State v. Comes

• Decision Date: 07 January 1965
• Docket Number: No. 112,112
• Citation: 206 A.2d 124,237 Md. 271
• Parties: STATE of Maryland v. Joseph M. COMES.
• Court: Maryland Court of Appeals

Page 271

237 Md. 271

206 A.2d 124

STATE of Maryland v. Joseph M. COMES.

No. 112.

Court of Appeals of Maryland.

Jan. 7, 1965.

Fred Oken, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Frank H. Newell, III, State's Atty. and Austin W. Brizendine, Asst. State's Atty., respectively, for Baltimore County, Towson, on the brief), for appellant.

Douglas N. Sharretts, Baltimore, for appellee.

Before PRESCOTT, C. J., and HORNEY, MARBURY, SYBERT and OPPENHEIMER, JJ.

PRESCOTT, Chief Judge.

This appeal presents some unusual aspects different from the general run of criminal cases, and the proper solution thereof is not entirely free of difficulty. This is because of the constitutional and statutory provisions (set forth below) relating to bribery, the acceptance of bribes, and the granting of an exemption from prosecution to those who are compelled to testify.

The appeal has been ably briefed and argued by counsel on both sides.

The grand jury for Baltimore County was investigating possible crimes or violations of law in the delivery and sale of bituminous material in and to Baltimore County, and it, in due course, returned indictments charging bribery and the acceptance of bribes against various individuals under Article 27, § 23. Nine such indictments were brought against the appellee-defendant.

During the investigation, the grand jury called upon the appellee to testify before it on two separate occasions: once on June 8, 1962, and again on June 12, 1962. No formal summons was issued to him on either occasion, although a witness slip entitling him to a witness fee was given him after his first appearance. At no time was he formally offered the immunity named in the statute quoted below, nor did he, at any time before testifying, formally claim such immunity. The appellee, a road superintendent employed by Baltimore County, appeared before the grand jury on both dates in response to radioed instructions from the dispatcher's office of his employer to him 'out in the field.' The dispatcher received his order to call the appellee from the Assistant State's Attorney, who, in turn, had been directed by the grand jury to secure the appellee's attendance on both occasions. As a result of appellee's own testimony, the grand jury indicted him in the nine cases charging violations of the bribery laws. The trial judge, upon appellee's motion, dismissed all nine indictments.

In compliance with the mandate contained in Section 50 of Article III of the Constitution of Maryland, the Legislature enacted Code (1957), Article 27, Section 23. It provides for the punishment of any person bribing or attempting to bribe public officials, including any employee of a county, and for the punishment of any such employee who demands or accepts a bribe, fee, reward or testimonial for the purpose of influencing him in the performance of, or in the failure to perform, his official duties. The above Section then continues '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.' (Italics added.)

We held in Brown v. State, 233 Md. 288, 196 A.2d 614 (opinion by Brune, C. J.), that the exemptions mentioned in the above Section extended to proceedings before grand juries. ¹

Upon the facts and the law as we have set them forth above, the State earnestly argues with considerable force that the appellee was not 'compelled' to testify, because he was not formally summoned (as in Brown, supra), and, therefore, he could have ignored, with impunity, the radio call directing him to appear before the grand jury. In addition, says the State, he failed to assert or claim his immunity at the time he appeared and testified before the grand jury; hence, his said appearance and testimony given were purely 'voluntary' and in no sense 'compelled,' so that he may not now invoke the provisions of Section 23 for his protection. The State further contends that even though a refusal to appear and testify by the appellee might have been followed by a formal summons and a direction by the grand jury to testify 'takes nothing away from the fact that he voluntarily appeared before the grand jury pursuant to an informal invitation.'

