State v. Rice, Nero, Miller White & Goodson v. State

BARBERA, C.J. On April 12, 2015, Freddie Gray suffered an injury while in police custody; one week later, he died from those injuries. The State charged six Baltimore City police officers with crimes in connection with the events leading up to Mr. Gray’s death — Officer William Porter, Officer Caesar Goodson, Sergeant Alicia White, Lieutenant Brian Rice, Officer Edward Nero, and Officer Garrett Miller. The first of those officers to face trial was Officer Porter. His trial began on November 30, 2015, and, after the jurors could not reach a verdict, it ended in a mistrial on December 16, 2015.

At the heart of this appeal is whether Officer Porter, who the State has indicated it will retry, can now be compelled by the State, before his retrial, to provide immunized testimony against the remaining officers. In the cases of Officer Goodson and Sergeant White, the trial court granted the State’s motion to compel Officer Porter’s testimony. In the cases of Lieutenant Rice, Officer Nero, and Officer Miller, the trial court denied that same motion. ⁶⁰⁴ On March 8, 2016, we issued two Per Curiam Orders affirming the judgments of the Circuit Court in Officer Good-son’s and Sergeant White’s cases; reversing the judgments of the Circuit Court in the cases of Lieutenant Rice, Officer Nero, and Officer Miller; and lifting the stays in each case to allow the trials to move forward. We now explain our reasons for those Orders.

We hold that the State’s compelling Officer Porter to testify in the trials of his fellow officers, under the grant of use and derivative use immunity, does not violate Officer Porter’s privilege against compelled self-incrimination under the Fifth Amendment to the United States Constitution and Article 22 of the Maryland Declaration of Rights. We further hold that the trial court lacks the discretion to deny a properly pled motion to compel immunized testimony and that the denial of such a motion constitutes a final judgment from which the State can appeal immediately. H Witness Immunity Most lawyers and lay people alike learn from law school, television, or movies that all persons in this country enjoy a privilege to be free from compelled self-incrimination. What many may not know is that the prosecutor may supplant that privilege through the grant of immunity to one whose testimony is sought in a criminal trial.

Indeed, the Supreme Court of the United States has recognized that the power of the State to compel a witness to testify is at the core of the proper functioning of our criminal justice system. Kastigar v. United States, 406 U.S. 441, 443-44 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972). A witness’s constitutional privilege, guaranteed by the Fifth Amendment to the United States Constitution and Article 22 of the Maryland Declaration of Rights, is preserved through application of immunity statutes, which balance the witness’s privilege against compelled self-incrimination with the legitimate power of government to compel persons to testify. U.S. Const. amend.

V (“No person ... shall be compelled in any criminal case to be a witness against him ⁶⁰⁵ self[.]”); Md. Decl. of Rts. art. 22 (“That no man ought to be compelled to give evidence against himself in a criminal case.”). Because “many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime,” immunity statutes have been referred to as “part of our constitutional fabric.” Kastigar, 406 U.S. at 446-47 , 92 S.Ct. 1653 (quoting Ullmann v. United States, 350 U.S. 422, 438 , 76 S.Ct. 497 , 100 L.Ed. 511 (1956)). Three varieties of immunity have developed in Anglo-American jurisprudence, each offering varied levels of protection to the witness. “Use” immunity offers the least protection — although the State is barred from using any immunized testimony against the witness in a later criminal prosecution, the State is not precluded from using evidence derived from that testimony. See id. at 454 , 92 S.Ct. 1653 (providing that use immunity statutes do not “prevent the use of [the witness’s] testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding” (quoting Counselman v. Hitchcock, 142 U.S. 547, 564 , 12 S.Ct. 195 , 35 L.Ed. 1110 (1892))).

On the other end of the spectrum is “transactional immunity,” which precludes the State from prosecuting the witness for any conduct arising out of the substance of the witness’s testimony. In re Criminal Investigation No. 1-162, 307 Md. 674, 684 , 516 A.2d 976 (1986). Between those two ends is “use and derivative use” immunity, where the State is precluded from using in a later prosecution both the witness’s compelled testimony and any information directly or indirectly derived from that testimony. Id.

The Supreme Court held in Counselman that use immunity does not afford a witness sufficient protection to supplant the Fifth Amendment privilege. 142 U.S. at 564 , 12 S.Ct. 195 . The Court concluded that use immunity does not protect the witness to the same extent that a claim of the privilege would protect him because it does not “prevent the use of his testimony to search out other testimony to be used in evidence against him.” Id. at 564-65 , 12 S.Ct. 195 . Because the Court ⁶⁰⁶ also stated that a valid immunity statute “must afford absolute immunity against future prosecution for the offence to which the question relates,” that decision was long interpreted to mean that transactional immunity was required to preserve a witness’s Fifth Amendment privilege. See id. at 586 , 12 S.Ct. 195 (emphasis added); see also Pillsbury Co. v. Conboy, 459 U.S. 248, 275 , 103 S.Ct. 608 , 74 L.Ed.2d 430 (1983) (Blackmun, J., concurring in the judgment) (noting that the courts interpreted Counselman as requiring transactional immunity).

