The most important opinion of 2021: Yours. Provide your feedback through MSBA's membership survey. TAKE THE SURVEY TODAY

Darrayl Wilson and Kearra Bannister got married on February 9, 2017, in a ceremony conducted by telephone while Wilson was in jail awaiting trial for first-degree murder.  Wilson’s trial was set to begin later in the month, but the trial of his co-defendant was already underway. The new bride, who had implicated both Wilson and the co-defendant in the murder, was under subpoena to testify against the co-defendant on February 13. On that date, and later at Wilson’s trial, Bannister tried unsuccessfully to invoke the spousal testimonial privilege to avoid testifying. The State later alleged, and a jury ultimately found, that Wilson was guilty of obstruction of justice and witness tampering for arranging the marriage so that his wife could assert her marital privilege.  In a case of first impression in Maryland, the Court of Special Appeals held that the marriage, even if a sham entered into solely to invoke the privilege, was “a lawful and permissible means for the new spouse to avoid being compelled to testify,” and could not, therefore, form the basis for Wilson’s obstruction and witness tampering convictions.  Wilson v. State, 241 Md. App. 683, 703-04 (2019).  The Court of Appeals disagreed and held that by entering the marriage with the intent to prevent his new wife from testifying, Wilson had attempted to tamper with a witness and obstruct justice. The Court reinstated Wilson’s concurrent 30-year sentences for these offenses. State v. Wilson (No. 64, Sept. Term 2019) (10/26/20). 

Both appellate courts and the trial judge understood that the obstruction/witness tampering allegations were essentially questions of statutory construction.  The witness tampering and obstruction of justice statutes, Md. Cts. & Jud. Proc. §§ 9-305(a) and 9-306(a), prohibit one from using “corrupt means” to actually impede, or to try to impede (i) a witness or (ii) the due administration of justice.  The problem for the courts was that the statutes do not define the term “corrupt means.”  Further complicating the analysis was the fact that the “corrupt means” alleged here, a marriage, was in and of itself a lawful act. As eventually framed by the Court of Appeals, the question presented (and answered affirmatively) was whether “engaging in otherwise lawful conduct with the intent to preclude a witness for the State from testifying at an upcoming criminal trial may constitute corrupt means under the witness tampering and obstruction of justice statutes.”  Wilson, Slip Op. at 29

The Court of Special Appeals had looked first to the testimonial privilege statute, Cts. & Jud. Proc. § 9-106(a) which, subject to narrow exceptions not pertinent here, provides that “[t]he spouse of a person on trial for a crime may not be compelled to testify as an adverse witness . . . .”  Finding no exception in the statute for sham marriages, the Court of Special Appeals had declined to create one, noting that “[a]ny amendment to CJP  § 9-106 must come from the General Assembly.” 241 Md. App. at 704.  The intermediate appellate court found support in dicta in prior Maryland cases to the effect that “the prevailing rule throughout the country seemed to be that the spousal privilege applied, even in a sham marriage.” Id., citing State v. Walker, 345 Md. 293 (1997).  The Court of Special Appeals had also surveyed decisions from 15 other states, 10 of which determined that the privilege applied, even if the marriage was entered solely to take advantage of it.  “In short, a person cannot be guilty of ‘corrupt means’ witness tampering or obstruction of justice where the allegedly criminal act—marrying with the express purpose of invoking the spousal privilege—is recognized as a lawful and permissible means for the new spouse to avoid being compelled to testify.” 241 Md. App. at 703-04.

The Court of Appeals took an altogether different approach. Rather than address the Court of Special Appeals’ analysis of decisions from across the country that were directly on point, the Court looked first to simple dictionary definitions of “corrupt” and found them to include “‘[h]aving unlawful or depraved motives; given to dishonest practices, such as bribery.’ Corrupt, Black’s Law Dictionary (11th ed. 2019) . . . or ‘characterized by improper conduct (such as bribery or the selling of favors)[.]’ Corrupt, Merriam-Webster (2020) . . . .” Slip Op. at 21. According to the Court of Appeals, “[t]hese dictionary definitions of the word ‘corrupt’ support the State’s position that obstruction of justice may involve a wide range of conduct, including conduct that alone may not be illegal but is undertaken with the intent or purpose to impede a witness or obstruct justice.”  Id. at 21.

