Smith v. State, 128, September Term, 2005.

CourtCourt of Special Appeals of Maryland
Writing for the CourtBattaglia
Citation394 Md. 184,905 A.2d 315
PartiesJeffrey SMITH v. STATE of Maryland.
Docket NumberNo. 128, September Term, 2005.,128, September Term, 2005.
Decision Date03 August 2006
905 A.2d 315
394 Md. 184
Jeffrey SMITH
STATE of Maryland.
No. 128, September Term, 2005.
Court of Appeals of Maryland.
August 3, 2006.

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Matthew H. Solomson, Assigned Public Defender (Arnold & Porter LLP, on brief) of Washington, D.C., for petitioner

Brian S. Kleinbord, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) of Baltimore, for respondent.



This case presents us with the task of determining whether a witness is deprived of his Sixth Amendment right to effective assistance of counsel when he is held in contempt based, in part, on an unauthorized disclosure of privileged information by his counsel. We hold that the witness in this case, Jeffrey Smith, received ineffective assistance of counsel when his attorney disclosed the nature of his advice to Smith and his opinion regarding the application of the Fifth Amendment.

Smith also seeks review of the trial judge's assessment of the merits of his Fifth Amendment claim and the procedures used by the trial judge to impose sanctions for the direct criminal contempt. We conclude that the trial judge committed multiple errors with respect to her determination that Smith did not have a valid basis for asserting his Fifth Amendment right against self-incrimination and the procedures that she adhered to when she imposed sanctions for Smith's contempt.


On November 7, 2003, while the Petitioner, Jeffrey Smith, was serving a sentence for several drug violations, an Assistant

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State's Attorney in Baltimore City had Smith brought from prison to court to testify as a prosecution witness in a case in the Circuit Court for Baltimore City, State v. Morgan, et al., case number 102235018-21. When Smith was called to the stand, the following colloquy occurred:

[THE STATE]: Mr. Smith, do you live in Baltimore City?

[SMITH]: Yes.

[THE STATE]: How long have you lived in Baltimore City?

[SMITH]: About thirteen, fourteen years.

[THE STATE]: And in what district do you live in?

[SMITH]: Eastern.

[THE STATE]: Eastern District?

[SMITH]: Yes.

[THE STATE]: Which part of the Eastern District?

[SMITH]: East Side.

[THE STATE]: I understand that. Can you tell us the street?

[SMITH]: No, I can't.

[THE STATE]: Are you refusing to answer?

[SMITH]: Yes.

[THE STATE]: Are you familiar with the 27 hundred block of East Monument Street?

[SMITH]: Yes.

[THE STATE]: Have you been there before?

[SMITH]: Yes.

[THE STATE]: How often?

[SMITH]: Excuse me, I'm not even with this program. I would like to plead the 5th.[1] I don't want to talk.

[THE COURT]: Mr. Smith, there is no Fifth Amendment — how often have you been to the 27 hundred block of East Monument Street?

[SMITH]: If I live there, how many times can I say I been there?

[THE COURT]: So, you live in the 27 hundred block of East Monument Street.

Next question.

[THE STATE]: What is your date of birth? What's your date of birth?

[SMITH]: I'm exercising my right to remain silent.

[THE COURT]: There is no Fifth Amendment privilege to your date of birth, Mr. Smith.

[SMITH]: I want to remain silent, period.

The trial judge stopped the proceedings and sent the jury to lunch, at which time the following discussion ensued:

[DEFENSE COUNSEL]: He's not charged in this case. The question is, does he have a legitimate Fifth Amendment privilege with regard to this matter?

[THE STATE]: No, he does not. He has never been a suspect or has ever been charged.

[THE COURT]: That's your view. It's his rights, not your rights. Unless you give him immunity, which guarantees him he's not going to be prosecuted —

[THE STATE]: I'm in no position to do that. But the State believes he is not implicating himself.

[THE COURT]: You may not believe that, but it is his rights.

The trial judge, sua sponte, permitted the prosecutor to meet with Smith to discuss

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the Fifth Amendment issue. After a lunch break, the Circuit Court reconvened:

[THE COURT]: I want to put on the record that over the luncheon hour, the Court contacted the Office of the Public Defender and asked ..., who I understand is in charge today, if he could send counsel over and he graciously agreed. . .

[Speaking to Counsel for Smith], have you had an opportunity to speak to Mr. Smith?


[THE COURT]: Is Mr. Smith ready to invoke his Fifth Amendment privilege?

