Ellison v. State

MOYLAN, Judge. The appellant, Clinton W. Ellison, was convicted by a Baltimore City jury, presided over by Judge Joseph I. Pines, of murder in the first degree and robbery. In an otherwise garden-variety appeal, one issue stands out. ³²⁴ The Public Has a Right to Every Man’s Evidence To place the issue, one involving the privilege against compelled testimonial self-incrimination, in its proper framework, we begin with the universally recognized principle enunciated by Lord Chancellor Hardwicke in 1742 that “the public has a right to every man’s evidence.” 1 Kastigar v. United States, 406 U.S. 441, 443 , 92 S.Ct. 1653, 1655 , 32 L.Ed.2d 212, 216 (1972); Branzburg v. Hayes, 408 U.S. 665, 688 , 92 S.Ct. 2646, 2660 , 33 L.Ed.2d 626, 644 (1972). The fundamental nature of this obligation 2 and the generally dim view taken by the common law toward any exemptions from this general obligation were well summarized by Dean ³²⁵ Wigmore in 8 Wigmore on Evidence (McNaughton rev. 1961), § 2192, “Duty to give testimony,” at 70: “For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man’s evidence.

When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.” (Emphasis supplied). Testimonial Privileges Are Disfavored Following from this general obligation to assist the search for truth with all available knowledge, the ancillary principle is also well settled that all of the various testimonial privileges, 3 as derogations from full and accurate fact finding, are looked upon with disfavor. Dean McCormick surveyed the landscape in his article The Scope of Privilege in the Law of Evidence, 16 Tex.L.Rev. 447 (1938), and observed, at 468, “The courts often say that privileges, since they curtain the truth from disclosure, should be strictly construed.” He went on more fully, at 469: ³²⁶ “The development of judge-made privileges halted a century ago. The manifest destiny of evidence law is a progressive lowering of the barriers to truth.

Seeing this tendency, the commentators who take a wide view, whether from the bench, the bar, or the schools, seem generally to advocate a narrowing of the field of privilege.” He concluded, “One may hazard a guess ... that in a secular sense privileges are on the way out.” The United States Court of Appeals for the Second Circuit noted in In Re Cueto, 554 F.2d 14, 15 (2d Cir.1977): “It is a fundamental rule of law that the public has a right to every person’s evidence. There are a small number of constitutional, common-law and statutory exceptions to that general rule, but they have been neither ‘lightly created nor expansively construed, for they are in derogation of the search for truth.’ ” The same general approach to testimonial privileges was followed by the Supreme Court in Branzburg v. Hayes, supra, 408 U.S. at 690 n. 29, 92 S.Ct. at 2661 n. 29, “The creation of new testimonial privileges has been met with disfavor by commentators since such privileges obstruct the search for truth.” See also Ladd, Privileges, 1969 Law & Soc. Ord. 555; Falsone v. United States, 205 F.2d 734 (5th Cir.1953). Before concluding with the inimitable Dean Wigmore on the disfavored status of testimonial privileges, a brief word is in order as to why it is important for us to determine whether testimonial privileges are in favor or disfavor.

In an otherwise close case for the application of a testimonial privilege, a case that could plausibly go either way, the “tilt” to be taken by the court is critically important. If testimonial privileges are determined to be in favor, our “tilt” toward finding the privilege applicable could well be decisive in that direction. If, on the other hand, testimonial privileges are determined to be in disfa ³²⁷ vor, our “tilt” toward finding the privilege inapplicable could well be decisive in the other direction. When we’re close to the line, which way should we lean?

We turn to the undisputed Master for guidance. Dean Wigmore has pointed out not only that these exceptions from the general duty are “to be discountenanced” and “should be recognized only within the narrowest limits” but also that, sometimes caught up in an apparently lofty purpose and losing their larger perspective, “judges and lawyers are apt to forget this exceptional nature.” The appropriate attitude toward the testimonial privileges was unmistakably prescribed in 8 Wigmore on Evidence (McNaughton rev. 1961), § 2192, “Duty to give testimony,” at 73: “[A]ll privileges of exemption from this duty are exceptional, and are therefore to be discountenanced. There must be good reason, plainly shown, for their existence. In the interest of developing scientifically the details of the various recognized privileges, judges and lawyers are apt to forget this exceptional nature.

The presumption against their extension is not observed in spirit. The trend of the day is to expand them as if they were large and fundamental principles, worthy of pursuit into the remotest analogies. This attitude is an unwholesome one. The investigation of truth and the enforcement of testimonial duty demand the restriction, not the expansion, of these privileges.

