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August 21, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. John H. Suda, Trial Judge)

Before Ferren, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge:

James E. Harris was convicted by a jury of possession of PCP and marijuana with intent to distribute each (PWID), in violation of D.C. Code § 33-541 (a) (1) (1988). Of his numerous claims on appeal, the sole one requiring more than summary consideration is his contention that he was denied his constitutional right to present witnesses. This issue arose when the trial Judge sustained the blanket invocation by James Lee Martin of his privilege against self-incrimination and declined to require Martin, who had previously testified at a pretrial hearing, to be sworn as a defense witness at trial. We conclude that the trial Judge applied an incorrect standard to Martin's invocation of the privilege, but that reversal is not required, because the error was harmless beyond a reasonable doubt. Accordingly, we affirm.



A. The Suppression Hearing.

The principal prosecution witness against Harris, both at a hearing on Harris' pretrial motion to suppress tangible evidence and later at trial, was Sergeant Gerald Neill, a ten-year veteran of the Metropolitan Police Department and an experienced combatant in its drug wars. Sergeant Neill testified at the suppression hearing that on the afternoon of March 10, 1989, while dressed in plain clothes and driving an unmarked car, he was en route from the District of Columbia Courthouse *fn1 to the Third District station house when his suspicions were aroused by activity at a car parked near the intersection of Seventh and Q Streets, N.W. A man later identified as David Wright, who was eventually to become Harris' codefendant, was seated behind the steering wheel of the vehicle. Two other men, who subsequently turned out to be Harris (the appellant) and Martin (the man who later invoked his Fifth Amendment privilege) both approached the car. Martin *fn2 was "looking up and down the street like a lookout man." Suspecting on the basis of the men's conduct that some sort of narcotics transaction was about to take place, Neill turned his car around to observe further.

According to Sergeant Neill, the drug transaction which he had anticipated soon materialized. The man behind the wheel of the car (Wright) handed an object to Harris. Initially, Neill could not tell exactly what the object was, but it appeared to resemble a small bottle. Neill pulled his car in front of the other vehicle and walked towards Harris. Seeing Neill approach, Harris walked to a doorway, threw the bottle-like object to the ground, and started to walk back. At this point, Sergeant Neill drew his service revolver. He ordered all three men first to stand against the wall and then to lie on the ground. *fn3

After uniformed police officers arrived, the object which Harris had thrown to the ground was recovered. It turned out to be a McCormick spice bottle containing eighteen tin-foil packets of marijuana laced with PCP. Wright and Harris were placed under arrest, and each was eventually indicted, Wright for distribution and Harris for PWID.

Martin was a witness for the defense at the suppression hearing. He testified that at the time of the events in question, he was at the intersection of 7th and Q Streets, N.W., talking to Harris and to Wright, who was Martin's cousin. He related that a police officer (obviously Sergeant Neill) arrived and got out of his vehicle with his gun drawn. The officer told the men "So and so, get up against the wall!" On cross-examination, the prosecutor interrogated Martin regarding his own precise location, the officer's location, and the direction in which the officer was travelling.

Based on Martin's testimony, Harris argued that Sergeant Neill had pulled his weapon and detained Harris before Harris had thrown down the contraband. He therefore claimed that the drugs had been recovered as a result of an unlawful seizure which had been effected without articulable suspicion of wrongdoing on Harris' part. Crediting Sergeant Neill over Martin, however, *fn4 the Judge found that Harris had discarded the bottle and its contents before Neill pulled his revolver, that Neill was not in pursuit of Harris when the drugs were dropped, and that the contraband had thus been abandoned. *fn5 The Judge denied Harris' motion to suppress evidence.

B. The Controversy over Martin's Privilege Against Self-Incrimination.

During a Discussion of preliminary matters following the denial of the motion to suppress, Harris' counsel disclosed that she proposed to call Martin as a defense witness at trial. The Judge appointed an attorney to represent Martin and to counsel him with respect to his privilege against self-incrimination. *fn6 The attorney reported that "she had been advised that did answer a question this morning in a motions hearing, and that also that question was not preceded by advice of rights. I have not been advised that he has ever been advised of his right against self-incrimination." The Judge responded that "I don't think he has been" (id.).

Apparently recognizing that Martin might have incriminated himself already, the Judge tried gallantly, and not without some success, to put the genie back in the bottle. He asked the prosecutor whether "I am correct . . . that in no way will anything that said this morning be used against him? And nobody is going to argue that he has now waived his fifth amendment right because he testified this morning?" The prosecutor agreed that he would not use Martin's testimony against him or argue that Martin had waived his Fifth Amendment privilege. Id. Defense counsel, however, stated that she had advised Mr. Martin of his Fifth Amendment rights when she interviewed him in preparation for trial, and the following exchange ensued:

THE COURT: But I don't think anybody is going to argue that he's waived; is that correct, Ms. Holt? [ *fn7] You're not ...

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