Howell v. State , 237 Md. App. 540 ( 2018 )

Travis Howell v. State of Maryland, No. 459, Sept. Term 2017. Opinion filed on
June 27, 2018, by Berger, J.
CRIMINAL LAW - DURESS DEFENSE
In order for duress to constitute a defense to the commission of an illegal act, 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.
CRIMINAL LAW - DURESS DEFENSE TO THE COMMISSION OF CONTEMPT
Fear does not generally excuse a recalcitrant witness’s refusal to testify, but Maryland law
provides that duress is a defense as to all crimes except taking the life of an innocent person.
Assuming arguendo that duress can be a valid defense to the commission of the offense of
contempt, the duress defense was not generated when, while waiting in the courthouse
hallway prior to being called to testify, a witness was threatened by five or six individuals
and told “you got to come out on the street sometime.” By the time the witness refused to
testify, the threatening individuals had been removed from the courthouse and there was
no imminent or impending threat. For these reasons, the witness was not entitled to raise
the defense of duress.
Circuit Court for Baltimore City
Case No. 116074002
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 459
September Term, 2017
TRAVIS HOWELL
v.
STATE OF MARYLAND
Wright,
Berger,
Leahy,
JJ.
Opinion by Berger, J.
Filed: June 27, 2018
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
1
At the time Howell was called to testify, Howell was awaiting sentencing in the
case of United States v. Travis Howell, Case No. RDB-11-0561 in the U.S. District Court
for the District of Maryland. Pursuant to a plea agreement, Howell had agreed to cooperate
with the government and to testify truthfully in any cases in which he was called as a
prosecution witness.
2
The case was captioned as State of Maryland v. Freddie Curry, Case No.
114353012 in the Circuit Court for Baltimore City.
3
CJP § 9-123 provides that a court may order a witness to testify in a criminal
proceeding notwithstanding the witness’s invocation of the Fifth Amendment, provided
that the witness is granted use and derivative use immunity.
2
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:
4
In the agreed statement of facts, the State acknowledged that Howell and other
defense witnesses would testify about the altercation outside the courtroom, but the State
did not agree to the accuracy or credibility of that testimony.
3
[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:
4
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
5
It appears as if the court intended to reference CJP § 9-123, which addresses the
privilege against self-incrimination. CJP § 9-204 addresses the discharge of a witness from
execution, providing that “[t]he court that issued an execution on a forfeited recognizance
for a witness who failed to appear may discharge the witness from execution upon motion
showing good and sufficient cause for the failure.”
6
Maryland Rule 15-203(a) provides the following:
The court against which a direct civil or criminal
contempt has been committed may impose sanctions on the
person who committed it summarily if (1) the presiding judge
has personally seen, heard, or otherwise directly perceived the
conduct constituting the contempt and has personal knowledge
of the identity of the person committing it, and (2) the contempt
has interrupted the order of the court and interfered with the
dignified conduct of the court’s business. The court shall afford
the alleged contemnor an opportunity, consistent with the
circumstances then existing, to present exculpatory or
mitigating information. If the court summarily finds and
announces on the record that direct contempt has been
committed, the court may defer imposition of sanctions until
the conclusion of the proceeding during which the contempt
was committed.
5
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
6
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
7
of the court. In response, Howell demanded a jury trial. After the hearing, Howell was
returned to CBIF.
According to Howell, on March 13, 2016 he was physically attacked in CBIF by a
fellow detainee who called him a snitch immediately prior to and during the assault.7
Indictment
Howell was indicted by a grand jury on two counts of common law direct criminal
contempt. Count One charged Howell with common law direct criminal contempt for his
refusal to testify on March 10, 2016. Count Two charged Howell with common law direct
criminal contempt for his refusal to testify on March 11, 2016. Thereafter, Judge White
issued an order pursuant to Maryland Rule 15-2048 establishing that the contempt charges
against Howell would proceed under Maryland Rule 15-205 and 15-207, the rules
governing constructive contempt.
