Before Wagner, Chief Judge, and Reid and Glickman, Associate
The opinion of the court was delivered by: Glickman, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Ronna Lee Beck, Trial Judge)
Appellant Breond Keys contends that his convictions for first degree burglary, assault and other offenses must be reversed on the principal grounds that the prosecutor elicited perjury from the complainant after the trial court erroneously overruled the complainant's assertion of a Fifth Amendment privilege not to testify. We hold that Keys is not entitled to relief. The prosecutor engaged in no misconduct, and Keys lacks standing to challenge the ruling on the witness's claim of privilege.
Breond Keys began dating Euell Washington, the complainant, in 1993. Over the next four years, their relationship was a stormy and occasionally violent one, and they ended it in May 1997. According to Washington, Keys continued to harass her after they broke up, to the point that Washington covered the windows of her apartment with blankets and refrained from turning on the lights at night so as not to let Keys know she was at home.
Keys was charged in this case in connection with several incidents, but this appeal concerns one in particular. Shortly after midnight on September 16, 1997, Washington received a visit in her apartment from Eric Newman. Newman, who Washington testified was Keys' best friend, came to warn her that Keys was on his way to her apartment. Moments later, while Newman was still present, Keys kicked in the door and entered the apartment. An altercation ensued, during which Keys beat Washington and knocked her unconscious.
The main factual dispute at trial was over whether Keys used a gun during the break-in. When Washington reported the incident to the police and to friends, she said that Keys pointed a gun at her and threatened to kill her. She repeated this accusation to the grand jury and, ultimately, in her testimony at trial. However, Keys, who admitted that he attacked Washington, denied having a gun. Newman, who was called as a defense witness, supported Keys. He testified that he was present throughout the episode, tried unsuccessfully to protect Washington from Keys, but did not see Keys with a gun or hear Keys threaten to kill Washington. The jury resolved this factual dispute in Keys's favor by convicting him of first degree burglary but not the greater offense of first degree burglary while armed.
The issues we confront in this appeal arose because of a conversation that Washington had with the prosecutor during a lunch break while Washington was in the middle of her direct examination at trial. In that conversation Washington told the prosecutor that she had lied about Keys having a gun so that the police would respond more quickly than they had in the past to her calls for help. Washington said that she had continued to lie about the gun in her testimony before the grand jury and up to trial for fear that she would get in trouble if she admitted the truth. After hearing this recantation, the prosecutor immediately consulted with a supervisor in the United States Attorney's Office about the correct way to proceed. When court resumed after lunch, the prosecutor promptly informed the judge of Washington's statements. The prosecutor stated that Washington should not resume testifying before receiving advice of counsel, since she might have a Fifth Amendment privilege against self-incrimination if her grand jury testimony was false. The prosecutor added that the government intended to reassess Washington's credibility and decide whether to dismiss any of the charges against Keys, particularly since, she said, Washington had "gone back and forth in terms of her willingness to participate . . . [and] her level of memory about the incidents and what she's telling me." Keys's defense counsel agreed that Washington had a Fifth Amendment privilege and needed her own counsel. The court concurred, appointed counsel for Washington, and excused the jury for the day.
Later that afternoon, the parties returned to court along with Eduardo Juarez, Washington's newly appointed attorney. The court was informed that after consulting with Juarez, Washington was now affirming the truth of her grand jury testimony, and was attributing her statements to the prosecutor over lunch to pressure from Keys's mother to say that Keys was unarmed. The prosecutor stated that she and her investigator planned to meet further with Washington and Juarez that afternoon "to have a more in depth discussion" in order to evaluate Washington's credibility.
When court reconvened the following morning, Juarez confirmed that Washington had withdrawn her recantation and that she adhered to her grand jury testimony that Keys had a gun. Nonetheless, Juarez stated, Washington wished to assert her Fifth Amendment privilege against self- incrimination to avoid repeating that testimony at trial. Juarez argued that Washington's testimony about the gun, though truthful and consistent with her prior testimony, could expose her to a perjury prosecution because she might be disbelieved in view of her own contrary statement to the prosecutor during the lunch break and the conflicting testimony of Newman and Keys. After due consideration, the court ruled that Washington's fear of being disbelieved and prosecuted for perjury was not a valid basis on which to honor her invocation of her privilege against self-incrimination. Before it reached that conclusion, however, the court invited the government and Keys to state their positions. Keys's counsel responded that "[w]e take no position." At no time did Keys object to the court's ruling. *fn1
Washington thereafter returned to the witness stand. As anticipated, she testified that Keys had a gun when he broke into her apartment and assaulted her. Keys did not object to this testimony, nor did he object when the prosecutor asked questions relating to his use of a gun. Instead, defense counsel impeached Washington with her out-of- court statements that there really was no gun. See also 408 Washington admitted that she made those statements - not only to the prosecutor, but also in conversations with defense counsel shortly before trial commenced. Washington also acknowledged that she "went back" to her claim that Keys did have a gun because she was "afraid of being prosecuted for perjury" if she contradicted the testimony she gave in the grand jury. *fn2 Nonetheless, Washington insisted that she was "[one] hundred percent sure" that Keys did have a gun. She said that she made her statements to the contrary only because she was pressured to do so by Keys's family. *fn3 Washington also testified that she had initially been reluctant to press charges against Keys, and that "she didn't show up in court on the first day [of trial] because they [Keys's mother and others] told me to go out, leave town, to go back to Philadelphia where I was staying." Washington said she came to court the next day only after being convinced that it was the right thing for her to do in order to protect herself.
The defense called Joyce Koon, Keys's mother, to rebut Washington's testimony about why she had temporarily retracted her assertion that Keys was armed. Koon denied telling Washington what to say. She testified that she asked Washington if her son had a gun, and that Washington told her he did not. Koon added that Washington said she told the police ...