Appeal from the Superior Court of the District of Columbia; Hon. Luke C. Moore, Trial Judge
Rogers, Chief Judge, and Schwelb, Associate Judge, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Rogers
Appellant Alfred M. Brown appeals his convictions *fn1 on the principal ground that the trial Judge erred in permitting a potential defense witness to assert a blanket Fifth Amendment privilege against self-incrimination before determining the likelihood of further prosecution for a dismissed charge. In view of the prosecutor's representations to the Judge, we affirm.
On October 5, 1986, at approximately 8:30 a.m., upon hearing a noise outside his apartment window, Dale Alward observed a man, later identified as appellant, in a grey sweat shirt loading a gun. Alward called the police department emergency number (911) to report what he had seen. Alward then saw appellant cross the street, without the gun in his hand (but with a sag in his sweat shirt), and join a man dressed in a brown jogging suit, later identified as Lucho Innis. The two men began talking to two women. After a short time, the four people recrossed the street and entered an alley.
Alward got dressed and went to see where they were going, and a police car pulled up. As Alward was explaining to the police officers what he had seen, a woman ran out of the alleyway screaming that she was being robbed, her friend was being robbed, and there was a man with a gun in the alley. The officers drove into the alley and saw a man in a brown jogging suit walk out; they did not stop him since they were looking for a man in a grey sweat shirt. The officers then saw appellant with a woman; when appellant saw the officers he started to run, ducking into a driveway and throwing something on the ground. The officers pursued him and eventually apprehended him. The officers also found a gun in the driveway. Innis was arrested after the two women told the police that he was also involved. *fn2
Appellant and Innis were originally charged with armed robbery. These charges were dismissed on December 4, 1986, apparently during the grand jury phase of the case where a determination was made to reduce the case to misdemeanor charges. At trial appellant sought to call Innis as a witness. The trial Judge appointed counsel for Innis, and counsel advised the Judge, after speaking with the prosecutor and appellant's counsel, that Innis would assert a Fifth Amendment privilege because he would have to admit that he was present at the scene with appellant when the alleged robbery took place and that they were engaged in a criminal enterprise. Hence, according to counsel, Innis' admission would make it attractive for the government to reinitiate armed robbery charges. Upon questioning by the trial Judge, Innis' counsel partially revised his view, agreeing on the one hand that Innis was unlikely to incriminate himself in a robbery or firearms charge, and that there was only a remote possibility that he would be charged with robbery, gun possession, or solicitation, but maintaining on the other hand that the government was reserving the right to charge Innis with robbery if "something came out of the case."
Appellant's trial counsel conceded that Innis would tend to incriminate himself by placing himself at the scene. The issue, according to counsel, was whether the government was likely to prosecute Innis for armed robbery. Counsel maintained that the government was in a position to make representations about its intention to prosecute since it was well aware of all the facts and in a position to know the reason the armed robbery charges were dropped. The prosecutor responded that the government was not prepared to grant immunity to Innis, and that her supervisor had said she could not make a representation about what the government might or might not do with regard to charging Innis. The prosecutor advised the Judge that she did not know why the robbery charges were dropped but could attempt to get that information that afternoon. The prosecutor further stated that she did not think that the government "necessarily has to decide at this time whether would give immunity or bring charges in the future. That seems to me something that we are not responsible for answering right now. And rather the determination lies with the witness whether he is willing to chance that by - when he takes the stand."
The trial Judge ruled that Innis could properly invoke a blanket Fifth Amendment privilege. Given the witness' location, proximity to appellant, and the statements by witnesses that he was one of the persons who was involved, the Judge viewed Innis as "a candidate for a robbery charge." The Judge noted that only the government knew if it would ever bring robbery charges against Innis, and that for all he knew the two women were "in Switzerland" with no likelihood of returning. The Judge nonetheless concluded, since the dismissal was without prejudice, that Innis faced a reasonable risk of prosecution on the armed robbery charge and could invoke the privilege on that ground. *fn3
Appellant contends that the trial Judge erred in permitting Innis to assert a blanket Fifth Amendment privilege against self-incrimination without conducting a question-by-question inquiry into the sufficiency of Innis' claim and seeking an accommodation between Innis' claim and appellant's Sixth Amendment right to compulsory process for obtaining witnesses. He challenges the adequacy of the trial Judge's assessments of (1) whether Innis' testimony would be incriminatory of armed robbery, since the Judge did not inquire of appellant's defense counsel what testimony he would seek to elicit from the witness, and (2) Innis' risk of prosecution on an armed robbery charge, since the Judge had no information about why the armed robbery charges had been dismissed.
