Howell v. State

237 Md.App. 540

187 A.3d 700

Travis HOWELL

v.STATE of Maryland

No. 459, Sept. Term, 2017

Court of Special Appeals of Maryland.

June 27, 2018

Argued by: Thomas M. Donnelly (Kristin C. Tracy, Law Offices of Thomas M. Donnelly, LLC on the brief) all of Baltimore, MD, for Appellant.

Argued by: Zoe G. White (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.

Panel: Wright, Berger, Leahy, JJ.

Berger, J.Travis Howell ("Howell"), appellant, was convicted of one count of criminal contempt pursuant to a not guilty agreed statement of facts. The basis for the finding of contempt was Howell's refusal to testify in a criminal trial after having been granted use and derivative use immunity pursuant to Md. Code (2006, 2013 Repl. Vol.), § 9–123 of the Courts and Judicial Proceedings Article ("CJP").

On appeal to this Court, Howell presents a single issue for our consideration, which we have rephrased slightly as follows:

Whether the circuit court erred when it determined that the defense of duress was unavailable to Howell's charge of criminal contempt premised upon a refusal to testify.

For the reasons explained herein, we shall affirm the judgment of the circuit court.

FACTUAL BACKGROUND

In reciting the facts of this case, we follow the agreed statement of facts that formed the basis of Howell's conviction, which we supplement with excerpts from the record as appropriate.

On October 2, 2012, Howell appeared before a grand jury in the Circuit Court for Baltimore City to testify against Freddie Curry ("Curry"). According to Howell's testimony, Curry told Howell that he murdered Raynard Benjamin ("Benjamin") in January of 2011. The motive for the murder was retaliation for Benjamin's participation in the kidnapping of Curry's girlfriend.¹ Curry was subsequently charged with the murder of Benjamin.²

On February 24, 2016, Howell was picked up on a warrant as a material witness in the Curry trial. Howell was released on electronic monitoring after he promised to appear in court on his own volition.

On March 7, 2016, Howell appeared in court for the Curry trial, with the Honorable Pamela J. White presiding. When Howell was called to the stand, he invoked his Fifth Amendment privilege in response to every question posed to him. The State moved for an order compelling Howell to testify pursuant to CJP § 9–123.³ Judge White signed an order granting Howell use and derivative use immunity and ordering Howell to testify. Howell was ordered to return to court on March 10, 2016.

On March 8, 2016, Howell's attorney telephoned the Assistant State's Attorney and asked if the State could offer any form of witness protection to Howell. The prosecutor responded that the State could offer Howell only temporary relocation services from his residence to a hotel.

On March 9, 2016 at 9:28 P.M., the Baltimore Sun published an article about the Curry trial on its website. The article disclosed Howell's identity and role in the case:

Another key witness in the case, prosecutors said, is a longtime friend of Curry named Travis Howell. Howell made a plea agreement with the federal government in a drug case and agreed to testify that Curry told him about killing Benjamin.

The article appeared with greater detail in the print edition of the Baltimore Sun that came out the following morning.

On March 10, 2016, Howell arrived at the courthouse and waited outside the courtroom to be called to testify. According to Howell, while he was waiting in the corridor, he was verbally accosted and physically assaulted by five or six unidentified men, who threatened him with violence for snitching. Courthouse security intervened and ejected the men from the courthouse. As the men were leaving, one of them told Howell that "you got to come out on the street sometime." The men were not detained or arrested. Within five minutes of the altercation, Howell was called to the stand.⁴

The State proceeded with direct examination, but Howell answered every question by saying, "I respectfully refuse to testify." The following excerpt from the transcript is illustrative:

[THE STATE]: What kind of shoes are you wearing this afternoon?

[HOWELL]: I respectfully refuse to testify.

[THE STATE]: Mr. Howell, I'm just asking you about your shoes. What kind of shoes are you wearing?

[HOWELL]: I respectfully refuse to testify.

[THE STATE]: Mr. Howell, are you being directed to answer in that way by your attorney?

[HOWELL]: I respectfully refuse to testify.

[THE STATE]: Mr. Howell, on March 7th, I believe, 201[6], in this courtroom, you were granted an immunity for use and derivative use. Are you familiar with that granting of your immunity?

[HOWELL]: I respectfully refuse to testify.

