Hagez v. State

HOLLANDER, Judge. Adel Hagez, appellant, was convicted by a jury in the Circuit Court for Howard County of first degree murder and use of a handgun in the commission of that murder. He received a sentence of life imprisonment for murder and a ¹⁹⁸ three year concurrent sentence for the handgun offense. On appeal, he presents five questions for our review: I. Whether the trial judge erred by failing to grant Appellant’s motions for judgment of acquittal, where the sole evidence in support of the charge of first degree murder was Appellant’s fingerprint on a gun never proven to be the murder weapon.

II

Whether the trial judge erred by failing to grant Appellant’s motions for judgment of acquittal, where the State failed to offer any evidence that the killing was "wilful, deliberate or premeditated, assuming, arguendo, that the killing could be attributed to Appellant.

III

Whether the trial judge erred by refusing to recognize spousal immunity for Appellant’s wife based on his finding that Maryland Cts. and Jud. Proc.Code § 9-106 gave him discretion to decide whether or not to recognize, the privilege.

IV

Whether the trial judge erred by permitting the State, over the Appellant’s repeated objections, to call the Appellant’s wife to the stand, and repeatedly threaten her with contempt in response to leading questions by which the State’s Attorney testified against Appellant. V. Whether Appellant’s conviction must be vacated because the prosecutor engaged in prohibited misconduct by arguing facts in summation never put in evidence, and urging the jury to convict Appellant based' on his wife’s refusal to testify against him, in clear violation of the trial judge’s instructions to the contrary. For the reasons discussed below, we conclude that appellant was prejudiced by the nature and extent of questions that the State propounded to Ms. Hagez and by the State’s closing argument. We shall therefore reverse. ¹⁹⁹ Factual Summary Twenty-four witnesses testified for the State.

The defense did not present any witnesses, however. What follows is a summary of the State’s case, in the light most favorable to the State. On the morning of June 22, 1991, Riad Hijaz was shot and killed in Room 410 of the Holiday Inn in Jessup, Maryland. According to Dr. Donald Wright, Hijaz had been shot six times and died of multiple gunshot wounds, including one to the chest and two to the head.

Three of the six wounds revealed stippling, indicating that the shots had been fired from within 18 inches. Room 410 was registered to Virginia Hagez, a resident of Richmond, Virginia. On March 8, 1991, some three months before the death of Mr. Hijaz, Ms. Hagez and appellant were divorced, ending 21 years of marriage. Both appellant and Ms. Hagez were born in Lebanon.

At the time of the killing, Ms. Hagez and several men who apparently were of Middle East descent were affiliated with “The Mediterranean Chef,” a portable food concession stand. The Mediterranean Chef was servicing the Columbia City Fair in Howard County. Ms. Hagez requested two rooms at the Holiday Inn, for herself and her staff. She specifically requested that the two rooms not be near each other, and that no one be informed of her room number.

In addition to room 410, which Ms. Hagez occupied, she was assigned room 808. On the morning of June 22, 1991, Howard County police officers responded to the motel in answer to a call that shots had been fired. At about 9:50 a.m., Officers David Ash and Paul Yodzis responded to Room 410 of the Holiday Inn. When they entered the room, they saw the body of the victim about a foot from the door.

The room was hazy with cigarette smoke and gunpowder. Two full cups of coffee were located on a table in the room. On the dresser was a bag with five cans remaining from a six pack of beer. A copper jacket was found on the unmade bed; spent projectiles were found on the floor by the victim’s body. ²⁰⁰ As Howard County Detective Luther Johnson drove onto the motel parking lot, a woman ran out of the entrance toward his vehicle.

The woman, who identified herself as Virginia Hagez, was “hysterical” and was “screaming.” She told Johnson that someone had been shot in Room 410 and she asked, repeatedly, “Is he dead?” Officer Victoria Plank also saw Ms. Hagez as she ran from the motel. She described Ms. Hagez as “rather hysterical at the time.” Ms. Hagez told Officer Plank that she had asked a man with her group, who was staying in the downstairs room, to assist her with her luggage. When the man arrived, she went to the motel clerk because of a discrepancy in the bill. Upon her return to the room, the man who was supposed to help with the luggage was on the floor and she ran for help.

