State v. Roll and Scholl

Digges, J., delivered the opinion of the Court. When our forefathers “ordained and established” the Constitution of the United States, one of their specified purposes was “to establish justice.” Toward this end, a separate judicial branch was created as a co-equal with the other branches of government. Throughout the history of this country, the courts have been charged with the solemn responsibility of safeguarding the rights of our citizens. There have been few other times in our history when this task has been made so difficult.

Today, with the recent breakdown of law and order and the distrust of government being so great, it is not surprising that divisive and disruptive activities have entered ⁷¹⁷ into the courts. Such disrespectful conduct has no place in the halls of justice. As Mr. Justice Harlan stated for the Supreme Court in Boddie v. Connecticut, 401 U. S. 371, 374 , 28 L.Ed.2d 113 , 91 S. Ct. 780 (1971) : “Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner. Without such a ‘legal system,’ social organization and cohesion are virtually impossible; with the ability to seek regularized resolution of conflicts individuals are capable of interdependent action that enables them to strive for achievements without the anxieties that would beset them in a disorganized society.

Put more succinctly, it is this injection of the rule of law that allows society to reap the benefits of rejecting what political theorists call the ‘state of nature.’ ” Being manned by mortals, however, our judicial system is not perfect; but the efforts to improve should not be impeded by abusive, contemptuous behavior designed to bully, insult, ignore, frustrate and paralyze the judicial process. Such deeds are at war with our concept of justice under the law and must be eliminated. One weapon in the court’s arsenal useful in defending its dignity is the power to punish for contempt. But the magnitude of its force demands care and discretion in its use so as to avoid arbitrary, capricious or oppressive application of this power.

The contempt power has stood as a sentry at the citadel of justice for a very long time and it is probably because of this antiquity that its modern day application is sometimes misunderstood and ⁷¹⁸ often confused. 1 This appeal presents us with an opportunity to allay that misunderstanding and confusion. The two cases now before us 2 began in the Circuit Court for Montgomery County where Judge Walter H. Moorman found Daniel T. Roll and William E. Scholl, appellees here, in direct contempt of court for refusing to testify before the October term, 1971 grand jury. 3 The appellees were summoned to appear before that body on October 20, 1971 to testify in a matter being investigated by the grand jury, State v. Michael L. Ingram, Helen Marie Ingram and Thomas Robert Yendell. The grand jury hoped to obtain testimony from these witnesses regarding their knowledge of possible violations of the Code of Maryland (1957, 1971 Repl. Vol.), Art. 27, §§ 276-302 (“Health-Controlled Dangerous Substances”).

Section 298 (c) of that act provides that: “ (c) Witnesses’ immunity. — No person shall, upon pain of contempt of court, refuse to testify concerning any violations of the provisions of this subheading because his testimony might tend to incriminate him or implicate him in such violations and every such person shall be a competent witness and compellable to testify against any person who may have committed any of the offenses set forth under this subheading, provided that any person so compelled to testify on behalf of the State in any such case shall be exempt from prosecution, trial and punishment for any and all such crimes and offenses about which such person was so compelled to testify.” 4 ⁷¹⁹ Roll appeared before the grand jury on October 20, 1971 in compliance with the summons served upon him. The transcript of the proceedings before the grand jury discloses that Roll gave his name, said he was not represented by counsel and that he had not consulted an attorney. The Assistant State’s Attorney, Jeffrey R. Werner, then asked if Roll was aware of the reason for which he was summoned. Roll answered affirmatively and asked to be permitted to make a statement.

Before the statement was permitted, the Assistant State’s Attorney attempted to clarify what he proposed to do. He informed Roll that he was going to be questioned about the sale of controlled dangerous substances at 1714 Dublin Street in Silver Spring during the period of December 1970 to April 1971; and Roll was advised that any answers that might implicate him would not result in prosecution as he would be granted immunity. Roll responded by making the following 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. ⁷²⁰ This places my program in precarious position, having myself testify in this manner which they do not approve of, in court.

This puts me 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[ 5 ] 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.” Roll’s request to be “disqualified as a witness” was denied by the Assistant State’s Attorney and he was again told about the statutory grant of immunity and was requested to answer certain questions. The witness remained steadfast and refused to respond to Werner’s inquiries even though Roll knew such behavior would subject him to contempt of court proceedings and, as he said, possible imprisonment “up to and including March 1, 1972.” Faced with this adamant refusal, Werner promptly submitted a “Petition for Direct Contempt” to the court and sought to have Roll punished 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.” The petition alleged that this witness had been duly served with notice that his testimony was required, that he appeared and was sworn to testify ⁷²¹ but he refused despite being informed of his immunity from prosecution, trial and punishment under Code, Art. 27, § 298 (c). The petition requested the court to order Roll to show cause why he should not be held in “direct contempt.” On the afternoon of October 20, 1971, the same day Roll was to testify before the grand jury, he was brought before Judge Moorman to answer the show cause order.

