187 A.3d 700
Md. Ct. Spec. App.2018Background
- Howell, a material witness in State v. Freddie Curry, was granted use and derivative-use immunity under CJP § 9-123 after initially invoking the Fifth Amendment.
- On the scheduled day to testify, Howell says five or six men threatened and assaulted him in the courthouse corridor; security ejected them and one warned, “you got to come out on the street sometime.”
- Howell refused to answer any questions at trial, repeatedly saying, “I respectfully refuse to testify,” and was held in direct contempt by the trial judge.
- Howell later alleges additional threats/assaults at detention (CBIF) and sought to present duress evidence at his contempt trial; the State moved to preclude duress evidence.
- Trial court(s) ruled duress was not an available defense (or, at minimum, not generated by the facts); Howell pled on an agreed statement of facts, was convicted of one contempt count, and appealed on the duress issue.
Issues
| Issue | Howell's Argument | State's Argument | Held |
|---|---|---|---|
| Whether duress is available to a witness charged with criminal contempt for refusing to testify | Duress excused refusal because Howell faced threats/assaults outside the courtroom and feared immediate reprisals | Duress is not a competent defense to contempt for willful refusal to testify; fear of reprisal is legally insufficient | Court assumed arguendo duress could apply but held duress was not generated on these facts; affirmed conviction |
| Whether the March 10 threats were "imminent/impending" such that duress elements were met | The hallway altercation and the later CBIF threats made the danger immediate and left no reasonable escape | The assailants had been removed; no present threat at time of refusal; security/escorts available | Threats were not imminent/impending at time of testimony; duress not established |
| Whether the prosecution’s limited offer of temporary relocation affected duress availability | Limited State protection meant Howell reasonably feared for safety and had no real protection | State said only limited protection was offered but that did not create legal justification to refuse | Court noted lack of request to court for protection (e.g., escort) and found no legal excuse |
| Whether duress evidence should have been admitted for mitigation or jury consideration | Evidence of threats, media identification, and detention assaults would generate jury question on duress | Evidence irrelevant if duress unavailable; alternatively duress not proven here | Court precluded duress evidence as not generating the defense; mitigation consideration remains for sentencing but not a legal excuse to refuse to testify |
Key Cases Cited
- Piemonte v. United States, 367 U.S. 556 (Sup. Ct.) (fear of reprisal does not legally excuse a witness’s refusal to testify)
- Kastigar v. United States, 406 U.S. 441 (Sup. Ct.) (government may compel testimony if use and derivative-use immunity is granted)
- McMillan v. State, 428 Md. 333 (Md. 2012) (duress is a defense to crime except homicide; requires present, imminent, impending threat and no opportunity for escape)
- Ex parte Bowles, 164 Md. 318 (Md. 1933) (criminal contempt vindicates the court’s authority)