State v. Ramsey

576 P.2d 572, 99 Idaho 1, 1978 Ida. LEXIS 366

• Court: Idaho Supreme Court
• Decided: March 6, 1978
• Docket: 12294
• Status: Published

Opinions

DONALDSON, Justice.

State narcotics officers were conducting an undercover investigation in Boise in December of 1975. On December 15, 1975, an undercover agent made a phone call at 5:30 p. m. to the residence of Joan Gossi in Boise. As a result of the call the agent arranged to buy ten pounds of marijuana from Mrs. Gossi. At 6:20 p. m. this officer, with two other undercover agents, drove to the Gossi residence to make the buy. The first officer went to the door and was invited inside. Mrs. Gossi then showed him and he inspected a large plastic bag which contained 9.74 pounds of marijuana. Mrs. Gossi was arrested and the other two agents came in the house.

At this point the agents decided to try to “bust” the supplier. They waited in the Gossi house for about an hour when Mrs. Gossi received a phone call at about 7:35 p. m. After a conversation between Mrs. Gossi and the narcotics officers, a plan was made. One officer hid in the bathroom, one went upstairs with Mrs. Gossi, and the first agent stayed downstairs in the kitchen. At about 8:00 p. m Jack Ramsey arrived at the front door and was let in by the officer. They had a brief conversation about the marijuana the officer had just bought. (Ramsey had been in the Gossi house earlier in the day and knew a marijuana sale was going to take place later on.)

At this point, the testimony is disputed. The officers contend that Ramsey then tried to recruit the first officer to be a drug salesman for Ramsey in North Idaho. Ramsey denies this. Both agree that the narcotics officer tried to get Ramsey to procure him ten or fifteen additional pounds of marijuana that day. Ramsey replied that he could not do this.

The officer then showed Ramsey thirteen $100 bills that he had placed on the table in the living room. He indicated this money was to pay Ramsey for the ten pounds of marijuana the officer had received from Mrs. Gossi. Ramsey went over to the table, counted the money, and was arrested.

The prosecution had subpoenaed Mrs. Gossi for trial and had prepared an immunity agreement to allow her to testify. However, at trial she was not called by the prosecution and no immunity was given. Ramsey called her as a witness, but she claimed her privilege against self-incrimination to all questions from defense counsel.

It does not appear from the record that she was subpoenaed by the defense or that the defense requested she be given immunity to testify.

After she had given her name and address, her attorney indicated he would instruct her not to answer any further questions. Defense counsel then contended that the witness should be instructed to answer each question which was not incriminating in nature. After the jury was excused, defense counsel submitted to the judge the questions he was going to ask Mrs. Gossi. The judge concluded that the proposed questions, “would all fit within the privilege, and I would honor the exercise of the privilege in this regard.”

Mrs. Gossi was excused, whereupon defense counsel objected and moved for a mistrial or judgment of acquittal. Defense counsel asked for a clarification of the court’s excusing Mrs. Gossi. The judge explained that he would not force her to answer any questions. Defense counsel then stated he had no objection to her being excused.

Ramsey was convicted by the jury of two felonies: possession of a controlled substance and delivery of a controlled substance. I.C. § 37-2732.

Ramsey appeals his conviction on two grounds:

(1) whether the trial court construed the fifth amendment right against self-incrimination overly broad so as to deny Ramsey his right to call witnesses; and

(2) whether the prosecutor abused his power to grant immunity so as to deprive Ramsey of his right to call witnesses and present a defense.

I

The sixth amendment guarantees the right to compulsory process to obtain witnesses. This right is applicable to state proceedings by virtue of the fourteenth amendment due process clause. Washington v. State of Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense . . . .” Id. at 19, 87 S.Ct. at 1923.

It is recognized that this right to compulsory process is an important one to be afforded full recognition where possible. Westen, “The Compulsory Process Clause,” 73 Mich.L.Rev. 71 (1974). However, this right often conflicts with a claimed right against self-incrimination.

A defendant may for all practical purposes be denied his right to compulsory process by virtue of the countervailing impact of the privilege against self-incrimination. Where the two rights are in conflict, the privilege against self-incrimination has prevailed.

J. Cook, Constitutional Rights of the Accused, Trial Rights, 9 (1974).

When the Sixth Amendment and Fifth Amendment guarantees collide under these circumstances, the Sixth Amendment right must yield.

Holloway v. Wolff, D.C., 351 F.Supp. 1033, 1038 (1972).

This is not to say that the sixth amendment right to compulsory process is in any way a second class right. For a fifth amendment privilege to dominate, the need for asserting the right against self-incrimination must be shown to be well founded and essential. U. S. v. Melchor Moreno, 536 F.2d 1042 (5th Cir. 1976).

Ramsey contends that he was unable to call and cross-examine a key witness because of the blanket invocation of the privilege against self-incrimination. Out of the jury’s presence, defense counsel outlined why he wished Mrs. Gossi to testify about the marijuana.

I would go on to establish that marijuana was in the house. Joan did not know exactly how it got there. Some of it she knew how it came in the house, some of its she did not. I believe Joan’s testimony would be that the marijuana does not in fact belong to Jackson Ramsey and that although he knew of this particular buy he was not part of it; he was not to accept the proceeds of it; that there was possibly other people involved.

Although Ramsey asserts as error the breadth of the claimed privilege, anything in Gossi’s testimony which would exculpate Ramsey would necessarily fall within Gossi’s right against self-incrimination. The very line of questioning mentioned above would expose Gossi to a variety of criminal liabilities.

