State v. Roll

• Citation: 298 A.2d 867,69 A.L.R.3d 483,267 Md. 714
• Decision Date: 17 January 1973
• Docket Number: No. 123,123
• Parties: , 69 A.L.R.3d 483 STATE of Maryland v. Daniel T. ROLL and William Edward Scholl.
• Court: Court of Appeals of Maryland

Page 714

267 Md. 714

298 A.2d 867, 69 A.L.R.3d 483

STATE of Maryland v. Daniel T. ROLL and William Edward Scholl.

No. 123.

Court of Appeals of Maryland.

Jan. 17, 1973.

Clarence W. Sharp, Asst. Atty. Gen., (Francis B. Burch, Atty. Gen., Edward F. Borgerding, Asst. Atty. Gen., Baltimore and Andrew L. Sonner, State's Atty. for Montgomery County and Jeffrey Russell Werner, Asst. State's Atty. for Montgomery County, Rockville, on the brief), for appellant.

Gary Howard Simpson, Chevy Chase (Raymond W. Russell, Rockville, on the brief), for appellees.

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

DIGGES, Judge.

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 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, 91 S.Ct. 780, 784, 28 L.Ed.2d 113 (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 out 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 often confused. ¹ This appeal presents us with an opportunity to allay that misunderstanding and confusion.

The two cases now before us ¹ 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

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.

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 prisonment '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 punish 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 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.

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...