CARTER v. U.S.

• Decision Date: 24 October 1996
• Docket Number: No. 88-CF-532,88-CF-532
• Citation: 684 A.2d 331
• Parties: George E. CARTER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

684 A.2d 331

George E. CARTER, Appellant, v. UNITED STATES, Appellee.

No. 88-CF-532.

District of Columbia Court of Appeals.

Argued En Banc June 20, 1995.

Decided October 24, 1996.

APPEAL FROM THE SUPERIOR COURT, HENRY F. GREENE, J.

John T. Moran, appointed by the court, for appellant.

David A. Reiser, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, as amicus curiae.

Elizabeth Trosman, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Assistant United States Attorney, were on the brief, for appellee.

Before WAGNER, Chief Judge, FERREN, TERRY, STEADMAN, SCHWELB, KING, and RUIZ, Associate Judges, and GALLAGHER, Senior Judge.

GALLAGHER, Senior Judge:

ON REHEARING EN BANC

George E. Carter, appellant, was convicted on two counts of armed robbery, D.C. Code §§ 22-2901, -3202 (1989), and one count of carrying a pistol without a license, D.C. Code § 22-3204 (1989). His principal contention is that the trial judge committed reversible error by sustaining the invocation by his younger brother, Craig Carter, of the constitutional privilege against self-incrimination. On appeal, a division of this court ordered the case remanded for further proceedings in relation to the claim of the constitutional privilege in order to determine "whether there was a reasonable possibility at the time of trial that Craig Carter would be prosecuted," Carter v. United States, 643 A.2d 348, 357-58 (D.C. 1994), and if not, then the conviction would be set aside. However, we granted the government's petition for rehearing en banc, 651 A.2d 1393, to consider the constitutional issue and vacated the division opinion and judgment. We now remand for further proceedings, and in doing so, we reject our prior holding in Jaggers v. United States, 482 A.2d 786 (D.C. 1984) (per curiam), and its progeny on the constitutional issue there involved.

I.

The two complainants testified that George Carter and another man robbed them at gunpoint. Both complainants were previously acquainted with defendant George Carter. Carter called his brother, Craig Carter, as a defense witness at his trial. He proffered that, were it not for a self-incrimination claim he would make, his brother would testify, among other things, that complainant Edmonds had acknowledged to him that he (Edmonds) did not know who had robbed him. His brother Craig was also expected to testify that complainant Edmonds had sold him drugs and had been using drugs at the time of the robbery. The prosecutor advised the court that if the brother, Craig Carter, testified, he would seek to cross-examine him by inquiring about Craig's own drug use, arguing that such drug use was relevant to his ability to perceive and relate his alleged encounter with Edmonds. The trial judge concluded that such cross-examination would be permissible to some extent. The court therefore appointed counsel to advise Craig Carter, who was incarcerated at the time, with respect to his self-incrimination rights under the Fifth Amendment.

Craig Carter was then questioned outside the presence of the jury and, upon the advice of his attorney, stated that he would invoke his privilege against self-incrimination with respect to any questions that might be posed to him with regard to his use of unlawful drugs. His counsel argued that his client's answers to such questions could subject him to prosecution for unlawful possession of a controlled substance.

Appellant proffered at trial that his brother, Craig Carter, had been a resident of a halfway house both in May 1986 (when complainant Edmonds allegedly sold him heroin) and in July 1986 (when Edmonds allegedly admitted not knowing who robbed him), that test samples of Craig's urine had been "dirty" in May, June and July 1986, that Craig's work release privileges had been revoked and "that is why he is where he is." Appellant argued, however, that it would be "utterly unreasonable" to assume that Craig Carter would be prosecuted on the basis of historical evidence for simple possession of PCP a year and a half before the trial, or that "the parole board will punish him twice."

In response to the question, the prosecutor asserted that "we will not immunize [Craig Carter] in advance . . . without [eliciting] from the witness all the facts underlying the witness' alleged criminal activity." In any event, the government later declined to grant immunity to the witness, as requested.

After extensive inquiry concerning the government's position on the Fifth and Sixth Amendment issues, the trial judge observed that "the prospect of prosecution in this caseis real albeit not substantial. . . ." In upholding the claim, the court stated that the "legal possibility" of prosecution was the decisive factor in upholding the constitutional claim of privilege against self-incrimination.

