State v. Norwood

• Citation: 2014 ME 97,97 A.3d 613
• Decision Date: 31 July 2014
• Docket Number: Docket No. Han–13–463.
• Parties: STATE of Maine v. Dwight A. NORWOOD.
• Court: Maine Supreme Court

97 A.3d 613

2014 ME 97

STATE of Maine

v.Dwight A. NORWOOD.

Docket No. Han–13–463.

Supreme Judicial Court of Maine.

Submitted on Briefs: May 29, 2014.

Decided: July 31, 2014.

Jeffrey C. Toothaker, Esq., Ellsworth, for appellant Dwight Norwood.

Janet T. Mills, Attorney General, and Jamie R. Guerrette, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, GORMAN, and JABAR, JJ.

JABAR, J.

[¶ 1] Dwight A. Norwood appeals from a judgment of conviction of unlawful trafficking of oxycodone (Class B), 17–A M.R.S. §§ 1102(1)(I), 1103(1–A)(A) (2013), unlawful possession of oxycodone (Class C), 17–A M.R.S. § 1107–A(1)(B)(4) (2013), and carrying a concealed weapon (Class D), 25 M.R.S. § 2001–A(1)(B) (2013), entered in the trial court ( A. Murray, J.) following a jury trial. Norwood argues that the trial court abused its discretion in declining to determine whether Norwood's witness validly asserted his Fifth Amendment privilege against self-incrimination when the witness declined to answer Norwood's questions. Additionally, Norwood contends that the court erred in admitting evidence of an arrest of two individuals for possession of oxycodone allegedly purchased from Norwood. We affirm the judgment.

I. BACKGROUND

[¶ 2] Viewing the evidence in the record in the light most favorable to the State as the prevailing party, the jury rationally could have found the following facts beyond a reasonable doubt. State v. Mitchell, 2010 ME 73, ¶ 2, 4 A.3d 478.

[¶ 3] In the summer of 2012, the Maine Drug Enforcement Agency (MDEA) received information from Norwood's neighbor, a twenty-seven-year veteran of the Ellsworth Police Department, of unusual amounts of traffic coming and going from Norwood's home in Ellsworth. After receiving this information, MDEA agents began conducting surveillance on Norwood's home. Agents observed numerous visitors making stops at Norwood's residence. The stops ranged in duration from thirty seconds to ten minutes. On August 27, MDEA Agent Troy Bires observed a vehicle make a brief stop at Norwood's residence. Agent Bires followed the vehicle to a nearby convenience store and, based on his suspicion that the vehicle's occupants were about to make a drug deal, arrested the occupants. A search of the vehicle revealed twenty-six oxycodone pills in the glove compartment.

[¶ 4] Two days later, MDEA agents followed Norwood to Bangor, where they believed he made a drug purchase. When Norwood returned to Ellsworth, Agent Bires stopped the vehicle in Norwood's driveway and placed Norwood under arrest. During a pat-down search incident to his arrest, Agent Bires discovered that Norwood was carrying thirty-five oxycodone pills in two containers and a twelve-inch sword concealed inside a cane. Agent Bires then searched Norwood's residence pursuant to a search warrant, where he found three more oxycodone pills. At trial, Brandon Long, who drove with Norwood to Bangor, testified for the State, and confirmed that, in Bangor, Norwood had purchased the drugs the officers found during their pat-down search.

[¶ 5] The State filed a three-count complaint against Norwood alleging that he committed unlawful trafficking in and possession of oxycodone and carried a concealed weapon. During the trial, Norwood called Randy Archilles to testify that Long had fabricated his testimony against Norwood in order to secure a more favorable agreement with respect to Long's own criminal charges. When questioned by Norwood, however, Archilles, on the advice of counsel, declined to answer questions about Norwood's contact with Long and asserted his Fifth Amendment right against self-incrimination. Norwood objected, arguing that Archilles's assertion of the privilege was not justified, but the court denied his objection, reasoning that “it shouldn't be [the court's] role to overrule the advice given by an attorney to a client who wants to assert constitutional rights.” The jury found Norwood guilty of all three counts. The court sentenced Norwood to two and one-half years' imprisonment for the trafficking and possession counts and six months' for the concealed weapon count, to be served concurrently. Norwood timely appealed. SeeM.R.App. P. 2(b)(2)(A).

II. DISCUSSION

A. Validity of Witness's Fifth Amendment Privilege

[¶ 6] Norwood argues that the court erred in declining to evaluate the basis on which his witness—Archilles—asserted the Fifth Amendment privilege in response to Norwood's questions. We review the trial court's “determination of whether a witness has properly invoked the Fifth Amendment privilege” for an abuse of discretion. State v. Butsitsi, 2013 ME 2, ¶ 9, 60 A.3d 1254; State v. Robbins, 318 A.2d 51, 59 (Me.1974); see also United States v. Castro, 129 F.3d 226, 229 (1st Cir.1997) (explaining the standard of appellate review of trial courts' determinations on witnesses' invocation of the Fifth Amendment privilege).

