Roll v. State

Orth, J., delivered the opinion of the Court. It is not surprising that the power to cite and punish for contempt of court is at times misunderstood by judges asserting it, by appellate courts reviewing it, and by legislatures enacting laws involving it. The law concerning contempt cries for specificity in definition and uniformity in application. It is ofttimes perplexing and sometimes uncertain. * 1 That its confusions may not be as serious in the overall administration of justice as are caused, for example, by the difficulties arising from the subtle dis ³⁴ tinctions with respect to offenses comprising the unlawful appropriation of personal property, see Farlow v. State, 9 Md. App. 515 and Couture v. State, 7 Md. App. 269 , is only because there seem to be fewer contemnors than thieves.

But this is of little solace to the person who is found to be contemptuous and punished therefore. See Muskus v. State, 14 Md. App. 348 ; Goldsborough v. State, 12 Md. App. 346 . While the difficulties involved in the law concerning the stealing of goods usually run against the prosecution, the mischiefs stemming from the confusions surrounding contempts of court frequently derogate the rights of the individual. The cases before us provide two more examples.

DANIEL T. ROLL and WILLIAM EDWARD SCHOLL were each found to be in contempt of court by the Circuit Court for Montgomery County for refusing to testify before the October Term, 1971, grand jury. They were called before that body to obtain their testimony concerning certain violations of those laws which are codified in the Annotated Code of Maryland (1957) as §§ 276-302 of Article 27 under the subheading “Health —Controlled Dangerous Substances.” Thus they were subject to the provisions of § 298 (c) thereof. That section, consisting of one paragraph composed of one sentence, 2 has three aspects. First, it makes a refusal, on the ground of self-incrimination, to testify concerning any violations of the law relating to controlled dangerous substances a contempt of court.

Second, it makes a person called to testify concerning such violations a competent and compellable witness. Third, it obviates constitu ³⁵ tional objection to its provisions by supplanting the constitutional privilege against compulsory self-incrimination with a grant of immunity from prosecution, trial and punishment. Appealing from the judgments, 3 Roll and Scholl contend that the statute is unconstitutional on its face because the immunity provisions are too limited. 4 THE CONSTITUTIONALITY OF CODE, ART. 27, § 298 (c) In Brown v. State, 233 Md. 288 , the Court of Appeals had occasion to determine the constitutionality of a statute with comparable immunity provisions. Code, Art. 27, § 23, dealing with bribery, provided: “* * * and any person so bribing or attempting to bribe or so demanding or receiving a bribe shall be a competent witness, and compellable to testify against any person or persons who may have committed any of the aforesaid offenses; provided, that any person so compelled to testify in behalf, of the State in any such case shall be exempt from prosecution, trial and punishment for any such crime of which such person so testifying may have been guilty or a participant therein, and about which he was so compelled to testify.” At the time Brown was decided on 13 January 1964, Malloy v. Hogan, 378 U. S. 1 , making the privilege against self-incrimination guaranteed by the Fifth ³⁶ Amendment of the federal constitution 5 applicable to state prosecutions, was five months in the future.

But the Court thought that the federal provision and Art. 22 of the Maryland Declaration of Rights 6 were in pari materia and should receive a like construction. It found the general rule to be that “in order to be valid, the immunity granted must be as broad as the privilege against self-incrimination which it supplants or displaces.” At 296. It said that historically the foundation of the rule was Counselman v. Hitchock, 142 U. S. 547 . 7 In Counselman the Supreme Court held that a congressional statute merely protecting a witness from direct use of his testimony in subsequent prosecutions did not confer an immunity coextensive with his privilege. The witness must be protected from the indirect as well as the direct use of the compelled testimony. “In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecutions for the offense to which the question relates.” Id., at 586 .

This language was dicta but it seemed to leave open the possibility that the Fifth Amendment might require that transactional immunity be given and that testimonial immunity might be insufficient. Appellants seize on this possibility and assert that the Fifth Amendment does require the grant of transactional immunity and that the Brown v. State, supra, holding that it did not was wrong. They find support in Brown v. Walker, 161 U. S. 591 , which upheld an immunity statute passed by Congress in response to the language in Counselman . This statute was interpreted by federal courts to grant transactional immunity, thereby barring the government from prosecuting a witness for any crime mentioned by him during the course of his testimony.

