Gosling v. Commonwealth

Benton, J.,

dissenting.

When Gosling’s counsel asked permission to proffer for the record the witness’ testimony, the Commonwealth’s attorney objected on the grounds that the witness’ conversation with Gosling’s counsel “wasn’t given under oath,” that the Commonwealth “would not have a chance of cross examination,” and that by making a proffer, Gosling’s counsel “puts himself in the position ... of actually becoming involved as a corroborative witness” in a future prosecution of the witness. In response, Gosling’s counsel advised the court that he had no lawyer-client relationship with the witness and that a proffer was appropriate. Apparently, however, the trial judge believed that if Gosling’s counsel proffered the witness’ testimony for the record, Gosling’s counsel would have to be removed from the pending case. Based on the view that the Commonwealth would use the proffer against the witness and on a misapprehension of the function of the proffer, the trial judge ruled as follows:

You know the rule. When a lawyer starts being a witness, he has got to get out of the case at that point and I’m not going to let you out at this point for the purpose of saying what the witness may or may not have told you. I don’t know what you would put on but I’m not going to let you do it.

The ruling was erroneous.

The rule has long been established that when an objection is sustained and evidence is excluded, the content of the excluded testimony may be included in the record by a proper proffer. Driver v. Hartman, 96 Va. 518, 520 , 31 S.E. 899, 899 (1898). Thus, whenever “a question is asked and the witness is not permitted to answer it,” the proponent of the evidence must make a proffer of the expected answer in order to preserve the issue for appeal. Jackson v. Commonwealth, 98 Va. 845, 846-47 , 36 S.E. 487, 488 (1900). This procedure must be followed because “an *168 appellate court has no basis for adjudication unless the record reflects a proper proffer.” Whittaker v. Commonwealth, 217 Va. 966, 968 , 234 S.E.2d 79, 81 (1977). On numerous occasions, the Supreme Court and this Court have invoked the rule to bar consideration of issues on appeal. See Wyche v. Commonwealth, 218 Va. 839, 842 , 241 S.E.2d 772, 775 (1978); Owens v. Commonwealth, 147 Va. 624, 630-31 , 136 S.E. 765, 767 (1927); Klein v. Klein, 11 Va. App. 155, 160 , 396 S.E.2d 866, 869 (1990); Lowery v. Commonwealth, 9 Va. App. 304, 307 , 387 S.E.2d 508, 510 (1990); Stultz v. Commonwealth, 6 Va. App. 439, 444 , 369 S.E.2d 215, 218 (1988).

In the absence of abusive conduct by counsel, it is difficult to conceive of circumstances in which the trial judge appropriately may categorically deny counsel the right to proffer for the record testimony that the trial judge has refused to admit or that has otherwise been excluded by a ruling of the trial judge. Any such action by the trial judge has the effect of frustrating the very rule designed to ensure review of the trial judge’s ruling. Solely because of the trial judge’s refusal to allow the proffer, this Court is now unable to determine on this appeal whether the trial judge erred in refusing to compel the witness to testify.

“[T]he privilege against self incrimination ... ‘is purely a personal privilege of the witness’ . . . [and] a refusal to answer cannot be justified by a desire to protect others from punishment.” Rogers v. United States, 340 U.S. 367, 371 (1951). Moreover, the privilege against self-incrimination protects the witness “against real dangers, not remote and speculative possibilities.” Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 478 (1972). “[The] protection [against self-incrimination] must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.” Hoffman v. United States, 341 U.S. 479, 486 (1951).

To sustain a witness’ invocation of the privilege, it is not enough that the witness merely utter the words or have a subjective belief that the answer may tend to incriminate.

The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is *169 justified, and to require him to answer if “it clearly appears to the court that he is mistaken.”

Id. at 486 (citations omitted). Obviously, the trial judge in deciding whether the witness could properly invoke the privilege must consider the broad scope of the case and the facts. Id. An important ingredient of that determination is the scope of the questions. See Worrells v. Commonwealth, 212 Va. 270, 271-72 , 183 S.E.2d 723, 724 (1971). Equally as important, however, is an inquiry into “what a truthful answer might disclose.” Zicarelli, 406 U.S. at 480 . “To sustain the privilege, 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.” Hoffman, 341 U.S. at 487-88 .

An examination of the record establishes that the trial judge neither relied on the facts of this case nor the witness’s circumstances when he allowed the witness to invoke the fifth amendment. Rather, the record indicates that the trial judge considered nothing more than the witness’ claim that his answers might incriminate him in finding that the fifth amendment was properly invoked. Nowhere in the record does the trial judge actually appraise the witness’ claim. When Gosling’s counsel attempted to proffer the witness’ expected testimony, the trial judge merely stated, “I don’t know what you would put on but I’m not going to let you do it.” There is no indication, beyond the witness’s subjective belief, that the witness was entitled to invoke the fifth amendment privilege.

