GEORGE JOHNSON v. STATE OF MARYLAND
Court of Special Appeals, Leahy, June 28, 2016,
Co-Defendant Testimony – Where State had knowledge that co-defendant would plead fifth and did not compel co-defendant testimony, assertion of fifth amendment privilege in front of the jury was improper but nevertheless nonprejudicial where it was cut off quickly and significant amount of other evidence was presented.

The Court’s finding that it was “not prejudicial” reads like a finding of harmless error

Mistrial – Failure to declare mistrial following assertion of fifth amendment privilege by co-defendant entitled to deference and abuse-of-discretion standard

Co-Defendant Testimony – Prosecutor can not call an alleged co-defendant for the exclusive purpose of having that co-defendant plead the fifth

Factors set forth in Vandegrift:

1. that the witness appears to have been so closely implicated in the defendant’s alleged criminal activities that the invocation by the witness of a claim of privilege when asked a relevant question tending to establish the offense charged will create an inference of the witness’ complicity, which will, in turn, prejudice the defendant in the eyes of the jury;

2. that the prosecutor knew in advance or had reason to anticipate that the witness would claim his privilege, or had no reasonable basis for
expecting him to waive it, and therefore, called him in bad faith and for an improper purpose;

3. that the witness had a right to invoke his privilege;

4. that defense counsel made timely objection and took exception to the prosecutor’s misconduct;
and
5. that the trial court refused or failed to cure the error by an appropriate instruction or admonition to the jury.

Brady – Information that witness was to testify in another homicide case as well, alone, did not satisfy Brady standard