They should be recognized only within the narrowest limits required by principle. Every step beyond these limits helps to provide, without any real necessity, an obstacle to the administration of justice.” (Emphasis in original). Now knowing which way to “tilt,” we look to the case at hand. As the issue approaches us, it has a “reverse English” on it.

Paradoxically, it is the State arguing for an expansive view of the privilege against compelled testimonial self-incrimination and the appellant urging a stingier one. ³²⁸ The Present Case Charles Sneed, an inmate at the Maryland Penitentiary, was murdered in his cell at some time between 6 and 7 p.m. on Saturday, December 3, 1983. The immediate cause of death was strangulation, with a blunt injury to the abdomen as a contributory cause. The evidence showed indisuptably (the appellant, indeed, does not attack the legal sufficiency of the evidence) that the murderers were the appellant and his codefendant, Tyrone Little. Among the motives for the murder was robbery, although there were indications that some kind of grudge or grievance against the victim was also involved.

The appellant called Tyrone Little as a defense witness, notwithstanding notice through Little’s attorney that Little would invoke the Fifth Amendment privilege. When Little was asked whether he knew the appellant, he invoked his privilege. Judge Pines declined to compel him to answer the question. After a subsequent extended discussion out of the presence of the jury, Judge Pines indicated that he would permit Little to assert his privilege if questioned as to any knowledge he had about Sneed’s death, but would not uphold the privilege with respect to questions concerning Little’s membership in the Moslem religious group.

In his testimony before the jury, Little answered questions concerning his membership in the religious group but successfully asserted his privilege with respect to the death of Charles Sneed. He was then excused. At the time Little was called to the stand by the appellant, Little had already been tried separately and had entered an Alford guilty plea to murder in the second degree. Upon that finding of guilty, he had also already been sentenced to a term of 25 years imprisonment, concurrent with the sentence he was already serving.

The Issue The issue is that of identifying the magic moment when incrimination becomes a fait accompli. Just as one ³²⁹ who is dead no longer runs the risk of being killed nor one pregnant, the risk of being impregnated, nor one blind, the risk of being blinded, one who has already been incriminated for an offense is past the point of no return in terms of the risk of incrimination. At what point on the continuum is the process of incrimination sufficiently complete that the risk of incrimination is relegated to the past tense? Though scattered cases deal cursorily with the problem, there is painfully skimpy analysis behind apparently uncritical holdings that seem either cavalier in their treatment of the subject or oblivious to the subtleties involved.

On the spectrum, several distinct time zones can be identified: 1) Prior to verdict — It is universally recognized that prior to the rendering of a verdict by the fact finder, the danger of incrimination still abides. The privilege, therefore, continues to be available in full force. 2) Through verdict but not through sentencing — Some jurisdictions hold that the act of incrimination is complete with the rendering of the verdict of guilty and that the assessment of the appropriate penalty is simply not a part of the incrimination process. The philosophical distinction is made between the adjudicatory stage and the punishment stage. The imposing of the punishment, though part of the larger criminal justice process, is conceptualized as something distinct from the process of incrimination.

The imposing of the sanction for a perfected incrimination is not an inherent part of the incrimination process itself but only follows an incrimination that is already completed. Knox v. State, 234 Md. 203 , 198 A.2d 285 (1964); People v. Fine, 173 Misc. 1010 , 19 N.Y.S.2d 275 (1940); cf. Commonwealth v. Tracey, 137 Pa.Super. 221 , 8 ³³⁰ A.2d 622 (1939); State v. Knudtson, 11 Idaho 524 , 83 P. 226 (1905). 4 Under this theory, the incrimination is completed at the instant the verdict of guilty is rendered and the privilege, therefore, ceases to have any justifying purpose at that very instant. 3) Through sentencing — Other jurisdictions hold that the risk of incrimination continues to run through the sentencing process. They reason that vulnerability to the sanction is an integral part of the incriminatory stage and that even a convicted defendant retains the privilege not to give testimony, in the sentencing forum or any other forum, that might serve to enhance the punishment. One of the leading cases espousing this position and one of the few cases nationwide that has given the entire problem the benefit of thoughtful analysis is the Court of Appeals decision 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).

