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02/12/93 SABELO T. NEKU v. UNITED STATES

February 12, 1993

SABELO T. NEKU, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Herbert B. Dixon, Jr., Trial Judge)

Before Schwelb and Farrell, Associate Judges, and Mack, Senior Judge.*

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: Chiefly on the basis of testimony by an undercover police officer and a former co-defendant (Anthony Carter), a jury found appellant guilty of unlawful distribution of cocaine. D.C. Code § 33-541 (a)(1) (1988). Appellant assigns multiple errors on appeal, but the only argument requiring extended Discussion is his claim that in denying defense counsel's request to call Carter's former attorney as a witness to impeach Carter's testimony through prior inconsistent statements, the trial Judge erroneously permitted a claim of attorney-client privilege to prevail over the defendant's Sixth Amendment right of confrontation. In the circumstances here we reject this argument, and finding no other error, we affirm the conviction.

I.

On the night of March 5, 1990, police officer Renee Holden, working in plainclothes, saw appellant approach Anthony Carter on Fort Totten Drive in Northeast Washington. She heard him tell Carter that he "was out," after which Carter handed appellant ziplock bags containing a white substance. Holden approached appellant and asked if she could buy "a couple of twenties," meaning cocaine at $20 per unit. Appellant then handed Holden a ziplock bag containing cocaine in return for two twenty dollar bills whose serial numbers had been pre-recorded. Appellant handed the money to Carter, and the latter entered the car of a friend and drove away.

Officer Holden returned to her car and followed Carter, meanwhile broadcasting her position to the arrest team. A minute or two later she broadcast a description of appellant, describing him as a black male who spoke with what seemed to be a Jamaican accent, wearing black pants and a beige coat with a red hood and black cap. Holden followed Carter to a convenience store where other officers arrested and searched him, recovering the prerecorded money. The same officers detained appellant, and some twenty four minutes after the purchase, Holden positively identified appellant as the person from whom she had made the buy.

Carter pleaded guilty to attempted distribution of cocaine, and at trial testified against appellant. He identified appellant as the person to whom he had given the bags of cocaine on March 5 which appellant then sold to Officer Holden. Carter's arrangement with appellant and at least one other "runner" that night was that they would bring Carter customers; he would then conduct the sale himself or through the intermediary; and he would pay the latter in money or drugs. Although Carter had seen appellant frequently in the neighborhood, he did not know his name at the time of the sale and spoke with him only on the night of these transactions. On cross examination, Carter acknowledged that by pleading guilty to attempted distribution in return for agreeing to testify against appellant, he was avoiding a mandatory minimum sentence.

II.

A.

At the start of the defense case, appellant's counsel stated that he intended to call Carter's former attorney, James Maloney, to testify about statements Carter had made to Maloney that would impeach Carter's testimony inculpating appellant, but that Maloney had concerns about breaching Carter's attorney-client privilege. The trial Judge deferred Discussion of the matter until new counsel was appointed to represent Carter. In court, Carter later objected to any testimony by Maloney about things he had told him during their relationship; and Maloney stated that he would not testify about any such statements without a release from appellant or unless ordered to by the court. Appellant's counsel proffered that if called as a witness, Maloney would state that during his representation of Carter he had asked Carter whether appellant's statements that he did not know Carter were true, and that Carter's "reply was in the affirmative, indicating that he did not know Mr. Neku."

The trial Judge pointed out that appellant had not sought to lay a foundation for the expected impeachment by asking Carter about any prior statements on cross-examination. For this reason, and because Carter had asserted the attorney-client privilege with respect to any statements he had made to Maloney during the representation, the Judge ruled that the proffered testimony by Maloney was inadmissible. *fn1

B.

Appellant argues that Carter could not properly assert the attorney-client privilege so as to defeat appellant's right to impeach Carter, an important corroborative witness for the government, with prior inconsistent statements about his acquaintance with appellant. Given a defendant's Sixth Amendment right to confront witnesses against him, appellant contends the trial Judge could not fairly rely upon defense counsel's failure to question Carter about the statements initially (a failure remediable by allowing recall of the witness), and that cases such as Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974), and Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), hold that common law or statutory privileges barring testimony must yield in appropriate circumstances to the exercise of a defendant's constitutional rights.

The issue presented thus involves the potentially competing demands of three doctrines: the foundational requirements for impeachment with prior inconsistent statements, the attorney-client privilege, and the Sixth Amendment right of confrontation. The government first reminds us that "the Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system," quoting Michigan v. Lucas, 114 L. Ed. 2d 205, 111 S. Ct. 1743, 1748 (1991) (in turn quoting United States v. Nobles, 422 U.S. 225, 241, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1975)). The government points to the settled obligation of an examiner, as a predicate for impeaching with a prior inconsistent statement, to "bring[] the statement to [the witness's] attention during . . . cross-examination, alert[] him to the time, place and person to whom he allegedly made it, and allow[] him to explain or deny it." Chaabi v. United States, 544 A.2d 1247, 1248 (D.C. 1988). Ordinarily, the trial court has discretion to decline to allow a breach of this requirement to be remedied by recall of the witness for further cross-examination, whether as a court witness or by the defense. See id. at 1248-49. Nevertheless, this discretion is not unbounded when the basic right of a defendant to present evidence or confront an accuser is at stake. See Chambers, 410 U.S. at 295-98 (dealing with a Mississippi ...


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