See People v. Labello, 24 ³⁷ N.Y.2d 598, 249 N.E.2d 412 (1969). However, our Court of Appeals said in Brown v. State, supra, at 297: “In our opinion an immunity statute, in order to be valid, need not be couched in precisely the same terms as that suggested in Counselman and upheld in Brown v. Walker, supra, if its effect is to grant protection as broad as that afforded by the privilege which it displaces. We think that such protection is afforded by the immunity granted by Section 23 of Article 27 of the Code (1957). The immunity thereby granted to the witness compelled to testify from ‘prosecution, trial, and punishment for any such crime of which such person so testifying may have been guilty or a participant therein and about which he was so compelled to testify’ is a broad immunity.

Since it bars ‘prosecution,’ it effectively bars the use of ‘leads’ to convict the witness of the offense as to which he testifies, " The Court thought that references to a requirement of absolute immunity in Supreme Court cases following Counselman “refer to immunity from prosecution as opposed to immunity merely from the later use as evidence of recorded testimony, and that as to the range of offenses, they do not require a greater protection than that the statute must bar prosecution for all offenses with regard to which the testimony of a witness may be compelled. As to other offenses, we think, the privilege is neither impaired nor supplanted.” At 298. We think the reasons advanced for upholding the constitutionality of Art. 27, § 23 are apposite to the statute here challenged. We find no authority compelling a departure from the Court of Appeals’ holding.

The federal courts are still undecided as to whether a transactional type of immunity must be conferred constitutionally in the absence of state statutes so providing, the federal circuits being divided on the issue. In the Matter ³⁸ of Korman and Likas, 449 F. 2d 32 (U.S.C.A. 7th Cir.) was decided on 20 May 1971. The Court believed that “Counselman announced a constitutional requirement that, if the federal government seeks to compel a witness to testify, it must grant him full transactional immunity from prosecution under its laws.” 8 On the other hand, the Court of Appeals for the Ninth Circuit in Stewart v. United States and Kastigar v. United States, 440 F. 2d 954 , decided 29 March 1971, held otherwise, feeling that the grant of merely testimonial immunity was sufficient. 9 Hopefully the Supreme Court will shed some light on the question in the near future. It granted certiorari in the Stewart cases, sub nom Kastigar v. United States, 402 U. S. 971 , and they were argued 11 January 1972.

But in the meantime we shall abide with the ruling in Brown v. State, supra. We hold that § 298 (c) of Art. 27 is constitutional on its face. THE CONTEMPT PROCEEDINGS The Factual Posture — Roll At the State’s request Roll had been summoned by the Sheriff to appear before the grand jury on 20 October 1971 in the matter of Grand Jury v. Michael L. Ingram, Helen Marie Ingram and Thomas Robert Yendell. He appeared in compliance with the summons.

A transcript of the proceedings discloses what occurred. It shows that on 20 October 1971 Roll appeared before “Jane B. Keys, Foreman, and a quorum of the Grand Jury” and was examined by Jeffrey R. Werner, Assistant State’s Attorney. 10 Roll gave his name, and said he had no attorney at ³⁹ that time, not having personally consulted an attorney. The prosecutor asked: “You are aware, Mr. Roll, that you have been served a summons to appear to testify against Ingram, Ingram and Yendell, concerning a house on 1714 Dublin Street in Silver Spring during this past year?” Roll said he was so aware. Informed by Werner that he was going to ask him questions, Roll said: “Before you do that I’d like to make a statement.” Werner made clear what he was going to do: “Let me just advise you as to what I am going to do before you make a statement.

I am going to ask you some questions concerning the period from December of 1970 through April 1971, involving yourself and possibly other people, the Ingrams, Tommy Yendell, and the activities occurring at 1914 (sic) Dublin Drive in Silver Spring involving controlled dangerous substances, more specifically heroin and marijuana. That is all I am going to ask you about. That is the scope of my questions. Any answers you may give that implicate you in any kind of crime whatsoever will not cause you to be prosecuted but we will give you automatically a grant of immunity as to those questions.