Motions and Hearing Before Judge Panos
Howell’s counsel served a subpoena on the prosecutor commanding him to appear
and testify about the conversation that took place on March 7, 2016, in which the prosecutor
7
In the agreed statement of facts, the State acknowledged that Howell and other
defense witnesses would testify as to Howell’s treatment by other detainees at CBIF, but
the State did not agree to the accuracy or credibility of that testimony.
8
Maryland Rule 15-204 provides that “[i]n any proceeding involving a direct
contempt for which the court determines not to impose sanctions summarily, the judge,
reasonably promptly after the conduct, shall issue a written order specifying the evidentiary
facts within the personal knowledge of the judge as to the conduct constituting the
contempt and the identity of the contemnor.”
8
indicated that the State could offer Howell, at most, temporary relocation at a hotel. The
State responded by filing a protective order to quash the subpoena.
On March 27, 2017, the parties appeared at a motions hearing before the Honorable
Christopher L. Panos. The State argued that the conversation between the prosecutor and
Howell’s counsel was irrelevant, explaining:
The res gestae of the criminal contempt matter is just that. Was
he directed by a sitting Court to testify? And the answer is a
yes or a no. And the follow-on for the consideration of the jury
is did he comply. Yes or no.
The State’s position was that duress is “not a competent defense to direct criminal contempt
when the act of contempt is based upon the willful refusal to testify when someone is a
compellable witness.”
Howell’s counsel disagreed, arguing that “there is not a case decided in Maryland
that says that the duress defense is not available and there won’t be a case like that.”
Howell’s counsel further argued that the altercation outside the courtroom on March 10,
2016 satisfied the elements of duress:
[HOWELL’S COUNSEL]: At that moment he is right there
and he knows the State is going to offer him limited protection,
he’s not going to be put in any witness protection plan, neither
is his family going to be safe. But most immediately he knows
that the people who have just verbally and physically assaulted
him are outside the courthouse, they told him he’s got to come
outside at one point. That’s what he’s suffering from at that
moment. And hence--
THE COURT: So therein lies his duress?
[HOWELL’S COUNSEL]: Exactly.
9
The State countered that even if duress were available as a defense to criminal contempt,
Howell’s situation did not constitute duress. The State argued that Howell was not placed
in “impending danger of death or serious bodily harm” and that Howell had a “reasonable
opportunity for escape.”
After the motions hearing, Judge Panos declared that “it appears unequivocally clear
to this Court from [Piemonte v. United States], 367 U.S. 556, that the defense of duress
does not apply to a criminal contempt action based upon a witness’s refusal to testify.”
Accordingly, Judge Panos ruled that “any testimony in connection with [the prosecutor]
that [Howell] might offer would be irrelevant and for this reason the State’s motion to
quash the subpoena is hereby granted.”
The State subsequently filed a motion in limine to preclude Howell “from offering
evidence of, argument about, or reference to certain information regarding the perceived
motive for his contemptuous behavior, i.e., concerns about his personal safety, which the
State believes is irrelevant and/or inadmissible.” Howell, meanwhile, filed a motion for
reconsideration challenging Judge Panos’s decision. On April 11, 2017, Judge Panos
denied Howell’s motion for reconsideration.
Hearing Before Judge Hargadon
On April 11, 2017, the parties appeared for a second motions hearing before the
Honorable Edward R. K. Hargadon. Howell’s counsel presented a proffer of the evidence
that he would have admitted to prove duress, including testimony as to the altercations that
allegedly took place at the courthouse and in CBIF. Additionally, Howell contended that
10
the prosecutor would have testified that Howell was afraid of Curry and that the State had
promised not to disclose Howell’s name to the public without advance notice. An expert
witness, Dr. Tyrone Powers (“Powers”), would have testified that thirty-eight people had
been either seriously injured or murdered in Baltimore in the last ten years in retaliation
for their testimony as State’s witnesses. Powers would have further testified that the Office
of the State’s Attorney for Baltimore City has never petitioned the U.S. Marshals Service
to enter a State’s witness into the Federal Witness Protection Program, even though it is
authorized to file such a petition by federal law.