See also, e.g., Mills v. United States, 281 F.2d 736 (4th Cir.1960); Commonwealth v. Garland, 475 Pa. 389 , 380 A.2d 777 (1977); and State v. Tyson, 43 N.J. 411 , 204 A.2d 864 (1964). Under this theory, the privilege continues to be operational through the sentencing stage. A significant line of cases holds squarely, however, that once the sentencing is completed, incrimination in all of its manifestations is a fait accompli and the privilege thereby ceases to operate. United States v. Gernie, 252 F.2d 664 (2d Cir.1958); United States v. Cioffi, 242 F.2d 473 (2d Cir.1957); and State v. Nelson, 246 Or. 321 , 424 P.2d 223 (1967). ³³¹ 4) Through direct appeal — Some courts go further and hold that even following conviction and sentencing, there is a possibility of retrial following successful appeal and that the risk of incrimination, therefore, continues to be very real.

They hold that the privilege is still available until such time as the initial incrimination has been affirmed through all possible stages of the direct appeal process. Ottomano v. United States, 468 F.2d 269 (1st Cir.1972); Taylor v. Best, 746 F.2d 220 (4th Cir.1984) (dicta); and People v. Lopez, 110 Cal.App.3d 1010 , 168 Cal.Rptr. 378 (1980). 5) Through the period of possible collateral review — Although the argument is sometimes made that the possibility of retrial following successful collateral review is not significantly distinguishable from the possibility of retrial following successful direct review, few, if any, courts have been willing to deem so speculative and remote a risk of future incrimination to be adequate justification to continue the life of the privilege and deny the public the information to which it would otherwise be entitled. See, however, Commonwealth v. Rodgers, 472 Pa. 435 , 372 A.2d 771 (1977) (Opinion for the Court by Roberts, J., concurred in on this point by one other justice out of seven sitting). The Maryland Divergence The Fifth Amendment of the United States Constitution and Article 22 of the Maryland Declaration of Rights are parallel constitutional treatments of the same preexisting principle of English common law that Nemo tenetur seipsum accusare. 5 Historically, Maryland has always deemed the two constitutional provisions to be in pari materia, Blum v. State, 94 Md. 375 , 51 A. 26 (1902); Bass v. State, 182 Md. 496 , 35 A.2d 155 (1943), and held that they should receive a like construction.

Brown v. State, 233 Md. 288 , ³³² 196 A.2d 614 (1964); State v. Panagoulis, 253 Md. 699 , 253 A.2d 877 (1969). With respect to the moment when incrimination is completed and the privilege thereby ceases to exist, however, Maryland has interpreted its own Declaration of Rights one way and interpreted the Federal Fifth Amendment a very different way. Under the Maryland Declaration of Rights, incrimination is fully completed when the verdict of guilty is rendered, either by way of trial or by accepting a plea of guilty, and the privilege ceases to exist. Judge Henderson announced this for the majority of the Court of Appeals in Knox v. State, 234 Md. 203 , 198 A.2d 285 (1964).

He clearly was dealing with the Maryland Constitution and not the Federal Constitution, as he pointed out, at 234 Md. 207 , 198 A.2d 285 , “For present purpose we may assume that the controlling constitutional provision is Article 22 of the Maryland Declaration of Rights, and not the Fifth Amendment to the Federal Constitution.” The Court of Appeals distinguished literal incrimination from placing one’s self in an unfavorable posture at sentencing, “The claim in the instant case was not that Knox might be subjected to prosecution, for the crime about which he was asked to testify or any other crime, but simply that he might be put in an unfavorable position, as regards sentence____” Id. In holding squarely that with the rendering of the verdict of guilty the privilege ceased to exist, even prior to sentencing, the raison d’etre was “because the prosecution is over.” Id. As Chief Judge Bruñe pointed out in his careful dissent, the holding in Knox v. State was not dependent upon the fact that the guilty verdict had come by way of a guilty plea but rested rather upon the termination of the risk of incrimination with the verdict itself, “The opinion of the court in the present case rests upon the fact of conviction as the basis for removing the privilege and seems to draw no distinction between a conviction resulting from a plea of guilty and one resulting ³³³ from a trial.” Id. at 212-213 , 198 A.2d 285 (Brune, C.J., dissenting). 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), by way of contrast, dealt exclusively with the Court of Appeals’ interpretation of the Federal Fifth Amendment and not with the Maryland Declaration of Rights.

It did not purport to erode its earlier holding in Knox v. State, supra, in any respect, but simply distinguished it as a decision dealing with a different constitution. “Knox is inapposite for a more fundamental reason. As the Court made clear, that case did not involve a privilege arising under the Federal Constitution.” 283 Md. at 189 , 388 A.2d 539 . In Smith v. State, supra, a witness had explicitly invoked the federal privilege. “[I]t is the Fifth Amendment privilege which Montgomery attempted to invoke. Thus, in determining the limits of Montgomery’s privilege, the decisions under the Fifth Amendment are more pertinent.” Id. at 190, 388 A.2d 539 .