The trial judge’s refusal to allow Gosling’s counsel to proffer on the record the full scope of the inquiry as well as the responses he expected to elicit precluded the trial judge from making an informed appraisal of the witness’ right to invoke the protection of the fifth amendment right against self-incrimination. More importantly, the ruling has deprived this court of the basis upon which to determine whether the trial judge erred in not compelling the witness to testify. That the witness has invoked the protection of the fifth amendment is not a sufficient basis upon which to deny counsel the right to place on the record a proffer of expected testimony. Indeed, in Worrells , where the factual setting was analogous to the circumstances of this case, the Supreme Court ad *170 dressed the dilemma that an appellate court faces on appeal when no proffer is made on the record.

The defendant’s assignments of error present . . . questions which merit discussion. The first is whether the trial court erred in refusing to allow the defendant to question Allen Guill after the latter, who had been summoned, called, and sworn as a defense witness, had invoked his Fifth Amendment privilege against self-incrimination and refused to testify. Guill, who was under indictment in connection with the incident at Briar Patch Inn, was excused as a witness upon his general assertion “that any testimony that he might give” might tend to incriminate him.

The defendant contends that he should have been permitted to pose individual questions to the witness and if Guill asserted his Fifth Amendment privilege against answering any such questions, then the court could have determined whether the answers thereto would have been incriminating. With this contention, as a general proposition, we would agree. It does not necessarily follow, however, that the failure of the trial court to follow such a course in this case constituted reversible error.

The defendant did not proffer to the trial court the individual questions he desired to pose to the witness. We are unable to determine, therefore, whether such questions would have been relevant and, if so, whether the witness should have been required to answer them. Given the evidence, as previously outlined, of Guill’s alleged participation in the events at Briar Patch, it is conceivable that any relevant question could have elicited an answer which might have tended to incriminate the witness. In the absence of proffer of a relevant question calling for a nonincriminating answer, we will not reverse for the alleged error in excusing Guill as a witness upon the general assertion of his Fifth Amendment privilege.

212 Va. at 271-72 , 183 S.E.2d at 724 (citations omitted). See also Johnson v. Riddle, 222 Va. 428, 431 , 281 S.E.2d 843, 846 (1981) (testimony of witness who invoked the privilege against self-incrimination “was proffered out of the presence of the jury to. determine its extent and character”).

*171 “The test to be applied by an appellate court where an offer [of proof] has been denied is whether any conceivable answer to the question would have been admissible.” Frisone v. United States, 270 F.2d 401, 403 (9th Cir. 1959). Here, the possibility of an admissible answer is immediately obvious. The evidence before the trial judge suggested that the witness was a mere bystander who observed an occurrence between Gosling and another inmate. Certainly, the witness might have been in a position to testify truthfully that he did not know the contents of the cigarette package or that he saw another inmate put contraband in the package while standing in the line or that he learned of the contents of the package after Gosling’s arrest. While it is also possible that the witness may have had guilty knowledge and, thus, was in fact entitled to invoke the privilege, that possibility is no more probable than the hypothesis that the witness had knowledge that would have incriminated another inmate, but not himself, and, thus, inappropriately invoked his right not to testify.

What we do know from the record is that Gosling’s counsel had spoken with the witness twice prior to trial and was capable, if permitted, of placing on the record the questions that he intended to ask the witness and the expected responses. Only if that had occurred could the trial judge have made an informed decision whether counsel should have been appointed for the purpose of consulting with and advising the witness or whether the witness should have been allowed to invoke the privilege against self-incrimination. These were matters that should have been determined only after an appropriate inquiry. 3 Without jeopardizing the witness’ right not to incriminate himself, the trial judge should *172 have attempted to determine whether the witness had a legitimate privilege. See People v. Poma, 96 Mich. App. 726, 732 , 294 N.W.2d 221, 223 (1980). In any event, that determination should have been prefaced by an adequate explanation of the self-incrimination privilege so the witness would have been informed that the privilege could not be invoked to protect third parties and the witness could have made “a knowledgeable choice regarding assertion” of the privilege. Id.

For these reasons, I would hold that the trial judge erred in denying Gosling’s counsel the right to proffer for the record the anticipated testimony of the witness. In the absence of the proffer and an inquiry, the trial judge could not determine whether the witness was privileged not to answer. The refusal to allow Gosling’s counsel to make the proffer by an appropriate avowal of expected testimony should not be sanctioned by this Court.

In the absence of the proffer and an appropriate inquiry, I believe it is premature to reach the issues concerning the scope of Code § 19.2-270 and the trial judge’s authority to grant, sua sponte, Code § 19.2-270 immunity to the witness. Although the Supreme Court in O’Dell v. Commonwealth, 234 Va. 672, 704 , 364 S.E.2d 491, 509 (1988), cites favorably Cunningham v. Commonwealth, 2 Va. App. 358 , 344 S.E.2d 389 (1986), for the proposition that Code § 19.2-270 is available to compel testimony from a witness who has invoked the fifth amendment privilege against self-incrimination, it should be noted that in Cunningham , this Court did not approve or disprove the trial judge’s grant of Code § 19.2-270 immunity to the witness. Neither Cunningham nor the Commonwealth raised that issue or complained of the manner in which the witness was granted immunity. Although the majority opinion in Cunningham recited the grant of immunity in discussing the factual and procedural posture of the case, id. at 363 , 344 S.E.2d at 392 , we had no occasion to address the scope or propriety of the grant of immunity under the circumstances which were existing in Cunningham .