Argued June 18, 2013.
Thomas D. Engle, with whom Sharon L. Burka was on the brief, for appellant.
Kristina L. Ament, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, and Heather Carlton, Assistant United States Attorneys, were on the brief, for appellee.
Before FISHER and OBERLY, Associate Judges, and RUIZ, Senior Judge.
FISHER, Associate Judge:
Appellant Jermyl Moody was convicted by a jury of two counts of possession of a controlled substance (ecstasy and marijuana), unlawful possession of a firearm by a convicted felon, carrying a pistol without a license (CPWL), unlawful possession of ammunition, and possession of an unregistered firearm. Two months later, appellant filed a motion for a new trial based on newly discovered evidence. Appellant had located a potentially exculpatory witness who claimed a Fifth Amendment privilege, and he requested that the trial court apply the procedure endorsed by this court in Carter v. United States, 684 A.2d 331 (D.C.1996) (en banc), in considering his motion for a new trial. The court held evidentiary hearings on October 23 and December 11, 2009, but the witness proffered by the defense did not testify. After the trial judge denied the new trial motion, this appeal followed. Appellant's counsel confirmed at oral argument that his client is not seeking a new trial on the drug charges.
We conclude that the trial court did not abuse its discretion in denying the motion for a new trial. The court carefully applied Carter, declining to override the government's decision that it would not grant the witness testimonial immunity. This was not an abuse of discretion. We further conclude that the trial court properly denied the motion on the ground that the proffered testimony would not likely produce an acquittal at a new trial.
On January 5, 2008, Metropolitan Police Department (MPD) Officers Amy Oliva and Mark Nassar conducted a traffic stop of a black Cadillac CTS with heavily tinted windows. Upon request, appellant, the driver, lowered all four windows. The officers saw a female passenger in the front passenger seat and noticed " a strong odor ... of an alcoholic beverage." Officer Oliva found an opened bottle of vodka and two plastic cups, and appellant and the female passenger were placed under arrest. During a search of the car incident to arrest, the officers found several items that were later introduced at trial, including a black briefcase on the rear floorboard. Appellant admitted that the briefcase was his, but he declined to open it, asserting that it contained nude photographs of his wife. (No such photographs were found.) 
The briefcase contained a loaded Sig Sauer semiautomatic handgun, approximately fourteen-hundred pills, marijuana, some loose powder, and a pipe used to smoke marijuana. Police also found a bullet on the driver's side floorboard between the seat and the transmission hump, a single bag of marijuana in the trunk of the car, and a red Ziploc bag in appellant's left front pants pocket containing twelve pills.
A government expert testified that the bullet found on the driver's side floorboard was not " any different" in appearance than the bullets recovered from inside the magazine and chamber of the handgun found in the briefcase. The government's chemist testified that although a few of the pills in the red Ziploc bag in appellant's pants pocket and in the briefcase contained ecstasy, most were " fake" ecstasy.
Thus, in brief summary, appellant admitted the briefcase was his. A bullet found on the driver's side floorboard was not " any different" than the bullets found in the handgun inside the briefcase. The Ziploc bag in appellant's pocket contained green and yellow ecstasy pills and some fake ecstasy pills, and the briefcase contained some green and yellow ecstasy pills and hundreds of fake ecstasy pills. There was marijuana in the briefcase and in the trunk of appellant's car.
At trial, the defense called the passenger, Nicole Smith. Smith testified that she did not see the briefcase when she entered the car, and that another passenger, who entered the car at approximately the same time as Smith, had sat in the back seat of the car and exited the vehicle at the Metro station off of 5th and K Streets just before they were pulled over by the officers. The defense also played portions of recorded phone calls made while appellant was in jail in which he stated that he dropped " Leroy" off at the Metro, and " that Leroy left his stuff in the car." The defense did not call Leroy as a witness or seek a continuance to locate him. At the conclusion of the trial, appellant was found guilty of all charges.
II. The Rule 33 Motion
In his motion for a new trial, appellant announced that he had located the backseat passenger and wanted to present him at a new trial as an exculpating witness. Appellant attached a handwritten statement signed by Leroy Odom in which Odom admits to leaving in appellant's car a briefcase that contained a handgun and over 1500 pills. The statement was not notarized, but it was signed by Odom " under the penalty of perjury" and witnessed by James Glenn, Odom's brother. At a hearing on the new trial motion, appellant, his friend Gregory Daniels, and Odom's brother, James Glenn, each testified that they had spent a significant amount of time searching for Odom before appellant's trial, but that they had been unable to find him. Odom's counsel informed the court that Odom would not testify at a new trial (or at the motion hearing) unless the government granted him immunity, and both Odom's counsel and appellant's counsel asked the court to follow the procedure this court set out in Carter.
