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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CF-927
CASSANDRA LYNN HAYES, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(CF2-14970-11)
(Hon. Heidi M. Pasichow, Trial Judge)
(Argued November 6, 2014 Decided February 12, 2015)
Matthew G. Kaiser, with whom Allison Lansell was on the brief, for
appellant.
Anne Y. Park, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello,
and Jin Y. Park, Assistant United States Attorneys, were on the brief, for appellee.
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and NEBEKER,
Senior Judge.
BLACKBURNE-RIGSBY, Associate Judge: Following a jury trial, appellant
Cassandra Hayes was found guilty of assault with significant bodily injury and
2
aggravated assault.1 Appellant’s principal theory at trial was that Mattie Eubank
(“Eubank”) assaulted the victim, Eleanor Crump (“Crump”). Eubank was prepared
to corroborate this theory by testifying at trial in exchange for immunity, but the
government declined to immunize her after finding potential for perjury during a
debriefing procedure pursuant to Carter v. United States, 684 A.2d 331 (D.C.
1996) (en banc). Without immunity, Eubank invoked her privilege against self-
incrimination and declined to testify about her actions during the assault. On
appeal, appellant argues that the trial court abused its discretion by failing to
sufficiently inquire into the government’s refusal to immunize Eubank. Had the
trial court so inquired, appellant contends, it would have found that the government
had no reasonable basis for refusing immunity and therefore should have given the
government the choice to grant immunity or suffer dismissal of the indictment.
We affirm.
I. Factual Background
The events giving rise to appellant’s conviction are disputed by the parties,
and this dispute provides the impetus for the issues on appeal. The undisputed
1
In violation of D.C. Code § 22–404 (a)(2) (2009 Supp.) and § 22–404.01
(2001).
3
facts, however, are as follows. On the evening of April 29, 2011, at around
7:00 p.m., appellant and a group of friends gathered at Kari Novelli’s (“Novelli”)
house in Maryland for a birthday celebration. They drank alcohol at Novelli’s
house over the next three hours before leaving at around 10:00 p.m. in a rented
limousine for a one hour ride to the District Nightclub in Washington, District of
Columbia, located at 2471 18th Street, Northwest. The group brought liquor into
the passenger compartment of the limousine and continued drinking during the
ride. Upon arriving at the District Nightclub, they went to a reserved VIP section
and continued to drink throughout the evening. At around 2:00 a.m., Eleanor
Crump, the complainant, walked out of the club alone and entered the limousine,
which was waiting in front of the nightclub. The limousine’s driver sat in the
driver seat, but Crump was the only person in the passenger compartment.
From this point, appellant and the government provide different versions of
the ensuing events, though only appellant, Eubank, and Crump were direct
observers. Appellant offered her own testimony at trial, which Eubank
corroborated, to establish her version of events as follows. At around 2:00 a.m.,
one member of the group, Tiffany Fink (“Fink”), had become so intoxicated that
she could no longer walk on her own, so appellant and Eubank walked with Fink
from the club to the waiting limousine. As appellant and Eubank helped Fink
4
through the rear passenger door, appellant spotted Crump sitting inside the
limousine smoking a cigarette by a window and asked Crump to move over so that
they could lay Fink on the seat by the window in case she needed to vomit. Crump
began to yell and curse at them and appellant responded by repeating her request
more aggressively, eventually convincing Crump to move and allowing appellant
and Eubank to lay Fink on the seat. Appellant sat next to Crump on the seat across
from Fink while Crump continued to yell and curse, prompting appellant to say
“shut up.” In response, Crump spit in appellant’s face and appellant pushed
Crump’s face away. Appellant and Eubank left the limousine and briefly spoke to
Novelli on the sidewalk outside while Crump yelled after them, prompting Novelli
to tell Crump to “shut up.” Appellant and Eubank went to a nearby pizza shop,
where appellant wiped the spit from her face and the two ordered pizza before
returning to the limousine to eat. Again, Crump began to yell at appellant and
Eubank, to which they responded by cursing at her and telling her to “shut up.”