In response to Howell’s proffer, the State reiterated its position that duress is not
available as a defense to criminal contempt. After hearing argument from each side, Judge
Hargadon granted the State’s motion to preclude testimony related to Howell’s claim of
duress:
THE COURT: Okay. Well, as I said before I think that the
reasonings that State is giving for purposes of its motion and
the reason that the Defense has given for purpose of this
opposition are the same issues that were in front of Judge
Panos. And based upon the law of the case, and I understand
that both Counsel here are essentially just laying the record for
purposes of an appeal, and I’m just kind of a conduit in this
whole thing.
But I have to admit that I find some real public policy
concerns about if this defense were able to be raised. I don’t
profess to say that I’m issuing this decision independent of
Judge Panos’ decision, I want to make that very clear that I’m
simply following what his ruling was previously in this case.
But I can understand some of the concerns if one were to go
down this road of saying well you can simply bring in duress
in situations like this.
11
Judge Hargadon went on to note that “this almost is an issue for sentencing.”
Conviction and Sentencing
After Judge Hargadon’s ruling, Howell agreed to plead not guilty on an agreed
statement of facts as to Count One, preserving Howell’s ability to appeal on the issue of
duress. In exchange, the State agreed to a five-year sentence, suspending all but time
served, with three years of supervised probation. On the basis of the agreed statement of
facts, Judge Hargadon found Howell guilty of one count of contempt and sentenced him to
five years in prison, suspending all but time served, with three years of supervised
probation.
Additional facts shall be discussed as necessitated by our discussion of the issues
on appeal.
STANDARD OF REVIEW
Maryland Rule 8-131(c) governs our review of an action tried without a jury as
follows:
When an action has been tried without a jury, the appellate
court will review the case on both the law and the evidence. It
will not set aside the judgment of the trial court on the evidence
unless clearly erroneous, and will give due regard to the
opportunity of the trial court to judge the credibility of the
witnesses.
The Court of Appeals has further explained the standard of review under Maryland Rule
8-131(c):
[The appellate courts] give due regard to the trial court’s role
as fact finder and will not set aside factual findings unless they
are clearly erroneous. The appellate court must consider
12
evidence produced at the trial in a light most favorable to the
prevailing party and if substantial evidence was presented to
support the trial court’s determination, it is not clearly
erroneous and cannot be disturbed. Questions of law, however,
require our non-deferential review. When the trial court’s
decision involves an interpretation and application of
Maryland statutory and case law, our Court must determine
whether the lower court’s conclusions are legally correct . . . .
Where a case involves both issues of fact and questions of law,
this Court will apply the appropriate standard to each issue.
Clickner v. Magothy River Ass’n Inc., 424 Md. 253, 266-67 (2012) (citations and internal
quotation marks omitted) (ellipsis in original). Because this case presents only issues of
law, we apply the non-deferential de novo standard of review.
DISCUSSION
This appeal implicates two foundational principles of American jurisprudence: the
power of the government to compel witness testimony and the authority of the court to hold
an individual in contempt for refusing to testify. In this case, a witness, Howell, sought to
avoid being held in contempt when he refused to testify. Despite having been granted use
and derivative use immunity, Howell refused to testify, claiming that he feared reprisals as
a result of his testimony. Howell raised the defense of duress, but the circuit court
determined that the duress defense was unavailable to a contempt charge premised upon a
refusal to testify.
Criminal contempt is unique among criminal offenses. Unlike other criminal
offenses, which generally involve harm perpetrated upon individuals or organizations,
contempt is an offense to the court itself. “Criminal contempts of court embrace all acts
committed against the majesty of the law or the dignity of the court, and the primary and
13
controlling object sought to be obtained by punishment of such offenders is the vindication
of public authority, of which the court is the embodiment, represented at any given time by
the presiding judge.” In Ex parte Bowles, 164 Md. 318, 330 (1933) (citing Coons v. State,
134 N.E. 194, 198 (Ind. 1922)); see also Ashford v. State, 358 Md. 552, 563 (2000) (“The
primary purpose of punishment for criminal contempt . . . is vindication of public authority,
embodied in the court and represented by the judge by punishing the contemnor for past
misconduct not to compel future compliance or to remedy the harm.”).