The State relies principally upon two previous cases decided by this Court: Pick v. State, 143 Md. 192, 121 A. 918, and Gamble v. State, 164 Md. 50, 163 A. 859. However, we do not find either of them particularly helpful in determining the questions involved herein. In Pick, four indictments charging larceny were involved; in Gamble, the appellant was charged with an aggravated assault. Both appellants appeared before the grand juries which indicted them. Neither declined to testify. This Court held that their appearances before the grand juries and their testifying, voluntarily, did not invalidate the indictments, noting in Gamble: 'They [the defendants] might have been compelled to obey the summons, but no power could compel them, against their will, to give evidence which might result in their indictment for the offense then being investigated.' (In the case at bar, the Statute made the appellee a compellable witness.) See also Vajtauer v. Com'r, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560, wherein it was stated that one who does not assert his constitutional privilege against self-incrimination waives it. But in none of these cases was an immunity statute involved; the appellants relied solely upon constitutional provisions that no man ought to be compelled to give evidence against himself in a criminal case. Fifth Amendment to U. S. Constitution; Article 22 Md. Declaration of Rights.

Over the years, innumerable so called 'immunity' statutes have been enacted throughout this country. For a rather complete compilation thereof, federal and state, see VIII Wigmore, Evidence (McNaughton Rev.), § 2281, n. 11. Few, if any, of them are couched in identical language. Many explicitly require, as a prerequisite to the grant of immunity, that the privilege be claimed (see, for example, Code [1957], Article 95A Section 12, '* * * which he is compelled, after having claimed his privileges against self-incrimination * * *.'), or that the witness be ordered to answer by a court. Others require that the compelled testimony be given under oath. For a statute of this nature, see Code (1957), Article 48A, Section 28. There are numerous other variations to be found in the statutes, but it will not be necessary to state them in further detail.

Professor Wigmore, op. cit. in § 2281, pertinently calls attention to the fact that the improper use of 'immunity' and 'privilege' as interchangeable terms has rendered some judicial opinions needlessly obscure. He points our that 'immunity' signifies the beneficial result to the offender, i. e., the nonliability of the offender for the offense itself, while 'privilege' denotes the noncompellability to speak about the offense. In other words, by an immunity the offender's guilt ceases; under a privilege, it continues.

Professor Wigmore, op. cit., beginning with § 2281, deals with immunity statutes with his characteristic thoroughness and ability. However, Professor McCormick in McCormick, Evidence, § 135 analyzes the cases and summarizes the holdings in a manner sufficient for the purposes of this case. He states:

'Immunity statutes have as their purpose not a gift of amnesty but the securing of testimony which because of privilege could not otherwise be procured. If the witness is willing to give the evidence voluntarily, there is no reason for buying it with immunity. But the traditional language of early immunity statutes did not make clear the conditions of exchange. They merely provided that in certain proceedings the privilege did not exist, but the witness had an immunity. This vagueness has provoked disputes. Must the witness have been compelled by subpena to appear? Not unless the immunity statute so provides, but the subpena is some evidence that the testimony was compulsory. Must the witness claim his privilege not to answer? Many modern statutes explicitly so provide, but in the absence of such provision, there is conflict. The highest court holds such claim is not required, on the ground that to deny the immunity, when the literal words of the law confer it, makes the statute a trap for the witness. [The author here cites United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376, which will be dealt with below. See also Adams v. Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608.] The dissenting view, for which there is strong support in state holdings, is that the witness in the absence of the immunity statute would be required to claim the privilege or lose it, and there is no reason to believe that the statute was intended to change this. This being so, why endow with immunity one who has waived the privilege to be silent? Moreover, the requirement of a claim, and consequent ruling, lessens the danger that immunity will be conferred by inadvertence of government counsel, unaware that his question touches upon a criminal transaction of the witness.

'Under this, which seems the more expedient view, the counsel for the government, would have the opportunity to yield to the privilege, or to insist upon the question and invoke the judge's ruling requiring the witness to answer, in return for the immunity. If the evidence given is not within the scope of the privilege, as where required records are called for, there is no basis for granting the compensatory immunity. Similarly, even though the witness claims the...