Howell v. State

Panel: Wright, Berger, Leahy, JJ. Berger, J. ⁵⁴³ Travis Howell ("Howell"), appellant, was convicted of one count of criminal contempt pursuant to a not guilty agreed statement of facts. The basis for the finding of contempt was Howell's refusal to testify in a criminal trial after having been granted use and derivative use immunity pursuant to Md. Code (2006, 2013 Repl. Vol.), § 9-123 of the Courts and Judicial Proceedings Article ("CJP").

On appeal to this Court, Howell presents a single issue for our consideration, which we have rephrased slightly as follows: Whether the circuit court erred when it determined that the defense of duress was unavailable to Howell's charge of criminal contempt premised upon a refusal to testify. For the reasons explained herein, we shall affirm the judgment of the circuit court. FACTUAL BACKGROUND In reciting the facts of this case, we follow the agreed statement of facts that formed the basis of Howell's conviction, which we supplement with excerpts from the record as appropriate. On October 2, 2012, Howell appeared before a grand jury in the Circuit Court for Baltimore City to testify against Freddie Curry ("Curry").

According to Howell's testimony, Curry told Howell that he murdered Raynard Benjamin ("Benjamin") in January of 2011. The motive for the murder was retaliation for Benjamin's participation in the kidnapping of Curry's girlfriend. 1 Curry was subsequently charged with the murder of ⁵⁴⁴ Benjamin. 2 ⁷⁰³ On February 24, 2016, Howell was picked up on a warrant as a material witness in the Curry trial. Howell was released on electronic monitoring after he promised to appear in court on his own volition. On March 7, 2016, Howell appeared in court for the Curry trial, with the Honorable Pamela J. White presiding.

When Howell was called to the stand, he invoked his Fifth Amendment privilege in response to every question posed to him. The State moved for an order compelling Howell to testify pursuant to CJP § 9-123. 3 Judge White signed an order granting Howell use and derivative use immunity and ordering Howell to testify. Howell was ordered to return to court on March 10, 2016. On March 8, 2016, Howell's attorney telephoned the Assistant State's Attorney and asked if the State could offer any form of witness protection to Howell.

The prosecutor responded that the State could offer Howell only temporary relocation services from his residence to a hotel. On March 9, 2016 at 9:28 P.M., the Baltimore Sun published an article about the Curry trial on its website. The article disclosed Howell's identity and role in the case: Another key witness in the case, prosecutors said, is a longtime friend of Curry named Travis Howell. Howell made a plea agreement with the federal government in a drug case and agreed to testify that Curry told him about killing Benjamin. ⁵⁴⁵ The article appeared with greater detail in the print edition of the Baltimore Sun that came out the following morning.

On March 10, 2016, Howell arrived at the courthouse and waited outside the courtroom to be called to testify. According to Howell, while he was waiting in the corridor, he was verbally accosted and physically assaulted by five or six unidentified men, who threatened him with violence for snitching. Courthouse security intervened and ejected the men from the courthouse. As the men were leaving, one of them told Howell that "you got to come out on the street sometime." The men were not detained or arrested.

Within five minutes of the altercation, Howell was called to the stand. 4 The State proceeded with direct examination, but Howell answered every question by saying, "I respectfully refuse to testify." The following excerpt from the transcript is illustrative: [THE STATE]: What kind of shoes are you wearing this afternoon? [HOWELL]: I respectfully refuse to testify. [THE STATE]: Mr. Howell, I'm just asking you about your shoes. What kind of shoes are you wearing? [HOWELL]: I respectfully refuse to testify. [THE STATE]: Mr. Howell, are you being directed to answer in that way by your attorney? [HOWELL]: I respectfully refuse to testify. [THE STATE]: Mr. Howell, on March 7th, I believe, 201[6], in this courtroom, ⁷⁰⁴ you were granted an immunity for use and derivative use. Are you familiar with that granting of your immunity? [HOWELL]: I respectfully refuse to testify. ⁵⁴⁶ Judge White then ordered Howell to answer the State's questions. The State resumed its examination, but Howell continued to respond to every question in the same fashion: [THE STATE]: Mr. Howell, do you understand that if you refuse to answer any questions propounded by either the State or defense that you can be held in contempt? [HOWELL]: I respectfully refuse to testify. [THE STATE]: Sir, do you understand that if you are held in contempt that this Court could find you in contempt and could sentence you to a period on direct contempt of up to six months incarceration?

