Criminal Investigation No. 1-162, In re

• Decision Date: 01 September 1986
• Docket Number: No. 27,27
• Parties: In re CRIMINAL INVESTIGATION NO. 1-162, In the Circuit Court for Anne Arundel County. ,
• Court: Maryland Court of Appeals

Page 674

307 Md. 674

516 A.2d 976

In re CRIMINAL INVESTIGATION NO. 1-162, In the Circuit Court for Anne Arundel County.

No. 27, Sept. Term, 1986.

Court of Appeals of Maryland.

Nov. 10, 1986.

Dale P. Kelberman, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., and Deborah K. Chasanow, Asst. Atty. Gen., on the brief), Baltimore, for appellant.

John H. Morris, Jr. and David B. Irwin (Venable, Baetjer & Howard, William A. Swisher, Baltimore, Kenneth H. Masters, Catonsville, and John W. Moyer and Gerald W. Soukup, Towson, on the brief), for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ., and MARVIN H. SMITH, Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

MURPHY, Chief Judge.

Maryland Code (1957, 1982 Repl.Vol.), Article 27, § 262 confers immunity from prosecution upon witnesses compelled by the State to testify in the course of a gambling investigation. This case focuses upon the scope or extent of the immunity provided by § 262, which reads as follows:

"No person shall refuse to testify concerning any gaming or betting because his testimony would implicate himself and he shall be a competent witness and compellable to testify against any person or persons who may have committed any of the offenses set forth under this subtitle, provided that any person so compelled to testify in behalf of the State in any such case shall be exempt from prosecution, trial and punishment for any and all such crimes and offenses of which such person so testifying may have been guilty or a participant and about which he was so compelled to testify."

I.

On October 7, 1985, eleven persons appeared before the Anne Arundel County Grand Jury in response to summonses issued in the course of investigations into alleged gambling and related amusement tax and income tax violations. The witnesses, upon advice of counsel, gave only their names and addresses to the Grand Jury. Each witness then invoked the fifth amendment privilege against compelled self-incrimination in response to all other questions.

The prosecutor advised the witnesses that § 262 gave them immunity from prosecution, trial and punishment for any and all crimes about which they might be compelled to testify. The witnesses nevertheless declined to testify. Thereafter, the prosecutor filed motions to compel their testimony, pursuant to Maryland Rule 4-631. ¹ In response to the motions, the witnesses claimed that the immunity conferred upon them by § 262 was not sufficient to protect them from prosecution for crimes other than gambling violations concerning which their testimony might relate; therefore, the witnesses contended that the § 262 immunity did not displace their fifth amendment privilege. The circuit court (Williams, J.) denied the motions to compel. The State appealed to the Court of Special Appeals, which heard oral argument of the appeal on December 10, 1985. On February 6, 1986, the intermediate appellate court affirmed the judgment of the circuit court. In Re Criminal Investigation No. 1-162, 66 Md.App. 315, 503 A.2d 1363 (1986). It concluded that § 262 limited the immunity conferred only to gambling crimes and not, as the State contended, "to any and all questions put to the witnesses by the prosecution." It said that "prosecutors may not convert specific witness immunization statutes into fishing expeditions in matters extraneous to the express purpose of the particular statute." 66 Md.App. at 320, 503 A.2d 1363. We granted certiorari to consider the significant issue involved in the case.

II. Mootness

The term of the Grand Jury before which the State sought to compel the witnesses to testify expired on March 1, 1986, and it was discharged. Earlier, in February, the State initiated prosecutions in the District Court of Maryland for the gambling and tax offenses that formed the basis of the Grand Jury investigation. After the opinion of the Court of Special Appeals was filed, the State petitioned for certiorari on February 21, 1986. We granted the petition on April 21, 1986. On June 10, 1986, during the pendency of the case before us, all but one of the targets of the Grand Jury investigation were found guilty of certain gambling offenses. Based on these facts, the witnesses argue that this case is moot and they urge dismissal of the appeal.