[¶ 7] The Fifth Amendment guarantees both defendants and witnesses the right to refuse to give self-incriminating testimony. See Butsitsi, 2013 ME 2, ¶ 8, 60 A.3d 1254; State v. Linscott, 521 A.2d 701, 703 (Me.1987). The privilege against self-incrimination does not permit a witness to avoid making any disclosures; rather the privilege protects only those “disclosures which the witness reasonably believes could be used in a criminal prosecution [of the witness] or could lead to other evidence that might be so used.” State v. Vickers, 309 A.2d 324, 327 (Me.1973); see also State v. Richard, 1997 ME 144, ¶ 11, 697 A.2d 410.

[¶ 8] We have explained that an “injurious disclosure” is one in which the claimant has reasonable cause to believe that his answers may subject him to “a real danger of prosecution for a crime,” Linscott, 521 A.2d at 703, not merely a “fancied or imaginary danger,” Robbins, 318 A.2d at 57. Further, there may be “real danger” of prosecution although the elicited testimony is only indirectly incriminating. See Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); Vickers, 309 A.2d at 327. As the United States Court of Appeals for the First Circuit has explained, “If a reply to a seemingly innocuous question reasonably will tend to sculpt a rung in the ladder of evidence leading to prosecution, the privilege appropriately may be invoked.” Castro, 129 F.3d at 229 (citing Hoffman, 341 U.S. at 486, 71 S.Ct. 814).

[¶ 9] In evaluating the witness's fear of prosecution, “[i]t is for the Justice, not the witness, to decide if the witness has reasonable cause under all the circumstances to fear the danger of self-incrimination.” Robbins, 318 A.2d at 57; see also Hoffman, 341 U.S. at 486, 71 S.Ct. 814 (“[A witness's] say-so does not itself establish the hazard of incrimination. It is for the court to say whether his silence is justified.”). In other words, it is the presiding judge who must determine whether the witness's fear of prosecution is “real and based on reasonable cause.” Vickers, 309 A.2d at 327. “However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee.” Hoffman, 341 U.S. at 486, 71 S.Ct. 814. As a result, the court is often tasked with determining whether a claimant's silence is justified without knowing precisely the basis for invoking the privilege. “Th[is] task of determining whether or not the answer to a particular question would carry a real danger of incrimination is certainly one of the most difficult duties given to a trial Justice.” Robbins, 318 A.2d at 58.

[¶ 10] In determining whether the claimant has validly invoked the privilege, the court need not ascertain with absolute certainty the precise basis for invoking the privilege. Instead, “it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because the injurious disclosure could result.” Richard, 1997 ME 144, ¶ 11, 697 A.2d 410 (quoting Hoffman, 341 U.S. at 486–87, 71 S.Ct. 814). The judge evaluating the claim “must give the benefit of any reasonable doubt to the person claiming the privilege.” Vickers, 309 A.2d at 327–28 (quotation marks omitted).

[¶ 11] From a practical standpoint, the moment it becomes apparent that a witness intends to invoke the Fifth Amendment privilege, in order to avoid any prejudice resulting from his or her Fifth Amendment claim, “the witness should be interrogated outside the hearing of the jury by counsel, and by the [c]ourt if necessary.” Robbins, 318 A.2d at 57; State v. Cross, 1999 ME 95, ¶ 6, 732 A.2d 278 (“[C]alling a witness to the stand in the face of his expressed intention to invoke his privilege against self-incrimination would have produced no relevant evidence, while inviting the jury to engage in unwarranted and impermissible speculation.” (quotation marks omitted)); M.R. Evid. 512(b).¹ An invocation of the privilege may be unjustified if the fear of self-incrimination is “so improbable or unrealistic that no reasonable person would suffer it to influence his conduct,” Vickers, 309 A.2d at 328 (quotation marks omitted), or “if it clearly appears to the court that [the witness] is mistaken” in fearing prosecution, Hoffman, 341 U.S. at 486, 71 S.Ct. 814 (quotation marks omitted). The court “being governed as much by [its] personal perception of the peculiarities of the case as by the facts actually in evidence ... should evaluate the witness'[s] assertion of privilege on a question-by-question basis.” Robbins, 318 A.2d at 57 (quotation marks omitted).

[¶ 12] In this case, Norwood objected to Archilles's assertion of the Fifth Amendment privilege in response to three questions:

• “[W]hat did Brandon Long tell you?”

• “Did ...