At the trial court's request, the government debriefed Odom. Odom's counsel was present at the debriefing, which lasted more than two hours. The prosecutor announced at a subsequent hearing that the government would not provide immunity to Odom to facilitate his testimony at a Rule 33 hearing because she believed " that by putting this witness on the stand [the government] would be sponsoring perjury." The prosecutor and Odom's counsel provided oral descriptions of Odom's statements at the debriefing, and the trial court gave defense counsel an opportunity to address the issue of immunity. Counsel argued that without the testimony of Odom, he would not be able to " put on the evidence that [would] allow [appellant] to get a new trial."
The prosecutor gave an extensive proffer of the debriefing with Mr. Odom, only part of which we will summarize here. For long periods of time, Odom was in a " crack haze" and lived on the streets. Although he claimed to have lived with his
wife for a couple of months in 2008, " [h]e couldn't remember what the time period was." Odom said he sometimes lived with family, but he couldn't provide details. Suspiciously, however, he claimed, in the words of the prosecutor, to remember the night of appellant's arrest " in startling detail." On the other hand, " [h]e forgot his Burberry coat in the trunk [of Mr. Moody's car] because he was so drunk he couldn't remember." Moreover, Odom couldn't remember anything else being in the briefcase apart from fake ecstasy pills and the pistol. He claimed to have been dropped off at the Union Station Metro stop, but the testimony at trial indicated he was dropped at the New York Avenue Metro Station. He could not recall the brand of pistol in the briefcase, and he could not (or would not) give details about where he purchased the weapon. He seemed to be claiming that he had been in a drug treatment facility at the time of trial, but records subpoenaed by the government showed that he entered after the trial had ended.
The trial court ruled that the Sixth Amendment right to compel the attendance of witnesses and present a defense at trial is inapplicable at a motion hearing, and thus Carter did not apply in the context of a new trial motion. Nonetheless, assuming that Carter did apply, the trial court found that it was reasonable for the government to decline to grant immunity to Odom.
The court determined that there was so much " internal incredibility and inconsistency" in Odom's statements at the debriefing, that the government could " reasonably decline to immunize in these circumstances." The court pointed to " all of the contradictions internally" of Odom's testimony; indicated that Odom " would be impeached with seven impeachable convictions" ; and noted " the timing of his having come forward, many months after a trial that he knew was taking place when it was taking place, and as to charges that he knew the defendant was facing but didn't come forward...."
The court particularly disbelieved Odom's claim that the gun was his. Judge Leibovitz referred to the testimony of Gregory Daniels, who encountered Odom shortly after Moody's arrest and told him " if the briefcase [is] yours, you need to take your charge. And that's when [Odom] told me that, well, tell [Moody] that he shouldn't be worried because ... the drugs weren't real." As the court explained, " Odom said don't worry about it because what's in there wasn't real. He said absolutely nothing about the weapon." " [T]here was no mention of a gun until [the court] received ... the affidavit written by [Moody's counsel] and signed by the witness, in which he says [that] in the briefcase were a gun and over 1500 pills. The gun did not belong to Mr. Moody." The court concluded that Mr. Odom " would not be credible in any respect on an admission that he put that gun in that bag."
The court also noted that " there were many other facts that [Odom] just wasn't remembering [at the proffer] because he claimed he was in [a] crack haze." " And so by his own proffer, he would be testifying at trial that he was in such a crack haze, generally speaking in the weeks prior to the incident at issue here." " And on the night of the incident [he] was so drunk on top of that that by definition his credibility as to anything he would testify about that night would be hugely impaired." According to the court, " there's more than a good chance here that Mr. Odom is lying about having put the gun in the bag, and that that's why his recollection of the details of the gun ... are very imprecise."
Thus, the court concluded that no sanction against the government for refusing to immunize Odom was warranted.
Having determined that it would not force the government to grant use immunity to Odom, the court then considered appellant's motion for a new trial. First, the court determined " that the evidence isn't properly newly discovered evidence" as " it was certainly known to the defendant at trial." " The entire trial was about Leroy Odom and this was his briefcase.... And so the fact is that the evidence is not newly discovered, the body is newly discovered." The court also found that " there was no failure of diligence on the part of counsel in attempting to procure and subpoena [Odom]" ; in fact, the defense had " shown extraordinary diligence in the attempt to procure ... the witness' presence...."