The Supreme Court clarified in Kastigar , however, that use and derivative use immunity is coextensive with the scope of a witness’s Fifth Amendment privilege and transactional immunity is not required to pass constitutional muster. See 406 U.S. at 453 , 92 S.Ct. 1653 (“Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege.”). The Court explained that a grant of immunity need only provide that level of protection that the exercise of the privilege itself would offer. Id. at 453-54 , 92 S.Ct. 1653 .

Because the Fifth Amendment privilege is designed to prevent the witness from “being forced to give testimony leading to the infliction of penalties affixed to criminal acts,” immunizing the witness’s “compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection.” Id. at 453 , 92 S.Ct. 1653 (internal quotation marks and alterations omitted). The Kastigar Court cautioned, however, that, once a witness receives use and derivative use immunity, the State will bear a “heavy burden” to prove that the evidence it seeks to introduce against the witness in a later prosecution was not tainted by the immunized testimony. Id. at 461 , 92 S.Ct. 1653 . The State has an “affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Id. at 460 , 92 S.Ct. 1653 . ⁶⁰⁷ To ensure that the State has met its burden, the trial court holds a pre-trial “Kastigar hearing,” at which the State must demonstrate the independent nature of the evidence and the defendant has the opportunity to cross-examine witnesses.

See United States v. Cantu, 185 F.3d 298, 304 (5th Cir.1999). Kastigar instructed that the State’s burden is beyond a mere “negation of taint.” 406 U.S. at 460 , 92 S.Ct. 1653 . Instead, “to establish a ‘wholly independent’ source, the government must demonstrate that each step of the investigative chain through which the evidence was obtained is untainted.” United States v. Schmidgall, 25 F.3d 1523, 1528 (11th Cir.1994). Maryland’s Immunity Statute Since Kastigar was decided in 1972, many states, including Maryland, amended their immunity statutes to resemble the federal immunity statute sanctioned by Kastigar and provide for use and derivative use immunity. 3 Wayne R. LaFave, Criminal Procedure § 8.11(b) (4th ed. 2015).

Maryland’s statute, entitled “Witness immunity for compulsory testimony,” accordingly provides that a witness may not refuse to testify on self-incrimination grounds when the court issues an order compelling the testimony under a grant of use and derivative use immunity. Md.Code Ann., Cts. & Jud. Proc. (“CJ”) § 9-123(b)(1) (2014, 2013 Repl.Vol., 2015 Supp.).

When such an order is issued, the statute instructs that “[n]o testimony or other information compelled under the order, and no information directly or indirectly derived from the testimony or other information, may be used against the witness in any criminal case, except in a prosecution for perjury, obstruction of justice, or otherwise failing to comply with the order.” CJ § 9-123(b)(2). The statute also prescribes in subsections (c) and (d) the procedure for obtaining an order and the prerequisites the State must satisfy to procure an order compelling witness testimony. That procedure reads as follows: (c) Order requiring testimony. — (1) If an individual has been, or may be, called to testify or provide other information in a criminal prosecution or a proceeding before a ⁶⁰⁸ grand jury of the State, the court in which the proceeding is or may be held shall issue, on the request of the prosecutor[ 1 ] made in accordance with subsection (d) of this section, an order requiring the individual to give testimony or provide other information which the individual has refused to give or provide on the basis of the individual’s privilege against self-incrimination. (2) The order shall have the effect provided under subsection (b) of this section.

(d) Prerequisites for order. — If a prosecutor seeks to compel an individual to testify or provide other information, the prosecutor shall request, by written motion, the court to issue an order under subsection (c) of this section when the prosecutor determines that: (1) The testimony or other information from the individual may be necessary to the public interest; and (2) The individual has refused or is likely to refuse to testify or provide other information on the basis of the individual’s privilege against self-incrimination. CJ § 9-123(c)-(d). The present case concerns both the substantive and the procedural aspects of the immunity statute. Before we delve further into the issues, however, it is necessary to describe how the proceedings against the officers progressed in the trial court and the Court of Special Appeals.

II

No. 99 — Goodson & White v. State The trials of all six officers were specially assigned to the Honorable Barry Williams in the Circuit Court for Baltimore ⁶⁰⁹ City. We mentioned at the outset that Officer Porter had been tried first and that the trial had ended in a mistrial. Before then, by letter dated September 15, 2015, the State notified the Circuit Court and the parties that Officer Porter was “a necessary and material witness” in Officer Goodson’s and Sergeant White’s trials, and it was therefore “imperative” that he be tried first. In compliance with that request, the Circuit Court issued scheduling orders providing that Officer Good-son’s trial was scheduled to begin January 11, 2016, and Sergeant White’s trial was to begin February 8, 2016 — both of which were after the mistrial was declared in Officer Porter’s trial.