Do you understand that, sir? [HOWELL]: I respectfully refuse to testify. After further questioning along these lines, Judge White held Howell in direct contempt of court: THE COURT: All right, I am going to hold you in direct contempt of this court on two accounts and will address the contemptuous behavior [ ]consistent with the Courts & Judicial Proceedings Article, § 9-204 [ 5 ] in anticipation of the State's motion for sanctions for your refusal to comply with the use and immunity order. First, pursuant to Rule 15-203, I do find that you have acted contemptuously of this Court. [ 6 ⁵⁴⁷ ] I have heard for myself, I have directly perceived the conduct by yourself constituting the contempt, and the contempt has interrupted the orderly process of the current proceedings, namely the case of State v. Freddie Curry , and interfered with the dignified conduct of the Court's business. I am going to afford you an opportunity as early as possible, and I will set it in for a time to be determined tomorrow.

I will afford you an opportunity consistent with the circumstances to present exculpatory or mitigating information. And I will undertake at that time to confirm, after hearing exculpatory or mitigating information, that direct contempt has been committed in my presence. I will also expect to defer imposition of sanctions for the direct contempt of this Court until, at least until tomorrow, if not the conclusion of the ⁷⁰⁵ trial proceedings that are currently under way. In addition, with reference to § 9-204 of the Courts & Judicial Proceedings Article, specifically subsection (b), I have ordered you to testify consistent with the order that I signed on March the 7th, and you have nevertheless refused to testify or to provide other information in this criminal prosecution.

Consistent with my order you have no latitude, you may not refuse to comply with my order on the basis of the privilege against self-incrimination let alone a blanket refusal to testify. You have no basis under the law and you have cited no constitutional allowance to refrain from testifying in this case and to refuse to comply with my order granting you use and derivative use immunity. Accordingly, given your refusal to comply with my order, I will await the written motion of [the prosecutor], and I will expect to address the transcript of these proceedings and undertake further proceedings to determine, consistent with the statutory requirements, a finding of direct contempt and also consistent ⁵⁴⁸ with Title 15 and the direct contempt rule that I earlier cited 203, 15-203. Anything that you want to second guess yourself about now, Mr. Howell?

Any questions for the Court. [HOWELL]: I respectfully refuse to testify. THE COURT: All right, you may take him. Judge White vacated Howell's electronic home monitoring and ordered a hearing, pursuant to Maryland Rule 15-203(a), to determine whether direct criminal contempt had been committed and, if so, whether sanctions were warranted. That evening, Howell was taken to Baltimore City's Central Booking and Intake Facility ("CBIF").

According to Howell, he was almost immediately surrounded by a hostile group of detainees, some of whom called him a snitch and threatened him with violence. When Howell explained that he was at CBIF because he had refused to testify against Curry, the hostile detainees dispersed. PROCEDURAL BACKGROUND Contempt Proceedings Before Judge White On March 11, 2016, Judge White held a hearing to determine whether Howell had committed criminal contempt. Before proceeding, Judge White called Howell to the stand and gave him one more chance to testify.

Once again, Howell responded to every question by saying, "I respectfully refuse to testify." The court then proceeded with the contempt hearing. Howell testified that five or six men had approached and threatened him in the courthouse on March 10, 2016 and that he was frightened about the consequences of testifying in the Curry trial. Howell also testified that when he initially made his proffer of testimony, the prosecutor promised that his name would not be disclosed without advanced warning. Howell's counsel informed the court about the Baltimore Sun article naming Howell as a witness, as well as the prosecutor's assertion that the State could only provide temporary relocation for Howell. ⁵⁴⁹ Judge White ruled that Howell, in refusing to testify on March 10 and 11, 2016, had twice committed direct contempt.

Judge White ordered that Howell be held for sentencing on March 18, 2016, after the conclusion of the Curry trial. The State announced its intention to seek an indictment against Howell for his refusal to comply with a lawful order of the court. In response, Howell demanded a jury trial. ⁷⁰⁶ After the hearing, Howell was returned to CBIF. According to Howell, on March 13, 2016 he was physically attacked in CBIF by a fellow detainee who called him a snitch immediately prior to and during the assault. 7 Indictment Howell was indicted by a grand jury on two counts of common law direct criminal contempt.

Count One charged Howell with common law direct criminal contempt for his refusal to testify on March 10, 2016. Count Two charged Howell with common law direct criminal contempt for his refusal to testify on March 11, 2016. Thereafter, Judge White issued an order pursuant to Maryland Rule 15-204 8 establishing that the contempt charges against Howell would proceed under Maryland Rule 15-205 and 15-207, the rules governing constructive contempt. Motions and Hearing Before Judge Panos Howell's counsel served a subpoena on the prosecutor commanding him to appear and testify about the conversation that took place on March 7, 2016, in which the prosecutor indicated that the State could offer Howell, at most, temporary relocation ⁵⁵⁰ at a hotel.

The State responded by filing a protective order to quash the subpoena. On March 27, 2017, the parties appeared at a motions hearing before the Honorable Christopher L. Panos. The State argued that the conversation between the prosecutor and Howell's counsel was irrelevant, explaining: The res gestae of the criminal contempt matter is just that. Was he directed by a sitting Court to testify?

