Jaggers v. United States

KERN, Associate Judge,

Retired, dissenting:

The majority declines to affirm the convictions of appellant, a self-confessed murderer and rapist, who was tried and convicted by a jury after a trial which fills some 2,000 pages of transcript in the record before us. Since the defense presented but one witness (whose testimony was aimed solely at rebutting the incriminating inference from the discovery by police of an article stolen from one of the victims and found in appellant’s room), the prosecution consumed most of the trial transcript with a painstaking presentation of a painfully detailed series of grim events that terrorized a four-block area in Southeast Washington for a period of some three weeks with brutal physical attacks on and thefts from elderly residents; 1 and, required the police to mobilize a special task force to apprehend the killer.

Near the close of this trial, the defense sought to present one other witness — a surprise witness in the sense that he was not introduced to the jury as the trial commenced and an unknown witness to both sides, apparently, because his address was unknown either to the defense or to the prosecution.

This prospective witness was a juvenile who admittedly had a record of incarceration and abscondence and who lived in the abandoned building which the appellant from time to time inhabited. Indeed, on the night of appellant’s arrest by the police, this witness was in the building with his mother and siblings. Defense counsel represented that the witness “will testify that he used cocaine, marijuana and PCP on the night of January 27th [the date of appellant’s arrest] with [appellant].”

*798 The purpose of this proffer was to rebut the prosecution testimony that appellant had rendered his post-arrest confessions of the gruesome crimes he had committed knowingly and voluntarily without any signs of mental impairment as the result of any recent ingestion of narcotics.

Upon hearing this proffer, the experienced trial judge announced “I will appoint a lawyer for him” and commented concerning the role of such court-appointed counsel that the witness should be advised of his rights and a determination made if he wishes to waive his rights to testify. Defense counsel then reported to the court that the witness, who had been under subpoena and had earlier reported to the courthouse, was nowhere to be found, and that “maybe he [the witness] made a decision concerning the assertion of his Fifth Amendment rights.” A bench warrant was thereupon issued for the then missing witness.

Later, the witness appeared and the court appointed an attorney and instructed him as follows:

THE COURT: Step up Mr. Stoddard. The Court has appointed Mr. Greenspan to represent you and to advise you if you had any rights and if you did, whether you wish to give up those rights. Have you talked to him?

MR. STODDARD: Yes, ma’am.

MR. GREENSPAN: I spoke to Mr. Stod-dard and I discussed with him what would be his testimony and based on that testimony I advised him that he had a right not to take the stand, not to incriminate himself. And he has chosen to exercise that privilege.

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THE COURT: Well, the Court would place him under oath and let him plead the Fifth Amendment, if he wishes to do so.

MR. BOWMAN: Fine. He would do it himself.

THE COURT: Would you explain to him what we are going to do? We have to determine that he will in fact invoke the Fifth privilege and he will have to be sworn. It will have to come out of the presence of the jury and you can inform him how to do that.

MR. GREENSPAN: The Judge is going to put you under oath and you will be obligated to tell the truth. You are going to be asked to be put on the witness stand and identify yourself. You are going to be asked if you wish to testify as a witness in this case. This is a matter you and I previously discussed.

THE COURT: He may be asked other questions by defense counsel to which you may advise him — invoke, if he wishes to do so.

Thereafter, the defense counsel began to weave the web of confusion which has ensnared the majority and invalidated the jurors’ convictions of appellant for his murderous and rapacious misconduct after such a lengthy and thorough trial. Thus, counsel stated:

I suggest to the court that the government does not have a good faith basis to believe a Fifth Amendment privilege would lie.

The court responded:

I thought you told me he [the witness] was involved with these drugs, in possession and was a user of them.

Defense counsel thereupon agreed that he had so stated:

Yes, Your Honor. I believe it’s the government’s position that that’s a lie ... that there were not drugs involved at all ...

The prosecutor then unequivocally stated:

My position is that the proffer was ... Mr. Jaggers [appellant] and Mr. Stod-dard [the witness] [were] both using drugs illegally the night before the arrest.

The court then commented:

Your position is there was drug use and Mr. Stoddard was involved in that drug *799 use and possession of those drugs, that was your representation.

The defense attorney commented:

... that the court could also address the question of whether even if he [the witness] says I used drugs that night, whether that would in fact be a self-incriminating statement.

The court responded:' “Have they legalized it?” Defense counsel replied:

No, but there were no drugs seized that night, according to the testimony in this court and so [the witness’] uncorroborated testimony that he used drugs that night we would say would not make him liable for prosecution.

At this point, the witness’ court-appointed attorney stated:

Uncorroborated confession may not be sufficient to convict. However, it probably would be sufficient to get to the point, at least, where jeopardy was attached and based on other materials that may come out on cross-examination ... could possibly ... be corroboration and not much corroboration is needed to validate an otherwise uncorroborated confession. I would think there’d be a privilege in this situation.

The court called the prospective witness out of the presence of the jury so “we can conduct a limited inquiry to see what the witness would have testified to and you can inquire so we can see whether he invokes the privilege.”

