281 S.E.2d 843
44184 Record No. 791122.Supreme Court of Virginia.
September 11, 1981
Present: All the Justices.
Assertion of the Fifth Amendment privilege against self incrimination by witness is property sustained, and the exculpatory testimony is properly excluded, when it is clear the witness has not waived the privilege and will not testify fully and freely; Code Sec. 19.1-267 (amended and reenacted as Code Sec. 19.2-270) inapplicable to future prosecution for perjury; effective assistance of counsel not denied by counsel’s failure to invoke an inapplicable statute.
(1) Constitutional Law — Criminal Procedure — Evidence — Assertion of Fifth Amendment Right against Self-Incrimination Properly Sustained and Exculpatory Testimony Properly Excluded When It Is Clear Witness Has Not Waived Privilege and Will Not Testify Fully and Freely.
(2) Criminal Procedure — Evidence — Statutory Construction — When Statement by Accused as Witness not Received as Evidence — Code Sec. 19.1-267, (amended and reenacted as Code Sec. 19.2-270) Does not Protect a Witness from Having Sworn Testimony Used Against Him in Future Prosecution for Perjury.
(3) Criminal Procedure — Attorneys — Effective Assistance of Counsel Not Denied by Failure to Invoke Inapplicable Statute — Whether to Call Witness is Tactical Decision for Counsel.
Defendant and Walter Allen were charged with breaking and entering an automobile dealership and the theft of automobiles. Allen pled guilty to the indictment charging larceny and was convicted on the charge of breaking and entering on his plea of not guilty, both convictions occurring prior to the defendant’s trials. An appeal of the breaking and entering conviction was pending at the time of both of defendant’s trials. In separate trials, both before a Jury, defendant was convicted of larceny and breaking and entering. In each a plea of not guilty was entered. Appeals in both cases were denied.
At each of the defendant’s trials the same basic events occurred. Counsel sought to introduce Allen as a witness for the defendant. The Trial Judge reminded Allen that the appeal of his breaking and entering conviction was pending, and asked him if he wished to waive his Fifth Amendment privilege against self-incrimination. Allen indicated that he did not wish to waive the privilege
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and would only testify to select matters. Out of the presence of the Jury and for the record, Allen stated that the defendant was not involved in the crimes charged. However, the Trial Judge ruled that because Allen had invoked the Fifth Amendment, he was not allowed to testify before the Jury.
Defendant seeks a writ of habeas corpus, which was denied in the court below, alleging that his convictions were the result of the improper exclusion of an available witness’ exculpatory testimony and of ineffective assistance of counsel.
1. A witness’ exculpatory testimony is properly excluded by the Trial Court when that witness has asserted his Fifth Amendment right against self-incrimination. Further, the Trial Court properly sustains an assertion of the Fifth Amendment privilege when a witness is at no time willing to testify fully and freely. Here, the witness was willing to appear only if the Court permitted him to testify selectively, and when the danger of self-incrimination was explained to him by the Court and by his counsel he unequivocally invoked the Fifth Amendment and claimed the privilege. Thus, it is clear that the witness at no time waived his privilege, and the Trial Court committed no error in sustaining the Fifth Amendment assertion and in refusing to require the witness to testify.
2. Code Sec. 19.1-267 (Amended and reenacted as Code Sec. 19.2-270), which states that evidence shall not be given against the accused in a criminal prosecution of any statement made by him upon a legal examination or as a witness for another, specifically exempts future prosecutions for perjury from its prohibition. Here, the witness made two statements to police officers which incriminated the defendant. All attorneys involved were aware of these statements. Had the witness testified before the jury in defendant’s trial contrary to the statements he had previously made to the officers, this sworn testimony could have been used as evidence in a future prosecution against the witness for perjury. The provisions of Code Sec. 19.1-267 (Amended and reenacted as Code Sec. 19.2-270) would have afforded the witness no protection under such circumstances. The witness was therefore in a position to invoke his Fifth Amendment privilege and was entitled to do so because he was confronted by substantial and real, and not merely trifling or imaginary, hazards of incrimination Marchetti v. United States, 390 U.S. 39 (1968), followed.
