Alston v. United States, 9568.

• Decision Date: 20 January 1978
• Docket Number: No. 9568.,9568.
• Citation: 383 A.2d 307
• Parties: Tony W. ALSTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 307

383 A.2d 307

Tony W. ALSTON, Appellant, v. UNITED STATES, Appellee.

No. 9568.

District of Columbia Court of Appeals.

Argued March 18, 1976.

Decided January 20, 1978.

Gaillard T. Hunt, Washington, D. C., appointed by this court, for appellant.

Alexia Morrison, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Gerard F. Treanor, Jr., Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, GALLAGHER and HARRIS, Associate Judges.

HARRIS, Associate Judge:

Appellant was convicted by a jury of carrying a pistol without a license. D.C. Code 1973, § 22-3204. He urges several grounds for reversal, most of which are related to his unsuccessful attempts to secure testimony on his behalf from his former codefendant, who would have been the sole defense witness. Although we reject the majority of appellant's claims, we reverse due to the trial court's error in excluding the transcribed and relevant testimony of that defense witness, whose direct testimony was rendered unavailable by a proper claim of privilege.

I

Appellant was arrested and charged with a codefendant, Robert S. Burton. At a hearing on appellant's unsuccessful motion to suppress the pistol, a Metropolitan Police Department detective testified that one evening he observed appellant and Burton walking, looking down as though they were searching for something. Burton picked up a brown paper bag, whereupon appellant removed a pistol from his pocket and placed it in the bag. Burton took the bag and the two men then went back in the direction from which they had come. Both men were placed under arrest. Appellant protested his innocence, claiming he simply had found the gun and given it to Burton, who was to take it to appellant's brother's house.

On the day on which appellant and Burton were to be jointly tried, Burton tendered a guilty plea. At the hearing on Burton's proffered plea, the trial court granted the government's request to question Burton under oath. Burton was sworn, and the prosecutor interrogated him as to where he discovered the pistol, the manner in which it was handled, what he intended to do with it, and whether appellant ever had it in his possession. Burton took sole responsibility for the incident, and claimed appellant never had possession of the gun. The prosecutor also inquired extensively into Burton's relationship with appellant, and into the circumstances under which they met on the day of the arrest. Burton's testimony was duly transcribed.¹

The trial court accepted Burton's guilty plea, whereupon a disagreement arose between Burton's counsel and the prosecutor concerning the government's right to allocute at the time of sentencing. While both parties agreed that the government had waived its right to allocute in consideration of Burton's guilty plea, the prosecutor sought to clarify his understanding that the waiver applied only to then-existing facts. Thus, the prosecutor contended that he reserved the right to allocute "if [the government] believes crimes have been committed after the entry of the plea and prior to the time of sentencing." In response to a request for further clarification from Burton's counsel, the prosecutor stated that a warrant would be sought "in connection with any offense that occurs from this moment forward . . . including, but not limited to, perjury that he may commit from the witness stand in the trial of his former codefendant. . ." Burton's counsel characterized these remarks as a "threat," and objected to what she viewed as a breach of the government's side of the plea bargain. The trial court, however, saw nothing improper in the government's position.

Neither appellant nor his attorney was present at Burton's guilty plea proceeding, as counsel for appellant previously had been excused to attend to another matter. When appellant's lawyer returned, he was not informed of the nature of Burton's testimony. He was told only that Burton had pleaded guilty and that the government had threatened him with allocution at his sentencing hearing if he were to testify for appellant.

Later that day, appellant's trial commenced. As a preliminary matter, Burton's counsel advised the trial court that both the defense and the government had indicated that they might seek to call Burton to the witness stand. She stated that it was Burton's intention, on her advice, to invoke his Fifth Amendment privilege if he were called as a witness, and she asked the trial court to rule that he validly would be entitled to do so. She argued that the basis for the claim of privilege was the possibility that the Corporation Counsel could use Burton's testimony against him in prosecuting related gun offenses under the D.C. Police Regulations.²

Appellant's counsel argued that Burton's testimony would comprise appellant's sole defense, and opposed Burton's invocation of his Fifth Amendment privilege. (Apparently he had been informed in the meantime of the conflict which arose earlier concerning the government's right to allocute at Burton's sentencing, and of the prosecutor's reference to possible perjury in connection with appellant's trial.) He suggested that the prosecutor improperly had intimidated Burton into claiming the privilege, and asked that the government extend immunity to Burton so that appellant could secure Burton's testimony on his behalf. The government was unwilling to comply with that request. The trial judge then placed Burton under oath, interrogated him, and ruled that he properly could decline to testify.