Thereafter, the witness was sworn and, out of the jury’s presence, recounted how he had lived in an apartment in “an abandoned house” and appellant had “off and on” stayed in another apartment there next door. The witness, in response to a question asked by defense counsel, testified that he recalled the day (January 27, 1981) upon which appellant was arrested because he himself was “locked up” on the same day. When asked whether he had observed appellant “in the early morning hours” of that day “sniffing cocaine, smoking marijuana, and using PCP”, the witness refused to answer “on the grounds I might be incriminating myself.” Given the defense proffer earlier that the witness would testify that he and appellant were together on January 27, 1981, using illicit drugs, viz., cocaine and PCP, and given the further fact that the witness had been advised by counsel, it is clear that the witness’ refusal was proper. Otherwise, had he been required to answer that question he would clearly have provided a link in the chain of his own prosecution.

Defense counsel continued his questioning by asking whether the witness “prior to January 27th of 1981” had seen appellant “in possession of any illegal drugs.” Again, the witness refused to answer the question “on the ground that I may be incriminating myself.” Again, it is clear that given the witness’ drug use with appellant he would have criminally implicated himself by his testimony concerning appellant’s prior use of such drugs.

At that point, defense counsel complained that the witness did not understand “what he’s doing.” The attorney representing the witness commented that “[h]e has a genuine belief he’d be incriminated,” and the court replied, “[h]e [the witness] has the advice of counsel to help him make that determination as to whether or not he believes it would incriminate him. We are extracting answers from him under oath.”

Defense counsel then changed his tack and questioned the witness concerning “his observations at the police station of [appellant] and the police.” When the witness invoked the Fifth Amendment in answer to the question whether he was “at any point in the same room” as appellant at the Homicide Office a colloquy between the court and all counsel ensued and the court thereafter adjourned proceedings overnight during which the court invited appointed counsel for the witness “to continue talking to your client.”

When the trial resumed the next day defense counsel proceeded to sow the seed which has mushroomed into the majority’s *800 misguided invalidation of the convictions by its order of remand:

[I]t’s our position there is no way in the world he [the witness] could ever be convicted for possession of drugs, even if he gets on the stand and says I had drugs and used drugs on that day. This would just be his own uncorroborated confession ...

Defense counsel continued:

[TJhere’s never been a case where it’s gone past a motion for judgment of acquittal.

The prosecutor responded by referring to the Supreme Court’s decision in Hoffman v. United States, 341 U.S. 479 , 71 S.Ct. 814 , 95 L.Ed. 1118 (1951), which is binding upon this court: That a trial court should not deny a witness protection of the Fifth Amendment unless it’s perfectly clear that the witness’ answer cannot possibly incriminate him. The prosecutor pointed out what was obvious to all in the courtroom, but of which the majority is apparently oblivious: The witness’ answer that he had drugs in his possession on the night of the arrest could implicate him with respect to a charge of possession of drugs. The prosecutor further pointed out — quite correctly — that neither he nor defense counsel was in a position to say whether or not the witness would be prosecuted but “he does face a danger of prosecution from admitting he had drugs in his possession on that evening.”

The witness’ counsel called the trial court’s attention to Alston v. United States, 383 A.2d 307 (D.C.1978), which the majority appears to forget is binding on this Division in this case and stated to the court:

The privilege afforded by the Fifth Amendment encompasses testimony which might further a link in the chain of evidence necessary for a prosecution. The answer need not in itself furnish all the evidence that is necessary for a prosecution.

The trial court, having heard all counsel, ruled:

[T]he Court is satisfied that the witness has the right to invoke the privilege and a privilege exists.

[I]t’s only necessary that answers would further a link in the chain of evidence needed to prosecute the witness for a crime ... if the witness were required to answer regarding the circumstances under which he was in possession of any types of drugs on this given occasion.

Subsequently, the trial court reiterated its ruling on the proffered testimony of the witness concerning use of illegal drugs by appellant and himself on the night of the arrest:

And clearly, it would produce incriminating matters which would furnish a link which would possibly support some type of prosecution. And the witness should not be required to have that happen to him. He’s entitled to invoke the privilege ....

With all deference, the majority has failed to apprehend either the record in the instant case or the legal precedent binding upon us. The result is sad to behold: First, the future invocation of the Fifth Amendment by other witnesses to come before the courts is undermined, see In re Corrugated Container Antitrust Litigation, 213 U.S.App.D.C. 319, 327 , 662 F.2d 875, 883 (1981); and second, the trial court in this case, where the murders occurred in 1980, the arrest of appellant was effected in early 1981, and the trial of appellant was held in late 1981, is now required to take some further action of an undefined nature with respect to a witness whose whereabouts was unknown to the parties as they went to trial, who was living in an abandoned building in 1980 between incarcerations and escapes and who left the courthouse, unexcused, while the trial was in progress and he was under subpoena. Given these circumstances, the ability to prosecute appellant is highly doubtful.

I deem the remand to be based upon “fanciful” and “merely speculative” concerns, and I dissent.

. One such elderly victim survived a brutal beating to identify appellant as his assailant.