary that his testimony will with certainty lead to further criminal conviction.

Rather, there must only be ‘reasonable cause to apprehend danger,’ Hoffman v. United States, 341 U.S. 479, 486 , 71 S.Ct. 814 , 95 L.Ed. 1118 (1951). The Supreme Court went on in Hoffman to state ( 341 U.S. at 486-487 [, 71 S.Ct. at 818 ) ]: ‘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 reversed a contempt conviction of a witness who refused to answer certain questions on the ground that ‘it was not “perfectly clear ... that the answerfs] cannot possibly have such tendency” to incriminate.’ 341 U.S. at 488 [, 71 S.Ct. at 819 .] In light of this standard, it cannot reasonably be concluded that there ²⁵³ was no danger that Montgomery’s testimony might have injured him in a subsequent trial on the criminal charges involved.” 1 Consequently, the first and primary reason for the decision in Smith was that the possibility of appellate reversal and new proceedings on the criminal charges was sufficient to justify the witness’s invocation of the privilege against self-incrimination. This reason was applicable to the witness Montgomery in Smith because,