On December 11, 2015, the State served Officer Porter with two subpoenas, one compelling him to appear and testify in Officer Goodson’s trial and the other compelling the same in Sergeant White’s trial. Officer Porter moved to quash both subpoenas, arguing that application of CJ § 9-123 is unconstitutional as applied to him because the statute does not preserve his broader rights against compelled self-incrimination provided by Article 22 of the Maryland Declaration of Rights, nor does the State’s grant of immunity protect him from a federal prosecution or a later State prosecution for perjury. He also contended that the State would be suborning perjury by compelling him to testify because the State had claimed during his trial that he was not telling the truth. On January 6, 2016, the State filed in Officer Goodson’s case a Motion to Compel a Witness to Testify Pursuant to Section 9-123 of the Courts and Judicial Proceedings Article.

Tracing the language of the statute, the State alleged that the State’s Attorney had determined that Officer Porter’s testimony “may be necessary to the public interest” and that Officer Porter had refused to testify on the ground of compelled self-incrimination. The motion was signed by Marilyn Mosby, State’s Attorney for Baltimore City. The State also responded to Officer Porter’s motion to quash the State’s subpoena. The State argued that Article 22 has been interpreted as in pari materia with the Fifth Amendment and, consequently, CJ § 9-123 sufficiently preserves Officer Porter’s privilege against compelled self-incrim ⁶¹⁰ ination.

The State also pointed out that Officer Porter’s immunized testimony could not be used in a federal prosecution and that he has no constitutional right to commit perjury. The State emphasized that Officer Porter’s concerns related to the State’s ability to retry him, rather than the State’s ability to compel his testimony, and that those concerns would be addressed at a Kastigar hearing. The Circuit Court held a hearing on the motion to quash and the motion to compel, at which the State, Officer Goodson, and Officer Porter were present along with their respective counsel. Although Sergeant White and her counsel were not at the hearing, the parties acknowledged that all arguments would apply equally to her case.

At the hearing, Officer Porter testified that he intended to invoke his privilege against compelled self-incrimination under the Fifth Amendment and Article 22 of the Maryland Declaration of Rights, if called upon to testify at either trial. The Circuit Court denied Officer Porter’s motion to quash and granted the State’s motion to compel. The court disagreed with Officer Porter’s contention that CJ § 9-123 violates either or both the Fifth Amendment and Article 22. The court reasoned that, according to the Supreme Court, use and derivative use immunity is sufficient to protect the witness “whether it happens to be a person who has been charged, is pending a charge, or is on appeal.” In response to Officer Porter’s argument that his retrial might be tainted by his immunized testimony, the court recognized that it would be “the State’s concern because the burden would be on them at that point.” After the court ruled in its favor, the State then filed a motion to compel Officer Porter’s testimony in Sergeant White’s case, which the Circuit Court granted.

The Circuit Court’s orders compelling Officer Porter’s testimony provided that Officer Porter may not refuse to testify on the basis of his privilege against self-incrimination, and that neither the testimony compelled pursuant to the order nor “information directly or indirectly derived from the testimony of Officer Porter ⁶¹¹ compelled pursuant to this Order, may be used against Officer Porter in any criminal case, except in a prosecution for perjury, obstruction of justice, or otherwise failing to comply with this Order.” Officer Porter noted a timely appeal to the Court of Special Appeals. The appeals in Officer Goodson’s and Sergeant White’s cases were consolidated, and the orders compelling Officer Porter’s testimony were stayed along with the trials of Officer Goodson and Sergeant White. Nos. 96, 97, and 98 — State v. Rice, Nero, and Miller On January 18, 2016, the State sent a letter to the Circuit Court requesting a postponement of the trials of Defendants, Lieutenant Rice, Officer Nero, and Officer Miller, until resolution of Officer Porter’s appeal. 2 The State asserted that, after observing Officer Porter’s defense in his own trial, “the State is persuaded of the importance of Porter’s testimony in the trials of Miller, Nero, and Rice.” On January 14, 2016, the State moved to compel Officer Porter’s testimony in Defendants’ trials. Just as the motions filed in the cases of Officer Goodson and Sergeant White, the State asserted that the State’s Attorney had determined that Officer Porter’s testimony “may be necessary to the public interest” and that he was likely to refuse to testify on the basis of self-incrimination.

The motions were likewise signed by State’s Attorney Marilyn Mosby. Defendants and Officer Porter each filed oppositions to that motion. Defendants argued that the State failed to explain why Officer Porter’s testimony was necessary and that the filing of the motion was the first indication Defendants received that the State might call Officer Porter as a witness. Officer Porter similarly asserted in his motion that his testimony was not necessary to the public interest and that ⁶¹² compelling his testimony would infringe upon his Fifth Amendment and Article 22 rights.

The State responded by asserting that Defendants lacked standing to object to the State’s motion because CJ § 9-123 concerned only the State and Officer Porter, the witness to be compelled. The State further argued that the court was “statutorily required to issue the Order” because the motion to compel complied with the pleading requirements in CJ § 9-123. The Circuit Court heard a consolidated argument on the State’s motions vis-a-vis all three Defendants on January 20, 2016. During that hearing, the Circuit Court also heard briefly from counsel for Sergeant White, who had moved to strike the order compelling Officer Porter to testify at her trial.