According to Officer Plank, Ms. Hagez “continued to state that there was nothing going on between the two of them. That he had just been there to help with the suitcases.” On the morning of Saturday, June 22, 1991, Detective A.J. Bellido-Deluna was off duty and was working as a security officer at the Columbia Fair. He recalled that, at about 9:00 a.m., a red “Datsun Nissan type vehicle” with Virginia license plates parked behind him. He noticed a man who appeared to be of Arab descent, with a briefcase, exit the car and proceed to the Mediterranean Chef, where two men were setting up.

After a brief conversation, the man left. All of the men appeared to be of Arab descent. Bruno Kujat had a concession stand near the Mediterranean Chef. He was acquainted with a woman he thought was named “Virginia” at the Mediterranean Chef, having seen her at previous festivals.

When they chatted the night before, she told Kujat that she was Lebanese and had three workers. On Saturday morning, Kujat talked with the two men who were at the stand. He recalled seeing another man, who carried a briefcase, walk away from the stand that morning. Bernadette Williams was the receptionist on duty at the front desk of the Holiday Inn at the time of the killing.

She testified that, shortly before 9:45 a.m., two men carrying ²⁰¹ “money bags” identified themselves as Virginia Hagez’s employees from the carnival and asked for Ms. Hagez’s room number. According to Williams, Ms. Hagez “kept calling downstairs and saying don’t tell them what room I’m in.” Williams did not disclose the room number. A third man approached the men and talked to them. Then, all three walked away.

Two of the men went outside, but the third one went toward the elevators. Williams did not know if appellant was one of the three men. Room 415, which was across the hall from Room 410, was occupied at the time by Jerry and Rita Green, who were from North Carolina. At about 9:30 a.m., Mr. Green, who had been in the security business, was in the hall looking for a luggage cart.

He noticed a vacuum cleaner leaning up against the door to Room 410. He returned to his room and, about fifteen minutes later, heard the sound of vacuuming, which he thought was unusual given the hour of the day. Then he heard three knocks, followed by a woman saying “oh no.” He then heard a single gunshot, followed by four or five shots. He shoved his wife into the bathroom and, unable to dial 911 directly, he called the front desk to report the shooting.

Ms. Green also heard the vacuum, the scream and the gunshots, although she did not hear the knocks. After calling for help, they looked out of their door and saw the vacuum cleaner in the hall. During the investigation, Sergeant Glenn Hansen interviewed Virginia Hagez several times. 1 On June 25, 1991, using information obtained from Ms. Hagez, he directed Montgomery County police to the Shady Grove Metro Station parking lot. There they found a red Nissan with Virginia license plates and parking tickets, dated June 24 and 25, 1991. ²⁰² The car was registered to “The Roast Beef Co., Inc.,” 2012 Fon-du-lac Road, Richmond, Virginia.

The police obtained a search warrant and seized the vehicle. Documents in the car established appellant’s residence at 2012 Fon-du-lac Road in Richmond. Inside the passenger compartment of the Nissan, police found a white bank pouch that appeared blood stained. It contained eleven .38 caliber bullets.

In the trunk were two briefcases. The first contained items belonging to Virginia Hagez. The second briefcase held papers that appeared to be bloodstained. Between the papers was a bloodstained revolver with six spent cartridges, four from .38 caliber bullets and two from .357 caliber bullets.

The number of spent casings was consistent with the six gunshot wounds to the victim. The gun was a Colt Lawman MK III 357 OTG revolver. Also found in this briefcase were bloodstained papers, including a letter addressed to appellant, the victim, and another man at 2012 Fon-du-lac Road, Richmond, Virginia. The same address also appeared on other business papers, including a check drawn on the account of “The Roast Beef Company” and signed by appellant.

