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State v. Rice

Court of Appeals of Maryland

May 20, 2016

STATE OF MARYLAND
v.
BRIAN RICE STATE OF MARYLAND
v.
EDWARD NERO STATE OF MARYLAND
v.
GARRETT MILLER ALICIA WHITE & CAESAR GOODSON
v.
STATE OF MARYLAND

          Argued: March 3, 2016

         Nos. 96, 97, 98, 99 – Circuit Court for Baltimore City Case Nos. 115141035, 115141033, 115141034, 115141036 & 115141032

          Barbera, C.J. [*] Battaglia, Greene, Adkins, McDonald, Watts, Hotten, JJ.

          OPINION

          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.

         On March 8, 2016, we issued two Per Curiam Orders affirming the judgments of the Circuit Court in Officer Goodson'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.

         I.

         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 (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 himself[.]"); 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 (quoting Ullmann v. United States, 350 U.S. 422, 438 (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 (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 (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 (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 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 Because the Court 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 (emphasis added); see also Pillsbury Co v. Conboy, 459 U.S. 248, 275 (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 ("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. 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 (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. 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.

         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. 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 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 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 Goodson'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-incrimination. 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 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 13, 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 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-à-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 right 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 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 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 cases 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 ...

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