State v. Butsitsi

• Decision Date: 03 January 2013
• Docket Number: Docket No. Cum–11–615.
• Parties: STATE of Maine v. Daudoit BUTSITSI.
• Court: Maine Supreme Court

60 A.3d 1254

2013 ME 2

STATE of Maine

v.Daudoit BUTSITSI.

Docket No. Cum–11–615.

Supreme Judicial Court of Maine.

Argued: Oct. 24, 2012.

Decided: Jan. 3, 2013.

Anthony J. Sineni, III, Esq. (orally), Law Offices of Anthony J. Sineni, III, LLC, Portland, for appellant Daudoit Butsitsi.

William J. Schneider, Attorney General, and Donald W. Macomber (orally), Asst. Atty. Gen., Augusta, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

JABAR, J.

[¶ 1] Daudoit Butsitsi appeals from a judgment of conviction entered by the court ( Horton, J.) following a jury trial for the intentional or knowing murder of his roommate. 17–A M.R.S. § 201(1)(A) (2012). Butsitsi argues that the trial court erred when it concluded that he waived his Fifth Amendment privilege against self-incrimination and ordered him to answer a question posed by the State on cross-examination. We affirm the conviction.

I. BACKGROUND

[¶ 2] On the evening of February 10, 2010, a resident of an apartment on Park Avenue in Portland was fatally shot while exiting his building. Daudoit Butsitsi, a roommate of the victim, was arrested and charged in the murder. At trial, Butsitsi did not contest the State's allegation that he was the shooter but asserted that he acted in self-defense. Witnesses, including Butsitsi himself, testified to a history of confrontations between Butsitsi and the victim resulting in numerous physical fights. The State offered evidence that Butsitsi killed the victim in retaliation for the earlier fights, though Butsitsi maintained that he fired the gun to protect himself.

[¶ 3] On the morning of the shooting, Butsitsi and the victim had two separate fistfights: the first in their shared apartment and the second outside in Butsitsi's car. Butsitsi testified that, following the fight in his car, he wanted to return to the apartment to gather his belongings, but he did not feel safe going back without a gun. That evening, Butsitsi went to a friend's house to get a gun. Butsitsi left the friend's house with Moses Okot, who was charged as the getaway driver in the shooting. Twenty minutes later, Okot and Butsitsi happened upon a group of other friends while buying gas at the Gulf Mart on Congress Street. The group informed Okot and Butsitsi that they were on their way back to the apartment to pick up the victim and take him to a club.

[¶ 4] Nearly fifteen minutes after leaving the Gulf Mart, Butsitsi—carrying the gun and wearing latex gloves—returned to the apartment, found the victim, and shot him multiple times. The State presented evidence that Butsitsi waited outside the apartment building to ambush the victim. Butsitsi testified, however, that he entered the hallway and fired only after seeing the victim pull something resembling a gun from his pocket.

[¶ 5] After being apprised that he had the right to choose whether to remain silent or to testify, Butsitsi chose to take the stand in his own defense at trial. On cross-examination, the State asked Butsitsi from whom he had obtained the gun on the evening of the shooting. Butsitsi refused to answer, at first stating “I don't want anybody['s] life to be in danger,” and later invoking his Fifth Amendment right against self-incrimination. Outside the presence of the jury, the trial court noted that the State had communicated off the record that a ballistics analysis matched this particular firearm to one used in what the State called an “unsolved homicide.” The court informed the parties that it would not permit the State to inquire about the provider of the gun if the only rationale for the question was the gun's possible involvement in “other situations.”

[¶ 6] After Butsitsi refused to answer the State's question, the court determined that Butsitsi had waived his right to invoke the Fifth Amendment. The court based its determination on Butsitsi's testimony during direct examination, where he stated that he went to a friend's house to obtain a gun after dark on the evening of the shooting. Butsitsi described how he “begged” for the gun while the friend resisted. The court determined that Butsitsi waived his Fifth Amendment privilege as to the State's question because he volunteered detailed information about how he obtained the gun in his direct testimony. The court ordered Butsitsi to answer the question outside the presence of the jury, but Butsitsi persisted in his refusal. Upon calling the jury back into the courtroom, the court instructed the jurors that Butsitsi refused to answer the State's question though he did “not have a right to refuse to answer.” The court did not disclose to the jurors that Butsitsi invoked a Fifth Amendment privilege. The court also instructed the jurors that they were permitted to consider Butsitsi's refusal to answer the State's question if they found it relevant in their decision-making. The jury ultimately found Butsitsi guilty of intentional or knowing murder. See17–A M.R.S. § 201(1)(A). The court sentenced him to thirty-eight years' imprisonment and ordered him to pay $2,261 to the Victim's Restitution Fund. Butsitsi timely appealed.