Appellant’s fingerprint was found on the gun. FBI Special Agent J.R. Williamson, a firearms expert, testified, however, that he could not determine if the bullets and bullet fragments recovered from the body of the victim and Room 410 were fired from the gun found in the car, due to insufficient microscopic markings. Nevertheless, he concluded that certain of the bullets and bullet jackets could have been fired from the revolver in issue, based on the specific rifling impressions. He also said that certain of the .38 caliber bullets and the .357 caliber bullets belong to the same “family” of ammunition; Agent Williamson described them as “interchangeable.” Moreover, both types of bullets may be fired from a .357 revolver.

Matthew Abbott, a chemist and expert in forensic serology, compared blood samples from appellant, the victim, and the gun. He was not permitted to testify, however, that the blood. ²⁰³ on the gun was consistent with the victim’s blood, because his conclusion had not been expressly provided in the report furnished to the defense in discovery. At trial, Ms. Hagez sought to invoke her spousal privilege, which the court rejected. Nevertheless, she refused to testify.

Additional facts will be included in our discussion of the issues. I. Appellant advances three reasons for his argument that the evidence presented was insufficient to support his convictions. First, he argues generally that the circumstantial evidence produced by the State did not negate a reasonable hypothesis of innocence. He also argues specifically that the State failed to establish criminal agency and failed to prove the elements of premeditation and unlawful use of a handgun.

We disagree. In our view, the evidence was sufficient and the court did not err in denying appellant’s motions for judgment. The test for evaluating evidentiary sufficiency is “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Albrecht, 336 Md. 475, 479 , 649 A.2d 336 (1994) (quoting Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)) (emphasis in original). See also Snyder v. State, 104 Md.App. 533, 548-49 , 657 A.2d 342 , cert. denied, 340 Md. 216 , 665 A.2d 1058 (1995).

It is firmly established that “[a] conviction of first degree murder may rest on circumstantial evidence.” Snyder, 104 Md.App. at 549 , 657 A.2d 342 . It has been observed that, “a conviction upon circumstantial evidence alone will not be sustained unless the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence.” Hebron v. State, 331 Md. 219, 224 , 627 A.2d 1029 (1993). See also Wilson v. State, 319 Md. 530, 537 , 573 A.2d 831 (1990); West v. State, 312 Md. 197, 211-12 , 539 A.2d 231 (1988). The cases that have repeated that litany ²⁰⁴ have been understandably vague about what would constitute a case based solely on circumstantial evidence and what would amount to inconsistency with any reasonable hypothesis of innocence.

The true test is whether the evidence, circumstantial or otherwise, and the inferences that can reasonably be drawn from the evidence, would be sufficient to convince a rational trier of fact, beyond a reasonable doubt, of the guilt of the accused. See Holland v. United States, 348 U.S. 121 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954). See also discussion in Finke v. State, 56 Md.App. 450, 467-478 , 468 A.2d 353 (1983), cert. denied, 299 Md. 425 , 474 A.2d 218 , cert. denied, 469 U.S. 1043 , 105 S.Ct. 529 , 83 L.Ed.2d 416 (1984). The Court of Appeals has explicitly rejected “the premise that circumstantial evidence is in some manner inferi- or to direct evidence.” Mangum v. State, 342 Md. 392, 398 , 676 A.2d 80, 83 (1996).

To the contrary, the Court in Hebron reiterated “that there is no difference between direct and circumstantial evidence.” Id., 331 Md. at 226 , 627 A.2d 1029 . See also In re Daniel S., 103 Md.App. 282, 287 , 653 A.2d 512 (1995) (“ ‘ “The law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred.” ’ ”) (citations omitted). Therefore, a conviction based on a “single strand of circumstantial evidence or successive links of circumstantial evidence,” Id. 331 Md. at 228 , 627 A.2d 1029 , may be sustained. Nevertheless, it is the judge’s function, not the jury’s, to determine whether the evidence is sufficient for the jury’s consideration.