Thereafter, appellant's counsel requested that he be allowed to introduce evidence of Burton's prior testimony at the guilty plea proceeding by means of a transcript thereof, by the testimony of the prosecutor, or by his own testimony (based upon what Burton previously had said to him). The trial court denied each request.

At trial, the government's case consisted of the testimony of the arresting officer, who stated that he observed appellant take the pistol from his pocket and hand it to Burton. With Burton's exculpatory testimony unavailable, appellant chose not to testify and hence put forward no evidence on his behalf. The jury returned a verdict of guilty.

Appellant primarily attacks the inability to use Burton's testimony. He contends: (1) that the prosecutor threatened Burton into not testifying at appellant's trial, thereby violating appellant's constitutional right to offer witnesses in his defense; (2) that the trial judge impermissibly influenced Burton to claim his privilege; (3) that Burton's testimony at the guilty plea hearing constituted a complete waiver of his Fifth Amendment privilege and therefore he had no right to remain silent thereafter at appellant's trial; and (4) that the trial judge should have granted appellant's request for a missing witness instruction. In addition, appellant urges as reversible error the trial court's interruption of defense counsel's opening statement, during which counsel had stated that if there were a conviction, the law would be "truly merciless" to appellant. The trial court then intervened to admonish the jury to disregard the degree of punishment which could be imposed if its deliberations resulted in conviction.³

We conclude that Burton was entitled to claim his constitutional privilege against self-incrimination, but we nevertheless reverse for the reason that the trial court denied appellant his Sixth Amendment right to offer witnesses on his behalf by refusing to permit the introduction into evidence of the sworn testimony given by Burton at his guilty plea proceeding.

II

The Constitution guarantees a criminal defendant the right to offer the testimony of witnesses in his favor. U.S.Const. amend. VI; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). It is equally true, however, that a witness has a Fifth Amendment privilege against compulsory self-incrimination, and that a validly-invoked Fifth Amendment privilege prevails in a conflict between these two rights. In re J.W.Y., D.C.App., 363 A.2d 674, 682-83 (1976); see United States v. Roberts, 503 F.2d 598 (9th Cir. 1974), cert. denied, 419 U.S. 1113, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975); United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973).⁴ If, therefore, Burton had a constitutional right to refuse to testify, and if his refusal was not improperly induced by the government or by the court appellant could not validly complain of an infringement upon his rights. See In re J.W.Y., supra, at 683.

Appellant first contends that the prosecutor coerced Burton into not testifying at appellant's trial. A thorough examination of the alleged threats, however, reveals that they were merely attempts to clarify, for Burton's benefit, the prosecutor's previous waiver of his right to allocute at the time of sentencing. The prosecutor stated that he had promised not to allocute

as regards to any crimes committed to the point of the acceptance by the Court of the guilty plea; however, the Government does, of course, reserve the right to allocute if it believes crimes have been committed after the entry of the plea and prior to the time of sentencing.

Then, in response to extended questioning by Burton's counsel, the prosecutor further explained that the government reserved its right to allocute

if the Government believes and has probable cause to obtain an arrest warrant for Mr. Burton in connection with any offense that occurs from this moment forward . . . including, but not limited to, perjury that he may commit from the witness stand in the trial of his former codefendant, or in any other case.

These remarks were pointedly informational. They did no more than warn Burton of a potential consequence of his committing a future crime, including that of testifying falsely, and thus cannot be construed as being coercive or threatening. See United States v. Gloria, 494 F.2d 477,...