Howell v. State

Travis Howell v. State of Maryland No. 43, September Term 2018 Criminal Law – Duress Defense. To generate the common law defense of duress in a criminal trial, the defendant must, among other things, produce some evidence that he or she committed the crime because of a well-grounded apprehension of a “present, immediate, and impending” threat of death or serious bodily injury with no reasonable opportunity of escape. Criminal Law – Duress Defense – Exceptions. As a matter of public policy, duress is not a defense to intentional murder.

The Court declined to decide whether public policy precludes a duress defense in a contempt prosecution of a witness who refused to testify in a criminal trial. Criminal Law – Refusal of Witness to Testify – Contempt – Duress Defense. A witness in a murder trial refused to testify and, as a result, was prosecuted for contempt of court. Evidence proffered by the witness at his contempt trial that he had refused to testify out of fear of reprisal for his anticipated testimony did not generate a duress defense. ` Circuit Court for Baltimore City Case No. 116074002 IN THE COURT OF APPEALS Argument: January 7, 2019 OF MARYLAND No. 43 September Term, 2018 TRAVIS HOWELL V. STATE OF MARYLAND _____________________________________ Barbera, C.J., *Greene McDonald Watts Hotten Getty Wilner, Alan M.

(Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by McDonald, J. ______________________________________ Filed: August 22, 2019 *Greene, J., now retired, participated in the Pursuant to Maryland Uniform Electronic Legal hearing and conference of this case while an Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. active member of this Court; after being recalled pursuant to the Maryland Constitution, Article 2019-08-22 13:02-04:00 IV, Section 3A, he also participated in the decision and adoption of this opinion. Suzanne C. Johnson, Clerk No one is eager to testify in a criminal trial. If a witness is, it likely calls into question the motives and veracity of that witness. Because the criminal justice system rests on a key premise that the factfinder, whether judge or jury, is entitled to every person’s evidence, compulsory process, such as subpoenas and material witness warrants, is available to ensure that reluctant witnesses appear and testify.

There are exceptions to this civic and legal obligation to testify. An important one is the constitutional right not to be compelled to incriminate oneself. That privilege, however, may be overridden when the State promises not to use the testimony against the witness and a court formalizes that promise in an order “immunizing” the witness in conjunction with a direction to testify. A failure to comply with that direction may be punished as a contempt of court.

Petitioner Travis Howell was called to testify in a murder trial in the Circuit Court for Baltimore City, but declined to answer any questions on the basis of the privilege against self-incrimination. After the court issued an order immunizing him and directing him to testify, he persisted in refusing to answer questions and was charged with contempt. At the trial of the contempt charge, he attempted to raise the common law defense of duress, claiming that he had been assaulted and threatened with retribution for his anticipated testimony. The trial court rejected that defense as a matter of law and found Mr. Howell guilty of contempt.

Mr. Howell appealed his conviction. In that appeal, the State contended that duress is unavailable as a matter of law as a defense to a contempt charge for refusing to testify. The Court of Special Appeals held that, regardless of the answer to that question, Mr. Howell failed to proffer sufficient evidence of duress to generate that defense. We agree.

I Background A. The Common Law Defense of Duress Duress is a common law defense in Maryland. This Court recently defined duress as follows, citing various treatises and other states’ formulations: [T]o constitute a defense, the duress by another person on the defendant must be present, imminent, and impending, and of such a nature as to induce well grounded apprehension of death or serious bodily injury if the act is not done. It must be of such a character as to leave no opportunity to the accused for escape. Mere fear or threat by another is not sufficient nor is a threat of violence at some prior time.

The defense cannot be raised if the apprehended harm is only that of property damage or future but not present personal injury. … [T]he defense cannot be claimed if the compulsion arose by the defendant’s own fault, negligence or misconduct. McMillan v. State, 428 Md. 333, 348-49 (2012) (emphasis added) (internal quotations and citations omitted).1 To generate this defense, a defendant must meet the “relatively low threshold” of showing “some evidence” of duress. 428 Md. at 355 . 1 In its opinion in this case, the Court of Special Appeals used a pattern instruction developed by a committee of the Maryland State Bar Association (“MSBA”), as it was worded at the time of Mr. Howell’s trial, as a reference on the elements of the duress defense: 2 The duress defense serves the public policy that “the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.” You have heard evidence that the defendant acted under the influence of an overpowering force. This is called duress. You are required to find the defendant not guilty if all of the following four factors are present: (1) the defendant actually believed that the duress placed [him] [her] in immediate and impending danger of death or serious bodily harm; (2) the defendant’s belief was reasonable; (3) the defendant had no reasonable opportunity for escape; and (4) the defendant committed the crime because of the duress.

The defense of duress is not established by proof that the defendant had been threatened with violence at an earlier time. [He] [she] must have been under a present threat at the time of the commission of the crime charged. In order to convict the defendant, the State must prove that the defendant did not act under duress. This means that you are required to find the defendant not guilty unless the State has persuaded you, beyond a reasonable doubt, that at least one of the four factors of duress was absent. MSBA, Maryland Criminal Pattern Jury Instructions, 5:03 (2d ed. 2012).