And the answer is a yes or a no. And the follow-on for the consideration of the jury is did he comply. Yes or no. The State's position was that duress is "not a competent defense to direct criminal contempt when the act of contempt is based upon the willful refusal to testify when someone is a compellable witness." Howell's counsel disagreed, arguing that "there is not a case decided in Maryland that says that the duress defense is not available and there won't be a case like that." Howell's counsel further argued that the altercation outside the courtroom on March 10, 2016 satisfied the elements of duress: [HOWELL'S COUNSEL]: At that moment he is right there and he knows the State is going to offer him limited protection, he's not going to be put in any witness protection plan, neither is his family going to be safe.

But most immediately he knows that the people who have just verbally and physically assaulted him are outside the courthouse, they told him he's got to come outside at one point. That's what he's suffering from at that moment. And hence- THE COURT: So therein lies his duress? [HOWELL'S COUNSEL]: Exactly. ⁷⁰⁷ The State countered that even if duress were available as a defense to criminal contempt, Howell's situation did not constitute duress. The State argued that Howell was not placed in "impending danger of death or serious bodily harm" and that Howell had a "reasonable opportunity for escape." After the motions hearing, Judge Panos declared that "it appears unequivocally clear to this Court from [ ⁵⁵¹ Piemonte v. United States ], 367 U.S. 556 [ 81 S.Ct. 1720 ], that the defense of duress does not apply to a criminal contempt action based upon a witness's refusal to testify." Accordingly, Judge Panos ruled that "any testimony in connection with [the prosecutor] that [Howell] might offer would be irrelevant and for this reason the State's motion to quash the subpoena is hereby granted." The State subsequently filed a motion in limine to preclude Howell "from offering evidence of, argument about, or reference to certain information regarding the perceived motive for his contemptuous behavior, i.e., concerns about his personal safety, which the State believes is irrelevant and/or inadmissible." Howell, meanwhile, filed a motion for reconsideration challenging Judge Panos's decision.

On April 11, 2017, Judge Panos denied Howell's motion for reconsideration. Hearing Before Judge Hargadon On April 11, 2017, the parties appeared for a second motions hearing before the Honorable Edward R. K. Hargadon. Howell's counsel presented a proffer of the evidence that he would have admitted to prove duress, including testimony as to the altercations that allegedly took place at the courthouse and in CBIF. Additionally, Howell contended that the prosecutor would have testified that Howell was afraid of Curry and that the State had promised not to disclose Howell's name to the public without advance notice.

An expert witness, Dr. Tyrone Powers ("Powers"), would have testified that thirty-eight people had been either seriously injured or murdered in Baltimore in the last ten years in retaliation for their testimony as State's witnesses. Powers would have further testified that the Office of the State's Attorney for Baltimore City has never petitioned the U.S. Marshals Service to enter a State's witness into the Federal Witness Protection Program, even though it is authorized to file such a petition by federal law. In response to Howell's proffer, the State reiterated its position that duress is not available as a defense to criminal contempt. After hearing argument from each side, Judge ⁵⁵² Hargadon granted the State's motion to preclude testimony related to Howell's claim of duress: THE COURT: Okay.

Well, as I said before I think that the reasonings that State is giving for purposes of its motion and the reason that the Defense has given for purpose of this opposition are the same issues that were in front of Judge Panos. And based upon the law of the case, and I understand that both Counsel here are essentially just laying the record for purposes of an appeal, and I'm just kind of a conduit in this whole thing. But I have to admit that I find some real public policy concerns about if this defense were able to be raised. I don't profess to say that I'm issuing this decision independent of Judge Panos' decision, I want to make that very clear that I'm simply following what his ruling was previously in this case.

But I can understand some of the concerns if one were to go down this road of saying well you can simply bring in duress in situations like this. ⁷⁰⁸ Judge Hargadon went on to note that "this almost is an issue for sentencing." Conviction and Sentencing After Judge Hargadon's ruling, Howell agreed to plead not guilty on an agreed statement of facts as to Count One, preserving Howell's ability to appeal on the issue of duress. In exchange, the State agreed to a five-year sentence, suspending all but time served, with three years of supervised probation. On the basis of the agreed statement of facts, Judge Hargadon found Howell guilty of one count of contempt and sentenced him to five years in prison, suspending all but time served, with three years of supervised probation. Additional facts shall be discussed as necessitated by our discussion of the issues on appeal.

STANDARD OF REVIEW Maryland Rule 8-131(c) governs our review of an action tried without a jury as follows: ⁵⁵³ When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. The Court of Appeals has further explained the standard of review under Maryland Rule 8-131(c) : [The appellate courts] give due regard to the trial court's role as fact finder and will not set aside factual findings unless they are clearly erroneous. The appellate court must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court's determination, it is not clearly erroneous and cannot be disturbed.

