Wilson v. U.S.

• Decision Date: 09 May 1989
• Docket Number: No. 86-339.,86-339.
• Parties: Leon A. WILSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1135

558 A.2d 1135

Leon A. WILSON, Appellant, v. UNITED STATES, Appellee.

No. 86-339.

District of Columbia Court of Appeals.

Argued February 9, 1989.

Decided May 9, 1989.

Jonathan Zucker, appointed by this court, for appellant.

Gregory E. Jackson, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Helen M. Bollwerk and Ellen Bass, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge, and STEADMAN and SCHWELB, Associate Judges.

SCHWELB, Associate Judge:

This case presents a collision between the right of a criminal defendant to call a witness in his own defense and the privilege of that witness not to incriminate himself. Appellant Leon A. Wilson asks us to set aside his conviction of taking property without right (TPWR) in violation of D.C. Code § 22-3816 (1987 Supp.). He contends that the trial judge committed reversible error by sustaining a blanket invocation of the privilege against self-incrimination by a prospective defense witness, Samuel Lee, and by permitting Lee not to take the witness stand at all, thus depriving Wilson of what he hoped would be exculpatory evidence. Wilson claims that the judge did not conduct a sufficient inquiry, that Lee's risk of prosecution was fanciful rather than real or substantial, and that a narrower privilege would have adequately protected Lee's rights.

As events developed, there came a time during the trial when the prospect that Lee would be prosecuted might have been viewed as remote. We conclude, however, that at the time when the trial judge ruled on the issue, Lee was entitled to invoke a blanket privilege. Wilson's counsel had pressed the trial judge for an early ruling and, after Lee's claim of privilege was sustained, counsel neither asked the judge to review her decision nor raised the issue again in any other way. The judge was not required to modify, on her own initiative, a ruling which was correct when made. Accordingly, there was no error, and we affirm Wilson's conviction.

I THE FACTS

Wilson was tried by the court, sitting without a jury. The government's evidence consisted of eyewitness testimony. George Gelestino, Jr. related that on May 4, 1985, he was shopping at the Penguin Feather Record Shop on M Street, N.W. in the Georgetown section of Washington, D.C. when he observed a man whom he later identified as Wilson slip several compact discs into his jacket. When Gelestino tried to alert the sales clerk about what had happened, a woman who appeared to be the thief's accomplice gave him a "dirty look" and blocked his path. As Gelestino was telling a sales clerk what had happened, he saw the woman signal the man to leave.

Michael Pelander, who was in charge of the operations of several Penguin Feather stores, testified that he came on the scene as the thief was leaving the establishment with a bulge under his partially zipped green nylon jacket, which he said was reversible to yellow. After the man reached the street, a woman signaled him to leave the scene. Suspecting that mischief was afoot, Pelander went into the store and asked whether any merchandise had been stolen. Learning that there had indeed been a theft, Pelander left the store in the hope of apprehending the miscreant. Seeing no sign of the man, he approached the suspected accomplice. He questioned her about the crime, but she denied any knowledge of it. In the meantime, the suspect had fled with his booty, and the prospects of apprehending him appeared bleak.

On July 7, 1985, however, there was a break in the case. Pelander was at another Penguin Feather outlet, this one in Wheaton, Maryland, waiting on a female customer. Suddenly, he noticed a man in the store whom he immediately recognized as the perpetrator of the theft in Georgetown two and a half months earlier. He later concluded that the woman with whom he had been talking was the same person who had assisted the thief in the Georgetown caper. Pelander telephoned the local police, but as he was calling, the two suspects drove away in a late model Pontiac. Pelander adroitly noted that the license number of the vehicle in which the two of them had effected what they surely assumed to be their provident departure was either JDS 546 or JDS 246. Pelander provided this information to the Montgomery County police and later to the Metropolitan Police Department. The police were able to determine that appellant Leon A. Wilson was the owner of the car in question. The second sighting and Pelander's prompt report had enabled the police to focus on a suspect.