Id., 331 Md. at 234-235 , 627 A.2d 1029 . According to appellant, the State proved only that the victim was shot with a gun, and that a gun with appellant’s fingerprint was found in the trunk of a car owned by a company with the same address as his own. He argues that the State’s evidence failed to establish that he was the murderer. We are satisfied, however, that there was abundant circumstantial evidence viewed collectively, to support the conviction.

Ms. Hagez was only recently divorced. She insisted that the two rooms that she rented be separated and directed the ²⁰⁵ desk clerk not to disclose her room number. The jury could infer that the caution exercised by her in arranging her stay at the Holiday Inn indicated that she was fearful and anticipated danger. After the shooting, Ms. Hagez repeatedly asserted to police that there was “nothing going on” between herself and the victim.

From these facts, a rational inference could be drawn that Ms. Hagez was afraid of the consequences if her ex-husband found her with another man. Moreover, shortly before the killing, a man carrying a briefcase was spotted at the concession stand run by Ms. Hagez. A bloodstained gun that could not be excluded as the murder weapon was found in a briefcase in the trunk of a car; the vehicle was clearly tied to appellant. Also, appellant’s fingerprint was found on that gun.

The gun contained six spent cartridges; the victim died from six gunshots. All of this circumstantial evidence, if believed by the jury, implicated appellant. Appellant contends that, when viewed individually, the various circumstances are not consistent with guilt. For example, he argues that the evidence is insufficient as a matter of law because the State did not negate the possibility that another person could have driven the car from Virginia to Maryland to shoot Mr. Hijaz and that appellant could have left his fingerprint on the gun before the shooting.

In essence, he complains that the jury did not draw the inferences that he wished it to draw. The State correctly observes that appellant’s “attempt ... to suggest that individual pieces of evidence are subject to innocent interpretations is a flawed attempt to avoid the damaging impact of the evidence considered as a whole.” Moreover, it is the exclusive function of the jury to draw reasonable inferences from proven facts. McMillicm v. State, 325 Md. 272, 290 , 600 A.2d 430 (1992). We cannot say that the jury’s inferences were unreasonable.

With regard to his conviction for first degree murder, appellant also argues that “there , was not a shred of evidence from which the jury could have found the killing was ‘wilful, deliberate and premeditated.’ ” Maryland Code (1957, ²⁰⁶ 1992 RepLVol.) Art. 27, § 407 provides that “[a]ll murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree.” In order for a killing to be premeditated, “the design to kill must have preceded the killing by an appreciable length of time, that is, time to be deliberate.” Snyder, 104 Md.App. at 549 , 657 A.2d 342 (quoting Tichnell v. State, 287 Md. 695, 717-18 , 415 A.2d 830 (1980)). Nevertheless, no particular length of time is required to constitute premeditation. Id. To the contrary, the length of time is sufficient so long as “the purpose to kill was not ‘the immediate offspring of rashness and impetuous temper,’ but was the product of a mind ‘fully conscious of its own design.’ ” Willey v. State, 328 Md. 126, 133 , 613 A.2d 956 (1992) (citing Gladden v. State, 273 Md. 383, 387 , 330 A.2d 176 (1974) and Cummings v. State, 223 Md. 606, 612 , 165 A.2d 886 (1960) , cert. denied, 366 U.S. 922 , 81 S.Ct. 1098 , 6 L.Ed.2d 243 (1961) ).

Ordinarily, premeditation is not established by direct evidence. Rather, it is usually inferred from the facts and surrounding circumstances. Snyder, 104 Md.App. at 549 , 657 A.2d 342 ; Traverso v. State, 83 Md.App. 389, 395 , 574 A.2d 923 , cert. denied, 320 Md. 801 , 580 A.2d 219 (1990). Here, there was ample evidence from which the jury could infer premeditation.