As the trial judge recognized, association with large amounts of drugs potentially involve several different crimes. Idaho Code § 37-2732 allows one act to be several crimes. Under the wording of I.C. § 37-2732 Gossi could possibly be tried for conspiracy, possession of over three ounces, and frequenting a place where marijuana was found. This is not to say that she could be found guilty on all of these counts, especially if all possible violations arose out of the same act. Idaho Code § 18-301 precludes the state from punishing the same act in different ways. However, Gossi’s potential liability was real enough to present a danger of self-incrimination. State v. Miller, 14 Or.App. 608, 513 P.2d 1199 (1973); State v. Parker, 79 Wash.2d 326, 485 P.2d 60 (1971). There also existed the possibility of a federal prosecution for possession of marijuana. 21 U.S.C. § 801 et seq. (1971); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959).

Once the court has decided that the fifth amendment claim is valid and there exists a real danger of self-incrimination, it controls the remaining procedure. Ramsey claims that he should have been allowed to ask questions to the witness and have the court rule individually on each question. Here the trial judge said that defense counsel could ask questions of Gossi, but that he would sustain her privilege for the area covered in counsel’s outline.

The procedure followed by the trial court, under the circumstances of this case, was not improper in evaluating the claimed privilege:

Accordingly, the custom is for the trial judge to examine the protesting witness out of the presence of the jury in order to determine the validity of his claim. Once the court satisfies itself that the claim is well-grounded as to the testimony desired, it may, in its discretion, decline to permit either party to place the witness on the stand for the purpose of eliciting a claim of privilege or to comment on this circumstance.

U. S. v. Gomez-Rojas, 507 F.2d 1213, 1220 (5th Cir. 1975).

If it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand.

U. S. v. Lacouture, 495 F.2d 1237, 1240 (5th Cir. 1974), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974).

Here the court excused the jury immediately after it became clear that Gossi would claim the fifth amendment. At this point defense counsel again began asking questions of Gossi. After she had given her address, her attorney advised her not to answer any further questions. The court then asked for and got an outline of the questions and expected answers from defense counsel.

After hearing defense counsel’s outline of his purpose in questioning Gossi, the court’s ruling on the self-incrimination privilege was within proper discretion and was not so overly broad as to deny Ramsey his right to call witnesses. Defense counsel did not object to Gossi being excused and she was not asked any further questions. Defense counsel does not show there were any areas where Gossi could have testified to help Ramsey which were outside the fifth amendment privilege.

II

Ramsey’s second assignment of error is that the prosecutor abused the immunity power granted him by I.C. §§ 19-1114, -1115. Ramsey says this is because the prosecutor would have executed an immunity agreement had he needed Gossi’s testimony. Since the prosecutor felt Gossi’s testimony would only help Ramsey, he did not call her as a witness and did not offer her immunity.

The facts of the case are important in addressing this issue. Gossi was subpoenaed by the prosecution for trial. She was not subpoenaed by Ramsey. Further, Ramsey did not at any time request she be granted immunity to testify.

It cannot be said to be an abuse of the immunity power not to grant it when it has not been requested. The immunity power granted by statute in Idaho is solely for the use of the prosecuting attorney. This Court has held that granting this power to the prosecutor is not unconstitutional. Dutton v. District Court, 95 Idaho 720, 518 P.2d 1182 (1974).

Ramsey contends the issue is whether “under certain circumstances does due process and the right to call witnesses require that immunity be granted to certain accomplices or co-defendants.” This is not a case of an obstruction of justice by the prosecutor. What Ramsey is alleging as error is the failure of the prosecutor, sua sponte, to help Ramsey present his case. The prosecutor took no affirmative action to deny Ramsey any evidence. What the prosecutor did was to subpoena Gossi as a witness and then decide, for whatever reason, not to call her. This is hardly an abuse of the immunity power. Immunity was not at all involved. Gossi was not given immunity, nor did Ramsey request she be given immunity.

On appeal, Ramsey urges we recognize a due process right to have certain defense witnesses immunized.¹ We do not rule on this issue since it was not raised below as it was not requested that Gossi be given immunity.

The judgment of conviction is affirmed.

SHEPARD, C. J., and McFADDEN, BAKES and BISTLINE, JJ., concur.

1 . Although the Idaho Code provides only the prosecutor with the power to grant immunity to witnesses, Ramsey suggests a due process right to have certain defense witnesses immunized. There is some support in United States Supreme Court cases for this theory. As the Supreme Court pointed out in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), neither the prosecution nor the defense is harmed by the granting of “use” immunity. It has been urged by several sources that the courts must have an inherent power to ensure a fair trial. This would include a power by the court to grant a defense witness “use” immunity when due process requires. United States v. Leonard, 161 U.S.App. D.C. 36, 494 F.2d 955, 985 n. 79 (1974) (concurring and dissenting opinion of Chief Judge Bazelon); Note, “Separation of Powers and Defense Witnesses Immunity” 66 Geo.L.J. 51 (1977); Westen, “The Compulsory Process Clause,” 73 Mich.L.Rev. 71, 167 (1974); Note, “A Re-examination of Defense Witness Immunity: A New Use for Kastigar," 10 Harv.J.Legis. 74 (1972); Note, “Right of the Criminal Defendant to the Compelled Testimony of Witnesses,” 67 Colum.L.Rev. 953 (1967).