Crump slapped the bottom of Eubank’s pizza plate, knocking pizza onto Eubank.
In appellant’s most significant deviation from Crump’s testimony, appellant
testified that Eubank called Crump a b----[expletive] and pushed her, and that, in
return, Crump slapped Eubank, prompting Eubank to hit Crump four or five times.
Appellant then grabbed Eubank and said “let’s go,” and they went to a nearby café
to wash a bleeding cut on Eubank’s knuckle.
5
On the other hand, Crump testified that she does not remember how Fink got
into the limousine. Rather, Crump testified that she was sitting in the limousine
alone texting on her phone when, without provocation, appellant entered and began
to punch her in the face, temples, and back of the head. After the punching
stopped, Crump told appellant that her nose was broken and called appellant a c---
[expletive], to which appellant responded with even more punches for a longer
duration. When this round of punches stopped, Crump noticed that her teeth were
missing and she reached for her phone, prompting appellant to grab the phone and
continue punching. Crump testified that Eubank was standing by the limousine
door throughout the attack. The government corroborated Crump’s testimony with
that of the limousine driver, who sat in the driver’s seat throughout the event with a
partition separating the driver’s seat from the passenger compartment lowered. He
testified that Crump entered the limousine alone, looking annoyed, and was
followed a few minutes later by two other girls who were not carrying Fink.
Rather, he testified that Fink entered the limousine after the assault as he and
Crump spoke with a police officer. Although he testified that he could not see the
assault, he heard an argument and punching noises, then witnessed Crump crawl
through the partition into the front seat with blood on her face.
6
II. Procedural History
Appellant’s case went to trial nearly two years after the event. In a pre trial
hearing on February 27, 2013, appellant indicated that she intended to offer
Eubank’s testimony at trial to corroborate her own version of events, namely, that
Eubank, not appellant, had assaulted Crump. Because Eubank’s testimony would
cause her to incriminate herself, and because she requested immunity, the trial
court determined that a hearing under Carter v. United States, 684 A.2d 331 (D.C.
1996) (en banc) was necessary to determine whether immunity is appropriate. The
government granted Eubank limited immunity to debrief her on her proposed
testimony and subsequently declined to grant use immunity for trial purposes,
citing ten “specific reasons to believe she is not being truthful” that collectively
demonstrated a likelihood of potential perjury.2 Applying Carter, the trial court
2
Specifically, the government identified ten factual differences between
Eubank’s version of events and the events described in other witnesses’ testimony
at a grand jury hearing and in statements to the government:
1) Eubank stated that appellant did not say anything to Crump upon entering
the limousine, while another witness testified that she overheard Hayes say
“move b----[expletive].”
2) Eubank stated that she and appellant helped Fink into the limo, while Crump
did not remember seeing Fink at all and the limousine driver said Fink
entered the limousine after the assault.
3) Eubank identified herself as the assailant, while Crump identified appellant.
(continued . . .)
7
concluded that there was a possibility of potential future prosecution and that the
government had provided a reasonable basis for declining immunity, namely, a
“clear indication of potential perjury.” The trial court highlighted Eubank’s
conflicting testimony that she struck Crump and the government’s showing that,
based on its investigation, its witnesses’ accounts contradict Eubank’s testimony in
(. . . continued)
4) Eubank stated that when Crump began yelling and cursing before the
assault, Novelli told Crump that she was “being crazy,” but Novelli did not
corroborate this statement.
5) Eubank stated that Crump was yelling and cursing throughout, while the
limousine driver stated that he only heard yelling immediately prior to the
attack, though he could not say who was yelling.
6) Eubank stated that after four or five punches she and appellant left the
limousine as Crump yelled after them to “come back,” though no other
witness corroborated this version of events.
7) Eubank stated that the limousine drove around the corner when Eubank and
appellant exited the limousine after the assault, but the limousine driver did
not corroborate this statement.
8) Eubank stated that she and appellant spoke with Novelli after the incident,
telling her that Eubank fought with Crump, but Novelli did not corroborate
this statement.
