Appeal from the Superior Court of the District of Columbia; (Hon. Henry F. Greene, Trial Judge)
Before Rogers, Chief Judge, and Terry and Sullivan, Associate Judges.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: Appellant, Delajandro Young, appeals his convictions *fn1 on the grounds that the trial Judge erred in denying (1) his motion to exclude a coparticipant's testimony because the plea agreement with the witness was contingent on the government's satisfaction with the witness' testimony, and (2) his motion, pursuant to Super. Ct. Crim. R. 33 and D.C. Code § 23-110 (Repl. 1989), for a new trial. We conclude that these contentions are meritless. However, we remand the case to the trial court to vacate appellant's convictions for either felony murder or robbery and second-degree murder.
Four persons were indicted in connection with the murder by suffocation of Barbara Johnson: appellant, Yvette Pree, Charles Carpenter, and William Wheeler. *fn2 Pree's trial was severed and Carpenter and Williams testified for the government pursuant to plea agreements.
The government's evidence showed that on October 23, 1988, appellant and his common-law wife, Yvette Pree, went to the decedent's home, tied her up, and took her jewelry, television, some food, and car. Pree testified that appellant taped the decedent's legs, hands, nose and mouth. Carpenter testified that in response to appellant's request, he went to appellant's home, where he saw some of the stolen property and appellant admitted burglarizing the home of a woman whom he had tied up. Wheeler testified that a few days later appellant admitted killing a person. A pawn store employee (Haass) testified that appellant had sold the decedent's stolen property at the Buy and Sell store, and appellant had later called in an attempt to persuade her that he had not sold the property.
The defense was that Carpenter had killed the decedent. Appellant testified that out of fear of Carpenter, he had agreed to get Carpenter into the decedent's apartment in payment of a cocaine debt. He also testified that when he and Pree left the decedent's apartment, after Carpenter and Wheeler had burst through the front door, the decedent was still alive. According to appellant, later that night Carpenter showed appellant some of the stolen property and admitted that he had tied the decedent with tape and put cotton in her nose and mouth.
Prior to trial, the trial Judge denied appellant's motion to exclude Carpenter's testimony. Appellant maintains that the trial Judge erred because the plea agreement was "in fact and in the mind of the witness completely contingent upon government satisfaction." Because the agreement permitted the government to void the agreement if the government unilaterally determined that Carpenter's testimony was untruthful, appellant maintains that "the government had such a stranglehold on him that the story he would tell would comply only with the government's version of the 'truth' rather than the truth in accordance with the oath that Carpenter took."
The court has long recognized that an agreement to cooperate with the government in exchange for favorable treatment is "'a proper exercise of authority.'" Hawthorne v. United States, 504 A.2d 580, 587 (D.C. 1986) (quoting United States v. Librach, 536 F.2d 1228, 1230 (8th Cir.), cert. denied, 429 U.S. 939, 50 L. Ed. 2d 308, 97 S. Ct. 354 (1976)), cert. denied, 479 U.S. 992 (1986). Although testimony by an accomplice carries some risk of perjury, "that risk is acceptable as long as the witness' agreement is not contingent upon the government's satisfaction with the content of the testimony." Id. (citations omitted). Furthermore, "because even a proper plea agreement may signal a witness' willingness to curry favor with the government by coloring the truth for the benefit of the prosecution, due process requires full disclosure of the terms of the agreement to the jury as an aid to evaluating the witness' credibility." Id. (citations omitted).
Felder v. United States, 595 A.2d 974 (D.C. 1991), is controlling here. In Felder, the court rejected a similar claim where the plea agreement was couched in identical language, was based on giving "truthful testimony," and also provided that the government could unilaterally determine whether the witness' testimony was untruthful. Id. at 978-79 & n.11. In that case the trial Judge denied the motion to exclude the plea bargainer's testimony because the agreement was not contingent on the witness being required to achieve a conviction or satisfy the government in any other way. Id. at 979. This court agreed, noting that the plea agreement was not even contingent on the "value" of the witness' testimony. Id. Moreover, the court observed that
the controlling cases do not hinge on or even discuss any requirement that an otherwise valid truthfulness provision in a plea agreement must turn on a court's determination of truth. The general requirement of truthful testimony on any basis "surely must encourage veracity" and "negates inference of inducement to testify falsely."
Id. (quoting United States v. Tarantino, 269 U.S. App. D.C. 398, 433, 846 F.2d 1384, 1419, cert. denied, 488 U.S. 840 (1988)). In the instant case, as in Felder, the plea agreement required Carpenter to testify truthfully, and it was not contingent on the government's satisfaction with the "value" of his testimony.
Furthermore, the jury was in a position to evaluate Carpenter's credibility. *fn3 The terms of the plea arrangement were disclosed to the jury during appellant's trial counsel's opening argument and during cross-examination of Carpenter, when counsel read pertinent provisions of the agreement while using an enlargement of the agreement as a demonstrative exhibit. *fn4 Carpenter admitted on cross-examination that it was his understanding that the plea agreement required that the government be "satisfied" with Carpenter's testimony if he was to avoid further charges in connection with the decedent's murder." *fn5 Appellant's trial counsel also impeached Carpenter with his six prior convictions, relating to drugs and guns. The trial Judge instructed the jury to use caution in evaluating the testimony of witnesses who testified pursuant to a cooperation agreement with the government. The evidence before the jury also indicated that Carpenter's testimony was partially corroborated by that of Pree and Wheeler and by Carpenter's girl friend (Anita Morgan), who gave Carpenter an alibi. Pree's palmprint was also found on the stairway to the basement where the murder occurred.
Consequently, we conclude that appellant has failed to show that the trial Judge erred in denying his motion to exclude Carpenter's testimony because, as a result of the terms of the plea agreement, Carpenter gave false testimony against appellant. See Price v. United States, 531 A.2d 984, 988 (D.C. 1987); Townsend v. United States, 512 A.2d 994, 999 (D.C. 1986) (Townsend ...