In using “[him] [her]” and “[he] [she],” the pattern instruction seems to assume that the object of the threatened danger must be the person claiming duress. This Court has not addressed the question of whether a defendant claiming duress must be the threatened party, or whether a threat to a third person may be the basis of the defense. “Some states have limited the defense of duress to be applicable only when the harm threatened is against the defendant. … On the other hand, some courts and leading scholars have found that duress can be applicable when the threat of harm targets a third party.” 2 David E. Aaronson, Maryland Criminal Jury Instructions and Commentary at 1774 (Matthew Bender 2018). In addition, legislatures in several other states take the latter view. See, e.g., 18 Pa.

Cons. Stat. Ann. §309 (“force against his person or the person of another”); Del. Code Ann. tit. 11, §431 (“force against the defendant’s person or the person of another”); cf. Uniform Laws Annotated, Model Penal Code §2.09 (“force against his person or the person of another”). In any event, this issue has not been raised in this case. 3 Sigma Reproductive Health Center v. State, 297 Md. 660, 676 (1983).2 Duress is not premised on a person lacking “the mental element which the crime in question requires.” Id.

Rather, when a person faces a “choice of evils, the law prefers that he avoid the greater evil by bringing about the lesser evil.” Id. While duress is available as a defense to many criminal charges, it is “well-settled” that it is not available as a defense to intentional murder. McMillan, 428 Md. at 348 . The exception for intentional murder is rooted “as a matter of social policy” in an unwillingness to justify the intentional killing of an innocent person.

Id. at 350-51 .3 B. Facts and Proceedings 1. The Federal Prosecution of Mr. Howell Federal Indictment and Plea Agreement In 2011, Travis Howell was indicted in the United States District Court for the District of Maryland on federal drug offenses. See United States v. Travis Howell, Crim. No. RDB-11-0561.

On March 27, 2012, Mr. Howell pled guilty pursuant to a plea agreement and, among other things, agreed to cooperate with law enforcement and testify truthfully in any future case in which he was called as a prosecution witness. 2 In Sigma, the Court’s discussion concerned both necessity and duress, which are closely related defenses. 297 Md. at 675 (“When the pressure is from human beings, the defense, if applicable, is called duress rather than necessity.”). 3 In McMillan, the Court held that this exception did not extend to felony murder. 4 2012 State Grand Jury Testimony of Mr. Howell In October 2012, Mr. Howell appeared before a grand jury in the Circuit Court for Baltimore City and testified in accordance with his plea agreement. He told the grand jury that, in a conversation with Mr. Howell, Freddie Curry had confessed to murdering Raynard Benjamin in retaliation for the kidnapping of Mr. Curry’s girlfriend. Mr. Curry was later charged with that murder in the Circuit Court for Baltimore City. Federal Sentencing of Mr. Howell Subsequently, in December 2012, Mr. Howell was sentenced in federal court.

At that proceeding, the federal prosecutor cited Mr. Howell’s cooperation with State law enforcement and his grand jury testimony in Baltimore City concerning the homicide case. The State and Mr. Howell later stipulated that Mr. Howell did not receive a sentence reduction at that time for his grand jury testimony concerning the murder of Mr. Benjamin because he had not yet testified at Mr. Curry’s trial. 2. Mr. Howell’s Refusal to Testify at the State Murder Trial Subpoena and Material Witness Warrant The murder trial of Mr. Curry was scheduled to begin in March 2016 in the Circuit Court for Baltimore City. By that time Mr. Howell had been released from prison under his federal sentence and was on federal supervised release.

Mr. Howell refused to comply with a subpoena requiring him to testify at that trial. At the behest of the State, a material witness warrant was issued for Mr. Howell. He was arrested on that warrant a few weeks before the trial began and released on electronic monitoring after promising to appear voluntarily to testify. 5 Claim of Privilege Against Self-Incrimination, Grant of Immunity, Order to Testify On March 7, 2016, Mr. Howell appeared at a pretrial hearing for the Curry trial. Mr. Howell declined to answer questions other than his name, asserting the privilege against compelled self-incrimination.

The State moved for an order under Maryland Code, Courts & Judicial Proceedings Article (“CJ”), §9-1234 compelling Mr. Howell to testify and granting him use and derivative use immunity with respect to that testimony. The Circuit Court granted the motion, ordered Mr. Howell to appear again at the trial on March 10, and advised him of the consequences of refusing to testify – that is, being held in contempt and imprisoned for that offense. Continued Refusal to Testify On March 10, Mr. Howell again appeared in court. The Circuit Court reviewed the events of his previous court appearance, reminded him of his obligation to testify under the order issued at the previous hearing, and again ordered him to testify.