Questions of law, however, require our non-deferential review. When the trial court's decision involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court's conclusions are legally correct .... Where a case involves both issues of fact and questions of law, this Court will apply the appropriate standard to each issue. Clickner v. Magothy River Ass'n Inc. , 424 Md. 253 , 266-67, 35 A.3d 464 (2012) (citations and internal quotation marks omitted) (ellipsis in original).

Because this case presents only issues of law, we apply the non-deferential de novo standard of review. DISCUSSION This appeal implicates two foundational principles of American jurisprudence: the power of the government to compel witness testimony and the authority of the court to hold an individual in contempt for refusing to testify. In this case, a witness, Howell, sought to avoid being held in contempt when he refused to testify. Despite having been granted use and derivative use immunity, Howell refused to testify, claiming that he feared reprisals as a result of his testimony.

Howell raised the defense of duress, but the circuit court determined ⁵⁵⁴ that the duress defense was unavailable to a contempt charge premised upon a refusal to testify. Criminal contempt is unique among criminal offenses. Unlike other criminal offenses, which generally involve harm perpetrated upon individuals or organizations, contempt is an offense to the court itself. "Criminal contempts of court embrace all acts committed against the majesty of the law or the dignity of the court, and the primary and controlling object ⁷⁰⁹ sought to be obtained by punishment of such offenders is the vindication of public authority, of which the court is the embodiment, represented at any given time by the presiding judge." In Ex parte Bowles , 164 Md. 318 , 330, 165 A. 169 (1933) (citing Coons v. State , 191 Ind. 580 , 134 N.E. 194 , 198 (1922) ); see also Ashford v. State , 358 Md. 552 , 563, 750 A.2d 35 (2000) ("The primary purpose of punishment for criminal contempt ... is vindication of public authority, embodied in the court and represented by the judge by punishing the contemnor for past misconduct not to compel future compliance or to remedy the harm.").

The government's broad authority to compel witness testimony is integral to the functioning of the American judicial system. State v. Rice , 447 Md. 594 , 604, 136 A.3d 720 (2016) ("[T]he power of the State to compel a witness to testify is at the core of the proper functioning of our criminal justice system.") (citing Kastigar v. United States , 406 U.S. 441 , 443-44, 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972) ). Indeed, the Supreme Court of the United States has discussed the well-established and broad power of the government to compel witness testimony, explaining: The power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence. The power with respect to courts was established by statute in England as early as 1562, and Lord Bacon observed in 1612 that all subjects owed the King their 'knowledge and discovery.' While it is not clear when grand juries first resorted to compulsory process to secure the attendance ⁵⁵⁵ and testimony of witnesses, the general common-law principle that 'the public has a right to every man's evidence' was considered an 'indubitable certainty' that 'cannot be denied' by 1742.

The power to compel testimony, and the corresponding duty to testify, are recognized in the Sixth Amendment requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor. The first Congress recognized the testimonial duty in the Judiciary Act of 1789, which provided for compulsory attendance of witnesses in the federal courts. Mr. Justice White noted the importance of this essential power of government in his concurring opinion in Murphy v. Waterfront Comm'n , 378 U.S. 52 , 93-94, 84 S.Ct. 1594 , 1611, 12 L.Ed.2d 678 (1964) : 'Among the necessary and most important of the powers of the States as well as the Federal Government to assure the effective functioning of government in an ordered society is the broad power to compel residents to testify in court or before grand juries or agencies. See Blair v. United States , 250 U.S. 273 , 39 S.Ct. 468 , 63 L.Ed. 979 [ (1919) ].

Such testimony constitutes one of the Government's primary sources of information.' Kastigar , supra , 406 U.S. at 443 -44 , 92 S.Ct. 1653 (footnotes omitted). There are, of course, certain limitations to the government's power to compel witness testimony. "[T]he power to compel testimony is not absolute. There are a number of exemptions from the testimonial duty, the most important of which is the Fifth Amendment privilege against compulsory self-incrimination." Id. at 444 , 92 S.Ct. 1653 (footnote omitted).

In this case, we are faced with the question of whether a duress defense may be raised by a witness who refuses to testify due to fear of reprisal. The overwhelming majority of courts to address the issue have held that fear of reprisal does not provide a legal basis for a witness's refusal ⁷¹⁰ to testify. The Supreme Court addressed this issue, in dicta, in Piemonte v. United States , 367 U.S. 556 , 559 n.2, 81 S.Ct. 1720 , 6 L.Ed.2d 1028 (1961). In Piemonte , a witness was granted immunity but refused to answer questions before a federal grand jury, ⁵⁵⁶ arguing that the answers would tend to incriminate him.

The United States District Court subsequently entered an order requiring that