Now what would you like to say?” Roll made his statement: “First I’d like to state that I am without legal representation. Number two, as a resident of the regional district I resent being called to this hearing because for many reasons it puts me in a precarious position with my participation in the program which I participate in and my situation with the rest of the people whom I associate with on the street. This places my program in precarious position, having myself testify in this manner which they do not approve of, in court. This puts me ⁴⁰ in the position of physical danger from my peers upon this, whatever evidence I may give, if this is used in court there is true physical danger; number two, the stigma that would be attached to me, more importantly to the program of RAP, Incorporated, itself, in the eyes of heroin addicts in Montgomery County, of whom there are quite a few; would tend to draw them away from our program instead of encouraging their participation in it, which is something I don’t want to see happen, and the Program doesn’t want to see it happen.

And in light of these things I would like to be disqualified as a witness.” Werner told him that all those things had been taken into consideration and denied his request. Roll then refused to testify on the ground that it tended to incriminate him. Werner explained that the law granted him immunity so that he could not incriminate himself and read § 298 (c) to him. Although admitting that he had been duly served with a subpoena and been informed as to the scope of the questioning, he reasserted his refusal to testify.

He understood he was subject to contempt of court and possible imprisonment “up to and including March 1, 1972.” He was asked several specific questions and invoked the Fifth Amendment. He insisted he did not have the assistance of an attorney with respect to the matter. He was adamant in his refusal to answer questions. The Assistant State’s Attorney promptly submitted a “Petition for Direct Contempt” to the Circuit Court for Montgomery County.

Entitled State of Maryland v. Daniel T. Roll, and docketed as miscellaneous petition 4489, it moved the court “to punish [Roll] for direct contempt of court for his refusal to testify before the Grand Jury of Montgomery County after being duly served notice in the matter of State v. Ingram, Ingram and Yendell, on October 20, 1971.” In support of the motion the petition alleged that Roll had been duly served ⁴¹ notice that his testimony was required “before the Grand Jury in a Presentment against Michael Lawrence Ingram, Helen Marie Ingram and Thomas Robert Yendell,” that he was sworn to testify on 20 October, that he appeared before the Grand Jury and “in answer to questions put to him by the prosecutor concerning the Presentment against Ingram, Ingram and Yendell, refused to answer said questions in any manner,” that he had been initially informed that his requested testimony concerned criminal controlled dangerous substances and that he was competent and compellable to testify being immune from prosecution, trial and punishment under Code, Art. 27, § 298 (c). The petition asked the court to order Roll to show cause why he should not be held in direct contempt. At 3:55 p.m. the same day Roll was brought before the Court, Moorman, J., presiding. The judge said that due to the nature of the proceeding the courtroom would be cleared.

The Assistant State’s Attorney suggested that only “the court and the stenographer and the clerk and the forelady [of the Grand Jury] and myself and the defendant [Roll]” be permitted to remain. As far as we can ascertain from the record, the suggestion was carried out. The court addressed Roll: “You know why you are before the Court. You are here on a petition that asks that you be held in contempt of the Court for refusal to testify before the grand jury.” Affording no opportunity for Roll to reply the court informed the prosecutor that it would hear his testimony.

The State called Mrs. Jane Keys. She testified she was the forelady of the Grand Jury then sitting in Montgomery County (October Term 1971). On that day, 20 October, it was hearing presentments. A certificate by the Clerk of the Court that Roll had been sworn as a witness to testify before that grand jury was admitted in evidence.

Mrs. Keys said that Roll was before the Jury to testify concerning a presentment or indictment then pending the Jury’s consideration but there was no pre ⁴² sentment outstanding against him. He took the witness stand, was advised that he would have immunity concerning his testimony, was questioned and refused to answer. Upon inquiry by the court Roll said he had no questions of the witness. Johanna S. Wissenbach, identified in the transcript as “an official clerk to the Grand Jury for Montgomery County, October 1971 Term”, was called by the State and “read the proceedings before that body involving [Roll] on the same day.” The proceedings as read were not transcribed for the record of the hearing but there is included in the record before us a transcript of the proceedings before the Grand Jury so read.