Appellant drove from Richmond, Virginia to Columbia, Maryland, hid a gun in his briefcase, searched for the victim in two places—the Columbia Fair and the Holiday Inn—and ran a vacuum cleaner to lure the victim or Virginia Hagez into opening the door to the room. Moreover, three of the six shots were fired from close range. If believed by the jury, this evidence was sufficient to prove the element of premeditation. Appellant also argues that his fingerprint on the gun does not prove that he used it to commit a felony.

The victim died as a result of multiple gunshot wounds and the bloodstained gun on which appellant’s fingerprint was found contained six spent cartridges of a caliber consistent with the fatal bullets. ²⁰⁷ There were no fragments inconsistent with firing from the gun. The jury was entitled to conclude that appellant used the gun found in his briefcase to kill Mr. Hajiz. Moreover, the jury was entitled to find that the revolver found in the briefcase was the murder weapon. See Maryland Code (1957, Repl.Vol.1992), Art. 27, § 386 (1995 Cum.Supp.).

II

Appellant argues that the trial court committed reversible error in refusing to grant Ms. Hagez immunity from testifying, pursuant to Md.Code, Courts and Judicial Proceedings Art. (“C.J.”) § 9-106 (1974, 1995 RepLVol.), because she was, at the time of trial, appellant’s wife. 2 At the relevant time, C.J. 9-106 provided that “[t]he spouse of a person on trial for a crime may not be compelled to testify as an adverse witness unless the charge involves the abuse of a child under 18.” 3 At the outset, we note that the trial court interpreted the statutory phrase “may not” in C.J. § 9-106 as granting him discretion to compel Ms. Hagez to testify. To support its conclusion, the court relied on an earlier version of the statutory privilege, which contained the term “shall.” But the phrase “may not” does not seem to permit the exercise of judicial discretion. Article 1, § 26 of the Annotated Code of Maryland says: In this Code and any rule, regulation, or directive adopted under it, the phrase ‘may not’ or phrases of like import have a mandatory negative effect and establish a prohibition. At the hearing on Ms. Hagez’s motion to invoke her spousal immunity privilege, the State disputed that appellant and Ms. Hagez were actually married.

While it is undisputed that the ²⁰⁸ couple was divorced in 1991, the trial court heard conflicting evidence regarding the status of the marriage as of the time of appellant’s trial. • Ms. Hagez and her brother, Bill Durham, both testified that a remarriage occurred on Friday, April 30, 1993, which was just before commencement of the trial on May 3,1993. At the time, Ms. Hagez was being held as a material witness at the Howard County Detention Center. Ms. Hagez’s brother conceded that he was not present for the alleged marriage ceremony. Although he went to the Detention Center, he said that only a Moslem Druze priest and Mr. Hagez were allowed to see Ms. Hagez.

As he was not with them, he could not hear their conversation. Nevertheless, he claimed to be a witness to the marriage, because he was nearby and he signed the religious marriage document. The clergyman who performed the marriage, Imam Bashar Arafat, did not testify. James Rawlins, Director of the Howard County Detention Center, testified that he was informed that four men, one in Arab dress, came to the Detention Center on April 30th, 1993, but Ms. Hagez had been transported to Circuit Court and was not at the Detention Center when they arrived.

Thus, the visitors were unable to see her. He added that the records of the Detention Center did not reflect that appellant or anyone else visited Ms. Hagez on April 30,1993. Testimonial and documentary evidence from the Howard County Sheriffs Department did not indicate that Ms. Hagez was visited by appellant or anyone else while she was at the courthouse on April 30, 1993. Additionally, the marriage certificate, which was entered as an exhibit, apparently did not contain the correct address of the Detention Center. 4 Initially, the trial judge did not think it was necessary for the defense to present any testimony concerning the validity ²⁰⁹ of the marriage, because he did not believe resolution of the privilege issue necessarily turned on whether the parties had actually remarried.