9) Eubank stated that she did not grab Crump’s phone or see a phone, while
Crump stated that appellant grabbed her phone and that there was blood on
the phone.
10) Eubank’s version of events does not comport with appellant’s statement to
police upon her arrest that appellant went home with her boyfriend that night
and that no fight occurred.
The government also highlighted Eubank’s bias in favor of appellant
because their daughters share the same father, Eubank was appellant’s closest
friend at the party, appellant and Eubank vacation together, Eubank took care of
appellant’s child when appellant was arrested, and Eubank did not come forward to
confess until contacted by appellant’s attorney.
8
many aspects. The trial court noted that neither Carter nor any other case requires
the government to grant immunity, and that the government had established a
good-faith basis for its refusal.
At trial, Eubank testified to her version of events, but invoked her Fifth
Amendment privilege against self-incrimination with regard to all the events inside
the limousine from when Crump slapped the pizza plate up until Eubank and
appellant left the limousine, and with regard to whether her hand was bloody. The
jury did not credit the version of events presented by appellant and Eubank, and
found appellant guilty.3 Appellant brings this appeal challenging the trial court’s
application of Carter.
3
Appellant also unsuccessfully moved to introduce a recorded confession
from Eubank as a statement against penal interest. In the recording, Eubank
voluntarily, yet anonymously, confessed to assaulting Crump to the defense
attorney’s investigator on February 27, 2013, the first day of trial. According to
the investigator’s testimony at trial, Eubank arrived at the defense attorney’s office
with appellant that morning and, when appellant and her attorney left for court,
Eubank stayed behind to give the recorded statement. After listening to the
recording, the trial court denied appellant’s motion, concluding that appellant had
not presented sufficient corroborating circumstances to demonstrate the veracity of
the statement, as required by Laumer v. United States, 409 A.2d 190, 199 (D.C.
1979) (en banc), citing Eubank’s nearly two-year delay in coming forward, the
lack of any prior confession, the lack of any existing relationship between Eubank
and the investigator, the close relationship between Eubank and appellant, and the
fact that Eubank arrived with appellant to speak to the investigator. Appellant does
not challenge the trial court’s denial of this motion.
9
III. Discussion
On appeal, appellant contends that the trial court abused its discretion in
applying Carter by failing to “critically inquire” into the government’s
determination that Eubank’s proposed testimony presented “clear indications of
potential perjury.” Taking the government’s assertions at face value, appellant
argues, prevented the jury from weighing Eubank’s exonerating testimony.
Appellant predicts that affirming the trial court’s exercise of discretion in this case
will encourage the government to cry “perjury!” whenever a person other than the
indicted individual comes forward to take responsibility. We disagree.
A. Standard of Review and Carter Analysis
A trial court’s role in the immunity-determination process described in
Carter is to explore the basis of the government’s refusal to grant immunity in
order to protect the rights of the accused to due process and under the Sixth
Amendment. See Butler v. United States, 890 A.2d 181, 189 (D.C. 2006).
Whether the government’s refusal to grant immunity will result in “a distortion of
the fact finding process,” such that sanctions are appropriate, is a discretionary call,
which we review for abuse of discretion. Id.; Carter, supra, 684 A.2d at 345. We
10
determine whether the trial court’s rational act of decision-making was based on a
firm factual foundation capable of supporting it, and indeed, whether its reasoning
substantially supports its eventual decision. See Johnson v. United States, 398
A.2d 354, 365 (D.C. 1979). If the trial court failed to consider or improperly relied
upon a factor, or if the reasoning does not support the conclusion, we may
determine that this error is of a magnitude requiring reversal. Id. at 366.
We went en banc in Carter to develop a procedure for trial courts to follow
when the Sixth Amendment right to call a witness collides with that witness’s Fifth
Amendment privilege against self-incrimination. Carter, supra, 684 A.2d at 335.