Nevertheless, Mr. Howell refused to answer any question posed by the prosecutor, responding to each one with “I respectfully refuse to testify.” The Circuit Court then held Mr. Howell in direct contempt. The court stated that it would defer imposition of a sanction for the contempt 4 Under that statute, if a witness declines to testify in a criminal trial on the basis of the privilege against self-incrimination and if the prosecutor determines that the testimony “may be necessary in the public interest,” the prosecutor may file a motion for the court to issue an order compelling the witness to testify. Any testimony given by the witness in compliance with that order may not be used, directly or indirectly, against the witness in any criminal prosecution, except for perjury, obstruction of justice, or failure to comply with the order. If the witness refuses to comply with the order, that refusal is to be treated as a direct contempt of court.

CJ §9-123; see also Maryland Rule 4-631; State v. Rice, 447 Md. 594, 604-8 (2016). 6 and allow Mr. Howell an opportunity to present exculpatory information the next day. Mr. Howell was taken into custody to be returned to court the next day. On March 11, Mr. Howell returned to court and, after being reminded of the order requiring him to testify and granting him immunity, again refused to answer any questions posed by the prosecutor. In response to questions by the court, Mr. Howell stated that he had been involved in an altercation outside the courtroom before his appearance the previous day, and that the altercation related to his refusal to testify.

Mr. Howell’s attorney then proffered certain information in mitigation of Mr. Howell’s refusal to testify. According to Mr. Howell’s attorney, when Mr. Howell had testified before the grand jury in 2012, he had been promised by the prosecutor who presented him to the grand jury that he would receive advance warning of when his cooperation with the prosecution would be made public. However, he asserted that Mr. Howell had not received advance notice of an article that had appeared in the online version of the Baltimore Sun about the Curry trial that described Mr. Howell as a witness for the State. Under questioning by his attorney and the Curry trial prosecutor,5 Mr. Howell confirmed that the grand jury prosecutor had promised him advance notice of the disclosure of his participation in the Curry trial – a promise he believed had not been kept despite the fact that he had been arrested and appeared in open court on a material witness warrant for 5 The Assistant State’s Attorney assigned to Mr. Curry’s 2016 trial was not the same Assistant State’s Attorney who presented Mr. Howell’s testimony to the grand jury in 2012. 7 the Curry trial a few weeks earlier.

He also stated that he had been threatened by five or six individuals outside the courtroom the previous day and that he was frightened. Mr. Howell is Held in Contempt The Circuit Court found that Mr. Howell’s refusal to testify that day and the previous day (March 10 and 11, 2016) amounted to a direct contempt of the court. The court delayed imposing a sanction and continued to detain Mr. Howell under the material witness warrant until the conclusion of the Curry trial, “hoping against hope” that Mr. Howell would change his mind about testifying. Mr. Howell did not change his mind about testifying and, shortly thereafter, the Curry trial ended in an acquittal of Mr. Curry.

On March 14, 2016, Mr. Howell was indicted on two counts of criminal contempt for his refusal to testify on March 10 and 11, respectively. Mr. Howell requested a jury trial. The Circuit Court did not conduct further summary proceedings on direct criminal contempt and issued an order directing that the prosecution of Mr. Howell for contempt should proceed in the same manner as constructive criminal contempt pursuant to Maryland Rules 15-205 and 15-207. Subsequent proceedings occurred before judges other than the judge who had presided at the Curry trial and had found Mr. Howell in direct criminal contempt.6 6 “Direct contempt” includes “a contempt committed in the presence of the judge,” whereas “constructive contempt” is “any contempt other than a direct contempt.” Maryland Rule 15-202.

A sanction for such a contempt may be imposed summarily, either immediately or later in the same proceeding. Maryland Rule 15-203. When a contempt is not resolved summarily, but proceeds as a separate criminal action, it is prosecuted as a constructive contempt. Maryland Rule 15-204.

The distinction between direct contempt 8 3. The State Prosecution of Mr. Howell for Contempt Pretrial Motions In connection with the contempt prosecution, Mr. Howell’s counsel caused a subpoena to be issued to the Curry trial prosecutor. According to Mr. Howell’s attorney, he hoped to elicit testimony about a telephone conversation that the two attorneys had prior to Mr. Howell’s appearance at the Curry trial. During that conversation Mr. Howell’s attorney had inquired as to what form of witness protection the State could offer Mr. Howell.

The prosecutor had said the State could provide temporary relocation services at a hotel. The State moved to quash that subpoena. On March 27, 2017, the court held a hearing on the State’s motion. According to Mr. Howell’s attorney, the limited protection offered by the State to Mr. Howell would help prove that Mr. Howell had a reasonable fear that he would suffer retaliation for testifying – which would be an element of a duress defense that he would argue as to the contempt charges.

The State responded both that the proffered facts lacked the immediacy to constitute a duress defense and that the defense did not apply in the context of direct contempt prosecution. Noting that federal cases had stated that a fear of reprisal was not a “just cause” for a refusal to testify, the Circuit Court concluded that a duress defense was not applicable and granted the State’s motion to quash the subpoena directed to the Curry trial prosecutor. and