The government’s broad authority to compel witness testimony is integral to the
functioning of the American judicial system. State v. Rice, 447 Md. 594, 604 (2016)
(“[T]he power of the State to compel a witness to testify is at the core of the proper
functioning of our criminal justice system.”) (citing Kastigar v. United States, 406 U.S.
441, 443-44 (1972)). Indeed, the Supreme Court of the United States has discussed the
well-established and broad power of the government to compel witness testimony,
explaining:
The power of government to compel persons to testify in court
or before grand juries and other governmental agencies is
firmly established in Anglo-American jurisprudence. The
power with respect to courts was established by statute in
England as early as 1562, and Lord Bacon observed in 1612
that all subjects owed the King their ‘knowledge and
discovery.’ While it is not clear when grand juries first resorted
to compulsory process to secure the attendance and testimony
of witnesses, the general common-law principle that ‘the
public has a right to every man’s evidence’ was considered an
‘indubitable certainty’ that ‘cannot be denied’ by 1742. The
power to compel testimony, and the corresponding duty to
testify, are recognized in the Sixth Amendment requirements
that an accused be confronted with the witnesses against him,
14
and have compulsory process for obtaining witnesses in his
favor. The first Congress recognized the testimonial duty in
the Judiciary Act of 1789, which provided for compulsory
attendance of witnesses in the federal courts. Mr. Justice White
noted the importance of this essential power of government in
his concurring opinion in Murphy v. Waterfront Comm’n, 378
U.S. 52, 93-94, 84 S. Ct. 1594, 1611, 12 L.Ed.2d 678 (1964):
‘Among the necessary and most important of the
powers of the States as well as the Federal
Government to assure the effective functioning
of government in an ordered society is the broad
power to compel residents to testify in court or
before grand juries or agencies. See Blair v.
United States, 250 U.S. 273, 39 S. Ct. 468, 63 L.
Ed. 979. Such testimony constitutes one of the
Government’s primary sources of information.’
Kastigar, supra, 406 U.S. at 443-44 (footnotes omitted). There are, of course, certain
limitations to the government’s power to compel witness testimony. “[T]he power to
compel testimony is not absolute. There are a number of exemptions from the testimonial
duty, the most important of which is the Fifth Amendment privilege against compulsory
self-incrimination.” Id. at 444 (footnote omitted).
In this case, we are faced with the question of whether a duress defense may be
raised by a witness who refuses to testify due to fear of reprisal. The overwhelming
majority of courts to address the issue have held that fear of reprisal does not provide a
legal basis for a witness’s refusal to testify. The Supreme Court addressed this issue, in
dicta, in Piemonte v. United States, 367 U.S. 556, 559 n.2 (1961). In Piemonte, a witness
was granted immunity but refused to answer questions before a federal grand jury, arguing
that the answers would tend to incriminate him. The United States District Court
15
subsequently entered an order requiring that the witness show cause as to why he should
not be held in criminal contempt. At the show cause hearing, the witness explained that he
refused to testify because he was afraid for his own safety as well as the safety of his wife
and children. The district court rejected the witness’s justification and found the witness
guilty of criminal contempt. The United States Court of Appeals for the Seventh Circuit
affirmed.
Before the Supreme Court, the witness raised arguments relating only to procedural
defects, but Justice Frankfurter, writing for the Court, discussed in a footnote whether fear
of reprisal could justify Piemonte’s refusal to testify:
Neither before the Court of Appeals nor here was fear for
himself or his family urged by Piemonte as a valid excuse from
testifying. Nor would this be a legal excuse. Every citizen of
course owes to his society the duty of giving testimony to aid
in the enforcement of the law. See Brown v. Walker, 161 U.S.
591, 600, 16 S.Ct. 644, 648, 40 L.Ed. 819. Lord Chancellor
Hardwicke’s pithy phrase cannot be too often recalled: ‘(T)he
public has a right to every man’s evidence.’ 12 Hansard’s
Debates 693; 8 Wigmore, Evidence (3d ed.), p. 64, s 2192.
