Appeal from the Superior Court of the District of Columbia (F-508-02) (Hon. Thomas J. Motley, Trial Judge).
The opinion of the court was delivered by: Terry, Associate Judge
Before WASHINGTON, Chief Judge,*fn1 TERRY,Associate Judge, and NEBEKER, Senior Judge.
Appellant was convicted of unauthorized use of a vehicle and receiving stolen property. Prior to trial, appellant sought immunity from the government for his cousin, Francis Cooper, who was present in the stolen automobile when appellant was arrested. Mr. Cooper's appointed counsel proffered that his client would give exculpatory testimony in exchange for a grant of immunity, but the government denied his request for such a grant. In addition, the trial judge ruled, without examining Mr. Cooper, that he could assert a blanket Fifth Amendment privilege if called to testify. As a result, appellant was the sole defense witness at trial. He now argues that the trial court denied him a fair trial by accepting Mr. Cooper's Fifth Amendment claim of privilege, and by failing to sanction the government for its refusal to grant Mr. Cooper immunity. We reject both arguments and affirm the judgment of conviction.
A. The Government's Evidence
Rosa Giggetts purchased a 1985 Buick LeSabre in October of 2001. The car was stolen from the parking lot of Ms. Giggetts' apartment building in Oxon Hill, Maryland, sometime between 11:00 p.m. on January 15 and 5:45 a.m. on January 16, 2002. Ms. Giggetts immediately notified the Prince George's County Police Department that her car was missing.
Six days later, shortly before midnight on January 21, Officer William Suter of the Metropolitan Police saw a Buick LeSabre that matched the description of Ms. Giggetts' missing car. The car was traveling down a street in Southeast Washington, but the officer lost sight of it near the Arthur Capper Dwellings, a housing project. He sent out a radio transmission to his fellow officers alerting them that a car that had been reported stolen was in the area, and giving a description of the car and its license number. He eventually spotted the Buick again and began to follow it.
In response to Officer Suter's radio alert, Officer Sheryl Harley drove her marked police car to the 1000 block of Fifth Street, Southeast. There she saw a Buick LeSabre traveling south on Fifth Street which matched the description Officer Suter had given over the radio. Officer Suter, in another police car, had activated his emergency lights and was pursuing the Buick. Officer Harley watched as the Buick traveled approximately fifty feet, then "nosed" into the curb and stopped. Both officers immediately aimed their spotlights on it. Officer Harley got out of her car, drew her weapon, and approached the Buick, along with Officer Suter and a third officer who had just arrived on the scene.
As Officer Harley moved from the middle of the street toward the driver's side of the car, she saw appellant in the driver's seat. Officer Harley then went around to the passenger side while Officer Suter approached appellant; a fourth officer, Frederick Piquette, focused on a passenger in the left rear seat. Officer Suter removed appellant from the car and placed him under arrest. The three passengers were also ordered to get out of the car; they were frisked for weapons and subsequently released. Officer Piquette searched appellant for weapons and found a screwdriver in the pocket of his sweatshirt.
Officer Harley noticed that the Buick's steering column was broken and that the key in the ignition was not an ignition key. Pieces of plastic and wires were held together by a yellow bandana that was tied around the steering column. When Ms. Giggetts eventually retrieved her car from a police storage lot, she discovered that the trim had been painted a different color, the license plate had been moved from the front of the car to the dashboard, and several personal belongings were missing.*fn2
Moreover, she testified that the muffler had come off, the engine "was leaking oil [and] was smoking," and "the guy at the storage place had to show us how to start the car with a screwdriver" until the ignition could be repaired.*fn3
Appellant testified that on January 21, at about 11:00 p.m., he was "hanging out" in a courtyard on Fifth Street, Southeast, with his cousin, Michael Tillman. He said that as he stood on the corner, he saw a grey car driving south in the 1000 block of Fifth Street, followed by a police cruiser. The grey car stopped at a stop sign and then turned right onto L Street, but the police car turned left. Approximately five minutes later, the grey car returned to the same block of Fifth Street, but the police car was no longer following it. When the grey car stopped near appellant, he recognized his cousin, Francis Cooper, in the front passenger seat. The driver of the car then got out and walked into the courtyard, and appellant approached the car and sat in the driver's seat to talk to Mr. Cooper. There were two other people in the back seat of the car.
As appellant sat in the Buick, talking to his cousin, a police car turned right onto Fifth Street and activated its emergency lights. The police car then stopped directly behind the Buick and shined its spotlight on the car's occupants. Police officers approached, and one of them repeatedly told appellant to "turn the car off." Appellant tried to turn off the ignition, but the key would not work, so he "just stood there." The officers then ordered all the occupants to get out of the car and raise their hands. One of the officers opened the car door, grabbed appellant, threw him to the ground, and handcuffed him. Appellant asked the officers why he was being arrested, and one of the officers replied, "You know you stole that car."*fn4 The officers then placed appellant in the police car.
Appellant denied being inside the Buick while it was moving. He stated that he had no reason to think the car was stolen because there was a key in the ignition, although he admitted he did not notice the size of the key. He also believed that the driver had decorated the steering wheel with the bandana. Appellant testified that the screwdriver recovered by Officer Piquette was not on his person, but in fact was lying on the floor of the car.
C. Mr. Cooper's Proffered Testimony
Before trial, appellant subpoenaed Francis Cooper, his cousin, to testify for the defense. Mr. Cooper, who was in the passenger seat of the stolen Buick when appellant was arrested, appeared at trial with appointed counsel. According to proffers made by appellant's attorney, a defense investigator, and Mr. Cooper's counsel, Mr. Cooper would testify that he was in the stolen car immediately before appellant was arrested; that appellant did not drive the car; that the driver left the car before appellant got in; and that appellant entered the car only minutes before the police arrived. Mr. Cooper, however, asserted his Fifth Amendment privilege against self-incrimination and refused to testify. The trial court ruled, without examining Mr. Cooper at all, that he "had a right" to assert the privilege.
Mr. Cooper also refused to speak with the prosecutor for fear of being charged with a crime. Because it could not debrief him, the government chose not to immunize Mr. Cooper. When ...