Ellison v. State

Decision Date01 September 1986
Docket NumberNo. 3,3
Citation310 Md. 244,528 A.2d 1271
PartiesClinton W. ELLISON v. STATE of Maryland. ,
CourtMaryland Court of Appeals

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Valerie W. Loftin, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., SMITH, * ELDRIDGE, COLE, RODOWSKY, COUCH * and McAULIFFE, JJ.

ELDRIDGE, Judge.

We granted a petition for a writ of certiorari in this criminal case to review an opinion and decision by the Court of Special Appeals concerning the right of a non-party witness, who has been found guilty and sentenced on a criminal charge, to invoke the privilege against self-incrimination and refuse to testify on matters relating to that criminal charge. It appeared that the Court of Special Appeals' opinion in the present case was in conflict with that court's earlier opinion in McClain v. State, 10 Md.App. 106, 114, 268 A.2d 572, cert. denied, 259 Md. 733 (1970), and with our opinion in Smith v. State, 283 Md. 187, 388 A.2d 539 (1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1050, 59 L.Ed.2d 92 (1979).

The petitioner in this case, Clinton W. Ellison, was an inmate in the Maryland Penitentiary at the time of the criminal offenses giving rise to this case. Ellison and another inmate, Tyrone Little, were charged in the Circuit Court for Baltimore City with the murder and robbery of a third inmate, Charles Sneed. The indictments also charged lesser included substantive offenses; there were, however, no charges of conspiracy to murder or rob Sneed. In both the Ellison case and the Little case, the State filed notices of intent to seek the death penalty.

The two prosecutions were severed, and the case against Little was tried first. During jury deliberations at the guilt/innocence phase of Little's trial, the State and Little negotiated a plea agreement which was approved by the court. See Maryland Rule 4-243. Under the plea bargain, Little agreed to plead guilty to second degree murder; the State agreed to nol pros the first degree murder, robbery and lesser charges in the indictment, and the State agreed to recommend a twenty-five year sentence for second degree murder, to run concurrently with the sentence Little was then serving. Thereafter, in accordance with the agreement, Little pled guilty to second degree murder and received a twenty-five year concurrent sentence, and the State nol prossed the other charges in the indictment.

At the conclusion of Little's trial, immediately following the imposition of sentence, Little was specifically advised that he could apply to the Court of Special Appeals for leave to appeal, and he was further advised, in the event leave to appeal were granted, of the issues which could be raised on appeal notwithstanding his guilty plea. He was also advised, inter alia, that he had thirty days in which to request a three-judge panel of the circuit court to review his sentence. See Code (1957, 1982 Repl.Vol.), Art. 27, §§ 645JA-645JG; Rule 4-344.

Little's trial had concluded with the imposition of sentence and the advice concerning further review, on June 18, 1984. The petitioner Ellison's trial began one week later, on June 25, 1984.

During the guilt/innocence phase of Ellison's trial, and before the expiration of the thirty-day period within which Little could have filed an application for leave to appeal under Rule 1096 or an application for sentence review under Rule 4-344, Ellison called Little to the stand as a witness for the defense. Little, however, refused to testify "on the grounds that it might incriminate me." The trial court, out of the jury's presence, heard from Little's attorney, examined Little, and heard extensive argument from the prosecuting and defense attorneys. The defense attorney made clear the subject about which he wanted to question Little: "I want to ask him what his involvement was with Charles Sneed [the victim] or anything to do with Sneed's death." Thereafter, the trial court upheld Little's claim of privilege.

Ellison was found guilty of first degree murder and robbery. After a separate sentencing proceeding, the jury determined that the sentence for murder should be life imprisonment rather than death. In addition, the trial court imposed a consecutive ten year sentence for robbery.

Ellison appealed, contending, inter alia, that the trial court erred in upholding Little's invocation of the privilege against self-incrimination. Ellison argued in the Court of Special Appeals that Little could not have incriminated himself in connection with the charges for which he had been indicted because he had already been sentenced on the murder charge, and the other charges had been nol prossed. Ellison further argued that Little had no basis to fear new criminal charges growing out of the same matter, such as conspiracy, as any new charges would be precluded by double jeopardy principles or by the plea bargain.