If two persons witness an offense-one being an innocent
bystander and the other an accomplice who is thereafter
imprisoned for his participation-the latter has no more right to
keep silent than the former. The Government of course has an
obligation to protect its citizens from harm. But fear of reprisal
offers an immunized prisoner no more dispensation from
testifying than it does any innocent bystander without a record.
Piemonte v. United States, 367 U.S. at 559 n.2.
The United States Courts of Appeals for the First, Second, Fourth, Fifth, Sixth,
Seventh, Eighth, Ninth, and Eleventh Circuits have all adopted the Supreme Court’s
16
reasoning in Piemonte, explaining that fear cannot excuse a witness’s refusal to testify.
See, e.g., In re Grand Jury Proceedings, 13 F.3d 459, 461 (1st Cir. 1994) (“Of course, it
has been widely held that a witness’ fear of reprisal against himself or his family does not
constitute just cause for refusing to testify.”); In re Grand Jury Proceedings, 943 F.2d 132,
135 (1st Cir. 1991) (“One of appellant’s stated reasons, that he feared for himself and for
his family, is not just cause for refusing to testify.”); Matter of Grand Jury Investigation
(Detroit Police Dep’t Special Cash Fund), 922 F.2d 1266, 1272-73 (6th Cir. 1991) (“We
also disagree with Witness’s assertion that fear for his safety and the safety of others
satisfies the ‘just cause’ standard of § 1826(a) . . . Prior to the enactment of § 1826(a), the
Supreme Court stated, albeit in dicta, that such concerns would not provide a legal basis
for a refusal to testify”)9; In re Grand Jury Proceedings, 914 F.2d 1372, 1372 (9th Cir.
9
28 U.S.C. § 1826 is the federal statute governing sanctions for recalcitrant
witnesses. It provides:
(a) Whenever a witness in any proceeding before or ancillary
to any court or grand jury of the United States refuses without
just cause shown to comply with an order of the court to testify
or provide other information, including any book, paper,
document, record, recording or other material, the court, upon
such refusal, or when such refusal is duly brought to its
attention, may summarily order his confinement at a suitable
place until such time as the witness is willing to give such
testimony or provide such information. No period of such
confinement shall exceed the life of--
(1) the court proceeding, or
(2) the term of the grand jury, including
extensions,
17
1990) (“No federal court in a reported decision has held that fear of retaliation is sufficient
reason to refuse to testify. To do so in this case would mean that virtually every prisoner
in the United States, and many millions of people at large, would be freed of the duty to
appear and testify before a grand jury. We choose to follow the reported decisions of those
courts which have already held that fear of physical harm does not excuse a witness from
testifying.”); In re Grand Jury Proceedings, 862 F.2d 430, 432 (2d Cir. 1988) (“We also
reject Doe’s claim that the defense of duress is available to a civil contemnor.”); In re
Grand Jury Proceedings, 713 F.2d 616, 617 n.1 (11th Cir. 1983) (“Fear of retribution
cannot excuse refusal to testify before a grand jury.”); In re Grand Jury Proceedings, 652
F.2d 413, 414 (5th Cir. 1981) (“In both civil and criminal contempt cases this circuit has
held that fear for personal safety is not a defense to a charge arising from refusal of a
before which such refusal to comply with the
court order occurred, but in no event shall such
confinement exceed eighteen months.
(b) No person confined pursuant to subsection (a) of this
section shall be admitted to bail pending the determination of
an appeal taken by him from the order for his confinement if it
appears that the appeal is frivolous or taken for delay. Any
appeal from an order of confinement under this section shall be
disposed of as soon as practicable, but not later than thirty days
from the filing of such appeal.
(c) Whoever escapes or attempts to escape from the custody of
any facility or from any place in which or to which he is
confined pursuant to this section or section 4243 of title 18, or
whoever rescues or attempts to rescue or instigates, aids, or
assists the escape or attempt to escape of such a person, shall
be subject to imprisonment for not more than three years, or a
fine of not more than $10,000, or both.