In denying the motion to strike, the Circuit Court indicated that Sergeant "White lacked standing to challenge the order, stating that “I do not believe that necessarily you had a right to make any arguments at all.” With respect to the State’s motions to compel in the remaining three cases, the Circuit Court requested the prosecutor to proffer the State’s reasons for compelling Officer Porter’s testimony. Although the State contended that a proffer was not necessary “once the State’s Attorney has made that determination,” the prosecutor described the helpful testimony that Officer Porter could provide. The Circuit Court also asked the State what the court would be able to do if the court determined that the motion to compel was “a ruse and subterfuge.” The State responded that the motion was not subterfuge and explained again that it would violate separation of powers to interfere with the State’s Attorney’s immunity determination. The State further explained that it was “try[ing] to learn something from [its] experience in trying Mr. Porter,” and that the State has “the light to change [its] mind.” After hearing argument, the Circuit Court denied the State’s motions on the record.

The court recognized that “the State has broad power to seek immunity” and that “the Court shall issue an order requiring the individual to give testimony” when “the prosecutor determines that the testimony may be necessary to the public interest.” Nevertheless, the court ⁶¹³ found that the State’s request “has more to do with getting around the Court’s postponement request than anything else,” which the court found was not “appropriate.” The court believed the State’s contention that the prosecutors had made the determination after reassessing the value of Officer Porter’s testimony. Nonetheless, the court stated that, “in the manner in which [the State is] seeking to immunize ... it does seem to this Court, candidly speaking, that it’s for a dual purpose: to get the postponement that they want ... and possibly for the reason stated, that Mr. Porter’s testimony is relevant[.]” The court also noted its concerns with the State’s proffer of the value of Officer Porter’s testimony, “the concerns that this Court has with the speedy trial rights of the Defendants, [and] the concern that this Court has with the position that Mr. Porter will be placed in by the request of the State.” In the court’s written order, the court concluded that the State was using CJ § 9-123 “in an attempt to control the schedule and order of the trials and to circumvent this Court’s ruling that postponement in these cases was not appropriate.” Under such circumstances, the court opined that, “rather than become a rubber-stamp for the State’s Attorney, there should be a two-step process in granting immunity under § 9-123 when, and only when, the motives of the requesting party are called into question.” Consequently, the court denied the motions on the ground that it was “not in the public interest” for the State to file the motions to compel as “subterfuge” to resurrect the trial schedule the State had originally requested. The State noted a timely appeal to the Court of Special Appeals and moved in the Circuit Court, unsuccessfully, to stay Defendants’ trials. The same day the Circuit Court denied the motions to stay, the State petitioned this Court for a writ of certiorari to review all five appeals prior to any decision by the Court of Special Appeals.

Noting that the Circuit Court had granted its motion to compel in two cases but denied it in three others, the State contended that these cases “provide an appropriate vehicle for this Court to consider the application of § 9-123 from all sides.” Defendants ⁶¹⁴ moved to dismiss the State’s petition on the ground that the State lacked the right to appeal. We granted the State’s petition in all five eases and stayed all proceedings in the Circuit Court. In Officer Porter’s appeal in No. 99, we were asked to decide: Does Courts and Judicial Proceedings Article, Section 9-123 provide Porter sufficient protection against self-incrimination to allow his testimony to be compelled in the trials of Caesar Goodson and Alicia White? Our orders granting the State’s petitions in Nos. 96, 97, and 98 provided that the issue was: Does Courts and Judicial Proceedings Article, § 9-123 require a court to order compelled, immunized witness testimony after verifying that the statutory pleading requirements of the prosecutor’s motion to compel have been met, or does the statute instead permit a court to substitute its own discretion and judgment as to whether compelling the witness’s testimony may be necessary to the public interest such that the court may deny a prosecutor’s motion to compel even if the motion complies with the statute’s pleading requirements?

We also directed the State and Defendants to brief the following question: Whether the circuit court’s order denying the State’s motion to compel Officer William Porter to testify is appealable i.e. whether the order is a final judgment or an interlocutory order subject to appeal or an order appealable on any other basis?

III

(a) We must first determine the proper parties to the appeals in Nos. 96, 97, and 98. We agree with the State that Officer Porter, not Defendants, is the proper Appellee in those cases. The proper parties to an appeal' are those who are ⁶¹⁵ “directly interested in the subject-matter.” Hall v. Jack, 32 Md. 253, 263 (1870). The party’s interest must be “so closely and directly connected with the subject matter that the [party] will either gain or lose by the direct legal operation and effect of the decree.” Lickle v. Boone, 187 Md. 579, 584 , 51 A.2d 162 (1947).

As a result, this Court has permitted a non-party to appeal “decisions affecting the party’s direct and substantial interests.” Hoile v. State, 404 Md. 591, 606-07 , 948 A.2d 30 (2008) (internal quotation marks omitted). In this case, the person who is “directly interested in the subject matter” of the Circuit Court’s decision whether to compel Officer Porter to testify is Officer Porter himself, rather than the defendants in whose trials Officer Porter will ultimately testify. It is not dispositive that Lieutenant Rice, Officer Nero, and Officer Miller were the named defendants in the actions in which the motions to compel were filed. In Curley v. Wolf, 173 Md. 393, 399 , 196 A. 285 (1938), we dismissed an appeal filed by a named party to the litigation because we concluded that the named party would not “be affected by the decision,” and was “therefore not a proper appellant.” Defendants in these cases similarly are not directly affected by the decision.

