Jones v. State

ROBERT M. BELL, Judge. Kevin L. Jones, appellant, was convicted by a jury in the Circuit Court for Baltimore City of felony murder, robbery with a deadly weapon and use of a handgun in the commission of a felony or crime of violence. He was sentenced to life imprisonment, all but 30 years suspended, for the murder conviction and to two concurrent 20 year terms for the robbery and handgun convictions. On appeal, 1 he contends that: 1.

The court erred in its instructions as to reasonable doubt by charging the jury to use its “common sense” in its evaluation of the evidence; 2. The court erred by denying appellant’s motion for a mistrial; 3. The evidence was insufficient as a matter of law to prove appellant’s guilt beyond a reasonable doubt; and 4. The Appellant should have been granted a waiver to the jurisdiction of the juvenile court system.

There is merit in appellant’s second contention; consequently, we will reverse and remand for new trial. We find it unnecessary to address his first contention, but we believe it appropriate, for the guidance of the trial court on remand, to address his third and fourth. ²⁰⁷ MISTRIAL Appellant was charged, along with Timothy Rogers, his co-defendant, with the murder and robbery of Louis Ransom. They were tried jointly. 2 During Rogers’ case, the following occurred: MR. KERPELMAN [Counsel for Rogers]: I would like to call Kevin Jones, as long as they are not here to hear me do it, I would like to call Kevin Jones as the next defense witness.

MISS JULIAN [Appellant’s counsel]: I oppose that on the advice that my client has a Fifth Amendment right not to testify and he does not have to make that election until — I am advising him not to testify. THE COURT: You are advising him not to testify in his own behalf, and he is calling him as a witness in the defense of Timothy Rogers. I am going to ask him— MISS JULIAN: Including pleading the Fifth Amendment, is that correct? THE COURT: Yes, that is my expectation, from what you said, but I think we ought to follow the appropriate procedure.

MISS JULIAN: Thank you. THE COURT: Witness is called. Mr. Jones. MR.

KERPELMAN: For the record, Your Honor, I would ask him to make the election in front of the Jury. THE COURT: The election to not testify? MR. KERPELMAN: Well— THE COURT: Is that right?

MR. KERPELMAN: I don’t know what his election is going to be. ²⁰⁸ THE COURT: Well, let us presume. We are going to presume for the sake of argument. MR.

GIBLIN [Prosecutor]: Your Honor— THE COURT: Mr. Giblin? MR. GIBLIN: I don’t think he has an election not to testify as a witness. He has to get on the witness stand, in front of [the] Jury, and, you know, interject his Fifth Amendment right as a witness.

Now, as a Defendant he doesn’t have to go through that. THE COURT: That’s absolutely right, that is what I said. We will have him take the witness stand. Okay.

The jury having returned to the courtroom, appellant was called to the witness stand and, for most of the questions put to him, he did, as predicated, “[refuse] to answer, based on, from what my lawyer told me, I pled the Fifth Amendment.” Subsequently, in response to a note from the jury asking, “What does it mean when the Defendant takes the Fifth?” the court stated: “As it applies to this situation, the Fifth Amendment makes the following prohibitions, no person shall be compelled in any criminal case to be a witness against himself.” Appellant had not, to this point, requested a mistrial. Prior to the jury being instructed, however, appellant moved for mistrial. The motion was based on his being called as a witness in his co-defendant’s case, thus, being required “to elect out loud or — not elect but advised that he was refusing to testify based on the advice of his counsel.” Specifically, he argued: I am at this time moving for mistrial. Nothing has changed from that point in the trial but on further reflection, regarding jury instructions, when we were trying to decide if there is a difference, what they would be advised regarding his refusal to testify, regarding his election as a witness and as a defendant, it became very clear that his refusal to testify out loud when called by the co-defendant has placed my client in an unfavorable light and nothing at that point can cure that problem. ²⁰⁹ Now, I know, Your Honor, that we have an instruction that will attempt to do that, but it will be difficult for the Jury to ignore the fact that the only words they heard from my client are “I refuse to testify.” I state that the Fifth Amendment right is very similar, it’s the same, both his election not to testify at that time when called by the co-defendant is the same, would be the same as electing to remain silent.

It’s just by having to say that on the record puts him in a more negative light than a neutral light, which is what the Jury will be instructed that they are supposed to view him in when he has elected not to testify in his own case. The language and the intent of the instructions that the Court is willing to give shows that, it underscore the principle that he is entitled to a neutral inference, and the Jury is not to conclude anything negatively or positively. That neutral inference has been shattered by the co-defendant calling my client to the stand, and for those reasons I would ask for a mistrial at this point. The court denied the mistrial motion. 3 It later instructed the jury on the point, as follows: ...

You will note that the Defendant Kevin Jones has exercised his Constitutional right, under the Fifth and Fourteenth Amendments to remain silent. Under our system of criminal justice he has the absolute right to say nothing with no inference of guilt from his silence. His silence must not be considered by you in any way, must not even be discussed by you. This instruction also covers those instances in which the Defendant Kevin Jones, in this circumstance, took the witness stand and invoked his Fifth Amendment right against self-incrimination.