18
witness to testify.”); United States v. Patrick, 542 F.2d 381, 387-88 (7th Cir. 1976)
(“[F]ear, by itself, will not legally justify or excuse a witness’ refusal to testify in violation
of a court order.”); In re Kligo, 484 F.2d 1215, 1221 (4th Cir. 1973) (“Apart from his claim
of fifth amendment privilege, the only reasons Kligo offered for his silence were an
unwillingness to implicate other persons and fear for his own safety. Quite properly, the
district court ruled that these reasons did not provide just cause for refusal to testify.”);
LaTona v. United States, 449 F.2d 121, 122 (8th Cir. 1971) (“The concept of due process
does not encompass the privilege of a witness not to testify because of fear or reprisals.”);
In re Grand Jury Investigation John Doe, 542 F. Supp. 2d 462, 468-71 (E.D. Va. 2008)
(“[C]ourts in this circuit and elsewhere have concluded that an immunized witness is not
excused from testifying before the grand jury where, as here, he or she fears for his or her
own safety or the safety of others.”).
Despite the various circuit courts’ general acceptance of the principle that fear
cannot justify the refusal of a witness to testify, at least two of the United States Circuit
Courts have indicated that a duress defense may, in certain circumstances, be invoked in a
contempt case. The United States Court of Appeals for the Fifth Circuit explained that “[i]t
[wa]s not necessary that we decide whether duress can never be invoked in a contempt
case” because, “[a]ssuming arguendo that [the witness] can raise a duress defense, he has
not brought himself within it.” In re Grand Jury Proceedings, 652 F.2d at 414. The court
further explained that fear for personal and family safety “is a legitimate factor in
mitigation.” Id. Furthermore, the United States Court of Appeals for the Seventh Circuit
19
has explained that “duress may in some circumstances serve as an equitable defense to
incarceration for civil contempt.” Matter of Grand Jury Proceedings of Dec., 1989, 903
F.2d 1167, 1170 (7th Cir. 1990). The court stressed, however, that “[a] recalcitrant witness
must demonstrate . . . [an] overwhelming sense of immediate danger” that renders the
witness “unable to act freely [or] to testify.” Id. Under the facts of the particular case, the
United States Court of Appeals for the Seventh Circuit determined that the duress defense
was inapplicable because the witness “failed to demonstrate a palpable imminent danger.”
See also State v. Pothier, 721 P.2d 1294, 1298-99 (N.M. 1986) (holding that the defense
of duress was unavailable when the defendant witness’s fear of reprisals was not premised
upon a threat of immediate and serious bodily harm).
We agree with the general principle that fear does not excuse a recalcitrant witness’s
refusal to testify. Under Maryland law, however, duress “is a defense as to all crimes
except taking the life of an innocent person.” McMillan v. State, 428 Md. 333, 348 (2012)
(quotation omitted). In this appeal, we need not determine whether the duress defense is
per se unavailable to a recalcitrant witness charged with contempt. 10 As we shall explain,
assuming arguendo that duress can be a valid defense for contempt, the defense is not
generated by the evidence presented in this case.
10
The circuit court determined that, as a matter of law, the duress defense was not
available to any witness charged with contempt for refusing to testify. For the reasons
explained herein, we need not reach this issue because the defense was not generated by
the facts of this case.
20
The duress defense “arises when an individual is faced with a choice of two evils,
and one is the commission of an illegal act.” State v. Crawford, 308 Md. 683, 691 (1987).11
We have explained:
The rationale of the defense is not that the defendant, faced
with the unnerving threat of harm unless he does an act which
violates the literal language of the criminal law, somehow loses
his mental capacity to commit the crime in question. Rather it
is that, even though he has the mental state which the crime
requires, his conduct which violates the literal language of the
criminal law is justified because he has thereby avoided a harm
of greater magnitude.
Wentworth v. State, 29 Md. App. 110, 117-18 (1975).
In order for duress to constitute a defense to the commission of an illegal act, “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.” McMillan, supra, 428 Md. at 348 (quotation and citations
omitted) (emphasis supplied). The alleged duress “must be of such a character as to leave
no opportunity to the accused for escape.” Id. (quotation and citations omitted). Critically,
“[m]ere fear or threat by another is not sufficient nor is a threat of violence at some prior
time.” Id. (quotation and citations omitted). Furthermore, “the defense cannot be claimed
11
Crawford, supra, involved the necessity defense rather than the duress defense.