Defendants assert that they have an interest in the appeal by virtue of “their speedy trial rights and the rights to request the exclusion of evidence that is not relevant.” A challenge to the State’s motions to compel Officer Porter’s testimony is not the proper vehicle for protecting those interests. To the extent that any one of Defendants believes his right to a speedy trial has been violated as a result of the stays imposed in this case, the proper remedy is not to contest the motions to compel, but rather to move to dismiss the charges. See State v. Hicks, 285 Md. 310, 318 , 403 A.2d 356 (1979); Md.Code Ann., Crim. Proc. § 6-103 (2001, 2008 Repl.

Vol.). Likewise, the State’s request pursuant to CJ § 9-123 only concerns whether Officer Porter can refuse to testify on the basis of compelled self-incrimination. If his testimony is not relevant or is otherwise inadmissible, Defendants may object on those bases if and when Officer Porter takes the stand. ⁶¹⁶ Notably, the Circuit Court in this case indicated to counsel for Sergeant White that she had no standing to object to the State’s motion. Indeed, it is often the case in witness immunity actions that the witness and the State are the parties to the appeal.

See, e.g., In re Criminal Investigation No. 1-162, 307 Md. at 679-80 , 516 A.2d 976 . In Smith v. Commonwealth, 386 Mass. 345 , 436 N.E.2d 377 (1982), the Supreme Court of Massachusetts held that “a defendant has no standing to argue that the testimony of purportedly immunized witnesses is the product of improper grants of immunity.” Id. at 379 (internal quotation marks and alterations omitted). The court reasoned that: The privilege against self-incrimination is a personal right of the witness, and one that the witness is in a position to protect by his own means. Commonwealth v. Simpson, [ 370 Mass. 119 , 345 N.E.2d 899, 902 (1976)].

Goldstein v. United States, 316 U.S. 114 , 121 n. 11, 62 S.Ct. 1000 , 1004 n. 11, 86 L.Ed. 1312 (1942). Moreover, the statutory procedure for a grant of immunity is designed to accommodate the witness’s rights and the State’s need for evidence. The statute is simply not addressed to the interests of defendants. Id.

We agree. Therefore, the State’s appeal is a contest between the State and Officer Porter alone, not Defendants. 3 (b) We now must address whether the State’s appeals in Nos. 96, 97, and 98 are properly before this Court. In Maryland, the right to appeal exists entirely by statute. See State v. Manck, 385 Md. 581, 596-97 , 870 A.2d 196 (2005).

CJ § 12-301 sets forth a general right to appeal from a final judgment. It provides that: ⁶¹⁷ Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended.

In a civil case, a plaintiff who has accepted a remittitur may cross-appeal from the final judgment. CJ § 12-302 provides the exceptions to and limitations on the general right to appeal conferred by CJ § 12-301. Pack Shack, Inc. v. Howard County, 371 Md. 243, 250 , 808 A.2d 795 (2002). CJ § 12-302(c) limits the State’s right to appeal “[i]n a criminal case” to a few enumerated circumstances not applicable here. 4 When the State seeks to appeal from a criminal case, “[u]nless the issue presented may properly be categorized as one of the actions enumerated in the statute, the State has no power to seek appellate review.” Manck, 385 Md. at 597-98 , 870 A.2d 196 .

CJ § 12-302, however, does not limit the State’s right to appeal from a final judgment in a civil matter, and it is well settled that the State possesses the same right in this regard as any other party. See State v. WBAL-TV, 187 Md.App. 135, 146 , 975 A.2d 909 (2009) (noting that the State “has the same right under CJ § 12-301 as other parties to appeal in a civil proceeding”); State v. Hicks, 139 Md.App. 1, 6 , 773 A.2d 1056 (2001) (holding that a coram nobis proceeding is a civil proceeding and consequently “the State is not ⁶¹⁸ limited to the circumstances described in CJ § 12 — 302(c)”). We must therefore decide if the State is appealing from a criminal case or, alternatively, if the Circuit Court’s orders denying the State’s motions to compel constitute a civil final judgment, albeit that the motions were filed in the underlying criminal cases. We have held that an appeal from an order issued by a court exercising criminal jurisdiction is not constrained by CJ § 12-302(c) if the relief sought is collateral to the underlying criminal case against the defendant.

See In re Special Investigation No. 231, 295 Md. 366, 370 , 455 A.2d 442 (1983). Such an order can be appealed under CJ § 12-301 if it “settles the rights of the parties or concludes the cause.” Id. The issue most often arises in the context of grand jury proceedings. In No. 231, for example, we held that the State could appeal from the denial of a motion to disqualify an attorney from representing four persons in a grand jury proceeding.