The police promptly prepared a photo array containing nine photographs, the fourth of which was Wilson's. Gelestino and Pelander viewed the array separately and each was asked whether he could make an identification. The results were inconclusive. Gelestino failed to identify anyone. He initially stated that he was certain that No. 4 was not the perpetrator, but nevertheless apparently studied Wilson's photograph for a longer time than he looked at the others. Pelander was also unable to make a positive identification. He told police, however, that "the person in the fourth photograph looked most like the person that I saw both in Wheaton and in Georgetown, but his complexion was darker more like the person in the next to last photograph." Officer Rosanne Garrett, who supervised the identification proceeding, also testified that there was no definite identification made, but claimed that both witnesses said that No. 4 resembled the perpetrator more than the other eight photographs did.

After the witnesses had made these less than decisive observations, Officer Garrett obtained a warrant for Wilson's arrest.¹ The warrant was executed, and Wilson was duly charged and ordered to attend a lineup. As luck — not Wilson's — would have it, Pelander was putting money into a parking meter outside police headquarters on the day of the lineup when he recognized Wilson, as well as the Pontiac with the tell-tale license plate, in front of his own vehicle. Later that day, Pelander positively identified Wilson at the lineup, and did so again in open court when the case came to trial. Gelestino did not attend the lineup, but he too made a positive courtroom identification.²

During their respective cross-examinations, both Gelestino and Pelander were asked to view Sandra Reed, who later testified that she was Lee's gin friend, and Lee himself. Both men positively identified Ms. Reed as the Georgetown thief's confederate, and Pelander also testified that she was the woman who was in the Wheaton store at the time of the second sighting. Contrary to the routine denouements which so often add spice to Perry Mason episodes, however, each witness stated with certain that Lee was not the man who stole the compact discs. In so doing, Gelestino and Pelander dealt a shattering blow to the defense that Lee did it, but (ironically) strengthened Wilson's position on the Fifth Amendment issue raised in this appeal.

Wilson presented defenses of misidentification and alibi, and contended that Lee was the real perpetrator. The defense evidence consisted mainly of the testimony of three witnesses.³ Wilson's supervisor testified that Wilson was employed as a truck driver for Walter Reed Army Medical Center. According to a time ledger which was entered into evidence, Wilson worked for eight hours on the day of the second sighting. The supervisor conceded, however, that he did not personally monitor Wilson's movements and that he could only assume that Wilson was present throughout the day.

Wilson testified that he had not been in Georgetown for about ten years, and was certainly not there on the day of the crime. He also stated that he considered Lee a friend and that he knew Ms. Reed, Lee's girl friend. He claimed that he had lent Lee his car to use during the week of the second sighting. Wilson also denied ever having visited the Penguin Feather Record Shop in Wheaton. He testified that he did not own a green and yellow reversible jacket.

A defense investigator testified in Wilson's behalf concerning his interviews with Lee. During one of these discussions, Lee told the investigator that he had occasionally borrowed Wilson's car, but could not recall the dates on which he had done so. The investigator also identified a green jacket with a tan lining produced by Lee in response to a subpoena duces tecum as similar to the coat which Lee was wearing during an interview. The investigator conceded, however, that the lining did not look yellow, a fact which Pelander confirmed on rebuttal.

II THE JUDGE'S RULING

Although Wilson sought to present Lee as a witness, he was unable to secure his testimony because Lee invoked his Fifth Amendment privilege against self-incrimination. During a discussion of preliminary matters prior to the start of the trial, defense counsel recommended to the court that an attorney be appointed for Lee to advise him with respect to the privilege. Explaining the defense theory that Gelestino and Pelander had misidentified Wilson and that Lee was actually the perpetrator, defense counsel advised the court that she intended to ask the government witnesses to identify Lee and Ms. Reed during her cross-examination of the government witnesses. She also proposed to call Lee and Ms. Reed as defense witnesses.

At the court's request, defense counsel proffered her proposed inquiries to Lee which might trigger a Fifth Amendment problem. These questions concerned whether, when, and for what purpose, Lee bad borrowed and used Wilson's car in the past; whether Lee possessed a jacket matching the description of the clothing worn by the thief; and whether Lee's girl friend, Sandra Reed, matched the description given by the prosecution witnesses of suspect's female accomplice. Defense counsel also represented that in addition to the foregoing, she proposed to ask Lee about "the ultimate issue."

To resolve the problem presented by...