The analysis that applies when assessing a witness' Fifth Amendment privilege against a defendant's Sixth Amendment right to compulsory process for obtaining witnesses is well settled. The trial Judge must engage in a two-prong analysis in order to examine whether the witness has reasonable cause to apprehend danger from a direct answer: the Judge must assess whether the witness' testimony would be incriminatory, and whether the risk of prosecution is real and substantial, and not imaginary. See Jaggers v. United States, 482 A.2d 786, 793 (D.C. 1984); Davis v. United States, 482 A.2d 783, 785 (D.C. 1984). The trial Judge ordinarily must conduct a question-by-question inquiry of the witness outside the presence of the jury, ruling on the privilege as to each question. Davis, supra, 482 A.2d at 785. Where anything less than a blanket privilege appears insufficient to protect the witness, the question-by-question inquiry need not be conducted. See Holbert v. United States, 513 A.2d 825, 829 (D.C. 1986).
Appellant waived any right to challenge the trial Judge's assessment under the first prong, and cannot now complain that the Judge failed to inquire of appellant's trial counsel precisely what questions he would have asked Innis. Although Innis' counsel stated that his client's testimony would merely place him with appellant at the scene, appellant's counsel conceded at trial that Innis would incriminate himself in the robbery if he placed himself at the scene. Appellant's trial counsel did not suggest that his questioning of Innis would not place him at the scene nor indicate that he objected to the manner in which the trial Judge was proceeding. Furthermore, Innis' counsel advised the Judge, and the prosecutor confirmed, that the government was reserving its right to prosecute Innis as a result of what he said at trial. Under these circumstances, any inquiry into the nature of the witness' likely testimony would have been superfluous. See Irby v. United States, 585 A.2d 759, 763 (D.C. 1991) (admission that witness was at scene of crime loading stolen space heaters into car would implicate witness in crime of receiving stolen property); Deneal v. United States, 551 A.2d 1312, 1314 (D.C. 1988) (upholding invocation of Fifth Amendment privilege without conducting question-by-question inquiry where defense counsel failed to object to "any facet of the proceeding"); Holbert, supra, 513 A.2d at 829; Vaughn v. United States, 364 A.2d 1187, 1189-90 (D.C. 1976) (waiver of complaint about lack of trial court inquiry where defense counsel failed to challenge witness' assertion of privilege).
On appeal, therefore, the issue is whether the trial Judge erred in assessing the risk of prosecution of Innis for armed robbery. Appellant contends that the trial Judge had insufficient information about the dismissal of the robbery charges to assess adequately the hazards Innis might face if forced to testify. The court has made clear that the trial Judge must determine whether the risk of prosecution "is substantial and real and not merely fanciful." Jaggers, supra, 482 A.2d at 793 (citations omitted). To make this assessment the trial Judge must inquire "whether the appropriate prosecuting authority intends to bring charges against the witness, or seek an agreement by the prosecutor not to bring charges." Irby, supra, 585 A.2d at 763 (citing Davis, supra, 482 A.2d at 785) (footnote omitted); see Wilson v. United States, 558 A.2d 1135, 1141 (D.C. 1989); see also Jaggers, supra, 482 A.2d at 797 (Newman, J., Concurring opinion). In the absence of a commitment by the prosecutor not to bring charges, the Judge "must make an independent assessment, based on all of the circumstances, of the likelihood of prosecution." Irby, supra, 585 A.2d at 763-64. Where no promise of immunity is ...