Noting that appellant never requested a continuance to locate a witness he knew to exist, the court commented that it was either " a very wise strategic decision that Mr. Odom's testimony wouldn't add that much to the trial and it was better not to have him here," or a " determination that all the possible efforts to find [Odom] had been made and he wasn't gonna be found." The court added, however, that even if it had been presented before trial with " everything that is currently in the record," it would not have granted a continuance because " further efforts to find [Odom] would have been futile."
With respect to the substance of the proposed testimony, the court found that the evidence was not cumulative or merely impeaching and that, if believed, Odom's testimony would be material and exculpatory, and " would result in an acquittal." However, " [t]he question is, is it credible?" The court determined that appellant " utterly fail[ed]" to prove " that the testimony as proffered would have been of such a nature that in a trial it would probably produce an acquittal." The court recognized that it lacked " an opportunity to assess the witness' demeanor," but stated that the government and Odom's counsel had proffered " what the witness' demeanor, [and] recollections would be like...." " [A]ct[ing] as a 13th juror," the court found " that the proffered testimony would be highly incredible," and denied appellant's motion for a new trial on that basis.
III. Carter Applied
In Carter, this court addressed the tension that sometimes arises between two fundamental rights— " the accused's Sixth Amendment right of compulsory process to obtain witnesses in aid of a defense, and a witness' Fifth Amendment right against self-incrimination." 684 A.2d at 334-35. We recognized that, when there is a direct clash between these rights, the Fifth Amendment privilege prevails. Id. at 336, 338. We also agreed " with the overwhelming number of courts ... that have rejected the concept of judicially imposed immunity." Id. at 338. That means of resolving a conflict would violate the separation of powers doctrine. Id. at 339.
We ultimately favored a " carrot-and-stick approach" which, in " an appropriate factual situation ... leaves the defense witness immunity decision to the executive branch but reserves power in the judiciary to subject the government to certain choices of action." Id. at 341 (internal quotation marks omitted). One example of when corrective action by the judiciary would be required is " when the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the fifth amendment." Id. at 341 (internal quotation marks omitted). There was no such prosecutorial
misconduct in Carter, and there is none here.
" With this background," Carter turned " to the more difficult issue presented ... where there is no prosecutorial misconduct but where the same Fifth Amendment due process and Sixth Amendment fair trial issues are presented." Id. at 341-42. We outlined a process trial courts should follow in evaluating and weighing the competing claims:
If immunity of the crucial defense witness is ... sought, the defendant must first establish to the trial court's satisfaction that the proposed testimony is (a) material, (b) clearly exculpatory, (c) non-cumulative, and (d) unobtainable from any other source. ... If, on the initial showing, the trial judge concludes preliminarily that the process should continue, the next step might be to institute a debriefing process of the proposed defense witness by the prosecution in order to determine whether the government will accede to a grant of use immunity to the witness.... If after a debriefing procedure and investigation the government were to decline to grant " use" immunity to the proposed defense witness, ... it would be for the trial court to explore the basis of the government's refusal and decide whether there will be a distortion of the fact-finding process and the indictment should therefore be dismissed for a denial of due process and Sixth Amendment rights to the defendant....
Id. at 344-45. Typically, the defendant is " required to raise this issue pre-trial, else it might seriously derail the trial if raised after it commences," id. at 345; the pretrial procedural requirement may, however, be altered " for good cause." Id.
If, after a sufficient debriefing, the government can provide " no justifiable reason (a tactical advantage would not be sufficient) for not granting ‘ use’ immunity," further evaluation is required. Id. at 342; see also id. at 343 (court may consider imposing sanction if " the government does not submit to the court a reasonable basis for not affording use immunity" ). The imposition of a sanction may be appropriate if the government's decision " would, unless altered, result in a distortion of the fact-finding process." Id. at 342. However, the trial court should defer to " sound" reasons, such as " considerations of potential future prosecution, an ongoing investigation, clear indications of potential perjury, or the excusable lack of information during the debriefing to make an informed immunity decision...." Id. " [T]here may be a number of sound reasons for declining to cloak the proffered defense witness with governmental immunity." Id. at 342 n. 10.
The first issue presented by appellant concerns whether Carter applies to a Rule 33 hearing. Appellant argues that the trial court erred as a matter of law in its determination that Carter's holding is limited to trial proceedings because it is based on the Sixth Amendment. This is not a simple question, but we need not reach it because the trial court made an alternative ruling applying Carter to these circumstances.
Appellant does not dispute that Odom validly asserted a Fifth Amendment privilege, and the government does not question that the proposed testimony, if believed, would be material, exculpatory, non-cumulative, and unavailable from any other source. S ...