What the transcript discloses was above summarized. Upon the reading into evidence of the proceedings before the Grand Jury the State said it had no other evidence. The court asked Roll if he wanted “to take the stand to show any reason why you should not be held in contempt of the court for failing to testify before the grand jury after you were promised immunity.” Roll took the stand and was sworn. The transcript reads: “THE COURT: You may make whatever statement you would like to make to the Court.

Before you make any statement I tell you: if it pertains to this presentment before the grand jury on which you were called to testify, the Court again affirms or reaffirms what the State has told you, that you are granted immunity from prosecution in relation to any testimony that you may give concerning this matter or narcotics in relation to the people brought before the grand jury on a presentment. Do you understand that? THE RESPONDENT: Not clearly. Would you please repeat that?

THE COURT: Before you testify whatever you want to say at this particular time, you are given the opportunity to show cause why you ⁴³ should not be held in contempt of court. And the Court tells you that in your testimony or statement to the Court, if you should make any statements that may tend to incriminate you in relation to the presentment against the other three people, the Court assures you that you will be promised immunity from prosecution. Primarily what you are here for is to show cause why you should not be held in direct contempt of court for refusing to testify. THE RESPONDENT: Well— THE COURT: I may tell you before you proceed: prima facie it appears that you have a great deal to overcome.

I do not want to cite you for contempt of court and have to incarcerate you. I will give you an opportunity. Maybe by this time you would want to go before the grand jury and testify. The proceedings before the grand jury are secret; that is why we cleared everyone from the courtroom.

Now you may make any statement you like.” Roll said he was without counsel regarding his grand jury appearance and that even with immunity he was left in “a very dangerous situation.” The State conceded that he “would likely be called” as a witness at the trial of any indictment returned on the matter which he was being requested to testify. Roll said: “That would place both myself and the program that I participate in, in Regional Participation, in a very bad position in what they are trying to do, what I’m trying to do for myself; and not just, you know, fear of being shot in retaliation. Just the fact that I was a juvenile at that time [he was 18 years of age at the time of the hearing] is the only thing that’s kept me from being a defendant in that trial.” He reiterated that he was without legal representation and said “it is my understanding from what I have been ⁴⁴ told from people that are not lawyers that I could leave the grand jury room at any time to consult a lawyer on any question I was asked.” He asked the court if that were true and the court said: “I think that may be partially true.” Roll then made a specific request: “I would like to request a hearing after I obtain legal counsel of my own choosing.” The court asked the Assistant State’s Attorney what he thought of that and he said the State had no objection. He pointed out, however, that the State was going to ask the grand jury to deliberate on the presentment involved that day and that he had talked to the Rehabilitation Addiction Prevention organization representatives and their lawyer that morning.

The lawyer told the Assistant State’s Attorney that he represented Roll and the prosecutor added, “as a matter of fact I saw him with the defendant as he was downstairs at the grand jury waiting to come up here. And, the Assistant State’s Attorney said, “I recognize much of the language [Roll] represents before the grand jury as having been represented to me in my office this morning in the presence of RAP’s attorney.” Roll countered by stating that although he had talked to the lawyer, William Noble, who had represented him at a previous trial, that morning “it was not pertaining to any legal matter whatsoever. He said that Judge Tracy sent his regards, and he informed me that any previous charges have been dropped. * * * He was no longer retained as my legal representative * * * I have not consulted Mr. Noble about the stratagem or legal aspects” although Noble had informed him he would be served with a subpoena. The court found Roll “in direct contempt of court.” It asked: “Now do you think you want to go before the grand jury, now, this afternoon, and give your testimony?” Roll replied by asking to be incarcerated in the custody of RAP, Incorporated.

