Deneal v. United States

NEWMAN, Associate Judge,

concurring:

I write separately to address the approach by the Assistant U.S. Attorney respecting defense witness Enrico Hoye’s invocation of his Fifth Amendment privilege against self-incrimination. The government’s brief contains indications that it knew that Hoye had testified before the grand jury. At oral argument, in response to questioning by this panel, the government stated explicitly that this was so. Indeed, the government admitted that it too had subpoenaed Hoye as a trial witness.

From this, I conclude that the prosecutor knew that Hoye testified before the grand jury yet made no disclosure to the trial court, a fact which if known would have mandated a determination by the trial court as to whether Hoye waived his Fifth Amendment privilege. Salim v. United States, 480 A.2d 710, 713-14 (D.C.1984). Instead, the trial court granted Hoye a blanket assertion of the privilege without knowledge of Hoye’s grand jury appearance.

Although I find that no prejudice resulted from the trial court’s decision since Hoye’s unavailability enabled appellant to call two witnesses under the statement against penal interest exception to the hearsay rule, 1 FED.R.EVID. 804(b)(3); *1318 Laumer v. United States, 409 A.2d 190, 199 (D.C.1979) (en banc), I object strongly to the prosecutor’s approach in this case. To stand mute before the court with knowledge peculiarly available to the government constitutes prosecutorial misconduct and should not be condoned. As a representative of the government, the prosecutor has a duty to deal in a forthright manner that enhances, not undermines, the integrity of the judicial process. This applies whether the particular prosecutor has actual or constructive knowledge of the facts in issue. Although it appears that the prosecutor had actual knowledge of Hoye’s grand jury appearance in this case, the burden is on the prosecutor’s office to “ ‘let the left hand know what the right hand is doing’ or has done.” Santobello v. New York, 404 U.S. 257, 262 , 92 S.Ct. 495, 499 , 30 L.Ed.2d 427 (1971). Thus, “whether the nondisclosure is the result of negligence or design,” the responsibility rests with the prosecutor to be informed of the facts, and proceed accordingly. Giglio v. United States, 405 U.S. 150, 154 , 92 S.Ct. 763, 766 , 31 L.Ed.2d 104 (1971).

. Under Rule 804(b)(3) a statement against penal interest is not excluded by the hearsay rule if the declarant is unavailable as a witness. A statement against penal interest is “a statement which at the time of its making ... tended to subject [the declarant] to civil or criminal liability ... [so] that a reasonable man in his position would not have made the statement unless he *1318 believed it to be true ...” Fed.R.Evid. 804(b)(3). In this case, Hoye’s unavailability, enabled the defense counsel to call appellant’s aunt and brother who both testified as to statements that Hoye had made to them. Appellant’s aunt, Sabrina Deneal, testified that Hoye told her that he had given appellant a bag to hold when the police stopped them thinking that the police would not search appellant, that Hoye admitted to her that appellant “didn’t know the pistol was in there,” and that Hoye told her that "everything would be all right, that [Hoye] wasn’t going to let [appellant] take his weight because [Hoye] knew he was wrong." Appellant’s brother, Lawrence Baylor, testified that Hoye told him that appellant would be allright and that he wouldn’t let him take “the beef’ for something Hoye had done.