Howell v. State

465 Md. 548

214 A.3d 1128

Travis HOWELL

v.STATE of Maryland

No. 43, Sept. Term, 2018

Court of Appeals of Maryland.

August 22, 2019

Argued by Kristin C. Tracy and Thomas M. Donnelly (Law Offices of Thomas M. Donnelly, LLC, Baltimore, MD), on brief, for Petitioner.

Argued by Zoe Gillen White, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before: Barbera, C.J.,^* Greene, McDonald, Watts, Hotten, Getty, Alan M. Wilner (Senior Judge, Specially Assigned), JJ.

McDonald, J.

No one is eager to testify in a criminal trial. If a witness is, it likely calls into question the motives and veracity of that witness. Because the criminal justice system rests on a key premise that the factfinder, whether judge or jury, is entitled to every person's evidence, compulsory process, such as subpoenas and material witness warrants, is available to ensure that reluctant witnesses appear and testify.

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

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

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

IBackground

A. The Common Law Defense of Duress

Duress is a common law defense in Maryland. This Court recently defined duress as follows, citing various treatises and other states' formulations:

[T]o constitute a defense, the duress by another person on the defendant must be present, imminent, and impending , and of such a nature as to induce well grounded apprehension of death or serious bodily injury if the act is not done. It must be of such a character as to leave no opportunity to the accused for escape. Mere fear or threat by another is not sufficient nor is a threat of violence at some prior time. The defense cannot be raised if the apprehended harm is only that of property damage or future but not present personal injury.... [T]he defense cannot be claimed if the compulsion arose by the defendant's own fault, negligence or misconduct.

McMillan v. State , 428 Md. 333, 348-49, 51 A.3d 623 (2012) (emphasis added) (internal quotations and citations omitted).¹

To generate this defense, a defendant must meet the "relatively low threshold" of showing "some evidence" of duress. 428 Md. at 355, 51 A.3d 623.

The duress defense serves the public policy that "the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law."

Sigma Reproductive Health Center v. State , 297 Md. 660, 676, 467 A.2d 483 (1983).² Duress is not premised on a person lacking "the mental element which the crime in question requires." Id. Rather, when a person faces a "choice of evils, the law prefers that he avoid the greater evil by bringing about the lesser evil." Id.

While duress is available as a defense to many criminal charges, it is "well-settled" that it is not available as a defense to intentional murder. McMillan , 428 Md. at 348, 51 A.3d 623. The exception for intentional murder is rooted "as a matter of social policy" in an unwillingness to justify the intentional killing of an innocent person. Id . at 350-51, 51 A.3d 623.³

B. Facts and Proceedings

1. The Federal Prosecution of Mr. Howell

Federal Indictment and Plea Agreement

In 2011, Travis Howell was indicted in the United States District Court for the District of Maryland on federal drug offenses. See United States v. Travis Howell , Crim. No. RDB-11-0561. On March 27, 2012, Mr. Howell pled guilty pursuant to a plea agreement and, among other things, agreed to cooperate with law enforcement and testify truthfully in any future case in which he was called as a prosecution witness.

2012 State Grand Jury Testimony of Mr. Howell

In October 2012, Mr. Howell appeared before a grand jury in the Circuit Court for Baltimore City and testified in accordance with his plea agreement. He told the grand jury that, in a conversation with Mr. Howell, Freddie Curry had confessed to murdering Raynard Benjamin in retaliation for the kidnapping of Mr. Curry's girlfriend. Mr. Curry was later charged with that murder in the Circuit Court for Baltimore City.

Federal Sentencing of Mr. Howell

Subsequently, in December 2012, Mr. Howell was sentenced in federal court. At that proceeding, the federal prosecutor cited Mr. Howell's cooperation with State law enforcement and his grand jury testimony in Baltimore City concerning the homicide case. The State and Mr. Howell later stipulated that Mr. Howell did not receive a sentence reduction at that time for his grand jury testimony concerning the murder of Mr. Benjamin because he had not yet testified at Mr. Curry's trial.

2. Mr. Howell's Refusal to Testify at the State Murder Trial

Subpoena and Material Witness Warrant

The murder trial of Mr. Curry was scheduled to begin in March 2016 in the Circuit Court for Baltimore City. By that time Mr. Howell had been released from prison under his federal sentence and was on federal supervised release. Mr. Howell refused to comply with a subpoena requiring him to testify at that trial. At the behest of the State, a material witness warrant was issued for Mr. Howell. He was arrested on that warrant a few weeks before the trial began and released on electronic monitoring after promising to appear voluntarily to testify.

Claim of Privilege Against Self-Incrimination, Grant of Immunity, Order to Testify

On March 7, 2016, Mr. Howell appeared at a pretrial hearing for the Curry trial. Mr. Howell declined to answer questions other than his name, asserting the privilege against compelled self-incrimination. The State moved for an order under Maryland Code, Courts & Judicial Proceedings Article ("CJ"), § 9-123⁴ compelling Mr. Howell to testify and granting him use and derivative use immunity with respect to that testimony. The Circuit Court granted the motion, ordered Mr. Howell to appear again at the trial on March 10, and advised him of the consequences of refusing to testify – that is, being held in contempt and imprisoned for that offense.

Continued Refusal to Testify

On March 10, Mr. Howell again appeared in court. The Circuit Court reviewed the events of his previous court appearance, reminded him of his obligation to testify under the order issued at the previous hearing, and again ordered him to testify. Nevertheless, Mr. Howell refused to answer any question posed by the prosecutor, responding to each one with "I respectfully refuse to testify." The Circuit Court then held Mr. Howell in direct contempt. The court stated that it would defer imposition of a sanction for the contempt and allow Mr. Howell an opportunity to present exculpatory information the next day. Mr. Howell was taken into custody to be returned to court the next day.

On March 11, Mr. Howell returned to court and, after being reminded of the order requiring him to testify and granting him immunity, again refused to answer any questions posed by the prosecutor. In response to questions by the court, Mr. Howell stated that he had been involved in an altercation outside the courtroom before his appearance the previous day, and that the altercation related to his refusal to testify.

Mr. Howell's attorney then proffered certain information in mitigation of Mr. Howell's refusal to testify. According to Mr. Howell's attorney, when Mr. Howell had testified before the grand jury in 2012, he had been promised by the prosecutor who presented him to the grand jury that he would receive advance warning of when his cooperation with the prosecution would be made public. However, he asserted that Mr. Howell had not received advance notice of an article that had appeared in the online version of the Baltimore Sun about the Curry trial that described Mr. Howell as a witness for the State. Under questioning by his attorney and the Curry trial prosecutor,⁵ Mr. Howell confirmed that the grand jury prosecutor had promised him advance notice of the disclosure of his participation in the Curry trial – a promise he believed had not been kept despite the fact that he had been arrested and appeared in open court on a material witness warrant for the Curry trial a few weeks earlier. He also stated that he had been threatened by five or six individuals outside the courtroom the previous day and that he was frightened.

Mr. Howell is Held in Contempt

The Circuit Court found that Mr. Howell's refusal to testify that day and the previous day (March 10 and 11, 2016) amounted to a direct contempt of the court. The court delayed imposing a sanction and continued to detain Mr. Howell under the material witness warrant until the conclusion of the Curry trial, "hoping against hope" that...