Boswell v. United States

• Decision Date: 24 June 1986
• Docket Number: No. 84-1386.,84-1386.
• Citation: 511 A.2d 29
• Parties: Raymond F. BOSWELL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

511 A.2d 29

Raymond F. BOSWELL, Appellant, v. UNITED STATES, Appellee.

No. 84-1386.

District of Columbia Court of Appeals.

Submitted September 19, 1985.

Decided June 24, 1986.

Thomas T. Heslep, Washington, D.C., appointed by this court, was on brief, for appellant.

Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Constance L. Belfiore and Fred

Grabowsky, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before NEBEKER, MACK and ROGERS, Associate Judges.

MACK, Associate Judge:

Appellant Boswell was convicted on July 17, 1981, of second-degree burglary, D.C. Code § 22-1801(b) (1981), grand larceny, id. § 22-2201, and destruction of property, id. § 22-403. He was sentenced on September 14, 1981, and thereafter appealed both the convictions and the sentences. We affirmed the convictions, but remanded the case for resentencing because the trial court had failed to comply with the terms of D.C.Code § 23-111(b) (1981) before imposing an enhanced sentence under D.C. Code § 22-104 (1981). Boswell v. United States, No. 81-1299 (D.C. September 14, 1983). Two days after resentencing proceedings held on September 26, 1984, the trial court entered an order reaffirming the original enhanced sentence.

Mr. Boswell again appeals, asserting error at the second sentencing proceeding. At issue in that hearing was whether Boswell was the same person as the one earlier convicted of the enhancing offenses. He claims that the trial judge violated his Fifth Amendment rights by using as evidence against him his refusal to testify under oath at the sentencing hearing. He argues in addition that the government failed to prove his identity, and that the double jeopardy clause bars another resentencing in this case. We accept his first two contentions, but reject his third and again remand for resentencing.

I

Before trial, the government, as required by D.C.Code § 23-111(a), filed and served on appellant Boswell an information setting forth specific prior felony convictions that made appellant subject to increased punishment under D.C.Code § 22-104(a).¹ Prior to the sentencing proceeding which we consider here, appellant filed an opposition denying the convictions cited by the government. He denied, in the event that the government should prove the convictions, that he was the person convicted. Finally, he alleged, should the government prove both his identity and the previous convictions, that the convictions were unconstitutionally obtained. See D.C.Code § 23-111(c)(1).

A sentencing hearing was held at which the prosecutor proffered certified copies of the convictions listed in the information. She then asked the court to have the appellant sworn for the purpose of denying the convictions. Heeding the advice of counsel, Boswell refused to testify. Thereupon the prosecutor suggested that Boswell's refusal to be sworn showed a lack of good faith, and made any further inquiry "superfluous." After a brief response by the defense attorney, the judge stated that he had the "certified copies [of previous convictions] of Raymond Boswell, who we have all the reason to believe is the gentleman sitting next to you on the left, [and who] was convicted of these. The court is supposed to inquire under oath." Rejecting appellant's contention that the government had failed to prove the convictions beyond a reasonable doubt, the trial judge directed the prosecutor to draft an order affirming the original sentence "based on a certified copy and his refusal, while represented by counsel, to be sworn to deny, as frivolous, vexatious and harassing, and totally without merit." The prosecutor never rested her case; the hearing was closed by the judge threatening to hold in contempt both the defendant and his attorney if either of them made any further statements.