[SMITH'S COUNSEL]: Yes. Also, prior to speaking with Mr. Smith, I spoke with counsel for the State . . . to get a background on what the case was all about and what Mr. Smith's potential involvement might be regarding his Fifth Amendment privilege and, as far as I can determine, after speaking with [the prosecutor] and speaking with Mr. Smith, I have advised him that I could not find any constitutional basis for his pleading the Fifth Amendment in this case. I also advised him of the potential consequences of his continuing to make that plea and disobey any orders from the Court to testify in spite of his wishes.

(Emphasis added).

The trial judge informed Smith that if she determined that he could not properly invoke the Fifth Amendment, he could be imprisoned for contempt. Smith indicated that he understood. The State then proffered the testimony of the lead detective in the underlying action that Smith was not a suspect in the case nor was there any evidence against him in the case. The trial judge declined to hear the detective's testimony and engaged in the following discussion:

[THE COURT]: [Smith's counsel]'s in a better position than anybody to know that and [Smith's counsel] advises he does not, in your view, have a Fifth Amendment privilege?

[SMITH'S COUNSEL]: That's correct, based upon everything he told me.

[DEFENSE COUNSEL]: [Smith's counsel] is acting as his counsel?


[DEFENSE COUNSEL]: And as a friend of the Court for these purposes?

[THE COURT]: Yes. The Court appointed counsel to represent Mr. Smith for this purpose.

[DEFENSE COUNSEL]: If he is evaluating him, he should be qualified as an expert in his capacity of an attorney.


(Emphasis added).

The State recalled Smith, who continued to refuse to respond although without explicitly invoking the protections of the Fifth Amendment. The trial judge then asked Smith:

[THE COURT]: You're invoking your Fifth Amendment privilege?

[SMITH]: Refusing to say anything else.

[THE COURT]: Well, I want to be clear because it makes a difference, Mr. Smith. Are you saying that you believe you have a Fifth Amendment privilege and you are not going to answer on the grounds the answers may tend to incriminate you?

[SMITH]: I don't. I'm just not a witness. I'm not saying anything else.

[THE COURT]: All right.

You understand that the Court has examined and heard the testimony and it does not believe that you have the right to not be with the program or invoke

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your Fifth Amendment, do you understand that?

* * *

[SMITH]: No, I don't.

[THE COURT]: All right.

[SMITH]: I'm not going to say anything. I don't know anything. I'm not saying anything.

[THE COURT]: I understand that, and I'm telling you that the Court has determined that you have no right to not — to invoke your Fifth Amendment privilege, and I'm ordering you to answer the question.

[SMITH]: I refuse to say anything else.

[THE COURT]: You under stand that, in light of the fact that I've ordered you, that you would be in contempt of Court if you refuse to answer the question?

[SMITH]: Yes, ma'am.

[THE COURT]: All right.

Counsel, approach. Is there something that you want to say, [defense counsel]? Come to the Bench. The jury can hear everything you say when you stand out there.

(Whereupon, the parties approached the Bench and the following proceedings ensued on the record:)

[DEFENSE COUNSEL]: Keeping it succinct — and I apologize to the Court — I thought you wanted to make an inquiry whether or not he had a Fifth.

[THE COURT]: I did make the inquiry.

[DEFENSE COUNSEL]: I thought that was the purpose of having him questioned. That's it.

[THE COURT]: Let me explain to you that he has to invoke the Fifth.

[DEFENSE COUNSEL]: I understand that.

[THE COURT]: Until this moment, he has not invoked the Fifth Amendment. He said I don't know.

[DEFENSE COUNSEL]: Then you made the determination that he didn't have the Fifth.

[THE COURT]: Based upon the proffer that the State gave me and on [Smith's counsel]'s statement, I determined that he did not have a Fifth Amendment privilege.

Is there something that you want to bring to the Court's attention?

[DEFENSE COUNSEL]: Just note an objection.

[THE COURT]: Objection to what?

[DEFENSE COUNSEL]: That even though the State made a proffer and he had counsel, the State was trying to elicit information whether or not he had a Fifth Amendment right.

[THE COURT]: I don't understand.

[DEFENSE COUNSEL]: I'm saying, you made a determination that he did not have a Fifth Amendment right and that was based upon what took place at the Bench.

[THE COURT]: I just said it was based upon the proffer from the state and [Smith's counsel]'s statement that, after consulting with his client, he didn't believe he had a Fifth Amendment privilege.

[DEFENSE COUNSEL]: I have nothing further.

* * *

[THE COURT]: Let the record reflect that Mr. Smith refuses to answer the questions properly put to him by the State, that his contempt has interrupted the order of the Court by refusing to answer the lawful order of the Court by refusing to answer the lawful order to testify, that Mr. Smith has no Fifth

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Amendment privilege and, therefore, the Court will find him guilty of contempt beyond a reasonable doubt.

Now, Mr. Smith, I'm going to hold sentencing in this matter sub curia. If you change your mind and decide to testify,

I will...

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