Young v. United States, 13–CF–1131.

• Decision Date: 28 July 2016
• Docket Number: No. 13–CF–1131.,13–CF–1131.
• Citation: 143 A.3d 751
• Parties: Kevin YOUNG, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

143 A.3d 751

Kevin YOUNG, Appellant

v.UNITED STATES, Appellee.

No. 13–CF–1131.

District of Columbia Court of Appeals.

Argued April 14, 2016.

Decided July 28, 2016.

Cecily Baskir for appellant.

Kristina L. Ament, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the briefs were filed, and Chrisellen R. Kolb and Kara Traster, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, BECKWITH, Associate Judge, and REID, Senior Judge.

BECKWITH

, Associate Judge:

After police officers discovered two partially filled vials of liquid PCP in the driver-side door of appellant Kevin Young's SUV, Mr. Young was arrested and charged with possession of a controlled substance with intent to distribute (PWID) and possession of liquid PCP. See D.C.Code §§ 48–904.01(a)(1)

, (d)(2) (2012 Repl.). Before trial, Mr. Young's nephew Maurice Young¹ indicated that if he were granted immunity from criminal charges, he would testify that he was the last person to have driven the vehicle. The Attorney General of the District of Columbia declined to grant Maurice immunity from any charges related to drug possession and underage drinking, and in a Carter proceeding regarding the reasonableness of that decision, see

Carter v. United States, 684 A.2d 331 (D.C.1996) (en banc), the trial court ruled that no reasonableness inquiry was required because Maurice's testimony was not “clearly exculpatory.” Mr. Young was ultimately convicted after a trial in which Maurice invoked his Fifth Amendment rights when asked if he had been the last driver of the vehicle. Mr. Young contends that the trial court erred by ruling that the testimony was not clearly exculpatory. We agree that the proffered testimony was exculpatory, but we affirm the trial court's ruling because the proffered testimony was not material. We also conclude that the government provided sufficient evidence of Mr. Young's intent to distribute to support his PWID conviction, but we remand for the trial court to merge Mr. Young's convictions for PWID and possession of liquid PCP.

I.

According to the evidence at trial, in October 2012, Metropolitan Police Department Officer Christopher Clayton responded to a disorderly conduct call regarding a man and a boy who were arguing at an apartment building in the southeast quadrant of the District. The officer approached the two, who were later identified as Mr. Young and his nephew Maurice, to ask them “what was going on” and to determine “[i]f any crime had occurred.” The officer noticed a white SUV “just in a parking lot, all by itself, with the engine running,” and another officer on the scene, William Hawkins, went to “check out” the car. Using his flashlight to peer into the car, Officer Hawkins spotted a belt with an empty gun holster and handcuff case in the back seat of the car and two vials in the driver-side door handle. Officer Hawkins went back and whispered this information to Officer Clayton, and Officer Clayton asked Mr. Young if he was a police officer. According to Officer Clayton, Mr. Young said he was not, and that he had just found those items. Mr. Young admitted that it was his vehicle and that he “just drove up.”

Mr. Young then walked over to the vehicle with the officers and opened the driver-side door, “immediately plac[ing] his left hand over the two vials by the door handle.” The officers noticed a smell that they recognized as PCP. Officer Clayton asked Mr. Young what he was covering up, and after answering “oils,” Mr. Young was arrested and handcuffed. Officer Clayton then noticed that the vials held an amber liquid, which (as the parties stipulated at trial) contained 5.6 grams of liquid PCP.

Prior to trial, Mr. Young moved to suppress the PCP and the statements he made during the encounter, but the trial court ruled that the officers did not engage in custodial interrogation within the meaning of the Fifth Amendment and that Mr. Young had voluntarily opened the car door, which led the officers to smell PCP and see the vials in plain view. At the suppression hearing, Mr. Young testified that he had driven the car to the apartment with his nephew as the sole passenger. Maurice testified similarly. But on the morning of jury selection, counsel for Mr. Young raised a “Carter issue,” indicating that Maurice had been the last one to drive the car and that the drugs belonged to him.² See Carter v. United States, 684 A.2d 331, 344–45 (D.C.1996)

