Roll v. State, s. 578

• Decision Date: 27 March 1972
• Docket Number: Nos. 578,579,s. 578
• Citation: 288 A.2d 605,15 Md.App. 31
• Parties: Daniel T. ROLL v. STATE of Maryland. William Edward SCHOLL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 31

15 Md.App. 31

288 A.2d 605

Daniel T. ROLL v. STATE of Maryland.

William Edward SCHOLL v. STATE of Maryland.

Nos. 578, 579.

Court of Special Appeals of Maryland.

March 27, 1972.

[288 A.2d 606] Raymond W. Russell, Rockville (Both Appeals), for appellant.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County and Jeffrey Russell Werner, Asst. State's Atty. for Montgomery[288 A.2d 607] County on the brief (Both Appeals), for appellee.

Argued before ANDERSON, ORTH and GILBERT, JJ.

ORTH, Judge.

It is not surprising that the power to cite and punish for contempt of court is at times misunderstood by judges asserting it, by appellate courts reviewing it, and by legislatures enacting laws involving it. The law concerning contempt cries for specificity in definition and uniformity in application. It is ofttimes perplexing and sometimes uncertain. ¹ That its confusions may not be as serious in the overall administration of justice as are caused, for example, by the difficulties arising from the subtle distinctions

with respect to offenses comprising the unlawful appropriation of personal property, see Farlow v. State, 9 Md.App. 515, 265 A.2d 578 and Couture v. State, 7 Md.App. 269, 255 A.2d 84, is only because there seem to be fewer contemnors than thieves. But this is of little solace to the person who is found to be contemptuous and punished therefore. See Muskus v. State, Md.App., 286 A.2d 783, filed 7 February 1972; Goldsborough v. State, 12 Md.App. 346, 278 A.2d 623. While the difficulties involved in the law concerning the stealing of goods usually run against the prosecution, the mischiefs stemming from the confusions surrounding contempts of court frequently derogate the rights of the individual. The cases before us provide two more examples

Daniel T. Roll and William Edward Scholl were each found to be in contempt of court by the Circuit Court for Montgomery County for refusing to testify before the October Term, 1971, grand jury. They were called before that body to obtain their testimony concerning certain violations of those laws which are codified in the Annotated Code of Maryland (1957) as §§ 276-302 of Article 27 under the subheading 'Health-Controlled Dangerous Substances.' Thus they were subject to the provisions of § 298(c) thereof. That section, consisting of one paragraph composed of one sentence, ² has three aspects. First, it makes a refusal, on the ground of self-incrimination, to testify concerning any violations of the law relating to controlled dangerous substances a contempt of court. Second, it makes a person called to testify concerning such violations competent and compellable witness. Third, it obviates constitutional

objection to its provisions by supplanting the constitutional privilege against compulsory self-incrimination with a grant of immunity from prosecution, trial and punishment. Appealing from the judgments, ³ Roll and Scholl contend that the statute is unconstitutional on its face because the immunity provisions are too limited. ⁴

[288 A.2d 608] THE CONSTITUTIONALITY OF CODE, ART. 27, § 298(c)

In Brown v. State, 233 Md. 288, 196 A.2d 614, the Court of Appeals had occasion to determine the constitutionality of a statute with comparable immunity provisions. Code, Art. 27, § 23, dealing with bribery, provided:

'* * * and any person so bribing or attempting to bribe or so demanding or receiving a bribe shall be a competent witness, and compellable to testify against any person or persons who may have committed any of the aforesaid offenses; 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 such crime of which such person so testifying may have been guilty or a participant therein, and about which he was so compelled to testify.'

At the time Brown was decided on 13 January 1964, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, making the privilege against self-incrimination guaranteed by the Fifth