Rather than creating a general requirement of judicially-imposed immunity in such
situations, Carter’s process seeks to respect the government’s immunity-granting
function, while assigning a reviewing role to the trial court to prevent prosecutorial
misconduct. Id. at 340. Under Carter, the trial court must first determine whether
the proposed witness’s testimony is potentially incriminating and creates a
possibility of prosecution in the future. Id. at 344. Thereafter, the defense bears
the initial burden of showing that the witness possesses “material, exculpatory and
non-cumulative evidence which is unobtainable from any other source.” Id. at
342–43. If the trial judge determines that the defense has carried its burden, the
government may grant the witness limited immunity while it debriefs the witness
11
on the proposed testimony to make its immunity determination. Id. at 345. If the
government offers a reasonable basis for declining to grant immunity, such as
“considerations of potential future prosecution, an ongoing investigation, clear
indications of potential perjury, or the excusable lack of information during the
debriefing to make an informed immunity decision,” its refusal to do so “would
hardly be prosecutorial misconduct . . . .” Id. at 342.
When the government refuses to grant immunity, the trial court must review
the basis of that refusal for abuse of discretion, considering whether there will be
“a distortion of the fact finding process” in violation of due process. Id. at 342,
345 (citing United States v. Bustamante, 45 F.3d 933, 943 (5th Cir. 1995) for the
proposition that using immunity to unfairly skew the facts presented to the jury is a
violation of due process). The government may not use immunity to gain a tactical
advantage, such as by “giv[ing] immunity to a prosecution witness while declining
to grant immunity to a similarly situated defense witness,” nor may it intimidate a
witness so that the witness feels compelled to invoke the Fifth Amendment. Id. at
340–41. Nor may the government usurp the jury’s function of determining
credibility. Id. at 342. If the trial court determines, based on all the circumstances,
that (1) the defendant will not receive a fair trial in the absence of the proposed
material, exculpatory, non-cumulative, and otherwise unobtainable testimony, and
12
(2) the government has not provided a reasonable basis for refusing immunity, then
the trial court may require the government to choose between granting immunity
and having the court dismiss the indictment or impose some other commensurate
remedy that the court fashions in accordance with the Sixth Amendment and due
process. Id. at 342–43. Throughout this review process, the trial court must take
care to avoid intruding into the exclusively executive function of granting
immunity, particularly in light of the potential that immunity may provide
opportunities to “undermin[e] the administration of justice by inviting cooperative
perjury among law violators.” Id. at 339, 343.
B. Application
The parties do not dispute that Eubank validly asserted her Fifth Amendment
privilege, nor is there a dispute as to whether the defense met its burden to show
that Eubank’s testimony was material, exculpatory, non-cumulative, and
unavailable from any other source. See id. at 342–44. Rather, appellant focuses
entirely on the trial court’s alleged failure to sufficiently inquire into the reasons
for the government’s denial of immunity, which, appellant argues, were simply
factual perspectives on the evening’s events that did not provide a “clear indication
of potential perjury.” Appellant reads Carter to require a showing of “very serious
13
and clear perjury” to justify the government’s refusal to grant immunity, and
contends that the government presented only minor inconsistencies and
weaknesses in proffered testimony, not “material factual differences” or
“credibility issues that indicate as a whole that the witness is not being truthful.”
With the exception of the conflicting testimony about who hit Crump, appellant
argues that these simple inconsistencies are present in any case, and are
particularly likely when witnesses testify nearly two years after the event in
question. Accordingly, appellant submits that the trial court allowed the
government to use immunity to its tactical advantage and usurped the credibility-
determining function of the jury.
Appellant’s argument turns on an exaggerated interpretation of the
government’s burden to show potential perjury under Carter. Appellant points to a
portion of Carter where we illustrated, by “an example,” an instance where the
government would not be expected to grant immunity: when the “threat of a
blatant perjury” is so apparent “as to be demonstrable to the trial judge.” Id. at
342. The government is not required to show a “threat of a blatant perjury” to
justify every refusal to grant immunity. Instead, Carter explains that a prosecutor
must have “a reasonable basis” for not granting immunity, which includes, for our
purposes here, “clear indications of potential perjury” and “considerations of
14
potential future prosecution.” Id. Given that our review is for abuse of discretion,
a deferential standard, we must determine whether the trial court relied upon a firm
factual foundation that substantially supported its decision to affirm the
government’s denial of immunity under Carter. See Johnson, supra, 398 A.2d at
364.
