State v. Rice, No. 96, Sept. Term, 2015

• Court: Court of Special Appeals of Maryland
• Writing for the Court: BARBERA, C.J.
• Citation: 447 Md. 594,136 A.3d 720
• Parties: STATE of Maryland v. Brian RICE. State of Maryland v. Edward Nero. State of Maryland v. Garrett Miller. Alicia White & Caesar Goodson v. State of Maryland.
• Decision Date: 20 May 2016
• Docket Number: No. 97, Sept. Term, 2015 , No. 98, Sept. Term, 2015 , No. 99, Sept. Term, 2015,No. 96, Sept. Term, 2015

447 Md. 594
136 A.3d 720

STATE of Maryland
v.
Brian RICE.

State of Maryland
v.
Edward Nero.

State of Maryland
v.
Garrett Miller.

Alicia White & Caesar Goodson
v.
State of Maryland.

No. 96, Sept. Term, 2015
No. 97, Sept. Term, 2015
No. 98, Sept. Term, 2015
No. 99, Sept. Term, 2015

Court of Appeals of Maryland.

May 20, 2016.

136 A.3d 725

Michael Schatzow, Special Asst. Atty. Gen. (Carrie J. Williams, Asst. Atty. Gen., Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellant in Nos. 96, 97, and 98, Sept. Term, 2015.

Thomas M. Donnelly (Law Offices of Thomas L. Donnelly, LLC, Baltimore, MD), on brief, for Appellee in Nos. 96, 97, and 98, Sept. Term, 2015.

Micheal Belsky, (Chaz Ball, Schlachman, Belsky & Weiner, P.A., Baltimore, MD; Gary E. Proctor, Law Offices of Gary E. Proctor, LLC, Baltimore, MD; Joseph Murtha, Murtha, Psoras & Lanasa, LLC, Lutherville, MD; Marc Zayon, Allison R. Levine, Roland Walker, & Marc Zayon, P.A., Baltimore, MD; Catherine Flynn, Brandon Mead, Mead, Flynn & Gray, P.A., Baltimore, MD), on brief, for Appellee in Nos. 96, 97, and 98, Sept. Term, 2015.

Gary E. Proctor, (Law Offices of Gary E. Proctor, LLC, Baltimore, MD; Joseph Murtha, Murtha, Psoras & Lanasa, LLC, Lutherville, MD), on brief, for Appellants in No. 99, Sept. Term, 2015.

Carrie J. Williams, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee in No. 99, Sept. Term, 2015.

Paul J. Orfanedes, Esq., Lauren M. Burke, Esq., Judicial Watch, Inc., Washington, D.C., for Amicus Curiae brief of Judicial Watch, Inc. for Appellant William G. Porter in No. 99, Sept. Term, 2015.

Argued before: BARBERA, C.J., BATTAGLIA,^* GREENE, ADKINS, McDONALD, WATTS and HOTTEN, JJ.

BARBERA, C.J.

447 Md. 603

On April 12, 2015, Freddie Gray suffered an injury while in police custody; one week later, he died from those injuries. The State charged six Baltimore City police officers with crimes in connection with the events leading up to Mr. Gray's death—Officer William Porter, Officer Caesar Goodson, Sergeant Alicia White, Lieutenant Brian Rice, Officer Edward Nero, and Officer Garrett Miller. The first of those officers to face trial was Officer Porter. His trial began on November 30, 2015, and, after the jurors could not reach a verdict, it ended in a mistrial on December 16, 2015. At the heart of

136 A.3d 726

this appeal is whether Officer Porter, who the State has indicated it will retry, can now be compelled by the State, before his retrial, to provide immunized testimony against the remaining officers. In the cases of Officer Goodson and Sergeant White, the trial court granted the State's motion to compel Officer Porter's testimony. In the cases of Lieutenant Rice, Officer Nero, and Officer Miller, the trial court denied that same motion.

447 Md. 604

On March 8, 2016, we issued two Per Curiam Orders affirming the judgments of the Circuit Court in Officer Goodson's and Sergeant White's cases; reversing the judgments of the Circuit Court in the cases of Lieutenant Rice, Officer Nero, and Officer Miller; and lifting the stays in each case to allow the trials to move forward. We now explain our reasons for those Orders. We hold that the State's compelling Officer Porter to testify in the trials of his fellow officers, under the grant of use and derivative use immunity, does not violate Officer Porter's privilege against compelled self-incrimination under the Fifth Amendment to the United States Constitution and Article 22 of the Maryland Declaration of Rights. We further hold that the trial court lacks the discretion to deny a properly pled motion to compel immunized testimony and that the denial of such a motion constitutes a final judgment from which the State can appeal immediately.