II. DISCUSSION

[¶ 7] Butsitsi argues that the trial court erred in concluding that he waived his Fifth Amendment privilege and that the court's instructions prejudiced his defense.

A. Invocation of the Privilege

[¶ 8] The Fifth Amendment to the United States Constitution provides, “No person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The Fifth Amendment gives witnesses the privilege of refusing to give self-incriminating testimony. Hoffman v. United States, 341 U.S. 479, 486–87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); State v. Linscott, 521 A.2d 701, 702–03 (Me.1987). This federal constitutional right applies to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Linscott, 521 A.2d at 702–03.

[¶ 9] It is for the trial court to determine whether a witness has validly invoked the privilege against self-incrimination. State v. Robbins, 318 A.2d 51, 57 (Me.1974) (“[I]t is the Judge's responsibility to decide ... whether the witness may invoke the privilege and decline to answer on the grounds of possible self-incrimination.”). A witness may invoke the privilege by declining to testify as to certain matters, based on a fear of possible self-incrimination that “ ‘will tend to a conviction when combined with evidence from other sources.’ ” Linscott, 521 A.2d at 703 (quoting In re Kave, 760 F.2d 343, 354 (1st Cir.1985)). We review for an abuse of discretion the trial court's determination of whether a witness has properly invoked the Fifth Amendment privilege. See United States v. Castro, 129 F.3d 226, 229 (1st Cir.1997); Linscott, 521 A.2d at 703.

[¶ 10] The State did not contest at trial whether Butsitsi properly invoked the Fifth Amendment privilege to protect himself against criminal liability.¹ The trialcourt stated: “[W]hat I think I have to give the benefit of the doubt about is that it's possible that the act of obtaining the gun was a criminal act, and if it was, it's an uncharged crime.” Although the Fifth Amendment requires “[r]easonable cause on the part of the person questioned to really apprehend danger of prosecution,” we defer to the trial court “to decide whether the fear of self-incrimination entertained by the witness or party is real or imaginary.” Collett v. Bither, 262 A.2d 353, 358–59 (Me.1970) (citing Hoffman, 341 U.S. at 486–87, 71 S.Ct. 814). Though the State did not contest the invocation, the court nonetheless considered the possible criminal repercussions and did not abuse its discretion in determining that Butsitsi actually invoked the Fifth Amendment privilege.

B. Waiver of the Privilege

[¶ 11] When a witness elects to testify to matters covered by a Fifth Amendment privilege, that privilege may be waived. Brown v. United States, 356 U.S. 148, 154–56, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). In this case, the court gave Butsitsi extensive warnings about the risks of testifying before he took the stand. The court explained to Butsitsi that he was entitled to a presumption of innocence and was not required to present any evidence in his defense. The trial judge asked, “You do understand that if you do take the witness stand and testify you can be questioned or cross-examined by the State's attorney, do you understand that?” Butsitsi indicated that he understood. Finally, the court confirmed, “Mr. Butsitsi, ... I am going to assume if you come over to the witness stand and take the oath that you have decided to testify, you have decided to give up your right to remain silent and testify, right?” to which Butsitsi responded, “Okay.” Butsitsi elected to take the stand and reveal that he went to a friend's house on the evening of the shooting with Moses Okot because he had heard that the unidentified friend had a gun. When questioned by his own attorney, Butsitsi stated that he had asked the friend to show him the gun and handled it with gloves. Butsitsi also testified that he “begged” the friend to give him the gun, “[a]nd [the friend] was like, no, man, I can't let you use it ... because [the friend] ... knew what happened and it was like you might do something crazy.”

[¶ 12] When testifying,

[a witness] cannot reasonably claim that the Fifth Amendment gives him ... an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.

Id.

Where an accused party waives his constitutional privilege of silence, takes the stand in his own behalf and makes his own statement, it is clear that the prosecution has a right to cross-examine him upon such statement with the same latitude as would be exercised in the case of an ordinary witness,...