Judge White then ordered Howell to answer the State's questions. The State resumed its examination, but Howell continued to respond to every question in the same fashion:

[THE STATE]: Mr. Howell, do you understand that if you refuse to answer any questions propounded by either the State or defense that you can be held in contempt?

[HOWELL]: I respectfully refuse to testify.

[THE STATE]: Sir, do you understand that if you are held in contempt that this Court could find you in contempt and could sentence you to a period on direct contempt of up to six months incarceration? Do you understand that, sir?

[HOWELL]: I respectfully refuse to testify.

After further questioning along these lines, Judge White held Howell in direct contempt of court:

THE COURT: All right, I am going to hold you in direct contempt of this court on two accounts and will address the contemptuous behavior [ ]consistent with the Courts & Judicial Proceedings Article, § 9–204^{[5 ]} in anticipation of the State's motion for sanctions for your refusal to comply with the use and immunity order. First, pursuant to Rule 15–203, I do find that you have acted contemptuously of this Court.^{[6 ]} I have heard for myself, I have directly perceived the conduct by yourself constituting the contempt, and the contempt has interrupted the orderly process of the current proceedings, namely the case of State v. Freddie Curry , and interfered with the dignified conduct of the Court's business.

I am going to afford you an opportunity as early as possible, and I will set it in for a time to be determined tomorrow. I will afford you an opportunity consistent with the circumstances to present exculpatory or mitigating information. And I will undertake at that time to confirm, after hearing exculpatory or mitigating information, that direct contempt has been committed in my presence. I will also expect to defer imposition of sanctions for the direct contempt of this Court until, at least until tomorrow, if not the conclusion of the trial proceedings that are currently under way.

In addition, with reference to § 9–204 of the Courts & Judicial Proceedings Article, specifically subsection (b), I have ordered you to testify consistent with the order that I signed on March the 7th, and you have nevertheless refused to testify or to provide other information in this criminal prosecution. Consistent with my order you have no latitude, you may not refuse to comply with my order on the basis of the privilege against self-incrimination let alone a blanket refusal to testify.

You have no basis under the law and you have cited no constitutional allowance to refrain from testifying in this case and to refuse to comply with my order granting you use and derivative use immunity. Accordingly, given your refusal to comply with my order, I will await the written motion of [the prosecutor], and I will expect to address the transcript of these proceedings and undertake further proceedings to determine, consistent with the statutory requirements, a finding of direct contempt and also consistent with Title 15 and the direct contempt rule that I earlier cited 203, 15–203.

Anything that you want to second guess yourself about now, Mr. Howell? Any questions for the Court.

[HOWELL]: I respectfully refuse to testify.

THE COURT: All right, you may take him.

Judge White vacated Howell's electronic home monitoring and ordered a hearing, pursuant to Maryland Rule 15–203(a), to determine whether direct criminal contempt had been committed and, if so, whether sanctions were warranted.

That evening, Howell was taken to Baltimore City's Central Booking and Intake Facility ("CBIF"). According to Howell, he was almost immediately surrounded by a hostile group of detainees, some of whom called him a snitch and threatened him with violence. When Howell explained that he was at CBIF because he had refused to testify against Curry, the hostile detainees dispersed.

PROCEDURAL BACKGROUND

Contempt Proceedings Before Judge White

On March 11, 2016, Judge White held a hearing to determine whether Howell had committed criminal contempt. Before proceeding, Judge White called Howell to the stand and gave him one more chance to testify. Once again, Howell responded to every question by saying, "I respectfully refuse to testify." The court then proceeded with the contempt hearing. Howell testified that five or six men had approached and threatened him in the courthouse on March 10, 2016 and that he was frightened about the consequences of testifying in the Curry trial. Howell also testified that when he initially made his proffer of testimony, the prosecutor promised that his name would not be disclosed without advanced warning. Howell's counsel informed the court about the Baltimore Sun article naming Howell as a witness, as well as the prosecutor's assertion that the State could only provide temporary relocation for Howell.

Judge White ruled that Howell, in refusing to testify on March 10 and 11, 2016, had twice committed direct contempt. Judge White ordered that Howell be held for sentencing on March 18, 2016, after the conclusion of the Curry trial. The State announced its intention to seek an indictment against Howell for his refusal to comply with a lawful order of the court. In response, Howell demanded a jury trial.

After...