Appeal from the Superior Court of the District of Columbia (F-1936-99) (Hon. Noël A. Kramer, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before FARRELL and RUIZ, Associate Judges, and SCHWELB, Senior Judge.*fn2
Appellant was convicted of armed robbery, possession of a firearm during a crime of violence (PFCV), and possession of a prohibited weapon with the intent to use it unlawfully (PPW). On appeal, he claims that the trial court violated his right to present a defense by 1) allowing a proffered defense witness to invoke his Fifth Amendment privilege without taking the stand; 2) refusing to admit that witness's purported confession, exculpating appellant, as a statement against penal interest; 3) denying his request to instruct the jury on voluntary intoxication, and 4) barring as untimely his attempt to present an insanity defense. In addition, appellant argues that the trial court erred in failing to instruct the jury on assault as a lesser-included offense of armed robbery and allowing appellant to waive his right to counsel. Lastly, he argues that the two weapons convictions merge. Having considered the arguments and reviewed the record, we affirm.
The government's evidence at trial established that appellant robbed a Payless Shoe Store on Minnesota Avenue, Northeast, at 11:45 a.m. on March 22, 1999, and then escaped in a getaway car, a dark blue Cadillac, driven by Ricardo Riley. Appellant was apprehended when the car was pulled over by the police seven blocks away, just minutes after the police received a call about the getaway car from witnesses who had seen the robber run to a waiting "black Cadillac." Appellant attempted to flee, but the police officers were able to stop and arrest him. The officers found that appellant had the shoe store's security camera, a BB gun matching the store employees' description of the weapon brandished by the robber, and money that matched nearly exactly the amount stolen from the store, including rolls of coins that the employees identified as money the robber had taken. Additionally, the police recovered from the Cadillac a "dark thin panty hose with a knot tied in the top" from behind the passenger's seat, which fit the store employees' description of what the robber wore over the top half of his face during the robbery. Appellant was positively identified by two store employees, including the one whom he robbed, based on his clothing, boots and glasses. The employees testified that appellant had demanded an employee to remove the security camera from the wall and give it to him, ordered the employees and a customer to the back of the store, and told them to take their clothes off.
Appellant took the stand in his own defense. He testified that he had been living on the streets and had been dropped off by Riley at a friend's apartment, a crack house, "to chill out, buy drugs and just get myself together." According to appellant, he suffers from paranoia and has hallucinations. He does not take his prescribed medications, but rather "self-medicates" with marijuana and PCP to stop hearing voices. On the morning the police arrested him, he had smoked "three to four blunts" of marijuana laced with PCP and had drunk shots of "Remy" and beer. Appellant denied that he robbed the store. He said that he was in the car with Riley, who had come by to pick him up and, according to appellant, was driving the wrong way on Minnesota Avenue when they were stopped by the police.
Appellant denied that he tried to flee, and explained that he had disobeyed the police officer's order to stay inside the car because he needed some air. He also denied that he had any of the store's property. He said that the shoes introduced as evidence by the government were not his -- he had been wearing boots -- but that they were shoes he had been forced to wear at the police station. The defense introduced a picture of appellant taken on the day of the robbery which showed him having a "fade haircut," and a thin mustache.
II. Right to Present a Defense
A. Invocation of the Fifth Amendment by Appellant's Proposed Witness
During trial, appellant said that he would like to call Riley, the driver of the Cadillac, to testify. At the time, Riley (who was tried separately) had already been convicted of the armed robbery and sentenced, but his appeal was pending. Riley's counsel, who was present, informed the trial court that Riley did not wish to speak with appellant regarding any potential testimony he might give on his behalf; did not wish to testify on appellant's behalf; and, if called, would invoke his Fifth Amendment privilege against self-incrimination. When the trial court inquired into the nature of Riley's potential testimony, Riley's counsel responded that "it would not be anything exculpatory on behalf of Mr. Bell if he were forced to testify." Counsel noted that Riley's defense in his own case was one of duress -- that appellant jumped into Riley's car after robbing the Payless Shoe Store, pulled a gun on Riley, and forced Riley to drive away. Riley's counsel stated that "that would closely be what his testimony would be if forced to testify." The government advised the court that it would not grant Riley immunity even if he were willing to testify on appellant's behalf, since Riley's appeal was pending and there remained the possibility of a retrial.
Appellant's counsel proffered, on the other hand, that Riley would testify that he had told appellant to "keep quiet," that he knew appellant did not commit this crime and that, if Riley were asked, "he would say so." According to appellant's counsel, Riley had told appellant that, if asked, Riley would "take his own weight," meaning he would "take his own charge," and "confess to his own culpability." Riley purportedly said this to appellant while they were sharing a cell at D.C. Jail, before Riley's trial.
The trial court relied on the representation of Riley's counsel that Riley would not testify favorably for appellant, and noted that Riley's "position now that he will not provide exculpatory information is completely consistent with the evidence that came in during [Riley's] trial." Therefore, the trial court ruled that it would not compel Riley to testify, since his testimony would not be "clearly exculpatory." The court denied appellant's request to make further inquiry of Riley.*fn3
"Our review of a trial judge's decision authorizing a defense witness' invocation of the privilege against self-incrimination may implicate questions both of fact and of law." Littlejohn v. United States, 705 A.2d 1077, 1082 (D.C. 1997). "As in other comparable situations, we accord deference to the trial judge's findings of historical fact and to [her] first-hand assessment of the realities of the situation before [her]." Id.; see D.C. Code § 17-305 (a) (2001)). "We apply the non-deferential de novo standard, on the other hand, to the trial judge's conclusions of law." Id.
