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Young v. United States

Court of Appeals of Columbia District

July 28, 2016

KEVIN YOUNG, Appellant,
v.
UNITED STATES, Appellee.

          Argued April 14, 2015

         Appeal from the Superior Court of the District of Columbia Criminal Division (CF2-17496-12) (Hon. Michael Ryan, Trial Judge)

          Cecily Baskir for appellant.

          Kristina L. Ament, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the briefs were filed, and Chrisellen R. Kolb and Kara Traster, Assistant United States Attorneys, were on the brief, for appellee.

          BEFORE: Washington, Chief Judge; Beckwith, Associate Judge; and Reid, Senior Judge.

         JUDGMENT

         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that appellants conviction for possession with intent to distribute ("PWID") is affirmed. The case is remanded to allow the trial court to vacate appellant's conviction for possession of liquid PCP.

          OPINION

          Beckwith, Associate Judge

         After police officers discovered two partially filled vials of liquid PCP in the driver-side door of appellant Kevin Young's SUV, Mr. Young was arrested and charged with possession of a controlled substance with intent to distribute (PWID) and possession of liquid PCP. See D.C. Code §§ 48-904.01 (a)(1), (d)(2) (2012 Repl.). Before trial, Mr. Young's nephew Maurice Young[1] indicated that if he were granted immunity from criminal charges, he would testify that he was the last person to have driven the vehicle. The Attorney General of the District of Columbia declined to grant Maurice immunity from any charges related to drug possession and underage drinking, and in a Carter proceeding regarding the reasonableness of that decision, see Carter v. United States, 684 A.2d 331 (D.C. 1996) (en banc), the trial court ruled that no reasonableness inquiry was required because Maurice's testimony was not "clearly exculpatory." Mr. Young was ultimately convicted after a trial in which Maurice invoked his Fifth Amendment rights when asked if he had been the last driver of the vehicle. Mr. Young contends that the trial court erred by ruling that the testimony was not clearly exculpatory. We agree that the proffered testimony was exculpatory, but we affirm the trial court's ruling because the proffered testimony was not material. We also conclude that the government provided sufficient evidence of Mr. Young's intent to distribute to support his PWID conviction, but we remand for the trial court to merge Mr. Young's convictions for PWID and possession of liquid PCP.

         I.

         According to the evidence at trial, in October 2012, Metropolitan Police Department Officer Christopher Clayton responded to a disorderly conduct call regarding a man and a boy who were arguing at an apartment building in the southeast quadrant of the District. The officer approached the two, who were later identified as Mr. Young and his nephew Maurice, to ask them "what was going on" and to determine "[i]f any crime had occurred." The officer noticed a white SUV "just in a parking lot, all by itself, with the engine running, " and another officer on the scene, William Hawkins, went to "check out" the car. Using his flashlight to peer into the car, Officer Hawkins spotted a belt with an empty gun holster and handcuff case in the back seat of the car and two vials in the driver-side door handle. Officer Hawkins went back and whispered this information to Officer Clayton, and Officer Clayton asked Mr. Young if he was a police officer. According to Officer Clayton, Mr. Young said he was not, and that he had just found those items. Mr. Young admitted that it was his vehicle and that he "just drove up." Mr. Young then walked over to the vehicle with the officers and opened the driver-side door, "immediately plac[ing] his left hand over the two vials by the door handle." The officers noticed a smell that they recognized as PCP. Officer Clayton asked Mr. Young what he was covering up, and after answering "oils, " Mr. Young was arrested and handcuffed. Officer Clayton then noticed that the vials held an amber liquid, which (as the parties stipulated at trial) contained 5.6 grams of liquid PCP.

         Prior to trial, Mr. Young moved to suppress the PCP and the statements he made during the encounter, but the trial court ruled that the officers did not engage in custodial interrogation within the meaning of the Fifth Amendment and that Mr. Young had voluntarily opened the car door, which led the officers to smell PCP and see the vials in plain view. At the suppression hearing, Mr. Young testified that he had driven the car to the apartment with his nephew as the sole passenger. Maurice testified similarly. But on the morning of jury selection, counsel for Mr. Young raised a "Carter issue, " indicating that Maurice had been the last one to drive the car and that the drugs belonged to him.[2] See Carter v. United States, 684 A.2d 331, 344-45 (D.C. 1996) (en banc) (outlining process for judicial review of government's decision not to grant immunity to a "crucial defense witness" who invokes his Fifth Amendment right against self-incrimination). The court appointed counsel for Maurice, who proffered that Maurice would testify that he had driven the SUV on the night in question but that he had no knowledge of the drugs in the SUV. The trial court concluded that Maurice had a Fifth Amendment right against admitting to driving under the influence (DUI) in light of testimony at the suppression hearing that he was intoxicated, and the court also determined that the fact that Maurice was driving "would be significant . . . in a chain [of facts] that could exculpate Kevin Young." The trial court concluded that the Carter standard had been met, [3] and so the court asked the prosecutor to confer with the Office of the Attorney General (OAG) to discuss possible immunity for Maurice from DUI charges as well as a potential charge of constructive possession of PCP. The OAG ultimately granted Maurice immunity from charges stemming from DUI and driving without a permit, but it declined to grant him immunity from charges related to drug possession and underage drinking.[4] According to the OAG, Maurice's testimony that he was driving "would be a clear instance of perjury" because he had earlier testified during the suppression hearing that Mr. Young was driving. "We cannot support that, " the OAG attorney said.

         Mr. Young then moved for sanctions under Carter, but the trial court reconsidered the question whether Carter applied at all. The court concluded that it had initially applied the wrong standard and that the proffered testimony did not "clearly exculpate" Mr. Young because "the fact that it could tend to inculpate Maurice Young in some sort of joint constructive possession theory doesn't exculpate Kevin Young from the same theory." Because the testimony was not "wholly exculpatory, " the court ruled that "Carter's not implicated by it." "The only clear exculpation, " the court stated, would be if Maurice testified "the drugs were mine, or I can tell you that the drugs weren't Kevin Young's."

         Maurice ultimately testified at trial without immunity from the charges related to drug possession and underage drinking. He asserted his Fifth Amendment rights when asked whether he was the driver or passenger of the car on the last ride with Mr. Young before the police arrived. Maurice also invoked the Fifth Amendment when asked if he "put those drugs in that particular car, " but after consulting with counsel, he answered the question "[n]o." On cross-examination, the government introduced Maurice's suppression hearing testimony that Mr. Young had been driving the SUV. On redirect, Maurice testified that his prior testimony was untruthful because ...


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