State v. Montgomery, 84-1671

• Citation: 467 So.2d 387,10 Fla. L. Weekly 853
• Decision Date: 26 March 1985
• Docket Number: No. 84-1671,84-1671
• Parties: 10 Fla. L. Weekly 853 The STATE of Florida, Petitioner, v. Henry MONTGOMERY, Respondent.
• Court: Court of Appeal of Florida (US)

Page 387

467 So.2d 387

10 Fla. L. Weekly 853

The STATE of Florida, Petitioner, v. Henry MONTGOMERY, Respondent.

No. 84-1671.

District Court of Appeal of Florida Third District.

March 26, 1985.

Rehearing Denied April 29, 1985.

Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for petitioner.

Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for respondent.

Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.

NESBITT, Judge.

We treat the state's petition as a petition for a writ of prohibition. The petitioner seeks a writ from this court prohibiting the trial court from enforcing an order which will compel a witness to testify and will grant him use and derivative use immunity over the state's objection. We grant the petition since enforcement of the order by the trial court would amount to an act in excess of the jurisdiction, power and authority given to the courts by the Florida constitution.

By information, the state charged the defendant with grand theft, resisting arrest with violence, obstruction by false information, and battery on a law enforcement officer. The day before trial on these charges, the defendant named Melvin Downey as a potential defense witness. Downey refused to testify, however, unless he was granted immunity. The state refused to grant him immunity and, therefore, the defendant moved the trial court to do so. It was proffered that Downey "was present at the scene and saw the incident involving" the defendant, and that he had relevant exculpatory testimony. Over the state's objection, the trial court entered an order which will compel Downey to testify and grant him use and derivative use immunity.

The problem we are presented with concerns the judiciary's authority to involve itself in a decision to grant use and derivative use immunity to a witness at the request of a defendant in a criminal proceeding.

                The state, of course, has authority to confer such immunity on a witness if it chooses to do so.  See Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977);  Novo v. Scott, 438 So.2d 477 (Fla. 3d DCA 1983), review denied, 446 So.2d 100 (Fla.1984);  State v. Schell, 222 So.2d 757 (Fla. 2d DCA 1969);  § 914.04, Fla.Stat.  (1983).  The problem arises when the state refuses to grant immunity and the defendant claims either (1) the prosecutor is conducting the case in an improper manner by unreasonably refusing to grant the witness immunity in an attempt to distort the fact finding process of the trial; 1  or (2) the witness has relevant exculpatory testimony not available without the grant of immunity due to the witness's assertion of his fifth amendment privilege against self-incrimination. 2  Although the problem of the judiciary's role in the granting of use immunity has been presented to the federal courts on numerous occasions, Florida courts to date have declined to take a position. 3  , 4  See Lavette v. State, 442 So.2d 265 (Fla. 1st DCA 1983), review denied, 449 So.2d 265 (Fla.1984);  State v. Harris, 425 So.2d 118 (Fla. 3d DCA 1982);  State v. Mesa, 395 So.2d 242 (Fla. 3d DCA 1981).  But see Fountaine v. State, 460 So.2d 553 (Fla. 2d DCA 1984) (implicitly rejecting the judicial immunity theory).  In order to aid the trial courts and the bar on these issues in the future, we find that the present case presents an appropriate vehicle to adopt a position.  In doing so we look to the federal courts for guidance on the issues presented
                

DEFENSE WITNESS IMMUNITY

The concept of defense witness use immunity can be divided into two categories or theories: "statutory" immunity and "judicial" immunity. See United States v. Turkish, 623 F.2d 769, 773 (2d Cir.1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981); Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980); United States v. Herman, 589 F.2d 1191, 1199-1205 (3d Cir.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979). Statutory immunity is generally that power granted by the legislature to the executive branch through statute which gives a prosecutor authority to confer immunity on a witness in return for the witness's self-incriminating testimony. See 18 U.S.C.A. § 6002 (Supp.1984); § 914.04, Fla.Stat. (1983). Judicial immunity, on the other hand, is held by some courts to exist independent of any statute. This immunity is said to stem from a court's inherent power or authority to effectuate a defendant's rights. Virgin Islands, 615 F.2d at 969; Herman, 589 F.2d at 1204. See also Turkish, 623 F.2d at 773. We have reviewed both theories of defense witness immunity and determined their propriety with regard to Florida criminal proceedings.

