Ellison v. State

• Citation: 65 Md.App. 321,500 A.2d 650
• Parties: Clinton W. ELLISON v. STATE of Maryland. 1450 Sept. Term 1984.
• Decision Date: 04 December 1985
• Court: Court of Special Appeals of Maryland

Page 321

65 Md.App. 321

500 A.2d 650

Clinton W. ELLISON v. STATE of Maryland.

1450 Sept. Term 1984.

Court of Special Appeals of Maryland.

Dec. 4, 1985.

Clarence W. Sharp, Assigned Public Defender of Annapolis (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Valerie W. Loftin, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City, Ruth M. Finch and Peter M. Semel, Asst. State's Attys. for Baltimore City on brief), Baltimore, for appellee.

Argued before MOYLAN, BLOOM and GETTY, ^* JJ.

MOYLAN, Judge.

The appellant, Clinton W. Ellison, was convicted by a Baltimore City jury, presided over by Judge Joseph I. Pines, of murder in the first degree and robbery. In an otherwise garden-variety appeal, one issue stands out.

The Public Has a Right to Every Man's Evidence

To place the issue, one involving the privilege against compelled testimonial self-incrimination, in its proper framework, we begin with the universally recognized principle enunciated by Lord Chancellor Hardwicke in 1742 that "the public has a right to every man's evidence." ¹ Kastigar v. United States, 406 U.S. 441, 443, 92 S.Ct. 1653, 1655, 32 L.Ed.2d 212, 216 (1972); Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626, 644 (1972). The fundamental nature of this obligation ² and the generally dim view taken by the common law toward any exemptions from this general obligation were well summarized by Dean Wigmore in 8 Wigmore on Evidence (McNaughton rev. 1961), § 2192, "Duty to give testimony," at 70:

"For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man's evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule." (Emphasis supplied).

Testimonial Privileges Are Disfavored

Following from this general obligation to assist the search for truth with all available knowledge, the ancillary principle is also well settled that all of the various testimonial privileges, ³ as derogations from full and accurate fact finding, are looked upon with disfavor. Dean McCormick surveyed the landscape in his article The Scope of Privilege in the Law of Evidence, 16 Tex.L.Rev. 447 (1938), and observed, at 468, "The courts often say that privileges, since they curtain the truth from disclosure, should be strictly construed." He went on more fully, at 469 "The development of judge-made privileges halted a century ago. The manifest destiny of evidence law is a progressive lowering of the barriers to truth. Seeing this tendency, the commentators who take a wide view, whether from the bench, the bar, or the schools, seem generally to advocate a narrowing of the field of privilege."

He concluded, "One may hazard a guess ... that in a secular sense privileges are on the way out."

The United States Court of Appeals for the Second Circuit noted in In Re Cueto, 554 F.2d 14, 15 (2d Cir.1977):

"It is a fundamental rule of law that the public has a right to every person's evidence. There are a small number of constitutional, common-law and statutory exceptions to that general rule, but they have been neither 'lightly created nor expansively construed, for they are in derogation of the search for truth.' "

The same general approach to testimonial privileges was followed by the Supreme Court in Branzburg v. Hayes, supra, 408 U.S. at 690 n. 29, 92 S.Ct. at 2661 n. 29, "The creation of new testimonial privileges has been met with disfavor by commentators since such privileges obstruct the search for truth." See also Ladd, Privileges, 1969 Law & Soc. Ord. 555; Falsone v. United States, 205 F.2d 734 (5th Cir.1953).

Before concluding with the inimitable Dean Wigmore on the disfavored status of testimonial privileges, a brief word is in order as to why it is important for us to determine whether testimonial privileges are in favor or disfavor. In an otherwise close case for the application of a testimonial privilege, a case that could plausibly go either way, the "tilt" to be taken by the court is critically important. If testimonial privileges are determined to be in favor, our "tilt" toward finding the privilege applicable could well be decisive in that direction. If, on the other hand, testimonial privileges are determined to be in disfavor our "tilt" toward finding the privilege inapplicable could well be decisive in the other direction. When we're close to the line, which way should we lean?