Appellant was convicted of all charges. In its discussion of the Fifth Amendment issue on appeal, the divided court's majority opinion summarized the required inquiry in our then controlling opinion in Jaggers, supra, as follows:

[T]he court in Jackson specifically noted that, under Jaggers, the judge must determine whether "(1) the witness' testimony would be incriminating," and (2) "if so, whether the risk of prosecution is substantial and real and not merely fanciful." Id. at 196 n. 8 (emphasis added; internal quotation marks omitted). The court added that the trial judge had sufficiently "considered the incriminatory nature of the proposed testimony and also the likelihood that criminal prosecution would result." Id.

(Emphasis added).

* * * * * *

In Jaggers, we stated that "[o]ne of the questions we must address to resolve the issues presented in this case is whether an absolute legal barrier to prosecution must exist before a witness can be compelled to testify in face of his claim of privilege. We think not." 482 A.2d at 793. In Wilson [v. United States, 558 A.2d 1135 (D.C. 1989)], we reiterated that

[w]here a witness might legally be prosecuted, but the threat of prosecution is not "real or appreciable," this court has held that the privilege may not properly be invoked.

[Id.] at 1141 (citing In re Neal, 475 A.2d 390, 392 (D.C. 1984) (per curiam)). Similarly, in Irby [v. United States, 585 A.2d 759 (D.C. 1991)], we held that the trial judge must seek a commitment from the prosecutor that the potential defense witness will not be prosecuted, but that even if no commitment is forthcoming, "the trial judge must make an independent assessment, based on all of the circumstances, of the likelihood of prosecution." Id., 585 A.2d at 763-64. In Irby, the trial judge made no inquiry regarding the second step, and we therefore remanded for further proceedings. Id. at 764.

Neal, Jaggers, Jackson, Wilson, Irby, and (James) Harris [v. United States, 614 A.2d 1277 (D.C. 1992)] thus all address not only the authority of the government to prosecute the witness but also the existence vel non of a reasonable possibility that this will come to pass. Since the trial judge ultimately held that the first step alone was sufficient, we must return the case to him to determine, many years after the fact, whether there was a reasonable possibility at the time of trial that Craig Carter would be prosecuted, or to put it another way, whether the possibility of prosecution was "real" or merely "fanciful." This determination must be made on the basis of all of the circumstances, including the fact that possession of PCP is itself a crime (and not simply a fact in a chain that might lead to the discovery of a crime), that Craig's use of PCP had been known to correctional authorities for a year and a half, that his halfway house privileges had been revoked, and that, according to Mr. Strasser, misdemeanor prosecutions for unlawful drug possession, based on historical evidence, are most unusual. We are satisfied that if the judge concludes that Craig Carter's claim of privilege was improperly sustained, the error was prejudicial, rather than harmless beyond a reasonable doubt. In that event, the judge must set aside George Carter's convictions.

Carter, supra, 643 A.2d at 357-58 (emphasis in original; footnotes omitted).

We granted the government's petition for rehearing en banc and after en banc consideration, we now overrule our prior decision in Jaggers, supra, and its progeny, insofar as these cases require the trial judge, in evaluating a defense witness' invocation of the privilege against self-incrimination, to predict or assess the practical likelihood that the witness will be prosecuted.

II.

There has long been a tension between the accused's Sixth Amendment right of compulsoryprocess to obtain witnesses in aid of a defense, and a witness' Fifth Amendment right against self-incrimination. We went en banc here to decide the important constitutional issue of what should happen when these Sixth Amendment rights of a defendant collide with the Fifth Amendment right of a trial witness against self-incrimination, in the manner involved in this case. We further consider the important interplay of the defendant's Fifth Amendment due process rights to a fair, truth-seeking trial in relation to the claim on self-incrimination.

This court has addressed a conflict between the Fifth and Sixth Amendment constitutional rights on several occasions. In In re Neal, supra, the witness was held in criminal contempt for failing to testify before a grand jury on the identity of the driver of a car in a robbery in which he was involved. The witness had been sentenced pursuant to a plea bargain and asserted that he could not later be ordered to testify because he remained liable to prosecution by the District of Columbia despite having reached a plea bargain with the United States Attorney. We deemed

the threat of prosecution by the Corporation Counsel as not "real and appreciable." . . . Moreover, we deem it only an ...