The Court looked next to two of its earlier cases decided on what it deemed to be analogous facts: Romans v. State, 178 Md. 588 (1940), where defendants accused of performing an illegal abortion tried to get their patient to leave town to avoid having to testisfy; and Hitzelburger v. State, 173 Md. 435 (1938), which involved an attempt by a Baltimore City police officer under investigation to get the grand jury to call exculpatory witnesses. In each of these cases, obstruction of justice charges were sustained because of the actors’ corrupt motive to influence or impede a witness (Romans) or the due administration of justice (Hitzelburger), despite the fact that the underlying acts were not otherwise illegal. 

Finally, the Court cited two federal cases, including U.S. v. Cioffi, 493 F.2d 1111 (2d Cir.) cert. denied, 419 U.S. 917 (1974), where an alleged loan shark induced a borrower to invoke his Fifth Amendment privilege against self-incrimination. “[W]hile a witness violates no law by claiming the . . . privilege against self-incrimination [before] a grand jury, one who . . . advises with corrupt motive a witness to take it, can and does obstruct or influence the administration of justice.” Wilson, Slip Op. at 26, quoting Cioffi, 493 F.2d at 1119.

The Maryland Court of Appeals thus “conclude[d] that the use of corrupt means involves acting with corrupt intent, i.e., a person uses corrupt means by marrying with the intent to preclude another person from testifying at a criminal proceeding, even though the conduct involved—entering into a marriage—is otherwise lawful.”  Wilson, Slip Op. at 3. As the applicable statutes make it a crime even to “try” to influence a witness or to obstruct justice, the fact that Wilson’s gambit proved unsuccessful was immaterial to the Court’s decision. Id. at 37. The evidence presented at trial, including inter alia, 28 cryptic telephone calls indicating an urgent need to consummate (in the non-traditional sense) a marriage in the weeks before the trials, and an eleventh-hour telephone ceremony officiated by a pastor from the New Jersey-based Manna From on High Ministries calling from an unknown location, was found sufficient to support the jury verdicts. Id. at 12; 35.

Several questions were left unanswered by the Court, beginning with the fundamental question of whether a party to a sham marriage may invoke the spousal testimonial privilege in the first place. Id. at 39. At Wilson’s murder trial, the trial court determined that Bannister could not do so. When Wilson’s interlocutory appeal on the trial court’s ruling was deemed premature, he pled guilty to conspiracy to commit murder in the second degree, and was sentenced to serve 20 years of a 30-year sentence. Id. at 15, n. 4; State v. Wilson, No. 08-K-15-000551 (Cir. Ct. Chas. Cty.). The propriety of the trial court’s ruling, therefore, could not be tested.

The Court also declined to address the validity of the remote marriage conducted by out-of-state clergy from an unknown location, an issue of increasing interest in a COVID-19 world in which some states now permit virtual weddings, typically by executive order. 

Also unanswered was whether Wilson might have been able to rely on an advice of counsel defense to the witness tampering/obstruction charges, had the record been fully developed on this question. The Court noted that while the advice of counsel is not generally recognized as a defense to a criminal charge in Maryland, it may in some circumstances be evidence of a defendant’s lack of criminal intent.  Slip Op. at 39, n. 10.  The Court found that there was insufficient evidence in the record to indicate attorney involvement in the marriage scheme. Id.  It is unclear whether the result might have been different had Wilson been advised by an attorney that this tactic would work.

As matters now stand, the newlyweds’ honeymoon must await Wilson’s completion of the separate sentences he received for conspiracy to commit murder, witness tampering and obstruction of justice (the last two of which, the Court also determined, do not merge under Maryland law). Id. at 49.