Although the Court has the constitutional authority to decide moot cases, we rarely exercise it. Reyes v. Prince George's County, 281 Md. 279, 297-99, 380 A.2d 12 (1977). Thus, we generally dismiss an appeal when a case becomes moot. E.g., Mercy Hosp. v. Jackson, 306 Md. 556, 510 A.2d 562 (1986); County Comm'rs v. Secretary of Health, 302 Md. 566, 489 A.2d 1127 (1985); Nat'l Collegiate Athletic Ass'n v. Tucker, 300 Md. 156, 476 A.2d 1160 (1984). As we so recently noted in Mercy Hosp., supra, 306 Md. at 563, 510 A.2d 562, quoting from Lloyd v. Supervisors of Elections, 206 Md. 36, 43, 111 A.2d 379 (1954), we will depart from this general rule

" 'if the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision....' "

We think the present case meets these criteria. Clearly, the public has an interest in the effective investigation and prosecution of violations of this State's criminal laws. The General Assembly considered this interest sufficiently strong to enact immunity statutes to assist the State in certain instances. See, e.g., Code (1957, 1982 Repl.Vol.) Art. 27, § 23 (bribery), § 262 (gaming), § 298(c) (narcotics), § 371 (lotteries), § 540 (sabotage). With the exception of § 540, these immunity provisions contain similar language. ² Thus, the same issue regarding the scope of immunity is likely to recur with frequency.

Similarly, the parties would be likely to have the same difficulties in obtaining prompt appellate review. As in this case, many of the offenses covered by the immunity statutes must be prosecuted within one year of their occurrence. E.g., Code (1957, 1982 Repl.Vol.), Art. 27, §§ 287, 287A(c), 287A(d), 358, 360-364. The one-year statute of limitations, combined with the limited term of a Grand Jury, severely compresses the time that we have to render a decision. Although we can expedite briefing, argument, and decision, that procedure does not allow us the unhurried contemplation helpful for resolution of important issues. See Mercy Hosp., supra, 306 Md. at 567, 510 A.2d 562 (McAuliffe, J., dissenting).

Furthermore, the issue presented does not depend on the precise facts of this case; rather, its resolution is solely a matter of law. Compare Nat'l Un. of Hosp. v. Johns Hopkins, 293 Md. 343, 350 n. 2, 444 A.2d 448 (1982) (Court determined Anti-Injunction Act's applicability to labor disputes at nonprofit hospitals despite mootness) with Mercy Hosp., supra, 306 Md. at 563, 510 A.2d 562 (Court declined to address right of Jehovah's Witness to refuse blood transfusion because, inter alia, the case was too fact-dependent). See also News American v. State, 294 Md. 30, 39, 447 A.2d 1264 (1982) (Court distinguished between fact-dependent issue of gag order and purely legal issue of proper way for press to raise first amendment issues in criminal cases). In addition, the Court of Special Appeals' decision limiting the scope of immunity granted by § 262, if correct, would severely hamper the State's ability to prosecute violations of the bribery, gaming, lotteries, and narcotics laws. See News American, supra, 294 Md. at 39, 447 A.2d 1264 (Court's disagreement with Court of Special Appeals' opinion one factor in its decision to discuss moot case).

III.

The fifth amendment to the United States Constitution grants witnesses a privilege against compelled self-incrimination. ³ A witness may assert the privilege in any proceeding in order to prevent disclosures that the witness reasonably believes could be used in a criminal prosecution or as a lead to uncover other evidence for a criminal prosecution. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).

Despite this privilege, the government can compel a witness to testify if the witness obtains immunity coextensive with the privilege. Kastigar v. United States, 406 U.S. 441, 449, 92 S.Ct. 1653, 1658, 32 L.Ed.2d 212 (1972); Murphy v. Waterfront Commission, 378 U.S. 52, 54, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964); Counselman v. Hitchcock, 142 U.S. 547, 585, 12 S.Ct. 195, 206, 35 L.Ed. 1110 (1892). The immunity must be granted by statute; a court has no inherent power to compel testimony in the face of a witness' claim of the fifth amendment privilege. In re Special Investigation No. 231, 295 Md. 366, 371, 455 A.2d 442 (1983) (quoting Bowie v. State, 14 Md.App. 567, 575, 287 A.2d 782 (1972)). To be valid, the statutory immunity must leave the government in substantially the same position with regard to prosecution of the witness as it would have been if the witness had asserted the privilege against self-incrimination. Murphy, supra, 378 U.S. at 79, 84 S.Ct. at 1609.

Three types of immunity are possible. Use immunity protects against the future use of the witness' compelled testimony in a criminal prosecution of the witness; use and derivative use immunity prohibit the use of the witness' testimony to uncover other evidence for use against the witness; and transactional immunity bars any future prosecution of the witness for offenses based on the compelled testimony. See Kastigar, supra, 406 U.S. at 453, 92 S.Ct. at 1661; Butler v. State, 55 Md.App. 409, 462 A.2d 1230 (1983). Use immunity alone is not broad enough to defeat the privilege as the danger remains that the compelled testimony might be used...