Appeal from the Superior Court of the District of Columbia (T-4337-03) (Hon. Erik P. Christian, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before RUIZ, Associate Judge, and KERN and SCHWELB, *fn1 Senior Judges.
Eric Pitt-Bey appeals his conviction of failure to obey the lawful order of a police officer, claiming he was immune from prosecution in the Superior Court and that he was forced to testify at trial. We conclude that the trial court had jurisdiction over appellant, but we agree with appellant that, if he was compelled to testify, his conviction must be reversed. On the existing record, however, we cannot determine whether appellant's testimony was, in fact, compelled and not the result of his own decision to take the stand. Therefore, we remand the case for further proceedings to supplement the record on the circumstances surrounding appellant's taking the stand at trial.
Appellant was convicted, after a bench trial, of failing to obey a police officer's lawful order, in violation of 18 DCMR § 2000.2 (2001). At trial, Officer Korson, who was the government's sole witness, testified that he ordered appellant to stand on a curb and not approach the vehicle where his associate, Rahsaan Butler-EL, was being detained pursuant to a traffic stop, but that appellant nonetheless stepped off the curb and approached the stopped car. After the police officer testified and the government rested, the trial court asked appellant, who was appearing pro se,*fn2 whether he had any witnesses he would like to call, and appellant responded that he was unable to contact his witnesses and secure their presence. The trial court responded "Very well," and then, according to the trial transcript, the court clerk immediately instructed appellant to "please stand where you are and raise your right hand." The transcript does not reflect that appellant had made any indication that he intended to testify.*fn3 Appellant was sworn in, and responding to questions (some by Mr. Spaulding but most by the trial judge himself), appellant admitted that he, indeed, stepped off the curb after a police officer told him not to. Appellant explained that he had been driving in a separate car behind Mr. Butler-EL on a goodwill mission to a homeless shelter, when Mr. Butler-EL's car was unexpectedly stopped by the police. Appellant got out of his car, and after initially staying on the curb as requested by the officer, decided to approach Mr. Butler-El's vehicle because he was concerned about the way he was being treated by the officers after being pulled over, in what appellant considered was "a very rough manner" for someone who "was totally in compliance." He wanted to observe what was happening and prevent the situation from "getting out of control," because he knew that Mr. Butler-EL had a "temper." In his opening statement, appellant had said he thought the entire matter had been a "misunderstanding," adding that the charge against Mr. Butler-EL had been dropped the following day.
The trial judge found appellant guilty of failing to obey a police officer "based upon the testimony of the defendant himself after resolving all issues of credibility. Because when Officer Korson testified, this court was not convinced that the defendant failed to obey his lawful order." Appellant, who had no prior offenses, was ordered to pay a fine of $100, but execution of payment of the fine was suspended subject to six months of unsupervised probation. Appellant was also required to pay $50 to the fund for compensation of victims of violent crime.
We consider first -- and reject -- appellant's claim that he is immune from prosecution in the Superior Court of the District of Columbia. Appellant argues that, even though he is a United States citizen (having been born in Brooklyn, New York), as an "Associate Minister" of the Council of The Nation of Moorish Americans ("TNOMA"), he should be accorded diplomatic immunity pursuant to federal law. Such diplomatic immunity, however is granted to members of "a foreign diplomatic mission," who are statutorily defined to include "(A) . . . members of the diplomatic staff or who, pursuant to law, are granted equivalent privileges and immunities, (B) members of the administrative and technical staff of a mission, and (C) members of the service staff of a mission . . . ." 22 U.S.C. § 254a (1)(A)-(C) (2004). Appellant has not produced any evidence demonstrating he is diplomatic staff or a member of a qualified mission. In fact, U.S. citizens may not normally be part of a diplomatic mission of another country, unless the United States expressly consents to such an arrangement. See Vienna Convention on Diplomatic Relations art. 8, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95. Appellant has presented only an "Official Identification Card" of "The Nation of Moorish-Americans Inc.," which identifies him as Executive Vice-President.*fn4 According to appellant's testimony at trial, TNOMA is an organization that was "incorporated as a sovereign body politic in the District of Columbia" in 1995. Appellant, therefore, is not a diplomatic staff representative of a sovereign nation, recognized by the United States Department of State, whose diplomatic staff are accorded various degrees of immunity from prosecution. See 22 U.S.C. § 4302 (a)(3) (2001);*fn5 see also Slater v. Biehl, 793 A.2d 1268, 1272 (D.C. 2002) (discussing courts' general acceptance of the views of the State Department as to recognition of diplomatic status); Carrera v. Carrera, 84 U.S. App. D.C. 333, 334, 174 F.2d 496, 497 (1949).