“Necessity is similar to duress, except that the compulsion to act comes from the physical
forces of nature (storms, privations) rather than from human beings.” McMillan, supra,
428 Md. at 361 (citation and internal quotation marks omitted). The comment to Maryland
Criminal Pattern Jury Instruction 5.03 explains that there is not a separate pattern jury
instruction on necessity “because of the interrelationship between necessity and duress.”
21
if the compulsion arose by the defendant’s own fault, negligence or misconduct.” Id.
(quotation and citations omitted).
The elements of duress set forth in the Maryland Criminal Pattern Jury Instruction
are:
(1) the defendant actually believed that the duress placed
[him][her] in immediate and impending danger of death or
serious bodily harm;
(2) the defendant’s belief was reasonable;
(3) the defendant had no reasonable opportunity for escape;
and
(4) the defendant committed the crime because of the duress.
The defense of duress is not established by proof that the
defendant had been threatened with violence at an earlier time.
[He] [she] must have been under a present threat at the time of
the commission of the crime charged.
In order to convict the defendant, the State must prove that the
defendant did not act under duress. This means that you are
required to find the defendant not guilty unless the State has
persuaded you, beyond a reasonable doubt, that at least one of
the four factors of duress was absent.
Maryland State Bar Ass’n, Maryland Criminal Pattern Jury Instructions 5:03, (2d ed.
2012).12
12
The Maryland Criminal Pattern Jury Instructions Committee recently agreed to
revise the pattern jury instruction on duress to change the phrase “immediate and
impending danger” to “immediate or impending danger.” This change was based upon the
Court of Appeals’s decision in Porter v. State, 455 Md. 220 (2017), which addressed
similar language in a jury instruction on imperfect self-defense. In response to Porter, the
committee changed the language in the pattern instruction for imperfect self-defense from
“immediate and impending” to “immediate or impending” in the fall of 2017. The
22
Pursuant to Maryland Rule 4-325(c), “[t]he court may, and at the request of any
party shall, instruct the jury as to the applicable law[.]” The defense of duress is not
generated “unless the defendant has produced ‘some evidence’ sufficient to give rise to a
jury issue on the defense.” Marquardt v. State, 164 Md. App. 95, 131 (2005) (quoting
Dykes v. State, 318 Md. 206, 216 (1990)). “A particular instruction is generated when a
defendant can point to some evidence . . . [that] supports the requested instruction. Some
evidence is not strictured by the test of a specific standard. It calls for no more than what
it says -- ‘some’, as that word is understood in common, everyday usage. It need not rise
to the level of ‘beyond a reasonable doubt’ or ‘clear and convincing’ or ‘preponderance.’”
Jarrett v. State, 220 Md. App. 571, 586 (2014) (quotation and citation omitted). “The
threshold determination of whether the evidence is sufficient to generate the desired
instruction is a question of law for the judge.” Id. at 585 (citation omitted).
The record reflects that, in this case, Howell failed to present “some evidence” to
generate the defense of duress. Howell alleges that the foundation for the duress defense
was the altercation that occurred in the courthouse hallway on March 10, 2016, when five
or six men threatened him with violence and told Howell, “you got to come out on the
street sometime.” The men were subsequently removed from the courthouse by security.
At the time Howell was on the witness stand, refusing to testify, the alleged assailants were
committee recently voted to similarly amend the duress pattern instruction as well. The
newest edition of the Maryland Criminal Pattern Jury Instructions, reflecting this
amendment, had not yet been published as of the date this opinion was filed.
23
not present and, therefore, did not present an “imminent” or “impending” threat to Howell’s
safety. McMillan, supra, 428 Md. at 348.13 Howell’s fear -- which, for purposes of this
appeal, we assume was a legitimate fear -- “is not sufficient [to generate the defense of
duress] nor is a threat of violence at some prior time.” Id.14
13
Howell asserts that the circumstances of this case are similar to those in McMillan,
which the Court of Appeals determined were sufficient to generate the duress defense.
