Appeals court finds man failed to prove ‘duress’ due to intimidation

A man convicted of contempt after he refused to testify at a murder trial for fear of reprisal could not claim a duress defense, the Court of Appeals ruled Thursday.

Travis Howell was subpoenaed to testify at a murder trial in Baltimore City Circuit Court in 2016 and at first asserted his Fifth Amendment right against self-incrimination, according to the opinion. After the court granted him immunity, he still refused to answer questions because he said he had been assaulted and threatened with retribution if he testified.

Howell was charged with contempt and the court rejected his defense of duress, finding him guilty. Howell appealed.

The unanimous Court of Appeals did not opine on whether the duress defense is available as a matter of law to someone charged with contempt for refusing to testify, but the court held Howell did not have sufficient evidence of duress to generate the defense.

Though Howell may have feared someone might retaliate against him in the future, “the common law duress defense is a poor fit for such fears because of the required element of immediacy,” Judge Robert N. McDonald wrote on behalf of the unanimous court.

“Obviously, we would want a different result for our client, but we’re still glad the court took the time to hear the case,” Howell’s attorney Kristin C. Tracy, of the Law Offices of Thomas M. Donnelly LLC in Baltimore, said Friday.

Howell was federally indicted on drug charges in 2011 and entered a plea agreement that included a promise to cooperate with law enforcement and to testify in future cases, according to the opinion. While testifying before a grand jury in Baltimore City Circuit Court in 2012, Howell said a man had confessed to a murder during a conversation.

Howell subsequently refused to testify at the murder trial of the man he had named in his grand jury testimony, according to the opinion. After being held in contempt, Howell returned to court the next day and explained that he had been involved in an altercation outside the courtroom before his appearance the previous day, which made him reluctant to testify.

Howell was detained until the end of the trial and did not change his mind about testifying, at which point he was charged with two counts of criminal contempt of court, according to the opinion. Howell was found guilty after agreeing to a statement of facts and proffered testimony that would have come out at trial. He was sentenced to five years in prison with all suspended but his time served and placed on probation.

Common law duress is a defense when it is “present, imminent, and impending, and of such a nature as to induce well grounded apprehension of death or serious bodily injury,” McDonald wrote, quoting a 2012 opinion. “Mere fear or threat by another is not sufficient nor is a threat of violence at some prior time.”

The state argued the duress defense should not be available to a witness charged with contempt for refusing to testify, but the court declined to reach the question because Howell did not present sufficient evidence to raise the defense.

“Mr. Howell did not proffer evidence of a threat that was ‘present, imminent, and impending,'” McDonald wrote. “When Mr. Howell committed the crime of contempt, he was not under such a threat.”

A spokeswoman for the Maryland Office of the Attorney General declined to comment on the decision Friday.

The case is Travis Howell v. State of Maryland, No. 43, Sept. 2018.