The court imposed sentence. The Factual Posture — Scholl At the time Scholl’s testimony was desired by the grand ⁴⁵ jury he was incarcerated in the Maryland Correctional Institution at Hagerstown serving a sentence of three years. The State’s Attorney prayed the court to issue a writ of habeas corpus ad testificandum so Scholl could appear to testify in the case of Grand Jury v. Michael Lawrence Ingram, Helen Marie Ingram and Thomas Robert Yendell on 20 October 1971. The court ordered the writ issued as prayed.

Scholl appeared before the grand jury in compliance with the writ. 11 The transcript of the proceedings of the grand jury relating to Scholl’s appearance discloses that Scholl said he had an attorney, Page Digman, Esq., whom he had consulted that day and previously and who was aware that he had been called to testify. He was aware that he was to testify and what the subject matter was. Werner then further informed him of the nature of the inquiry in substantially the same language used when Roll was informed. Werner read § 298 (c) to Scholl and asked if he were willing to answer questions.

Scholl said, “No.” Asked if he would like to consult his attorney “before continuing to refuse to answer our questions,” Scholl said his attorney was “not available at the present.” Directly asked if he desired to consult with an attorney, Scholl said, “No.” He said he realized that in refusing to answer questions asked he might “be punishable by the court including imprisonment * * * for contempt of court.” He was asked: “Mr. Scholl, between December 12, 1970 and April 13, 1971, did you ever see or purchase any heroin from Mike or Marie Ingram or Tommy Yendell at 1714 Dublin Drive, Silver Spring, Montgomery County, Maryland?” He stood on the Fifth Amendment. He realized that he had “no rights under the Fifth Amendment,” that he had “immunity instead,” but he refused to answer the questions. The transcript concludes: “A recess was taken, following which there were no further proceedings in the grand jury room on this day in the above-captioned matter.” ⁴⁶ The Assistant State’s Attorney, as in the case of Roll, promptly submitted a “Petition for Direct Contempt” to the Circuit Court for Montgomery County. Docketed as miscellaneous petition 4490, it was the same in substance as that filed as to Roll.

Scholl was brought before the court immediately upon the termination of the proceedings with regard to Roll. A certificate that he had been sworn as a witness to testify before the grand jury was received in evidence. Mrs. Keys’ testimony concerning Scholl’s appearance was in substance the same as her testimony concerning Roll’s appearance. The grand jury reporter then read into the record a transcription of the proceedings before that body involving Scholl.

A copy of the transcription is in the record before us and reads as above summarized. The State rested. The court inquired of Scholl if he wanted to take the stand and “give any reason why you should not be held in contempt of the court for failure to testify before the grand jury after you had been promised immunity.” Scholl requested a postponement so he could confer with his lawyer, Page Digman, who was not available at the moment. The court asked the State what it thought.

The State thought it was simply a matter of whether or not Scholl would testify. It said Scholl had extensively consulted with Dig-man about testifying and if that was what he wanted to consult him about again, he was either going to agree to testify or not agree and that required no further consultation. It opposed the request. The court said it understood Scholl was then serving a three year sentence for revocation of probation, and upon being asked by the court Scholl said that he was serving the sentence at Maryland Correctional Center.

The court said: “This is a direct contempt proceeding. It is in the discretion of the Court whether he grants counsel for you or not. I don’t know what counsel could do for you, but he might do something. I doubt it.” It reaffirmed the grant of immunity which Scholl said ⁴⁷ he understood.

The court again asked if he wanted to take the stand to give reason why he should not be held in contempt. Scholl responded by requesting an answer to his question whether he could have the assistance of counsel on the charges. The court observed that no charges had been brought except the direct contempt. Scholl said that was what he meant, that “there is a good possibility that I will catch additional punishment.” The court agreed: “I’m just afraid you will,” but denied him “a continuance here to get counsel.” It again asked Scholl if he desired to take the stand and Scholl said he would do so “momentarily.” The court again explained the grant of immunity and Scholl said he understood.

He then stated: “The major reason involved why I refuse to testify against these people is, if I testify against these people then it becomes aware and known to these people. My life will be directly in danger.” He realized the proceedings were secret but refused to testify before the grand jury “for that specific reason.” He was excused. The court found him “in direct contempt of this Court.” Sentence was imposed. We have set out the contempt proceedings in such detail because we think that the lower court was in error in its conduct of them.