Amendment of the federal constitution ⁵ applicable to state prosecutions, was five months in the future. But the Court thought that the federal provision and Art. 22 of the Maryland Declaration of Rights ⁶ were in pari materia and should receive a like construction. It found the general rule to be that 'in order to be valid, the immunity granted must be as broad as the privilege against self-incrimination which it supplants or displaces.' 233 Md. at 296, 196 A.2d at 617. It said that historically the foundation of the rule was Counselman v. Hitchock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. ⁷ In Counselman the Supreme Court held that a congressional statute merely protecting a witness from direct use of his testimony in subsequent prosecutions did not confer an immunity coextensive with his privilege. The witness must be protected from the indirect as well as the direct use of the compelled testimony. 'In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecutions for the offense to which the question relates.' Id., at 586, 12 S.Ct. at 206. This language was dicta but it seemed to leave open the possibility that the Fifth Amendment might require that transactional immunity be given and that testimonial immunity might be insufficient. Appellants seize on this possibility and assert that the Fifth Amendment does require the grant of transactional immunity and that the Brown v. State, supra, holding that it did not was wrong. They find support in Brown v. Walker, 161 U.S. 591, 13 S.Ct. 644, 40 L.Ed. 819, which upheld an immunity statute passed by Congress in response to the language in Counselman. This statute was interpreted by federal courts to grant transactional immunity, thereby barring the government from prosecuting a witness for any crime mentioned by him during the course of his testimony. See People v. LaBello, 24 N.Y.2d 598, 301 N.Y.S.2d 544, 249 N.E.2d 412 (1969). However, our Court of Appeals said in Brown v. State, supra, at 297, 196 A.2d at 618

'In our opinion an immunity statute, in order to be valid, need not be couched [288 A.2d 609] in precisely the same terms as that suggested in Counselman and upheld in Brown v. Walker, supra, if its effect is to grant protection as broad as that afforded by the privilege which it displaces. We think that such protection is afforded by the immunity granted by Section 23 of Article 27 of the Code (1957). The immunity thereby granted to the witness compelled to testify from 'prosecution, trial and punishment for any such crime of which such person so testifying may have been guilty or a participant therein, and about which he was so compelled to testify' is a broad immunity. Since it bars 'prosecution,' it effectively bars the use of 'leads' to convict the witness of the offense as to which he testifies, * * *.'

The Court thought that references to a requirement of absolute immunity in Supreme Court cases following Counselman 'refer to immunity from prosecution as opposed to immunity merely from the later use as evidence of recorded testimony, and that as to the range of offenses, they do not require a greater protection than that the statute must bar prosecution for all offenses with regard to which the testimony of a witness may be compelled. As to other offenses, we think, the privilege is neither impaired nor supplanted.' At 298, 196 A.2d at 619:

We think the reasons advanced for upholding the constitutionality of Art. 27, § 23 are apposite to the statute here challenged. We find no authority compelling a departure from the Court of Appeals' holding. The federal courts are stil undecided as to whether a transactional type of immunity must be conferred constitutionally in the absence of state statutes so providing, the federal circuits being divided on the issue. In the Matter

of Korman and Likas, 449 F.2d 32 (U.S.C.A. 7th cir.) was decided on 20 May 1971. The Court believed that 'Counselman announced a constitutional requirement that, if the federal government seeks to compel a witness to testify, it must grant him full transactional immunity from prosecution under its laws.' ⁸ On the other hand, the Court of Appeals for the Ninth Circuit in Stewart v. United States and Kastigar v. United States, 440 F.2d 954, decided 29 March 1971, held otherwise, feeling that the grant of merely testimonial immunity was sufficient. ⁹ Hopefully the Supreme Court will shed some light on the question in the near future. It granted certiorari in the Stewart cases, sub nom. Kastigar v. United States, 402 U.S. 971, 91 S.Ct. 1668, 29 L.Ed.2d 135, and they were argued 11 January 1972. But in the meantime we shall abide with the ruling in Brown v. State, supra. We hold that § 298(c) of Art. 27 is constitutional on its face

THE CONTEMPT PROCEEDINGS

The Factual Posture-Roll

At the State's request Roll had been summoned by the Sheriff to appear before the grand jury on 20 October 1971 in the matter of Grand Jury v. Michael L. Ingram, Helen Marie Ingram and Thomas Robert Yendell. He appeared in compliance with the summons. A transcript of the proceedings discloses what occurred. It shows that on 20 October 1971 Roll appeared before 'Jane B. Keys, Foreman, and a quorum of the Grand Jury' and was examined by Jeffrey R. Werner, Assistant State's Attorney. ¹⁰ Roll gave his name, and said he had no attorney at that time, not having personally consulted an attorney. The prosecutor asked: 'You are aware, Mr. Roll, that you have been served a summons to appear to testify against Ingram, Ingram and Yendell, concerning a house on 1714 Dublin Street in Silver Spring during this past year?' Roll said he was so aware. Informed by Werner that he was going to ask him questions, Roll said: 'Before you do that I'd like to make a statement.' Werner made clear what he was going to do:...