When a potential defense witness refuses to testify by invoking the Fifth Amendment privilege, the court must first determine whether the testimony would, in fact, be incriminatory and thus create the possibility of future prosecution. See Carter v. United States, 684 A.2d 331, 344 (D.C. 1996) (en banc). If so, the Fifth Amendment claim is valid. See id. In making this determination, when the privilege is invoked "by someone other than the defendant, the court must ordinarily permit examination of the witness . . . one question at a time." Brown v. United States, 864 A.2d 996, 1004 (D.C. 2005)(quoting Harris v. United States, 614 A.2d 1277, 1282 (D.C. 1992)). A detailed examination "is designed to prevent witnesses from attempting to excuse themselves altogether from testifying by claiming a blanket Fifth Amendment privilege." Id. However, "when the witness does not make such a blanket claim, there is usually no need for the court to follow a question-by-question procedure (although the court, of course, may do so if it is appropriate for some other reason)." Id. We have noted that "trial judges often rely on proffers by counsel instead of a formal questioning procedure to make privilege determinations. We have never forbidden the practice of relying on proffers in such situations . . . ." Id.
If the invocation of the Fifth Amendment privilege is valid, it must be respected. See Carter, supra, 684 A.2d at 344. But the court should inquire of the government about the possibility of a grant of use immunity to the defense witness, in order to accommodate the witness's Fifth Amendment privilege and the defendant's Sixth Amendment right to present a defense, if the defendant establishes that the witness's proposed testimony is (a) material, (b) clearly exculpatory, (c) non-cumulative, and (d) unobtainable from any other source. See id. Appellant claims that the trial court should have conducted the procedure envisioned in Carter, so as to permit him to present Riley's testimony as part of appellant's defense. We disagree.
Here, any testimony given by Riley regarding his involvement in the armed robbery would have incriminated him in a retrial if his appeal were successful. Thus, as there was a possibility of future prosecution, the privilege was properly invoked. See Daniels v. United States, 738 A.2d 240, 244 n.7 (D.C. 1999) (noting that a co-defendant's Fifth Amendment privilege remained intact during the pendency of appeal, and thus co-defendant could be compelled to testify only if the government granted use immunity); Ramos v. United States, 569 A.2d 158, 162 n.5 (D.C. 1990) (remarking that a defense witness's testimony did not violate his Fifth Amendment privilege because his conviction had already been affirmed on appeal). Also, because any statement by Riley about his involvement in the armed robbery would incriminate him if it were to be helpful to appellant's defense, there was no need to call Riley to the stand to assert the privilege, question by question, particularly where appellant proffered that he would ask Riley to acknowledge that appellant was not involved while himself confessing to the crime. See Hoffman v. United States, 341 U.S. 479, 486-87 (1951) ("To sustain the privilege [against self-incrimination], it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."); Brown, supra, 864 A.2d at 1004; Reese v. United States, 467 A.2d 152, 157 (D.C. 1983) (stating that the trial court had not erred when it failed to require defense witnesses to invoke the Fifth Amendment on a question-by-question basis because "the trial court may bar a witness from testifying in the jury's presence if it properly concludes that the witness will refuse to answer essentially all the questions which he may be asked."); Alston v. United States, 383 A.2d 307, 313 (D.C. 1978) (holding that appellant was not prejudiced by the court excusing a witness from testifying where the witness invoked a "proper claim of privilege" from testifying and "his appearance on the stand could not have aided appellant in his defense.").
As Riley's Fifth Amendment privilege was properly invoked, it could have been overcome only by a grant of use immunity, the need for which it was appellant's burden to establish by showing that Riley's proposed testimony was material, clearly exculpatory, non-cumulative, and unobtainable from any other source. See Carter, 684 A.2d at 344. Here, if Riley were made to testify, his defense counsel proffered, he would not only deny any culpability in the robbery, but also point the finger of blame at appellant. His testimony then was surely not "clearly exculpatory" of appellant. See id.; Brown, 864 A.2d at 1004 (affirming the reliance on counsel's proffer of the witness's testimony); cf. Daniels, 738 A.2d at 244 n.7 (use immunity granted to accomplice/co-defendant who testified about his participation in the crime). In these circumstances, the trial court did not err in upholding Riley's invocation of the privilege without further inquiry into the possibility of immunity.
B. Refusal to Allow Confession as a Statement Against Penal Interest
Appellant argues that having upheld Riley's Fifth Amendment privilege, the trial court should have allowed appellant to testify regarding statements that Riley made to him regarding his responsibility for the robbery and appellant's innocence. The trial court, relying on our decisions in Laumer v. United States, 409 A.2d 190 (D.C. 1979) (en banc), and Lyons v. United States, 514 A.2d 423 (D.C. 1986), did not allow appellant to introduce this testimony under the hearsay exception for statements against penal interest. The trial court ruled that although Riley was unavailable due to his assertion of the Fifth Amendment privilege, which satisfied one condition of that hearsay exception, the veracity of appellant, as the person reporting the statement, was "highly suspect" because he had "an absolute total motive for fabrication," and there were no corroborating circumstances clearly indicating the trustworthiness of Riley's inculpatory statement.
The trial court's conclusion that a statement is (or is not) against the declarant's penal interest is "clearly a legal question" that we review de novo. Ingram v. United States, 885 A.2d 257, 263 (D.C. 2005).As the trial court recognized,whether a proffered declaration is admissible as a statement against penal interest requires a three-step inquiry: "(1) whether the declarant, in fact, made a statement; (2) whether the declarant is unavailable; and (3) whether corroborating circumstances clearly indicate the trustworthiness of the statement." Laumer, 409 A.2d at 199.
In determining whether the declarant in fact made the proffered statement, the trial court's focus is not on the truth of the declaration, but on the veracity of the witness who repeats the declaration. . . . Where appropriate, the trial court must also assess the general credibility of the ...