(en banc) (outlining process for judicial review of government's decision not to grant immunity to a “crucial defense witness” who invokes his Fifth Amendment right against self-incrimination). The court appointed counsel for Maurice, who proffered that Maurice would testily that he had driven the SUV on the night in question but that he had no knowledge of the drugs in the SUV. The trial court concluded that Maurice had a Fifth Amendment right against admitting to driving under the influence (DUI) in light of testimony at the suppression hearing that he was intoxicated, and the court also determined that the fact that Maurice was driving “would be significant ... in a chain [of facts] that could exculpate Kevin Young.” The trial court concluded that the Carter standard had been met,³ and so the court asked the prosecutor to confer with the Office of the Attorney General (OAG) to discuss possible immunity for Maurice from DUI charges as well as a potential charge of constructive possession of PCP. The OAG ultimately granted Maurice immunity from charges stemming from DUI and driving without a permit, but it declined to grant him immunity from charges related to drug possession and underage drinking.⁴ According to the OAG, Maurice's testimony that he was driving “would be a clear instance of perjury” because he had earlier testified during the suppression hearing that Mr. Young was driving. “We cannot support that,” the OAG attorney said.

Mr. Young then moved for sanctions under Carter, but the trial court reconsidered the question whether Carter applied at all. The court concluded that it had initially applied the wrong standard and that the proffered testimony did not “clearly exculpate” Mr. Young because “the fact that it could tend to inculpate Maurice Young in some sort of joint constructive possession theory doesn't exculpate Kevin Young from the same theory.” Because the testimony was not “wholly exculpatory,” the court ruled that “Carter's not implicated by it.” “The only clear exculpation,” the court stated, would be if Maurice testified “the drugs were mine, or I can tell you that the drugs weren't Kevin Young's.”

Maurice ultimately testified at trial without immunity from the charges related to drug possession and underage drinking. He asserted his Fifth Amendment rights when asked whether he was the driver or passenger of the car on the last ride with Mr. Young before the police arrived. Maurice also invoked the Fifth Amendment when asked if he “put those drugs in that particular car,” but after consulting with counsel, he answered the question “[n]o.” On cross-examination, the government introduced Maurice's suppression hearing testimony that Mr. Young had been driving the SUV. On redirect, Maurice testified that his prior testimony was untruthful because he was afraid of being prosecuted, and that he was “now telling the truth and taking the Fifth” because the government would not grant him immunity.

The jury convicted Mr. Young of both PWID and possession of liquid PCP.

II.

On appeal, Mr. Young first argues that the trial court erred in determining that Carter was “not implicated” because Maurice's testimony would not be “clearly exculpatory” to Mr. Young. The parties initially dispute whether Carter requires the proffered testimony to be exculpatory or “clearly” exculpatory. In laying out the four-part test, Carter uses the former term three times and the latter once, see generally 684 A.2d at 340–44

, and our cases since have inconsistently used one formulation or the other. Compare, e.g.,

Hayes v. United States, 109 A.3d 1110, 1116 (D.C.2015) ( “exculpatory”), with

Wynn v. United States, 80 A.3d 211, 220 (D.C.2013) (“clearly exculpatory”). The parties have not cited, nor have we found, any case in which this court analyzed the distinction or determined that it made a difference to the holding.⁵

Carter adopted its four-part test from a Second Circuit case holding that “[d]efense witness immunity is required only upon a showing that ‘(1) the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth Amendment; and (2) the witness'[s] testimony will be material, exculpatory and not cumulative and is not obtainable from any other source. ’ ” Carter, 684 A.2d at 340

(quoting United States v. Rivera, 971 F.2d 876, 887 (2d Cir.1992) ). The Carter majority emphasized that its rule “emanates from settled law that the government has a constitutional duty to volunteer exculpatory evidence to a criminal defendant.” Id. at 344 (citing United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ). Both Agurs and Bagley involve applications of the Brady doctrine, under which due process is violated when the prosecutor suppresses “evidence favorable to an accused ... where the evidence is material either to guilt or punishment.” 373 U.S. at 87, 83 S.Ct. 1194.

It is therefore clear that the Carter majority intended the word “exculpatory” in its four-part standard to mean the same thing as in the Brady context.⁶ Exculpatory evidence under Brady is that evidence that “tends substantively to negate guilt.” Love v. Johnson, 57 F.3d 1305, 1313 (4th Cir.1995)

.⁷ We therefore disagree with the contention that the evidence must completely or wholly exculpate appellant to be considered “exculpatory.” The proffered...