II

Because enhanced sentencing involves imprisonment for extended periods of time, we have repeatedly mandated strict compliance with the procedures set forth in the code. See, e.g., Robinson v. United States, 454 A.2d 810, 812 (D.C. 1982); Fields v. United States, 396 A.2d 990, 991 n.* (D.C. 1979), cert. denied, 464 U.S. 998, 104 S.Ct. 497, 78 L.Ed.2d 690 (1983); (Robert) Smith v. United States, 356 A.2d 650, 652 (D.C. 1976); (Ernestine) Smith v. United States, 304 A.2d 28, 34 (D.C.), cert. denied, 414 U.S. 1114, 94 S.Ct. 846, 38 L.Ed.2d 741 (1973). The statutory scheme under which sentence was imposed requires the government to file before trial an information alleging previous convictions. D.C.Code § 23-111(a)(1). If the prosecutor has filed such an information, the trial court shall, after conviction but before pronouncing sentence, inquire whether the convicted person affirms or denies the allegations in the information. Id. § 23-111(b). The court shall also inform the person that any challenge to a previous conviction is waived unless made before sentence is imposed. Id. If the person denies any allegation in the information, or challenges the validity of any of the cited convictions, he shall file and serve on the government a written response. Id. § 23-111(c)(1). Filing the response triggers the obligation of the trial court to hold a hearing at which the government must prove beyond a reasonable doubt that the person to be sentenced is the same person who was previously convicted as alleged in the information. Id. On the other hand, a person challenging a previous conviction on the ground that it was unconstitutionally obtained has the burden of proof on that issue by a preponderance of the evidence. Id. § 23-111(c)(2).

The requirement for affirmation or denial of the previous felony convictions is a safeguard for the defendant. See United States v. Clemons, 142 U.S.App. D.C. 177, 180-81, 440 F.2d 205, 208-09 (1970), cert. denied, 401 U.S. 945, 91 S.Ct. 959, 28 L.Ed.2d 227 (1971). The defendant, rather than counsel, must respond because the defendant is in a better position to raise issues which counsel might miss, e.g., conviction as a juvenile, two people with the same name, or failure to properly record a plea to a lesser offense. United States v. Bolden, 169 U.S.App.D.C. 60, 72, 514 F.2d 1301, 1313 (1975).² In addition, the court must be sure that the defendant understands what is being admitted because the consequences of such admission or unsuccessful challenge to the previous conviction are great. Id. Denial during the prescribed colloquy raises issues and establishes the hearing and proof requirements of section 111(c). There is, however, no statutory requirement that the defendant be placed under oath to raise the issues of proof. Nor is there any statutory requirement that any inquiry of any sort be made of the defendant during the hearing phase of the recidivist sentencing process.

In this case, the sentencing judge insisted that the defendant be sworn at the hearing. Appellant correctly asserts that this course is prohibited by the Fifth Amendment which provides, in pertinent part, that "No person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. This protection was added to the Constitution in the belief that too high a price might be exacted for the "unhampered enforcement of the criminal law." Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951) (quoting Feldman v. United States, 322 U.S. 487, 489, 64 S.Ct. 1082, 1083, 88 L.Ed. 1408 (1944)). The provision must be liberally construed in favor of the right it secures. Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110 (1892). "The privilege is limited to criminal matters, but is as broad as the mischief against which it seeks to guard." Id. To invoke the protection, "it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman v. United States, supra, 341 U.S. at 486-87, 71 S.Ct. at 818. The right applies whenever a response "might tend to subject to criminal responsibility him who gives it." McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924). Its availability, therefore, depends upon the nature of the answer or admission "and the exposure which it invites." In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967). The Supreme Court has found the protection to be available in forfeiture proceedings; United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971); to answers to interrogatories in civil proceedings, United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970); to juvenile proceedings, In re Gault, supra; to congressional investigations, Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957); to bankruptcy proceedings, McCarthy v. Arndstein, supra, and to grand jury proceedings, Counselman v. Hitchcock, supra, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892).

In Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the Supreme Court considered the privilege in the context of the sentencing phase of a capital murder trial. The trial court had ordered a pretrial psychiatric examination to determine the defendant's competence to stand trial. Testimony from the psychiatrist was admitted during the penalty phases of the trial to establish one of the findings necessary to imposition of the death penalty. The Court found this to be a violation of the Fifth Amendment protection against compelled self-incrimination because the defendant had not been advised before the pretrial examination that he had a right to remain silent and that any statement he made could be used against him at sentencing. In coming to this conclusion, the Court noted:

The State argues that respondent was not entitled to the protection of the Fifth Amendment because [the examining...