Instead, the court was of the view that Ms. Hagez was not entitled to invoke the spousal privilege because, in his view, “the marriage was entered into ... the purpose of the marriage was to hinder justice by preventing Mrs. Hagez’s testimony if asserted.” The following colloquy is relevant. [DEFENSE COUNSEL]: Your Honor is there any question in the Court’s mind as to whether or not Mrs. Hagez was married? THE COURT: Well my point is [defense counsel] for the sake of this request your [sic] making or motion whatever you want to call it for the sake of that I’m going to assume that she was married. [DEFENSE COUNSEL]: Fine thank you. I just wanted to know whether to direct my comments to the question of whether or not a marriage existed. THE COURT: I’m going to assume she was married. [PROSECUTOR]: But Your Honor just so that the record is clear the Court is not finding as a matter of fact that you believe that she was married?

THE COURT: No I said for this motion. I’m making an assumption that she was. [PROSECUTOR]: I just want to clarify. Thank you Your Honor. THE COURT: No I’m not making a decision whether she was or wasn’t.

For this motion I’m going to assume that she was. Ultimately, when pressed, the trial court found that appellant and Ms. Hagez had remarried prior to the trial. [PROSECUTOR]: And again just one other matter for the sake of the record the Court still has not ruled that in fact there was a marriage. You are still ruling that you ... THE COURT: Alright I’ll rule there was a marriage.

I don’t see where that has anything to do with this motion. I don’t know. I’ll rule that there was. Does it make any difference? ²¹⁰ [PROSECUTOR]: Your Honor I think just for the sake of the record I would argue to the Court and again this is just for the sake of the record I would argue to the Court that there could not have been a marriage.

That the State has produced evidence that there wasn’t a meeting between Mrs. Hagez and Adel Hagez to affect this marriage that is claimed and I would argue that the fact of the marriage has not been proved therefore the exception is not—there is no exception—there is no privilege in this case. THE COURT: Okay. I find a state of even balance I’ll rule that there was a marriage. Later, the court said: [A]s to the marriage I’m going to say for the ruling of this that looking at it in a light lets [sic] say most favorable to Mrs. Hagez I’m going to say that there was a marriage....

The State argues, inter alia, that the court correctly determined that a remarriage, undertaken for the deliberate purpose of impeding justice, may properly preclude the exercise, in Maryland, of the spousal privilege. The State also contends that no harm occurred, even if the court erred in refusing to recognize Ms. Hagez’s privilege, because Ms. Hagez never answered the State’s questions. Moreover, the State suggests that the court did not err, because the court was not satisfied that the State had met its burden of persuasion in establishing a valid remarriage. In this regard, the State relies on the court’s remark that his mind was in a state of “even balance.” In our view, the court’s “even balance” comment was an interjection that did not vitiate the court’s conclusion that the parties had, indeed, remarried. 5 Moreover, even if the court erred in regard to its ruling concerning the spousal privilege, the State is correct that Ms. Hagez steadfastly ²¹¹ refused to testify.

Although the State was permitted, at length, to question Ms. Hagez, she consistently asserted the spousal privilege and only testified to her address. Therefore, the State was never able to compel Ms. Hagez’s testimony. The question, then, is whether the statutory testimonial privilege is available to a witness who has married solely to assert the spousal testimonial privilege or to obstruct justice. The trial judge refused to permit Ms. Hagez to assert the marital privilege, because it determined “that the purpose of the marriage was to hinder justice by preventing Mrs. Hagez’s testimony....” 6 “The marital privilege is one that remains vital in modern jurisprudence----” United States v. Morris, 988 F.2d 1335, 1339 (4th Cir.1993).

In Trammel v. United States, 445 U.S. 40, 48 , 100 S.Ct. 906, 911-12 , 63 L.Ed.2d 186 (1980), the Supreme Court recognized the important policy concerns that are central to the marital privilege and said that “the long history of the privilege suggests that it ought not to be casually set aside.” Nevertheless, we need not resolve the thorny issue concerning the availability of the privilege, in light of our decision to reverse on other grounds. 7 We observe that, on remand, the parties may present other evidence concerning the status of the Hagez marriage. More ²¹² over, the trial court should make clear findings concerning the parties’ marital status.