Because of the sensitive nature of the proceedings the courtroom was cleared of everyone except, as suggested by the Assistant State’s Attorney, “the court and the stenographer and the clerk and the forelady [of the grand jury] and myself and the defendant [Roll].” 6 Apparently this suggestion was accepted and the court proceeded to hear testimony. The State attempted to establish its case by first calling Jane Keys, the forelady of the grand jury. She stated that Roll was before that body to testify concerning a presentment or indictment then under consideration and there were no charges pending against him. She further stated that while Roll appeared before the grand jury and was advised that he would be granted immunity concerning his testimony; nevertheless, he refused to answer any questions.

When Roll indicated he had no questions of this witness, Johanna Wissenbach, clerk to the grand jury for the October 1971 term, was called. She read the transcript of the proceedings taking place before that body involving Roll which disclosed what we have already outlined. This ended the State’s case. Roll was then asked by the court if he wished “to take the stand to show any reason why [he] should not be held in contempt of the court for failing to testify before the grand jury after [he was] promised immunity.” Roll did so and after being sworn, the transcript reads: “THE COURT: You may make whatever statement you would like to make to the Court. ⁷²² 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 of 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 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, who was without counsel regarding his grand jury ⁷²³ appearance, stated that even with immunity he was left in “a very dangerous situation.” This was particularly true since, as the State conceded, he would likely be called as a witness at the trial following any indictment returned in this matter.

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.” Roll further testified that though he was without legal representation he understood from non-lawyer friends that he could leave the grand jury room to consult a lawyer on any question asked. He then specifically requested that he be given a hearing after he obtained legal counsel of his own choosing. While the Assistant State’s Attorney had no objection to this, it was pointed out that the grand jury was going to be requested to deliberate on the presentment involved that day.

Werner also said that the lawyer for RAP told him that he represented Roll, and he had seen them talking together that day. Roll countered by stating that he had talked to the lawyer that day but it was a social conversation and although the attorney had previously represented him, he did not now. Judge Moorman held Roll to be in “direct contempt of court.” Before sentencing he was 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. Instead he was sentenced to and committed to the Montgomery County Detention Center until he purged himself of the contempt by testifying before the grand jury in the matter for which he was called. ⁷²⁴ The case against Scholl arises from an entirely separate incident from Roll’s but it centers around a refusal to testify before the same grand jury on matters concerning the same presentment.

At the time Scholl was summoned to appear before the grand jury he was serving a three year sentence at the Maryland Correctional Institution at Hagerstown. Therefore, the State’s Attorney obtained a writ of habeas corpus ad testificandum so that Scholl could appear to testify. This witness also appeared before the grand jury on October 20, 1971. The transcript of the proceedings before the grand jury discloses that Scholl stated he had counsel with whom he had consulted earlier that day as well as on previous occasions.

Scholl admitted that he was aware of the subject matter for which he was summoned to testify but even after the immunity provision of Art. 27, § 298 (c) was read to him, he refused to testify. Although Scholl’s attorney was not available at this time to advise him, Scholl specifically denied having a desire to consult with him. When this witness refused to answer any questions, a recess was taken and no further proceedings involving him were conducted by the grand jury on that day. As with his disposition of the case against Roll, the Assistant State’s Attorney promptly submitted a “Petition for Direct Contempt” to the Circuit Court for Montgomery County.

It contained, in essence, the same allegations as did the one against Roll; and Scholl was brought before Judge Moorman immediately upon termination of the proceeding concerning Roll. The State presented similar evidence to that presented against Roll. The forelady of the grand jury testified and the transcript of the proceedings before that body was read, and this indicated what we have already summarized. The court inquired of Scholl if he wanted to take the stand and “give any reason why [he] should not be held in contempt of court for failure to testify before the grand jury after [he] had been promised immunity.” Scholl requested a postponement so he could confer with ⁷²⁵ his attorney.

The Assistant State’s Attorney indicated that he thought the matter was simply a question of whether Scholl would testify. He said that since this witness had extensively consulted with his attorney previously and if he only wanted to consult him again about testifying, no further consultation was needed and, therefore, the State opposed the request for postponement. Judge Moorman observed: “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.” He then again explained the grant of immunity. Scholl indicated that he understood but 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.” The court found him to be “in direct contempt of court” and then imposed sentence.

Scholl was initially sentenced to two years imprisonment to run consecutively to the sentence he was already serving, but later the sentence was reduced to a confinement period of 4 months and 16 days also to run consecutively to the sentence he was then serving. 7 However, this sentence was made conditional as it was ordered by the judge that the sentence be suspended if Scholl purged himself of the contempt by testifying before the grand jury on or before March 6, 1972. Roll and Scholl each appealed from the order of the Circuit Court for Montgomery County which found them ⁷²⁶ in direct contempt to the Court of Special Appeals where the cases were consolidated for hearing. There, they mounted a broadside assault on the immunity provisions of the law and the manner in which the proceedings were conducted. The Court of Special Appeals upheld the constitutionality of Art. 27, § 298 (c) but found improprieties in the proceedings which it concluded required reversal without a new trial for Roll and necessitated a reversal and remand for further proceedings for Scholl.