McMillan was a felony murder case. McMillan’s involvement in the murder was knocking
on the victim’s door in order to facilitate the entry of two of the defendant’s acquaintances,
both of whom were identified gang members. The two acquaintances thereafter robbed the
victim and bludgeoned him to death. McMillan and the victim knew each other and had
been neighbors for a period of time. McMillan asserted that he was afraid of what the
acquaintances would do to him if he refused to knock on the victim’s door.
McMillan based his claim of duress on a threat made by one of the acquaintances.
After McMillan said that he did not want to be involved in a robbery, the acquaintance told
the defendant, “it’s GBA [guilt by association], you get down or you lay down, you gonna
be with that old man in the house or you gonna leave out the house with us, which one you
wanna do?” 428 Md. at 341. The Court held that the duress defense was generated because
“[t]he jury could infer reasonably that the [defendant] was aware of a real, immediate threat
posed by [the two acquaintances] if he did not participate in the robbery.” Id. at 356.
In this case, unlike McMillan, at the time Howell engaged in criminally
contemptuous conduct, he was not with the individuals who had threatened him. Indeed,
the individuals who had threatened Howell had, at that point, been removed from the
building. Howell, therefore, was not faced with an imminent or impending threat.
14
The circuit court inquired of counsel whether the duress defense might be
generated if a witness refused to testify when someone “had a gun in the courtroom . . .
[and] indicated [that] if [the witness] testif[ies] I’m going to shoot [the witness] . . . as
opposed to someone who said five minutes, a day, a week earlier has said we’re going to
get you if you testify?” The State conceded that, in that hypothetical, “that’s where the
immediacy that is lacking in this case might be applicable.” The court commented that “It
would help that [an assailant] would not be able to get a gun into the courtroom.” In this
appeal, we do not reach the issue of precisely what type of threat to a witness would
constitute an imminent or impending threat of death or serious harm which allowed the
witness no opportunity for escape.
24
Furthermore, at no time did Howell request assistance from the court after the
threatening incident in the courthouse corridor. If Howell had requested a security escort,
for example, the escort could have, at a minimum, removed any potential immediacy from
the threat. Id. at 348 (requiring that the threat must be “of such character as to leave no
opportunity to the accused for escape”). For these reasons, we hold that the duress defense
was not generated by the facts alleged by Howell.
In so holding, we do not intend to minimize the plight faced by witnesses who fear
retaliation as a result of their testimony. Witnesses’ fears are often well-founded, and this
Court is not blind to the seriousness of threats against witnesses.15 Witness intimidation
and retaliation are exceptionally serious societal problems, and in this opinion, we are not
suggesting otherwise or minimizing that reality. Indeed, even when refusing to testify is
not legally excusable, there are certainly circumstances under which a witness’s reticence
to testify would be understandable. Therefore, the reasons for a witness’s contemptuous
conduct are certainly appropriate factors for the court’s consideration in mitigation. See In
re Grand Jury Proceedings, 652 F.2d at 414; Md. Rule 15-203 (“The court shall afford the
15
We are cognizant of the fact that witnesses have been murdered for cooperating
with law enforcement. See, e.g., Cheryl W. Thompson, Dozens in D.C., Maryland Paid
the Ultimate Price for Cooperating with Police, The Washington Post (January 10, 2015),
available at http://wapo.st/1C1puOU?tid=ss_mail&utm_term=.f824c8b01a04 (reporting
that “at least 37 people in the District [of Columbia] and Maryland . . . have been killed
since 2004 for cooperating with law enforcement or out of fear that they might, according
to a Washington Post examination of hundreds of police and court records.”).
25
alleged contemnor an opportunity, consistent with the circumstances then existing, to
present exculpatory or mitigating information.”).
While cognizant of the significant social policy implications of the issues presented
in this appeal, our role is to apply the law while assessing the merits of Howell’s appellate
claims. As we discussed supra, Howell presented no legal excuse for his refusal to testify.
We hold, therefore, that the circuit court did not err by concluding that the duress defense
was unavailable to Howell in this case. Accordingly, we affirm.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
26