III

It is appellant’s final points with which we are principally concerned. Appellant argues that the trial court erred in ²¹³ permitting the State: 1) to force Ms. Hagez to invoke the spousal privilege in front of the jury; 2) to persist in asking Ms. Hagez leading questions; and 3) to refer to Ms. Hagez’s silence during closing argument. The State counters that the court did not err in forcing Ms. Hagez to assert the privilege before the jury, or in allowing the State to question her, because she improperly invoked the spousal privilege and thus had no right to refuse to answer the questions. In addition, the State contends that no harm occurred because Ms. Hagez never actually testified and the Court instructed the jury that it could not draw any inferences from Ms. Hagez’s refusal to testify.

Finally, the State asserts that appellant’s contentions as to closing argument are not preserved. A. Appellant contends that the court erred in permitting the State to continue to pose questions to Ms. Hagez, when it knew she would invoke, albeit improperly, a testimonial privilege. This issue would be less thorny if Ms. Hagez were entitled to assert her spousal privilege. In resolving this issue, we shall, assume that the court correctly determined that the spousal privilege was not available to Ms. Hagez.

Under this circumstance, the question of error is more problematic. In analyzing this issue, we note that the parties have not provided us with any authority that is directly on point. The case of Adkins v. State, 316 Md. 1 , 557 A.2d 203 (1989) is somewhat instructive. There, appellant was convicted of felony murder.

The Court considered whether it was proper to permit the State to call an accomplice witness before the jury, although the State knew the witness would assert his privilege against compelled self-incrimination. Appellant argued that, as a result, his defense was prejudiced. The State claimed, however, that it was entitled to call the witness in order to establish unavailability as a foundation for certain ²¹⁴ hearsay evidence. The Court concluded that the procedure constituted prejudicial error and reversed.

Id., 316 Md. at 16 , 557 A.2d 203 . The accomplice witness first invoked his privilege at an evidentiary hearing, at which he asserted his refusal to testify because his own case was pending on appeal. Although he was found in contempt and sentenced to six months’ imprisonment, he persisted in his refusal to testify. Nevertheless, the trial judge permitted the State to call the witness before the jury, thereby forcing him to invoke his Fifth Amendment privilege in response to questions propounded to him.

After he refused to answer, the court advised the witness that he had no right to decline to answer and again found him in contempt. Relying on Vandegrift v. State, 237 Md. 305 , 206 A.2d 250 (1965), the Court set forth five factors to be considered in resolving a claim of error stemming from the State’s decision to call before a jury a witness who it knows will invoke a Fifth Amendment privilege. These factors are: 1. That the witness appears to have been so closely implicated in the defendant’s alleged criminal activities that the invocation by the witness of a claim of privilege when asked a relevant question intending to establish ■ the offense charged will create an inference of the witness’ complicity, which will, in turn, prejudice the defendant in the eyes of the jury; 2.

That the prosecutor knew in advance or had reason to anticipate that the witness would claim his privilege, or had no reasonable basis for expecting him to waive it, and therefore, called him in bad faith and for an improper purpose; 3. That the witness had the right to invoke his privilege; 4. That defense counsel made timely objection and took exception to the prosecutor’s misconduct; and ²¹⁵ 5. That the trial court refused to fail to cure the error by an appropriate instruction or admonition to the jury.

Adkins, 316 Md. at 12-13 , 557 A.2d 203 . In Vandegrift , appellant was convicted of assault and battery after a trial at which several co-defendants, who had not yet been tried, were called to the stand by the State, although the prosecutor knew the co-defendants would invoke their Fifth Amendment privilege. In its questions, the State asked about matters related to the crime with which appellant was