In rendering its interpretation of federal law on the subject of when the risk of incrimination is over and the privilege ceases, the Court of Appeals held squarely that a witness who has been convicted but not yet sentenced still runs an appreciable risk of incurring a heavier sentence and still possesses, therefore, the privilege. The Smith v. State decision relied primarily on the case of Mills v. United States, 281 F.2d 736 (4th Cir.1960). Mills also had extended the privilege to a witness caught in the time zone between verdict of guilty and sentencing. Although certain dicta in both Mills and Smith suggested that the availability of the privilege might continue even beyond sentencing, that issue was not before either court on the facts of the two cases. 6 ³³⁴ Indeed, the holding of Smith v. State was clear “that the Fifth Amendment privilege against self-incrimination is available to one in the position of the witness Montgomery.” 283 Md. at 191 , 388 A.2d 539 .

It is equally clear that the position of the witness Montgomery was one between verdict and sentencing. The final conclusion of the Court of Appeals was based unequivocally upon that position, “[S]ince Montgomery at the time of Smith’s trial had not been sentenced on his plea of guilty to possession of heroin, his testimony might have been considered in determining whether he would receive probation or be committed to an institution and, if the latter, in determining the length of such commitment.” Id. at 195 , 388 A.2d 539 . Under those circumstances, under the Court of Appeals’ interpretation of federal law, the privilege remains available. The difference between the Maryland constitutional privilege and the federal constitutional privilege, as illustrated by the difference between Knox v. State and Smith v. State, is not material, however, to the decision before us.

The witness Tyrone Little who was permitted to invoke the privilege to the alleged prejudice of the appellant was in the very different time zone between verdict-and-sentencing, on one hand, and the exhaustion of direct appeal, on the other. The appellant does not look to the Maryland Declaration of Rights, where he would find no solace under Knox v. State, but rather to the federal privilege under the Fifth Amendment. We turn, therefore, to federal law. 7 A False Beacon: Hoffman v. United States If one is prudently to approach the interpretation of the Federal Constitution in this yet unsettled area, it is impor ³³⁵ tant not to be beguiled or misled by a notoriously prominent false beacon: Hoffman v. United States, 341 U.S. 479 , 71 S.Ct. 814 , 95 L.Ed. 1118 (1951). For the lack of any other guidance by the Supreme Court, however, some of the decisions dealing with the issue before us have turned to Hoffman and focused upon a single sentence therein that is deceptively attractive.

The Hoffman decision had absolutely nothing to do with the question of when incrimination is sufficiently terminated to vitiate the privilege. It did not remotely consider the issue. It dealt only with the substance of the compelled testimony: must the compelled testimony incriminate directly or is it enough that it have a tendency to incriminate? In the course of an extended discussion of that question, Hoffman uttered a single sentence that, lifted from context, might arguably be applied to the issue before us: “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.” 341 U.S. at 486-487 , 71 S.Ct. at 818-19 .

To do so, however, would be to compare apples with oranges. The facts of the Hoffman case and the fuller context in which the quoted sentence was uttered make it indisputably clear that the Supreme Court was dealing with a very different question. It was considering the what of incrimination and not the when of incrimination. The immediately preceding text (part of the same paragraph) made the subject matter of the discussion very clear: “The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime....

But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer____ The witness is not exonerated ³³⁶ from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, ... and to require him to answer if ‘it clearly appears to the court that he is mistaken.’ ... However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee.” (Citations omitted). Id. at 486 , 71 S.Ct. at 818 .

The discussion that followed, moreover, made the subject matter unequivocally clear. The compelled witness, before a special grand jury investigating the “rackets,” had been publicly charged as being a known underworld character and he was a racketeer with a twenty-year police record. The Supreme Court made it very clear from all of the circumstances in the case it should have been obvious to a reasonable judge that sensitive areas were being inquired into that could well have implicated the witness in criminal activity himself. The witness need not incriminate himself to establish that his answer would be incriminating; a strong tendency is enough.

This is the sole context and exclusive subject matter of Hoffman v. United States. 8 It has no bearing upon the very different issue of when, upon the time line, incrimination is completed. We proceed, properly wary of false lights on the shore. General Statements The general statements of law explaining both the purpose of the privilege and the limitations upon its availability at least set the stage for more searching analysis. C. ³³⁷ McCormick, Law of Evidence (1st ed. 1954), § 135, “Termination of Liability to Punishment: Immunity Statutes,” at 284, states: “If at the time of the claim of privilege, the liability of the witness to be convicted of the offense inquired about has been terminated, the danger against which the privilege is directed does not exist, and the claim of privilege fails.

