Gardner v. State

Moylan, J., delivered the opinion of the Court. The appellant, William O. Gardner, was cited for direct contempt of court by Judge George B. Rasin, Jr., in the Circuit Court for Kent County for his refusal to tes ⁶⁹³ tify as a State’s witness in the jury trial of Gordon C. Gaskins for murder. On appeal he alleges (1) that the contempt citation was erroneous because of the failure of the trial judge to order him to answer specific questions as they were put to him on a one-by-one basis and (2) that his two-year sentence for the contempt, to be served consecutively with the sixty-year sentence he was already serving, constituted cruel and unusual punishment. The second contention can be disposed of briefly.

The appellant acknowledges that the two-year sentence imposed was within the common law sentencing prerogative of the presiding judge but maintains that the “sentence for contempt was wholly disproportionate to the offense.” With respect to sentencing for common law crimes, this Court said in Lynch v. State, 2 Md. App. 546 , 564: “In the case of common law crimes, the only restrictions on sentence are that it be within the reasonable discretion of the trial judge and not cruel and unusual punishment. In the imposition of sentence, the court must not only consider the accused, but in cases of serious import, the example to others of like inclination.” In the case at bar a mere concurrent sentence for a man already sentenced to sixty years’ imprisonment would have been an empty gesture and an exercise in futility. The defendant in the case, Gaskins, was on trial for a first-degree murder perpetrated in the course of a notorious armed robbery. At an earlier trial in Howard County in 1968 of Gaskins for the same crime, the appellant, appearing as a compellable witness under a grant of immunity from prosecution, had been a key State’s witness.

That earlier conviction for first-degree murder was reversed by this Court because of the failure of the trial judge to give a required jury instruction, Gaskins v. State, 7 Md. App. 99 , and the retrial was moved to Kent County. The refusal of the appellant at the retrial to obey the directive of the trial judge to testify represented both ⁶⁹⁴ a violation of a lawful order of court and a flagrant jeopardizing of the outcome of “a case of serious import.” See Johnson v. State, 9 Md. App. 37 . Furthermore, as this Court said in Minor v. State, 6 Md. App. 82 , 91: “A sentence will be reviewed by this Court only if it was dictated not by a sense of public duty but by passion, prejudice, ill will or any other unworthy motive. Gee v. State, 2 Md. App. 61, We find no evidence of passion, prejudice, ill will or any other unworthy motive on the part of the trial judge.

The sentence was neither cruel nor unusual and we will not disturb it. The trial of Gaskins for murder was held before a jury in Kent County on January 19, 20 and 21, 1970. On the first day of trial, the appellant was called as a witness. After giving his name, his age, his present address as the Maryland Penitentiary and his former occupation, the appellant was asked if he knew Gordon Gaskins.

His response was “Well, I can’t answer that. First of all, I would like to say something.” He was asked the question a second time and again responded “I can’t answer that.” At that point, the jury was excused from the courtroom. An extended colloquy in open court, with the appellant still under oath, then took place between the trial judge, the appellant and the Deputy State’s Attorney for Baltimore County. The appellant asserted consistently and adamantly that he was present at the trial unwillingly and that he was not going to testify.

At no time did he assert any privilege against self-incrimination under the Fifth and Fourteenth Amendments of the Federal Constitution or under Article 22 of the Maryland Declaration of Rights. He did assert that his refusal to testify against Gaskins was