We granted the State’s petition for certiorari in both cases. Here, the constitutionality of the immunity provisions of Art. 27, § 298 (c) is not before us as, even though briefed and argued, appellees have not sought to raise the issue by a cross petition for certiorari. Walston v. Sun Cab Co., Inc., 267 Md. 559 , 298 A. 2d 391 (1973). But, we note that if called upon to decide the issue we would not hesitate to affirm the decision of the Court of Special Appeals particularly in light of Kastigar v. United States, 408 U. S. 931 , 32 L.Ed.2d 212 , 92 S. Ct. 1653 (1972) and Zicarelli v. Investigation Commission, 404 U. S. 812 , 32 L.Ed.2d 234 , 92 S. Ct. 1670 (1972), two recent Supreme Court cases 8 decided subsequently to the opinion of the Court of Special Appeals in these cases.

The history of the contempt power is very old with roots stretching back to the early English monarchs and the common law. The power began as a means of assuring the efficiency and dignity of the sovereign, but it soon spread to protect representatives of the king. 9 The contempt power of the courts had a similar origin in ⁷²⁷ that the lord chancellor’s authority was derived from the king. But, as the courts became more independent of the crown and their power increased, the authority to punish for contempt was carried with them. In time, it was so established that the power was considered inherent in the courts.

See Ex-Parte Maulsby, 13 Md. 625 , 634 (1859) for an early statement of this rationale in Maryland. See also Hitzelberger v. State, 173 Md. 435, 438 , 196 A. 288 (1938) ; Kelly v. Montebello Park Co., 141 Md. 194 , 118 A. 600 (1922). Through the years the historical foundation of the contempt power has tended to erode and crumble and out of the rubble, confused and indistinct categories have arisen. Today, contempts are classified as civil or criminal and at least in theory either of these may be direct or constructive.

The various categories are not mutually exclusive and in fact the nomenclature assigned to a contempt involves both classes, e.g., a constructive civil, or a direct criminal contempt. Historically, criminal con-tempts were positive acts which offended the dignity or process of the court. Holding an offending party in contempt of court was designed to vindicate the authority and power of the court and punish disobedience to its orders. The people were considered as the real interested parties to prosecution and the State was generally the prosecutor.

See, e.g., Sheets v. City of Hagerstown, 204 Md. 113 , 102 A. 2d 734 (1954); Kelly v. Montebello Park Co., 141 Md. 194 , 118 A. 600 (1922). At common law what in Maryland is now regarded as civil contempt probably did not exist; but rather, a process which was employed as a procedure for civil execution was used as a sanction against a party who disobeyed a court order issued for the benefit and advantage of another party in the proceedings. 10 Through the years, civil contempt was substituted for civil execution, and now, in most jurisdictions, civil and criminal contempt are the composite parts of the whole law of contempt, although historically they are derived from a different lineage. ⁷²⁸ Today, the line between civil and criminal contempt is frequently hazy and indistinct. Often the same acts or omissions may constitute or at least embrace aspects of both. Tyler v. Baltimore County, 256 Md. 64 , 259 A. 2d 307 (1969).

When this is the case, an alleged contemnor may be answerable in either a civil or criminal contempt proceeding. But, in this State, the distinction between the two types of contempt has been preserved and is important. A civil contempt proceeding is intended to preserve and enforce the rights of private parties to a suit and to compel obedience to orders and decrees primarily made to benefit such parties. These proceedings are generally remedial in nature and are intended to coerce future compliance.

Thus, a penalty in a civil contempt must provide for purging. On the other hand, the penalty imposed in a criminal contempt is punishment for past misconduct which may not necessarily be capable of remedy. Therefore, such a penalty does not require a purging provision but may be purely punitive. In this State, to these factors must be added the degree of proof required to establish a contempt — a civil contempt need be proved only by a preponderance of the evidence, while a criminal contempt must be shown beyond a reasonable doubt.

Winter v. Crowley, 245 Md. 313 , 226 A. 2d 304 (1967); Donner v. Calvert Distillers Cory., 196 Md. 475 , 77 A. 2d 305 (1950). The problem of whether to classify a contempt as civil or criminal has plagued the courts of this country on innumerable occasions. The courts of the federal system and qf our sister states have provided no ready answer to this dilemma. See, e.g., Ong Hing v. Thurston, 101 Ariz. 92 , 416 P. 2d 416 (1966) ; In Re S.L.T., 180 So. 2d 374 (Fla.

App. 1965) ; Duemling v. Fort Wayne Community Concerts, Inc., 243 Ind. 521 , 188 N.E.2d 274 (1963). The United States Supreme Court has groped for a number of years in attempting to find a way of classifying contempts. They seem to have lighted on a gossamer distinction whereby if the act of disobedience consisted solely “in refusing what had been