This is so when the witness has already been convicted or acquitted of the offense, when he has been pardoned, or when prosecution has been barred by the statute of limitations.” Dean Wigmore explains at 8 Wigmore on Evidence (McNaughton rev. 1961), § 2279, “Expurgation of criminality,” at 481: “The law is concerned with its own penalties only. Legal criminality consists in liability to the law’s punishment. When that liability is removed, criminality ceases; and with the criminality the privilege.” Dean Wigmore goes on, at § 2279(a), loc. cit.: “A conviction for the crime discharges all liability to the state and removes the possibility of further penalty; hence an act for which the person has been convicted no longer tends to incriminate, in the sense of the privilege. This is universally conceded.” (Emphasis in original).

In Reina v. United States, 364 U.S. 507 , 81 S.Ct. 260 , 5 L.Ed.2d 249 (1960), the Supreme Court cites the above statement by Dean Wigmore as “weighty authority” for the proposition that: “[T]he ordinary rule is that once a person is convicted of a crime, he no longer has the privilege against self-incrimination as he can no longer be incriminated by his testimony about said crime____” 364 U.S. at 513 , 81 S.Ct. at 264 . In the course of a more general discussion in Namet v. United States, 373 U.S. 179 , 83 S.Ct. 1151 , 10 L.Ed.2d 278 (1963), the Supreme Court observed, at 373 U.S. 188 , 83 S.Ct. at 1155 : ³³⁸ “In this case, the prosecutor initially did not believe that the Kahns could properly invoke their privilege against self-incrimination, reasoning with some justification that their plea of guilty to the gambling charge would erase any testimonial privileges as to that conduct. His view of the law was supported by substantial authority, cf. Reina v. United States, 364 U.S. 507, 513 , 81 S.Ct. 260 [264], 5 L.Ed.2d 249, 255 ....” The difficulty, however, with all of these general statements is that they take the termination of incrimination for granted and do not probe for the precise moment when that termination occurs. The Process of Incrimination Terminates with the Final Judgment of a Sentence Accepting the interpretation of federal constitutional law in Smith v. State, supra, that exposure to incrimination continues even after the verdict has been rendered and until the sentence has been pronounced, we hold, by way of our further interpretation of federal constitutional law, that the risk of incrimination terminates at the moment the sentence is pronounced and the judgment thereby becomes final.

Support for this proposition is widespread. Even in his well-reasoned dissent from Knox v. State, supra, Chief Judge Brune, though urging that the risk of incrimination extended beyond the verdict stage, argued only for extending the risk to the time of sentencing: “In my estimation, the answer to the question here should turn upon whether or not the defendant who has pleaded guilty is exposed to the risk of greater punishment by being required to testify with regard to the offense before sentence is imposed.” 234 Md. at 211 , 198 A.2d 285 . In United States v. Romero, 249 F.2d 371 (2d Cir.1957), Judge Lumbard was dealing with the case of a witness, a co-conspirator of the defendant, who had shortly before the trial in question been both convicted and sentenced. In ³³⁹ holding that the privilege was thereby no longer available, Judge Lumbard stated: “It is well established that once a witness has been convicted for the transactions in question, he is no longer able to claim the privilege of the Fifth Amendment and may be compelled to testify.” Id. at 375 .

Judge Lumbard relied upon the earlier Second Circuit opinion of United States v. Cioffi, 242 F.2d 473 (2d Cir.1957). There the witness in question had shortly before the defendant’s trial been sentenced to ten years upon his plea of guilty. In holding that the privilege was no longer available, Chief Judge Clark stated: “Nor was it error to allow the Government to call Charles Jackson as a witness. Inasmuch as Jackson had already pleaded guilty to the indictment he had no obvious reason for invoking the privilege against self-crimination....” Id. at 477 .

In United States v. Hoffman, 385 F.2d 501 (7th Cir.1967), it was unclear whether the compelled witness, Fears, had yet been sentenced upon his plea of guilty or not, although the time lapse strongly suggests it. In holding that the privilege was no longer available, the court emphatically stated: “His conviction upon that plea divested him of his Fifth Amendment right to refuse to testify concerning the transactions and events involved and subjected him to being called by the government as a witness. It is well established that once a witness has been convicted for the transactions in question he is no longer able to claim the privilege of the Fifth Amendment and may be compelled to testify.” Id. at 504 . One of the landmark cases, regularly referred to by all of the others, is United States v. Gernie, 252 F.2d 664 (2d Cir.1958).

In holding that a government’s witness who had ³⁴⁰ shortly before entered a plea of guilty