I.

Witness Immunity

Most lawyers and lay people alike learn from law school, television, or movies that all persons in this country enjoy a privilege to be free from compelled self-incrimination. What many may not know is that the prosecutor may supplant that privilege through the grant of immunity to one whose testimony is sought in a criminal trial. Indeed, the Supreme Court of the United States has recognized that the power of the State to compel a witness to testify is at the core of the proper functioning of our criminal justice system. Kastigar v. United States, 406 U.S. 441, 443–44, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). A witness's constitutional privilege, guaranteed by the Fifth Amendment to the United States Constitution and Article 22 of the Maryland Declaration of Rights, is preserved through application of immunity statutes, which balance the witness's privilege against compelled self-incrimination with the legitimate power of government to compel persons to testify. U.S. Const. amend. V (“No person ... shall be compelled in any criminal case to be a witness against himself[.]”

447 Md. 605

); Md. Decl. of Rts. art. 22 (“That no man ought to be compelled to give evidence against himself in a criminal case.”). Because “many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime,” immunity statutes have been referred to as “part of our constitutional fabric.” Kastigar, 406 U.S. at 446–47, 92 S.Ct. 1653 (quoting Ullmann v. United States, 350 U.S. 422, 438, 76 S.Ct. 497, 100 L.Ed. 511 (1956) ).

Three varieties of immunity have developed in Anglo–American jurisprudence, each offering varied levels of protection to the witness. “Use” immunity offers the least protection—although the State is barred from using any immunized testimony against the witness in a later criminal prosecution, the State is not precluded from using evidence derived from that testimony. See id. at 454, 92 S.Ct. 1653 (providing that use immunity statutes do not “prevent the use of [the witness's] testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding” (quoting

136 A.3d 727

Counselman v. Hitchcock, 142 U.S. 547, 564, 12 S.Ct. 195, 35 L.Ed. 1110 (1892) )). On the other end of the spectrum is “transactional immunity,” which precludes the State from prosecuting the witness for any conduct arising out of the substance of the witness's testimony. In re Criminal Investigation No. 1–162, 307 Md. 674, 684, 516 A.2d 976 (1986). Between those two ends is “use and derivative use” immunity, where the State is precluded from using in a later prosecution both the witness's compelled testimony and any information directly or indirectly derived from that testimony. Id.

The Supreme Court held in Counselman that use immunity does not afford a witness sufficient protection to supplant the Fifth Amendment privilege. 142 U.S. at 564, 12 S.Ct. 195. The Court concluded that use immunity does not protect the witness to the same extent that a claim of the privilege would protect him because it does not “prevent the use of his testimony to search out other testimony to be used in evidence against him.” Id. at 564–65, 12 S.Ct. 195. Because the Court

447 Md. 606

also stated that a valid immunity statute “must afford absolute immunity against future prosecution for the offence to which the question relates,” that decision was long interpreted to mean that transactional immunity was required to preserve a witness's Fifth Amendment privilege. See id. at 586, 12 S.Ct. 195 (emphasis added); see also Pillsbury Co. v. Conboy, 459 U.S. 248, 275, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983) (Blackmun, J., concurring in the judgment) (noting that the courts interpreted Counselman as requiring transactional immunity).

The Supreme Court clarified in Kastigar, however, that use and derivative use immunity is coextensive with the scope of a witness's Fifth Amendment privilege and transactional immunity is not required to pass constitutional muster. See 406 U.S. at 453, 92 S.Ct. 1653 (“Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege.”). The Court explained that a grant of immunity need only provide that level of protection that the exercise of the privilege itself would offer. Id. at 453–54, 92 S.Ct. 1653. Because the Fifth Amendment privilege is designed to prevent the witness from “being forced to give testimony leading to the infliction of penalties affixed to criminal acts,” immunizing the witness's “compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection.” Id. at 453, 92 S.Ct. 1653 (internal quotation marks and alterations omitted).

The Kastigar Court cautioned, however, that, once a witness receives use and derivative use immunity, the State will bear a “heavy burden” to prove that the evidence it seeks to introduce against the witness in a later prosecution was not tainted by the immunized testimony. Id. at 461, 92 S.Ct. 1653. The...