Id. We explained that the order constituted a final judgment because “[o]nee the motion was denied there was nothing more to be done in this particular case” and “the order of the trial judge here settled the rights of the parties and terminated the cause.” Id.; accord In re Special Investigation No. 236, 295 Md. 573, 575 , 458 A.2d 75 (1983) (holding that an appeal from the grant of a motion for the return of financial records from a grand jury constituted a final judgment for the same reasons). 5 ⁶¹⁹ The Court of Special Appeals has held likewise. In State v. Strickland, 42 Md.App. 357, 358 , 400 A.2d 451 (1979), a defendant filed a motion in his criminal case requesting the State to return money the State had introduced as an exhibit during his guilty plea hearing. When the court ordered the State to return the funds, the State appealed.

Id. at 358-59 , 400 A.2d 451 . In ruling on the defendant’s motion to dismiss the appeal on the ground that it arose from a criminal case, the Court of Special Appeals recognized that CJ § 12-302(c) did not necessarily govern the appeal. “It does not follow ... that simply because a motion is filed in a court that exercises criminal jurisdiction, that the proceeding arising from the motion must, ipso facto, be criminal in nature.” Id. at 359, 400 A.2d 451 . Instead, the court concluded that the motion was “more akin to a replevin, a civil action, rather than a criminal proceeding.” Id. As a result, the court concluded that, even though the motion was filed in a criminal case, “that aspect of the case is civil, not criminal, and it matters not one whit that the money was introduced as evidence in a trial for violation of a criminal statute.” Id. at 360 , 400 A.2d 451 .

Similarly, in WBAL, the State appealed from an order granting a motion filed by a non-party to a criminal trial seeking access to trial exhibits in the criminal case. 187 Md.App. at 142 , 975 A.2d 909 . The Court of Special Appeals concluded that, “[although the Motion for Access was filed in the criminal proceeding, the relief sought was civil in nature and could have been sought in a separate civil action.” Id. at 149 , 975 A.2d 909 (internal quotation marks omitted). Conse ⁶²⁰ quently, the Court of Special Appeals concluded that “the State’s right to appeal in this case was not limited by CJ § 12-302(c).” Id. The State argues that the Circuit Court’s orders denying the State’s requests under CJ § 9-123 are not governed by CJ § 12-302(c), notwithstanding that they arose from a criminal case, because the request for a grant of immunity bears none of the characteristics of a criminal case as that term is defined in the Courts and Judicial Proceedings Article.

See CJ § 12-101(e) (defining a criminal case as “a case charging violation of motor vehicle or traffic laws and a case charging violation of a rule or regulation if a criminal penalty may be incurred”). Rather, the State asserts that the witness immunity dispute is an ancillary civil issue, the resolution of which constitutes a final judgment because it does not involve the merits of the State’s charges against Defendants in their underlying criminal cases. We agree. A request made under CJ § 9-123 bears no resemblance to a criminal case, as that term is understood.

The CJ § 9-123 motion did not charge Officer Porter with violating any law, rule, or regulation and, other than a finding of contempt, which is governed by another statute in Title 12 of the Courts and Judicial Proceedings Article, there is no criminal penalty that would be imposed upon him for failing to comply with the order. Instead, the motions to compel Officer Porter’s testimony are more akin to the collateral replevin and access issues addressed by the Court of Special Appeals in Strickland and WBAL. The immunity actions were entirely unrelated to the criminal charges against Defendants, and “[o]nce the motion was denied there was nothing more to be done” with respect to the dispute between Officer Porter and the State. See In re Special Investigation No. 231, 295 Md. at 370, 455 A.2d 442 .

That the immunity requests arose in the context of Defendants’ underlying criminal prosecutions does not transform into a criminal case what is otherwise an ancillary civil issue between the State and a non-party to those prosecutions. ⁶²¹ Defendants assert that the “criminal nature of the proceedings” distinguishes this appeal from Strickland and WBAL. Unlike in Strickland , Defendants reason, there is no property issue and, unlike in WBAL, there was no “separate civil action” available to the State. Defendants’ argument assumes the answer to the very question before us. Defendants accept as given that an appeal from an order regarding a motion to compel immunized testimony is an appeal from a criminal case, a proposition with which we do not agree.

Rather, as we have stated, the Circuit Court’s judgment was essentially civil because it was collateral to the merits of the underlying criminal litigation and it resolved all of the disputes between the parties to that collateral issue. There seems to be no disagreement that the State could appeal from a trial court’s denial of a motion made pursuant to C J § 9-123 in the context of a grand jury proceeding. Defendants argue, however, that appeals arising from grand jury proceedings are distinguishable from cases in which an underlying criminal proceeding is ongoing. They reason that CJ § 9-123 identifies both “a criminal prosecution” and “a proceeding before a grand jury,” thereby indicating that a prosecution and a grand jury proceeding are different.

We are not persuaded that there is such a material distinction. CJ § 9-123 states that an order will be issued when “an individual has been, or may be, called to testify or provide other information in a criminal prosecution or a proceeding before a grand jury of the State.” We agree with the State that this language merely identifies the two circumstances in which the issue of a witness’s immunity is likely to arise. CJ § 9-123 does not provide that the two proceedings are substantively different in terms of the State’s right of appeal. The statute otherwise applies equally to criminal prosecutions and grand jury proceedings, and in neither circumstance is the court’s judgment related to the merits of the State’s underlying criminal charges against the criminal defendant.