Appellant also argues immunity from prosecution under the Moroccan-American Treaty of Peace and Friendship, ratified by President Andrew Jackson on January 28, 1837.*fn6 Treaty of Peace and Friendship, U.S.-Morocco, Oct.1, 1836, 1836 U.S.T. LEXIS 10. As its title indicates, the treaty is one of "Peace and Friendship" between the sovereign states of Morocco and the United States, and it provides that subjects or citizens of each country will be held safe by the other, as well as a protocol for any confrontations that might arise between the two countries while at sea, during trade or battle. See id. It does not contain any language suggesting that the United States, or any state or territory therein, does not have jurisdiction over a person violating the law within its jurisdiction. See id. Therefore, this treaty has no bearing on this case.
Appellant's argument that his Fifth Amendment privilege against self-incrimination was violated raises substantive concerns that, if supported by the record, would require reversal of his conviction and remand for a new trial.*fn7 Every defendant in a criminal trial "has the absolute right not to testify." Littlejohn v. United States, 705 A.2d 1077, 1083 (D.C. 1997). The Fifth Amendment to the United States Constitution states, in relevant part, that "No person shall . . . be compelled in any criminal case to be a witness against himself . . . ." U.S. Const. amend. V. Thus, the right not to testify in one own's defense, originating in this Fifth Amendment privilege against self-incrimination, is of fundamental constitutional significance. See, e.g., Rock v. Arkansas, 483 U.S. 44, 53 (1987) (stating that the Fifth Amendment's privilege against self-incrimination "is fulfilled only when an accused is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will.' . . . The choice of whether to testify in one's own defense . . . is an exercise of the constitutional privilege.") (quoting Harris v. New York, 401 U.S. 222, 230 (1971) (Brennan, J., dissenting) (quoting Malloy v. Hogan, 378 U.S. 1, 7 (1964) (noting that "the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay")); Boyd v. United States, 586 A.2d670, 672 (D.C. 1991) (describing the decision whether to testify as one of great constitutional magnitude).
In addition to the decision's implication of a fundamental constitutional right, a defendant's choice whether to testify is also one of great strategic import. We have stated that the decision "can be the single most important factor in a criminal case." Boyd, 586 A.2d at 673. Indeed, in this case, appellant's testimony sealed his fate: the trial court stated in its oral findings that after the government's case, it "was not convinced that the defendant failed to obey [the police officer's] lawful order," but that appellant's testimony resulted in his admission that "he indeed failed to obey" the officer's order, and therefore was guilty as charged.*fn8 Thus, there is no doubt that appellant's testimony was not only self-incriminating, but also led to his conviction.
Appellant's claim on appeal is that when the trial court clerk instructed him to raise his right hand in order to be sworn in, he understood the trial court to be ordering him to testify,*fn9 and that he did not realize he had a choice in the matter. In considering whether the trial proceeding improperly compelled appellant's testimony and, ultimately, self-incrimination, we are faced with a situation where the defendant represented himself, but with the assistance of an attorney-advisor appointed by the court on the day of trial.*fn10 Compare Smith v. United States, 837 A.2d 87, 99 (D.C. 2003) (finding no plain error where two defendants, who testified at trial, were not specifically addressed by the court regarding their right not to testify, but their counsel informed the court that they would testify, and the court had informed a third, non-testifying co-defendant of the right to testify or not to testify and asked the co-defendant whether he had conferred with his lawyer about it -- all in the presence of the two defendants and their counsel -- and the testifying defendants' attorneys did not request a similar inquiry concerning their clients' decision to testify), with Wood v. United States, 75 U.S. App. D.C. 274, 286-87, 128 F.2d 265, 277-78 (1942) (noting that unrepresented defendant, in particular, should be thoroughly apprised of right not to testify by trial court, so as to "assure fairness to the accused and foreclose the possibility that he might act in ignorance"); see Killpatrick v. Superior Court, 314 P.2d 164, 166 (Cal. Ct. App. 1957) ("The privilege [against self-incrimination] cannot be made truly effective unless the defendant in a criminal case who is not represented by counsel is advised by the court of the existence of the privilege whenever such advice appears to be necessary."). The situation before us does not fit neatly into either the category of represented or ...