Statutory Immunity

Judicial authority with regard to statutory immunity was first recognized by the Third Circuit Court of Appeals in United States v. Morrison, 535 F.2d 223 (3d Cir.1976) and later clarified by that court's opinions in Herman and Virgin Islands. The underlying basis for the judiciary's intrusion into the statutory immunity decision, traditionally an exclusive executive prerogative, is some form of prosecutorial misconduct. Virgin Islands, 615 F.2d at 968. When such misconduct results in an abridgment of a criminal defendant's constitutional rights, the grant of statutory immunity by the government is a remedy Referring to its holding in Morrison, the court in Herman stated:

by which the constitutional violation can be cured and, thus, the government can avoid an acquittal of the defendant.

We held that the sixth amendment and the Due Process Clause guarantee to a defendant the right to subpoena a witness, and to have that witness available as he finds him. See Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). The government's threats and intimidation had violated that right by depriving the defendant of that witness's testimony. See Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972). This violation warranted the dismissal of the indictment. We then turned to the separate question whether, because of the availability of use immunity under 18 U.S.C. §§ 6002-6003, the government could cure the sixth amendment violation which it had committed. We held that it could....

....

The violation in Morrison was the government's threats and intimidation of the witness. The use of a grant of immunity from the executive branch, a creature solely of statute, and intended solely to benefit the government, was only a cure for that violation.

589 F.2d at 1199-1200. It is important to note that when a situation arises calling for a grant of defense witness immunity under the statutory immunity theory, it is the executive branch that decides whether to grant the immunity, not the judiciary. Under this theory, when prosecutorial misconduct violative of a defendant's constitutional rights occurs, either the government gives the defense witness immunity and he testifies, or the government suffers a judgment of acquittal. Virgin Islands, 615 F.2d at 968; Herman, 589 F.2d at 1200; Morrison, 535 F.2d at 229. The choice is left solely with the executive branch, however and the prosecutor's decision one way or the other is not reviewable by the courts. Herman, 589 F.2d at 1200-03.

The third circuit court recognized that any judicial review of the immunity decision would necessarily trench seriously upon the authority of the executive branch. Herman, 589 F.2d at 1200-03. The court has also recognized that even its adoption of the statutory immunity remedy, where the government elects between a granting of use immunity to a defense witness or an acquittal of the defendant, allows courts to seriously intrude into the realm of the executive branch. Virgin Islands, 615 F.2d at 968. For this reason, a heavy burden is placed upon the defendant to establish prosecutorial misconduct of a type that would necessitate this remedy. Thus, the court in Herman held:

In view of our governmental system's strong tradition of deference to prosecutorial discretion [citations omitted], and of the necessary tendency of the executive branch to exercise that discretion in ways that make it more likely that defendants will be convicted, we think that the evidentiary showing required to justify reversal on that ground must be a substantial one. The defendant must be prepared to show that the government's decisions were made with the deliberate intention of distorting the judicial fact finding process. Where such a showing is made, the court has inherent remedial power to require that the distortion be redressed by requiring a grant of use immunity to defense witnesses as an alternative to dismissal. [Morrison]. [emphasis added]

589 F.2d at 1203-04.

Although the third circuit's statutory immunity theory has not been expressly adopted by most courts, it is generally viewed in a favorable light. ⁵ We agree The defendant must make a substantial evidentiary showing of prosecutorial misconduct, however, before the statutory immunity remedy is available. We adopt the standard enunciated in Herman, that the defendant must be prepared to show that the state's decisions were made with "the deliberate intention of distorting the judicial fact finding process." 589 F.2d at 1204. Thus, when it is shown that the state's decision not to grant immunity to a defense witness was a decision made with such intent, the court has remedial power to require that the distortion be redressed by requiring a grant of use immunity to the witness as an alternative to a judgment of acquittal. ⁷ See Virgin Islands, 615 F.2d at 968; Herman, 589 F.2d at 1204. Absent this type of prosecutorial misconduct, however, a defendant is foreclosed from insisting that statutory immunity be granted his witness. See Virgin Islands, 615 F.2d at 968.

                with the third circuit, that the sixth amendment and the due process clause of the federal constitution guarantee to a defendant the right to subpoena a witness, and to have that witness

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