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"YOU GOTTA COME OUT ON THE STREETS SOMETIME!" - DURESS DEFENSE FAILS TO PROTECT THREATENED WITNESS FROM CONTEMPT FOR REFUSING TO TESTIFY

FROM THE STREETS OF BALTIMORE TO THE 3rd FLOOR OF THE ROBERT C. MURPHY COURTS OF APPEAL BUILDING IN ANNAPOLIS
By Robert C. Bonsib, Esq.
 MarcusBonsib, LLC 
301-509-5100
[email protected]
www.robertbonsib.com

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On January 7, 2019 the Maryland Court of Appeals ("COA") will hear oral argument in the case of Travis Howell v. State of Maryland, 237 Md. App. 540 (2018) and review the decision of the Court of Special Appeals ("CSA") affirming Howell's contempt conviction for refusing to testify in a murder prosecution.

Howell was called as witness to testify as to admissions made to Howell by Freddie Curry who was on trial for a homicide. Howell had testified before the grand jury that Curry admitted to Howell that he, Curry, had, in fact, committed the murder for which Curry was on trial

On March 7, 2016 Howell was called to testify at Curry's trial. He refused to testify invoking the Fifth Amendment. He was granted use and derivative use immunity and ordered to return to court on March 10, 2016.

On March 9, 2016 the Baltimore Sun published an article about the Curry trial on its website and in the article disclosed Howell's identity and role in the case and disclosed that Howell had made a plea agreement with the federal government in a separate drug case and, as part of that deal, had agreed to testify in the murder prosecution that Curry told him about killing for which Curry was on trial.

On March 10, 2016, Howell arrived at the courthouse and waited outside the courtroom to be called to testify. According to Howell, while he was waiting in the corridor, he was verbally accosted and physically assaulted by five or six unidentified men who threatened him with violence for snitching. Courthouse security intervened and ejected the men from the courthouse. As the men were leaving, one of them told Howell that "[y]ou got to come out on the street sometime." The men were not detained or arrested. Within five minutes of the altercation, Howell was called to the stand and repeatedly refused to testify. He was held in direct contempt by the circuit court.

At his contempt trial Howell testified that five or six men that had approached him and threatened him in the courthouse on March 10, 2016 and told the circuit court that he was frightened about the consequences of testifying in the Curry trial. Howell also testified that when he initially made his proffer of testimony in the Curry matter, the prosecutor promised that his name would not be publicly disclosed without advanced warning to Howell.

Howell's counsel informed the circuit court of the Baltimore Sun article that had named Howell as a witness in the Curry trial. The circuit court was also told that Howell had been told by prosecutors that the State could only provide temporary relocation assistance for Howell.

The issue before the CSA was whether the circuit court erred when it determined that the defense of duress was unavailable to the charge of criminal contempt in Howell's circumstances where the refusal to testify was based upon a of fear of retaliation.

After framing the issue before the CSA as a question of whether a duress defense may be raised by a witness who refuses to testify due to fear of reprisal, the CSA then noted that the overwhelming majority of courts to address the issue have held that fear of reprisal does not provide a legal basis for a witness's refusal to testify."

The CSA stated that:

"[w]e agree with the general principle that fear does not excuse a recalcitrant witness's refusal to testify. Under Maryland law, however, duress "is a defense as to all crimes except taking the life of an innocent person." McMillan v. State, 428 Md. 333, 348, 51 A.3d 623 (2012). In this appeal, we need not determine whether the duress defense is per se unavailable to a recalcitrant witness charged with contempt. As we shall explain, assuming arguendo that duress can be a valid defense for contempt, the defense is not generated by the evidence presented in this case."

The CSA continued:

"The duress defense "arises when an individual is faced with a choice of two evils, and one is the commission of an illegal act." State v. Crawford, 308 Md. 683, 691, 521 A.2d 1193 (1987). We have explained: The rationale of the defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question. Rather it is that, even though he has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude. Wentworth v. State, 29 Md. App. 110, 117-18, 349 A.2d 421 (1975). In order for duress to constitute a defense to the commission of an illegal act, "the duress by another person on the defendant must be present, imminent, and impending, and of such a nature as to induce well grounded apprehension of death or serious bodily injury if the act is not done." McMillan, supra, 428 Md. at 348, 51 A.3d 623 (emphasis supplied). The alleged duress "must be of such a character as to leave no opportunity to the accused for escape." Id. Critically, "[m]ere fear or threat by another is not sufficient nor is a threat of violence at some prior time." Id. Furthermore, "the defense cannot be claimed if the compulsion arose by the defendant's own fault, negligence or misconduct." Id.