His right to be silent, again, neither his taking the stand and invoking his Fifth Amendment right nor his ²¹⁰ remaining silence must be considered by you nor shall either be discussed by you in your deliberations. Appellant did not object to these instructions. New propositions are as well-settled as that a mistrial should be declared only when there is “manifest necessity” and “the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes____” U.S. v. Perez, 22 U.S. (9 Wheat.) 579, 580 , 6 L.Ed. 165 (1824). Moreover, the decision to grant a mistrial is addressed to the sound discretion of the trial court, the exercise of which is not to be disturbed on appeal in the absence of abuse.

Wright v. State, 312 Md. 648, 654 , 541 A.2d 988 (1988); State v. Crutchfield, 318 Md. 200, 205 , 567 A.2d 449 (1989). Whether a trial court’s ruling on a motion for mistrial is an abuse of discretion is dependent upon the attendant circumstances. “It has long been held that, under most circumstances, it is improper for a prosecutor to require a witness to claim his privilege against self-incrimination in the presence of the jury when ... the prosecutor knows or has reason to anticipate that the witness will assert the privilege in front of the jury.” Allen v. State, 318 Md. 166, 174 , 567 A.2d 118 (1989), citing Namet v. United States, 373 U.S. 179 , 83 S.Ct. 1151 , 10 L.Ed.2d 278 (1963); Vandegrift v. State, 237 Md. 305 , 206 A.2d 250 (1965); Busby v. State, 412 So.2d 837 (Ala.Crim.App.1982); Burkley v. United States, 373 A.2d 878 (D.C.App.1977); People v. Giacalone, 399 Mich. 642 , 250 N.W.2d 492 (1977). See also Adkins v. State, 316 Md. 1 , 557 A.2d 203 (1989). Two principle theories have been identified as underlying the finding of prejudicial error based upon the calling of a witness whom the prosecution knows will refuse to testify on the basis of the privilege against self-incrimination: (1) “error ... based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from the use of the testimonial privilege,” Namet, 373 U.S. at 186 , 83 S.Ct. at 1154-55 , and (2) a witness’ refusal to answer on the basis of self-incrimination ²¹¹ may, under the circumstances of a given case, add critical weight, in a form not subject to cross-examination, to the prosecution’s case and thus unfairly prejudice a defendant.

Id., 373 U.S. at 187 , 83 S.Ct. at 1155 ; Allen, 318 Md. at 174 , 567 A.2d 118 . Maryland courts have recognized these principles as well. See Allen, 318 Md. at 174 , 567 A.2d 118 ; Adkins, 316 Md. at 5-6 , 557 A.2d 203 . In Vandegrift , the Court adopted a five prong test for determining whether, in a given circumstance, prejudicial error exists: 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 tending 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 a right to invoke his privilege; 4. that defense counsel made timely objection and took exception to the prosecutor’s misconduct; and 5. that the trial court refused or failed to cure the error by an appropriate instruction or admonition to the jury. 237 Md. at 308-09 , 206 A.2d 250 (quoting 86 ALR 2d 1443 , 1444-45).

Vandegrift made clear that not every prong of the test need be met, nor a finding of prejudicial error necessarily required whenever the prosecution called a witness knowing that that witness would take the Fifth Amendment. The court made clear, rather, that “[t]he test is whether the State’s Attorney calls a witness for the effect of the claim of privilege on the jury,” 237 Md. at 309 , 206 A.2d 250 , and that, in a proper case, a cautionary instruction just might cure any error. Id., 237 Md. at 310 , 206 A.2d 250 . ²¹² The facts of the case sub judice are significantly different from those of the cases that have heretofore addressed this issue. In this case, Rogers, appellant’s co-defendant in a joint trial, called appellant as a witness in his case.

And he did so fully aware that appellant would exercise his Fifth Amendment privilege and refuse to testify. Given that knowledge, it may be inferred that that was the sole reason for calling him. In other words, Rogers called appellant in order to emphasize appellant’s complicity and, in that way, he hoped, exonerate himself. Aside from the facts that it was the co-defendant, rather than the State, that called appellant as a witness and that the trial court specifically instructed the jury, both in response to the jury’s question, and at the close of all the evidence, concerning how it should treat appellant’s “taking the Fifth,” all of the Vandegrift factors are satisfied in this case.

Appellant and Rogers were not only charged with the same offenses, but they were jointly tried. Consequently, it is clear that appellant had the right to invoke his privilege. Because appellant had earlier made known his intention to invoke his privilege against self-incrimination, Rogers was aware, as was the State and the court, prior to calling appellant, that appellant would not waive the privilege. When Rogers stated his intention to call appellant as a witness in his case, appellant noted a timely objection.

Of course, just as neither the State nor the court may comment on an accused’s silence, neither may the State or the court call a defendant to testify in the case in which he or she is on trial. Thus, even when two defendants are tried together, neither may be called by the State or the court to testify against the other. The question that this case presents is whether, in a joint trial, one of the co-defendants may call the other, something that neither the court nor the State is permitted to do without causing prejudicial error? In order to address this question, it is necessary that we first consider the rationale for the Fifth Amendment ²¹³ right against self-incrimination.

Encompassed in that aspect of the Fifth Amendment are two fundamental rights, both of which are afforded protection: (1) the right of any witness to refuse to answer questions which might tend to incriminate