When the government declined to grant immunity to Eubank, it outlined ten
factual discrepancies as a “reasonable basis” for its conclusion that Eubank’s
testimony presented “clear indications of potential perjury.” Carter, supra, 684
A.2d at 342. 4 The trial court cited Carter’s other “reasonable bas[es]” for
declining immunity, and inquired whether the factual discrepancies also supported
a possibility of prosecution. Id. The government answered affirmatively, but did
not rely on this possibility as its primary basis. Over approximately thirty pages of
transcript, the trial court analyzed the government’s factual bases for declining to
grant immunity and the defense’s counter-arguments, stating plainly that it was
aware of the value of Eubank’s exonerating testimony to appellant’s case, but that
this was an instance where “a Sixth Amendment right . . . is colliding, if you will,
with the Fifth Amendment right to not be compelled to incriminate one’s self.”
The trial court explained its task as “exploring the basis for . . . the government’s
4
See supra note 2.
15
refusal [to grant immunity]” to determine whether it is “reasonable . . . or is in bad
faith,” and concluded that the government had made a “reasonable argument” with
a “good-faith basis.” See id. at 344.
We discern no abuse of discretion in the trial court’s reading of its role under
Carter, nor in its careful inquiry into the government’s substantial factual
foundation for refusing immunity. Id. at 342. Nor do we discern any abuse of
discretion in the trial court’s conclusion that the government had a reasonable basis
to find a clear indication of potential perjury. Id. The trial judge repeatedly
exercised special caution to refrain from intruding into the exclusively executive
function of granting immunity. Id. at 343. The jury was not deprived of its ability
to make credibility determinations with regard to Eubank’s testimony because she
did, in fact, testify to all of the evening’s events, except for the assault on Crump,
and she could have opted to exculpate appellant, but chose instead to invoke her
Fifth Amendment privilege.
Yet this was a close case, in large part because nearly every party involved
was intoxicated and the events in question occurred two years prior to trial.
Prosecutors must look long and hard at cases where there is such a fine line
between “clear indications of potential perjury,” which is a proper basis to decline
16
immunity, and normal differences in perspective, which are a question of
credibility for the jury. Indeed, such close calls are precisely what Carter
contemplates. See id. at 342–43. Such was our impetus for clearly delineating the
line between the executive branch’s “exclusive constitutional authority to execute
the laws and decide whom to prosecute” and the judiciary’s role in protecting an
accused from abuses of discretion where the government refuses to immunize a
defense witness and “distort[s] the judicial fact-finding process . . . thereby
preventing a fair trial for the defendant.” Id. at 343.
Lastly, we agree with the government’s proposal at oral argument to merge
appellant’s two assault convictions, though appellant did not raise the issue. See
Nero v. United States, 73 A.3d 153, 159 (D.C. 2013) (citing Blockburger v. United
States, 284 U.S. 299, 304 (1932)) (merging assault involving “significant bodily
injury” under D.C. Code § 22–404 (a)(2) and assault involving the more severe
“serious bodily injury” under D.C. Code § 22–404.01 because the former is a
subset of the latter). Accordingly, appellant’s assault with significant bodily injury
conviction merges into her aggravated assault conviction. Our merger holding
does not affect the trial court’s sentence, as the sentences for these counts run
concurrently.
17
IV. Conclusion
For these reasons, we conclude that the trial court did not abuse its discretion
in reviewing the government’s refusal to grant immunity. Appellant’s conviction
of assault with significant bodily injury is merged and vacated, but her remaining
conviction is hereby affirmed.
So ordered.
Cassandra Lynn Hayes v. United States
Court: District of Columbia Court of Appeals
Date filed: 2015-02-12
Citations: 109 A.3d 1110
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