The State argued in the Court of Special Appeals that Little was entitled to invoke the privilege against self-incrimination with regard to matters underlying the criminal case that had been brought against him. Relying on this Court's opinion in Smith v. State, supra, 283 Md. 187, 388 A.2d 539, the State's primary contention was that, because of the possibility of appellate reversal and a new trial on the same charges, Little had reasonable cause to fear that his testimony might incriminate him with regard to those charges. Alternatively, the State suggested the possibility that additional charges, for example a charge of conspiracy to murder Sneed, might be brought against Little.

The Court of Special Appeals affirmed Ellison's conviction, Ellison v. State, 65 Md.App. 321, 500 A.2d 650 (1985). While ultimately deciding that Little was entitled to invoke the privilege against self-incrimination (65 Md.App. at 345, 500 A.2d 650), the greater part of the Court of Special Appeals' opinion on this matter ( id. at 324-345, 500 A.2d 650) was devoted to rejecting the State's principal argument. The Court of Special Appeals began with a premise that testimonial privileges, including the privilege against self-incrimination, are disfavored and that, therefore, when a court is "close to the line," it should " 'tilt' toward finding the privilege inapplicable," 65 Md.App. at 327, 500 A.2d 650. After pointing out that the witness Little had been sentenced when he claimed the privilege in Ellison's trial, the appellate court stated that the issue in the case was "[a]t what point on the continuum is the process of incrimination sufficiently complete that the risk of incrimination is relegated to the past tense?" Id. at 329, 500 A.2d 650. The Court of Special Appeals concluded by holding, with regard to the offenses Little had been charged with, "that the risk of incrimination terminates at the moment the sentence is pronounced" ( id. at 338, 500 A.2d 650) and that "[a]s to this aspect of his contention, ... the appellant is absolutely right" ( id. at 345, 500 A.2d 650). The intermediate appellate court stated that the imposition of sentence is the "logical termination point" for the witness's risk of incrimination and right to invoke the privilege, because the danger of future "jeopardy" after the moment of sentence is a "mere remote possibility" and "beyond the contemplated pale of the constitutional privilege" ( id. at 344, 500 A.2d 650).

Nevertheless, the Court of Special Appeals, agreeing with the State's alternate argument, decided that the witness Little had been entitled to invoke the privilege against self-incrimination. The appellate court explained (65 Md.App. at 345, 500 A.2d 650) "... Tyrone Little still ran a real risk of incrimination, if compelled to testify, because he might be revealing his complicity in other crimes not yet charged. Easily foreseeable, ... was the possibility that the State could charge him with conspiracy to murder Charles Sneed. United States v. Miranti, 253 F.2d 135 (2d Cir.1958); United States v. Johnson, 488 F.2d 1206 (1st Cir.1973). There was also a real possibility that the testimony would have revealed the existence of an unlawful homosexual relationship between the witness Little and the appellant, with a variety of criminal charges possibly stemming therefrom."

As previously indicated, we granted Ellison's petition for a writ of certiorari in order to review the self-incrimination question. Both parties in this Court advance the same arguments that were made to the Court of Special Appeals. In our view, the State correctly argues that, under this Court's reasoning in Smith v. State, supra, the witness Little was entitled to invoke the privilege against self-incrimination because the thirty-day period for further review of his conviction and sentence had not expired. Therefore, there was a sufficient possibility of a new trial or new sentencing on the charges which had been brought against him. Thus, while we shall affirm the Court of Special Appeals' decision, we disapprove of its opinion on this matter.

In Smith v. State, supra, the defendant Smith and the witness Montgomery had been arrested together and charged with various substantive drug offenses. As in the instant case, Montgomery entered a plea bargain with the State and pled guilty to one of the drug charges. Smith was then tried, and Montgomery was called as a witness by the defense. At this time, Montgomery, although convicted, had not been sentenced. Montgomery refused to testify, invoking the privilege against self-incrimination under the Fifth Amendment to the federal constitution, and the trial court sustained the claim of privilege. The Court of Special Appeals in an unreported opinion held that Montgomery's claim of privilege was properly sustained, relying upon an earlier opinion in the Court of Special Appeals in which Chief Judge Murphy had stated for that court ( ...

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