Defendants further attempt to distinguish this case from our grand jury eases because the orders issued in the latter ⁶²² proceedings “were, in fact, final judgments.” We have held, however, that “a trial court discovery or similar order” can constitute an appealable final judgment under CJ § 12-301 when the court’s order finally resolves an issue with an individual who is not a party to the underlying litigation. St. Joseph Med. Ctr., Inc. v. Cardiac Surgery Assocs., P.A., 392 Md. 75, 90 , 896 A.2d 304 (2006). In the case of a ruling adverse to the non-party, we stated that “Maryland law permits the aggrieved appellant to appeal the order because, analytically, it is a final judgment with respect to that appellant.” Id.

Because the Circuit Court’s orders here resolved all of the claims Officer Porter possessed, there is no dispute that his appeal is properly before us in the cases involving Officer Goodson and Sergeant White. We conclude that the State can appeal from the Circuit Court’s denial of its motions to compel for the same reason that Officer Porter can appeal from the rulings in the State’s favor. As we stated in part (a), supra, a motion to compel immunized testimony concerns only the State and the witness whose testimony the State seeks to compel. It follows necessarily that the resolution of the issue of Officer Porter’s immunity finally puts to an end the controversy at the trial level between the State and Officer Porter and, consequently, is a final judgment with respect to those two parties.

We hold that an order adjudicating a motion to compel immunized testimony under CJ § 9-123 is an appeal-able final judgment under CJ § 12-301 and is not limited by CJ § 12-302(c). 6 For that reason, moreover, we deny Defendants’ motion to dismiss the appeal.

IV

Having concluded that the State possesses the right to appeal the Circuit Court’s denial of the motion to compel ⁶²³ Officer Porter’s testimony in the trials of Lieutenant Rice, Officer Nero, and Officer Miller, we must determine whether CJ § 9-123 affords a trial court any discretion to deny a properly pled motion to compel immunized testimony. Our effort in interpreting any statute requires us to ascertain the plain meaning of that provision. Meyer v. State, 445 Md. 648, 676 , 128 A.3d 147 (2015). If the plain language of the statute is unambiguous, the Court need look no further.

Gardner v. State, 420 Md. 1, 8 , 20 A.3d 801 (2011) (“If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to the legislative intent ends ordinarily and we apply the statute as written without resort to other rules of construction.” (quoting State v. Johnson, 415 Md. 413, 421 , 2 A.3d 368 (2010))). We may, however, consult a statute’s legislative history as “a confirmatory process.” Mayor & City Council of Balt. v. Chase, 360 Md. 121, 131 , 756 A.2d 987 (2000). Here, we conclude that the plain language of the statute is unambiguous and the legislative history confirms its plain meaning. The operative language is found in CJ § 9-123(c) and (d).

Subsection (c) provides in pertinent part that “the court in which the proceeding is or may be held shall issue, on the request of the prosecutor made in accordance with subsection (d) of this section, an order requiring the individual to give testimony or provide other information which the individual has refused to give or provide on the basis of the individual’s privilege against self-incrimination.” CJ § 9-123(c)(1) (emphasis added). Subsection (d) then instructs that, “[i]f a prosecutor seeks to compel an individual to testify or provide other information, the prosecutor shall request, by written motion, the court to issue an order under subsection (c) of this section when the prosecutor determines ” that the testimony is necessary and otherwise would be refused on self-incrimination grounds. CJ § 9-123(d) (emphasis added). The State argues that the plain language of CJ § 9-123 vests in the State’s Attorney the sole discretion to determine whether it is in the public interest to request immunized ⁶²⁴ testimony and, consequently, the trial court is required to issue an order compelling the testimony once the court determines that the prosecutor made the request in compliance with the statute.

Defendants counter that the language in CJ § 9-123 is directory, rather than mandatory, and as a consequence the trial court retains the discretion to deny a properly pled request if the circumstances so require. We agree with the State that CJ § 9-123 unambiguously requires the trial court to grant a motion that complies with the statutory pleading requirements and does not give the court any discretion to substitute its own judgment. The use of the phrase “shall issue” in subsection (c) makes clear that the court is required to issue an order compelling immunized testimony once the court determines that the request was made in accordance with subsection (d). We have held that the use of the word “shall” is treated as mandatory unless “the context in which it is used indicates otherwise.” Resetar v. State Bd. of Educ., 284 Md. 537, 547 , 399 A.2d 225 (1979) (internal quotation marks omitted); see Perez v. State, 420 Md. 57, 63 , 21 A.3d 1048 (2011) (noting that “the word ‘shall’ indicates the intent that a provision is mandatory” (quoting Dove v. State, 415 Md. 727, 738 , 4 A.3d 976 (2010))).