The Law Contempts of court are classified in two categories, (1) direct or constructive, 12 and (2) civil or criminal. The categories are not mutually exclusive and contempts are usually classified in terms of both categories. So a contempt may be direct and civil, or direct and criminal, or constructive and civil, or constructive and criminal. Under what classification a contempt falls may be of the utmost importance, and if at times the proper classifica ⁴⁸ tion is hard to come by, it is certain that the label the court or the State chooses to put upon a contempt is not conclusive of its character.

Subtitle P of the Maryland Rules of Procedure deals with “Contempt.” Rule PI a defines a direct contempt to mean “a contempt committed in the presence of the court, or so near to the court as to interrupt its proceedings.” Rule PI b defines a constructive contempt as one committed otherwise. The subtitle spells out the procedure to be followed with respect to a direct contempt, Rule P3 and with respect to a constructive contempt, Rule P4. Rule P2 a makes the Subtitle applicable to both civil and criminal contempts. As direct contempts are those which occur in the presence of the court or so near to the court as to interrupt its proceedings, the judge is usually an observer of or has personal knowledge of the facts.

So Rule P3 b requires, where a direct contempt is committed, that the court sign a written order to that effect in which the facts are recited with a designation as to which facts were known to the court of its own knowledge and, as to any not so known, the basis for the court’s finding with respect thereto. Such an order is necessary because a direct contempt may be punished summarily by the court against which the contempt was committed, Rule P3 a, and the order enables the appellate court to determine from the record whether a contempt has been committed and whether the court had jurisdiction to punish it. Kandel v. State, 252 Md. 668 . Constructive contempts may not be summarily punished by the court.

As they are contempts which are not committed in the presence of the court, or so near as to interrupt its proceedings, the court would not be a personal observer of the facts. Thus Rule P4 a provides that although constructive contempt proceedings may be instituted by the court of its own motion, they may also be instituted by the State’s Attorney or by any person having actual knowledge of the alleged contempt. A person cited for constructive contempt is entitled to show ⁴⁹ cause within a stated time why an order adjudging him in contempt shall not be issued, to a hearing after notice of its time and place, to a reasonable time for the preparation of his defense, to a statement of the facts constituting the contempt charged, and to be served with a copy of any writing or document filed in support of the alleged contempt; These matters shall be set out in an order issued by the court determining to cite the person for contempt and the order shall be served on such person pursuant to the rules regarding service of process (Rule 104) unless the person has appeared as a party in the action in which the contempt is charged, in which case service shall be in the manner prescribed by the court. Rule P4 b 1 (a) (b) (c) and 2.

Further, unless the alleged contemnor otherwise consents, the judge who issued a citation for constructive contempt shall be disqualified from presiding at the hearing except where such contempt consists of failure to obey an order or judgment in a civil case. Rule P4 d 2. We observe that in criminal contempts, both direct and constructive, where the sentence imposed is not petty, that is the sentence imposed is 6 months or more, 13 the alleged contemnor is entitled to a trial by jury, thus restricting, in the case of direct criminal contempts, the power of the court to inflict punishment summarily. This right was reached through three cases.

Cheff v. Schnackenberg, 384 U. S. 373 held, under the supervisory power over the federal courts rather than on constitutional grounds, that when the punishment in a criminal contempt was more than a petty sentence, the federal courts were required to grant a jury trial. Duncan v. Louisiana, 391 U. S. 145 held that the sixth amendment right to a jury trial for serious offenses applied to the states through the fourteenth amendment. In Bloom v. Illinois, 391 U. S. 194 , the Court concluded, departing from its holding in United States v. Barnett, 376 U. S. 681 , although forecast by ⁵⁰ dictum in note 12 at 695 thereof, that the constitution did require a jury trial in contempt cases where the sentence was more than petty. The Application of the Law The lower court proceeded on the predicate that the refusal of Roll and Scholl to testify before the grand jury constituted the commission by each of them of a direct contempt.

It punished them summarily under the authority of