Carter v. US

• Decision Date: 13 June 1994
• Docket Number: No. 88-CF-532.,88-CF-532.
• Citation: 643 A.2d 348
• Parties: George E. CARTER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

643 A.2d 348

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

No. 88-CF-532.

District of Columbia Court of Appeals.

Submitted December 9, 1993.

Decided June 13, 1994.

John T. Moran, Washington, DC, appointed by the court, filed a brief for appellant.

Eric H. Holder, Jr., U.S. Atty., and John R. Fisher, Thomas C. Black, Ronald Dixon, and Clendon H. Lee, Jr., Asst. U.S. Attys., Washington, DC, filed a brief for appellee.

Before STEADMAN and SCHWELB, Associate Judges, and GALLAGHER, Senior Judge.

SCHWELB, Associate Judge:

George E. Carter was convicted by a jury of two counts of armed robbery¹ and one count of carrying a pistol without a license.² His principal contention on appeal is that the trial judge committed reversible error by sustaining the invocation by his younger brother, Craig Carter, of the brother's privilege against self-incrimination. We remand for further proceedings.

I. THE TRIAL COURT PROCEEDINGS

A. The Jaggers Inquiry.

The two complainants, Gregory Edmonds and Moses Williams, testified that George Carter and another man robbed them at gunpoint of jewelry, money, and other possessions. Both complainants were previously acquainted with George Carter.

Carter called his brother, Craig Carter, as a defense witness. He proffered that Craig would testify, among other things, that Edmonds had acknowledged to Craig that he (Edmonds) did not know who had robbed him. Craig Carter was also expected to testify that Edmonds had sold Craig drugs and had been using drugs at the time of the alleged robbery. The prosecutor advised the court that he would seek to cross-examine Craig Carter by inquiring about Craig's own drug use, arguing that such drug use was relevant to Craig's ability to perceive and relate his alleged encounter with Edmonds. The trial judge concluded, without defense objection, that such cross-examination would be permissible at least as to some of Craig Carter's proposed testimony. The judge therefore appointed counsel to advise Craig Carter, who was incarcerated at the time, with respect to Craig's 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. Craig Carter's counsel argued that his client's answers to such questions could subject him to prosecution for unlawful possession of a controlled substance, and might also have adverse consequences for Craig's prospects for parole.

The trial judge made a conscientious and comprehensive inquiry which was designed to determine "whether the risk of prosecution was substantial and real and not merely fanciful." See Jaggers v. United States, 482 A.2d 786, 793 (D.C.1984) (per curiam) (citations omitted). During the course of that inquiry, George Carter's counsel proffered that Craig Carter had been a resident of a halfway house both in May 1986 (when 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 of 1986, and that Craig's work release privileges had been revoked and "that is why he is where he is." Defense counsel argued 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 half before the trial, or that "the parole board will punish him twice."

In response to the judge's inquiry regarding the government's position, the prosecutor stated that "we will not immunize Craig Carter in advance ... without eliciting from the witness all the facts underlying the witness' alleged criminal activity." Dissatisfied with this conclusory answer, the judge telephoned Alan Strasser, then the Chief of the Felony Trial Division of the United States Attorney's office. With Mr. Strasser on the telephone, the judge described the government's position as follows:

Mr. Strasser says, you know, that as a matter of fact it is rare—and I think that I would agree with the conclusion, that it is rare—extremely unusual for the government to ever prosecute misdemeanor drug possessions based on historical testimony.

He notes that on the other hand in an occasional narcotics conspiracy case where there is historical testimony or evidence that is relevant as part of the evidence in the conspiracy, he says to the extent that the government is being asked to predict what they will do in this matter, he says that he is unwilling to respond to that question, and he is also unwilling to say up front that he will grant immunity.

Through the office of the Superior Court's legal adviser, the judge also contacted Gladys Mack, who was then the chairperson of the District of Columbia Board of Parole. Ms. Mack reported

that if the parole board learned that Craig Carter was using drugs over a longer period of time, or chronically or routinely rather than just the one or two times, three times—or whatever number of times his urine tested positive, that she could not rule out the possibility that he would ... be treated more harshly by the parole board if he were up for parole.