We do not agree with Defendants that the word “request” in subsection (d) modifies the use of the phrase “shall issue.” That the prosecutor must make a “request” to the court merely describes the process the State must undertake to secure the order to compel, rather than the substance of the court’s role in issuing the order. Subsection (d) further confirms this interpretation. The “prosecutor determines” whether the testimony is necessary and whether the individual is likely to refuse to testify, and the prosecutor’s determination then prompts the court’s issuance of the order. There is no language in the statute indicating that the trial court may second guess the prosecutor’s determination that the immunized testimony is necessary to the public interest, nor does ⁶²⁵ the statute grant the court the authority to deny the motion if the court believes the request is a pretext for something else.

Absent any other indication that the context requires a different interpretation, we will not depart from our practice of interpreting the word “shall” as mandatory. See Harrison-Solomon v. State, 442 Md. 254, 269 , 112 A.3d 408 (2015); see also Montgomery County v. Shropshire, 420 Md. 362, 377 , 23 A.3d 205 (2011) (concluding that a provision stating that “a custodian shall deny inspection” of certain types of records under the Public Information Act is mandatory); Grant v. State, 414 Md. 483, 490 , 995 A.2d 975 (2010) (“The use of the word ‘shall’ in [Maryland Rule 4-215(d) ] commands mandatory action by a circuit court[.]”); In re James S., 286 Md. 702, 710-13 , 410 A.2d 586 (1980) (concluding that the use of the word “shall” in CJ § 8-312(b) is mandatory rather than directory). Defendants suggest that the word “shall” is not mandatory because “the language of the statute provides no penalty for failure to act.” See Md. State Bar Ass’n v. Frank, 272 Md. 528, 533 , 325 A.2d 718 (1974). We disagree.

We have held that the absence of a penalty is not dispositive of whether the use of the word “shall” is mandatory, Moss v. Director, Patuxent Institution, 279 Md. 561, 566 , 369 A.2d 1011 (1977); instead, the inquiry “turns upon the intention of the Legislature as gathered from the nature of the subject matter and the purposes to be accomplished,” Resetar, 284 Md. at 547 , 399 A.2d 225 (internal quotation marks omitted). We cannot envision the General Assembly enacting a penalty upon a trial court for a failure to issue a required order. See People v. Ousley, 235 Ill.2d 299 , 335 Ill.Dec. 850 , 919 N.E.2d 875, 884-85 (2009) (concluding that a statute providing that “the court on motion of the State shall order that a witness be granted immunity from prosecution” is mandatory even though the statute did not prescribe a consequence for the trial court’s failure to comply with the provision). Defendants rely upon two out-of-state cases to support their argument that the trial court retains discretion over a motion ⁶²⁶ to compel immunized testimony.

See State v. Mosher, 265 Ga. 666 , 461 S.E.2d 219, 220 (1995); In re Rebar Steel Antitrust Investigation, 343 So.2d 1377, 1381-82 (La.1977). These cases are inapposite. The Georgia immunity statute at issue in Mosher provided only that the prosecutor “may request the superior court in writing to order that person to testify or produce the evidence.” 461 S.E.2d at 220 (emphasis added). The statute therefore did not contain the same mandatory “shall” language that is dispositive to our interpretation here.

See id. The Louisiana immunity statute at issue in In re Rebar Steel Antitrust Investigation does contain mandatory language similar to that in CJ § 9-123. See 343 So.2d at 1381 (noting that, under the immunity statute, the court “shall issue” an order compelling testimony “upon the request of the attorney general”). The Louisiana Supreme Court concluded, however, that the State’s request to compel immunized testimony did not fall within the immunity statute.

Id. at 1381-82 . The Louisiana Supreme Court noted that the statute defines the court issuing the order as the “judicial district court of the district in which the proceeding is or may be held.” Id. at 1381 . In the case before it, there was no pending proceeding and therefore no “judicial district court of the district in which the proceeding is or may be held.” Id. at 1382 . As a result, the State in that case failed to satisfy the statute’s pleading requirements, which is a proper basis for denying a request under our interpretation of our similar immunity statute.

In short, the plain language of CJ § 9-123 places the trial court for the purpose of that statute in a largely ministerial role: once the State’s Attorney determines that the witness’s testimony is necessary and makes an appropriate request, and the court determines that the statute’s pleading requirements have been satisfied, the court is required to issue the order. See Ousley, 335 Ill.Dec. 850 , 919 N.E.2d at 886 (interpreting a statute worded similarly to CJ § 9-123 and concluding that “[t]he trial court’s role is limited to examining the motion to determine whether the motion meets the procedural and substantive requirements of the use immunity statute [and] the court’s role in considering a motion for use ⁶²⁷ immunity essentially is ministerial”). 7 CJ § 9-123 includes no provision authorizing the court to require a proffer as to the State’s Attorney’s public interest determination, or to otherwise second guess the State’s motive in making the request. See Ryan v. Comm’r of Internal Revenue, 568 F.2d 531, 541 (7th Cir.1977) (“Since that judgment is entirely a matter for the executive branch, unreviewable by a court, there is no need for the record to contain any facts supporting the decision of the United States Attorney.”). As a result, a trial court lacks discretion to deny a motion to compel immunized testimony that was properly pled.

Having discerned the