We turn to the undisputed Master for guidance. Dean Wigmore has pointed out not only that these exceptions from the general duty are "to be discountenanced" and "should be recognized only within the narrowest limits" but also that, sometimes caught up in an apparently lofty purpose and losing their larger perspective, "judges and lawyers are apt to forget this exceptional nature." The appropriate attitude toward the testimonial privileges was unmistakably prescribed in 8 Wigmore on Evidence (McNaughton rev. 1961), § 2192, "Duty to give testimony," at 73:

"[A]ll privileges of exemption from this duty are exceptional, and are therefore to be discountenanced. There must be good reason, plainly shown, for their existence. In the interest of developing scientifically the details of the various recognized privileges, judges and lawyers are apt to forget this exceptional nature. The presumption against their extension is not observed in spirit. The trend of the day is to expand them as if they were large and fundamental principles, worthy of pursuit into the remotest analogies. This attitude is an unwholesome one. The investigation of truth and the enforcement of testimonial duty demand the restriction, not the expansion, of these privileges. They should be recognized only within the narrowest limits required by principle. Every step beyond these limits helps to provide, without any real necessity, an obstacle to the administration of justice." (Emphasis in original).

Now knowing which way to "tilt," we look to the case at hand. As the issue approaches us, it has a "reverse English" on it. Paradoxically, it is the State arguing for an expansive view of the privilege against compelled testimonial self-incrimination and the appellant urging a stingier one.

The Present Case

Charles Sneed, an inmate at the Maryland Penitentiary, was murdered in his cell at some time between 6 and 7 p.m. on Saturday, December 3, 1983. The immediate cause of death was strangulation, with a blunt injury to the abdomen as a contributory cause. The evidence showed indisuptably (the appellant, indeed, does not attack the legal sufficiency of the evidence) that the murderers were the appellant and his codefendant, Tyrone Little. Among the motives for the murder was robbery, although there were indications that some kind of grudge or grievance against the victim was also involved.

The appellant called Tyrone Little as a defense witness, notwithstanding notice through Little's attorney that Little would invoke the Fifth Amendment privilege. When Little was asked whether he knew the appellant, he invoked his privilege. Judge Pines declined to compel him to answer the question. After a subsequent extended discussion out of the presence of the jury, Judge Pines indicated that he would permit Little to assert his privilege if questioned as to any knowledge he had about Sneed's death, but would not uphold the privilege with respect to questions concerning Little's membership in the Moslem religious group. In his testimony before the jury, Little answered questions concerning his membership in the religious group but successfully asserted his privilege with respect to the death of Charles Sneed. He was then excused.

At the time Little was called to the stand by the appellant, Little had already been tried separately and had entered an Alford guilty plea to murder in the second degree. Upon that finding of guilty, he had also already been sentenced to a term of 25 years imprisonment, concurrent with the sentence he was already serving.

The Issue

The issue is that of identifying the magic moment when incrimination becomes a fait accompli. Just as one who is dead no longer runs the risk of being killed nor one pregnant, the risk of being impregnated, nor one blind, the risk of being blinded, one who has already been incriminated for an offense is past the point of no return in terms of the risk of incrimination. At what point on the continuum is the process of incrimination sufficiently complete that the risk of incrimination is relegated to the past tense? Though scattered cases deal cursorily with the problem, there is painfully skimpy analysis behind apparently uncritical holdings that seem either cavalier in their treatment of the subject or oblivious to the subtleties involved.

On the spectrum, several distinct time zones can be identified:

1) Prior to verdict--It is universally recognized that prior to the rendering of a verdict by the fact finder, the danger of incrimination still abides. The privilege, therefore, continues to be available in full force.

2) Through verdict but not through sentencing--Some jurisdictions hold that the act of incrimination is complete with the rendering of the verdict of guilty and that the assessment of the appropriate penalty is simply not a part of the incrimination process. The philosophical distinction is made between the adjudicatory stage and the punishment stage. The imposing of the punishment, though part of the larger criminal justice process, is conceptualized as something distinct from the process of incrimination. The imposing of the sanction for a perfected incrimination is not an inherent part of the incrimination process...