The elements of a duress defense set forth in the Maryland Criminal Pattern Jury Instruction are:

(1) the defendant actually believed that the duress placed the defendant in immediate and impending danger of death or serious bodily harm;

(2) the defendant's belief was reasonable;

(3) the defendant had no reasonable opportunity for escape; and

(4) the defendant committed the crime because of the duress.

The defense of duress is not established by proof that the defendant had been threatened with violence at an earlier time. The defendant must have been under a present threat at the time of the commission of the crime charged.

In order to convict the defendant, the State must prove that the defendant did not act under duress. This means that you are required to find the defendant not guilty unless the State has persuaded you, beyond a reasonable doubt, that at least one of the four factors of duress was absent.

The CSA observed that at no time did Howell request assistance from the circuit court after the threatening incident in the courthouse corridor and suggested that if Howell had requested a security escort, for example, the escort could have, at a minimum, removed any potential immediacy from the threat and for that reason held that the duress defense was not generated by the facts alleged by Howell.

The CSA, in explaining its holding said

"[w]e do not intend to minimize the plight faced by witnesses who fear retaliation as a result of their testimony. Witnesses' fears are often well- founded, and this Court is not blind to the seriousness of threats against witnesses. Witness intimidation and retaliation are exceptionally serious societal problems, and in this opinion, we are not suggesting otherwise or minimizing that reality. Indeed, even when refusing to testify is not legally excusable, there are certainly circumstances under which a witness's reticence to testify would be understandable. Therefore, the reasons for a witness's contemptuous conduct are certainly appropriate factors for the court's consideration in mitigation.

While cognizant of the significant social policy implications of the issues presented in this appeal, our role is to apply the law while assessing the merits of Howell's appellate claims. Howell presented no legal excuse for his refusal to testify. We hold, therefore, that the circuit court did not err by concluding that the duress defense was unavailable to Howell in this case. Accordingly, we affirm."

The COA in January will be faced with addressing the "real world" issues presented in the Howell opinion and recognizing the sometimes life-threatening consequences of testifying in Howell's situation to one who has to survive on the streets of Baltimore and not in the serene hallways of judicial buildings. (although it appears that even in the courthouse in Baltimore that Howell's safety was not able to be guaranteed if he was able to be threated publicly in the courthouse hallways by five or six individuals).

The prosecutors attempted to force Howell to testify by granting him immunity. The type of immunity offered was not immunity from retaliatory violence, it was immunity from having his testimony used against him in a criminal prosecution. It was not immunity from death threats - an immunity beyond the power of the prosecution and the circuit court to offer Howell. The State's offer of "temporary protection" and the CSA's suggestion that Howell defaulted on the availability of the duress defense because "... at no time did Howell request assistance from the court after the threatening incident in the courthouse corridor" and the CSA's speculation that if Howell had requested a security escort, that "...the escort could have, at a minimum, removed any potential immediacy from the threat" is unrealistic. Howell might very well have been wondering what protection that so-called security escort was going to offer him once he opened the doors of the courthouse and walked in the streets of Baltimore. He might also have wondered how much more "present, imminent and impending" a threat has to be than one that is made outside the courtroom right before a witness is about to testify.

The COA must decide whether it will recognize that the fear of death or serious retaliatory violence is real for witnesses such as Howell as it also considers how, if it recognizes that real fear as a justification for refusing to testimony in cases such as the Curry case, its holding may deprive prosecutors of an essential tool necessary to compel the witness testimony that may be necessary to successfully convict the very persons responsible for creating the environment of fear present on the streets in some of our communities.

If the COA affirms the ruling of the CSA - witnesses will have to consider whether the fear of contempt overrules the fear of the bullet.

Witness killings have occurred and continue to occur in the Washington, D.C.- Baltimore area. Memories are long and retaliation can wait as we have seen in the recent killing of "Whitey" Bulger in a federal prison. Links to examples of newspaper articles discussing such witness killings include the following:

https://www.baltimoresun.com/news/maryland/crime/bs-md-co-fatal-shooting-overlea-20180907-story.html

https://www.baltimoresun.com/news/maryland/crime/bs-md-ci-barronette-trial-20180914-story.html

http://www.washingtonpost.com/wp-srv/special/local/witness-killings/

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