B. The Trial Judge's Initial Ruling.

Recognizing the importance to the defense of the right to call potentially exculpatory witnesses, the judge was plainly troubled by the impact which Craig Carter's exercise of his rights under the Fifth Amendment could have on his older brother's rights under the Sixth Amendment. The judge repeatedly voiced skepticism that Craig Carter faced a realistic threat either of prosecution³ or of deferment of parole.⁴ He asked rhetorically whether Craig's sworn admission would be used against him "even where they already know about that drug use and have penalized him for it." Following his conversation with Mr. Strasser, the judge opined that "while you can't say that the risk of prosecution is fanciful ... the experiential element factored in here seems to me to suggest that it is not very realistic." The judge stated that "with reference to the government's position as to possible prosecution in this case, I find it a very, very difficult issue to resolve, if that were standing alone." Noting that Ms. Mack had declined to rule out the possibility of harsher treatment on parole if chronic or routine drug use were shown, however, the judge found this to be a "serious concern." He stated that potential adverse action by the parole authorities "is a valid consideration for Craig Carter in determining whether to assert the Fifth Amendment privilege." The judge then concluded that, while the possibility of prosecution was not "fanciful,"

I am not sure on the other hand, that I can conclude that the risk of prosecution is substantial and real, standing alone. The court in Jaggers counter-posed those as opposites. It seems to me that there is some interim territory in there that we haven't covered.

I guess I would say ... that the prospect of prosecution in this case is real, albeit not substantial.

But it does seem to me that the parole implications are not only real but significant in view of what I have learned from Miss Mack and through Mr. Erhardt.

Consequently, I am going to rule in this case that Mr. Craig Carter does have a Fifth Amendment right not to testify, and that it is being properly asserted in this case.

C. The Judge's Revised Ruling.

Following the judge's initial ruling, the trial continued. After the lunch break, however, the judge reopened the issue. He stated that he had read additional authorities, and that he "was not nearly as satisfied as he had been that the assertion of a Fifth Amendment privilege validly lies where the only danger sought to be protected against would be a revocation or denial of one's parole or probation status."

After extensive further discussion with counsel, however, the judge again sustained Craig Carter's claim of privilege, now relying solely on the possibility that Craig would face further criminal prosecution if he were compelled to acknowledge past drug use:

THE COURT: Jackson v. United States, 490 A.2d 192 D.C.1985, which is I think the most—probably the most recent case, at least in the four that I have looked at, the court talks about it being the legal possibility of subsequent prosecution rather than the practical likelihood of its coming to pass, as it determines the existence of the privilege so long as that legal possibility is real and not trifling.

I guess in view of everything that I have heard from Mr. Stern and in view of Jackson, I am inclined to abide by my ruling of this morning.

(Emphasis added.) During the course of his discussion of the issue, the judge made at least five separate references to the "legal possibility" of prosecution as the decisive factor with respect to Craig Carter's claim of privilege.

The defense did not altogether lose the right to present Craig Carter's testimony. The judge ruled that Craig would be permitted to testify regarding George Carter's personal appearance at the time of the offense,⁵ and that if Craig's direct testimony was confined to that subject, the prosecution would not be permitted to cross-examine him as to his prior drug use.⁶ Craig Carter did testify to this limited extent. In light of the judge's ruling on Craig's invocation of his privilege, however, the defense was not able to present any testimony as to Edmonds' alleged admission that he did not know the robber or as to Edmonds' sale of unlawful drugs to Craig.

George Carter was convicted of all charges. This appeal followed.

II. LEGAL DISCUSSION

A. The Road Not Taken.

In (James) Harris v. United States, 614 A.2d 1277, 1281-82 (D.C.1992), we synopsized the basic legal principles applicable to the issue here presented as follows:

As the trial judge explicitly recognized, a criminal defendant's right

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