3. There is no merit in a defendant’s claim that he was denied the effective assistance of counsel because they did not invoke the provisions of a particular statute, that statute being inapplicable to the case. Further, the decision to call or not to call a witness is a tactical decision to be made by counsel, and it will not be disturbed when the record shows that the attorneys were thoroughly familiar with the case and had a sound basis for their reluctance to call an individual as a witness.
Appeal from a judgment of the Circuit Court of the County of Madison. Hon. David F. Berry, judge presiding.
Affirmed.
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Marvin D. Miller for appellant.
Linwood T. Wells, Jr., Assistant Attorney General (Marshall Coleman, Attorney General, on brief), for appellee.
HARRISON, J., delivered the opinion of the Court.
Thomas Alexander Johnson, petitioner, seeks a writ of habeas corpus, alleging that his convictions of larceny and of the breaking and entering of a garage were the result of the improper exclusion of certain testimony and of ineffective assistance of counsel. Specifically, Johnson says he was denied the benefit of an available witness’ exculpatory testimony when the trial court sustained an assertion by the witness of his Fifth Amendment right against self-incrimination. The court below denied Johnson’s petition for a writ of habeas corpus, and we granted this appeal.
Johnson and Walter Allen were charged with breaking and entering Mountain View Chevrolet, Inc., on or about November 21, 1974, and the theft of automobiles therefrom. Allen pled guilty to the indictment charging larceny and was convicted on the charge of breaking and entering on his plea of not guilty. Both convictions occurred prior to July 8, 1975. However, an appeal of the conviction of breaking and entering was pending in July 1975.
Johnson was convicted of breaking and entering on July 8, 1975, and was sentenced to a term of seven years in the penitentiary. He was convicted of larceny on September 8, 1975, and was given a prison term of twelve years. Both trials were had before a jury, and in each a plea of not guilty was entered. Appeals in both cases were denied. Johnson was represented at the two trials by J. Robert Neal, Jr., of Charlottesville, and Edward E. J. Berry of Madison.
Petitioner’s first trial upon the charge of breaking and entering was held on April 15, 1975. It appears from representations by counsel and observations by the trial judge that Allen was called as a witness for Johnson. While the extent of Allen’s testimony is not clear, it is evident that he asserted his Fifth Amendment privilege when cross-examined by the Commonwealth’s Attorney. The jury failed to reach a verdict in this trial, and a mistrial was declared.
Thereafter, on July 8, 1975, Johnson was retried on the breaking and entering charge, and he again called Allen as a witness in his behalf. The trial judge, out of the presence of the jury, advised
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Allen that his appeal of the breaking and entering conviction was pending. Allen was then asked if he wished to assert his privilege against self-incrimination. He responded: “Well it is my understanding that a witness has a right to claim the privilege at any time and I don’t want to give up that right.” The trial judge advised Allen that he could not testify selectively, saying: “I’ll treat it as a refusal to testify on the grounds of self incrimination if you [Allen] say you are going to reserve the right to refuse [to answer questions] at some later stage.” Allen replied: “Well I have to reserve that right Your Honor.” When again asked by the judge if he wanted to waive the privilege, Allen answered, “No.”
Following this exchange, the court permitted counsel for Johnson to proffer Allen’s testimony out of the presence of the jury and for the record. Allen stated that Johnson was not involved in the breaking and entering of the Mountain View Chevrolet building.
Johnson’s trial for larceny was held on September 8, 1975. He again sought to introduce Allen’s testimony. The trial court noted that Allen’s appeal of the breaking and entering conviction was still pending, and again advised Allen that he would not be permitted to testify selectively. Allen’s testimony was proffered out of the presence of the jury to determine its extent and character. Allen admitted his part in the offense of larceny for which Johnson was being tried but said Johnson was not involved. Allen was then allowed to confer with his attorney, J. Thomas Province, who informed the court that Allen had said that he would testify as to some matters but not about others. Province said he had advised Allen that he could either waive his right against self-incrimination and testify, or claim the right and not testify. When asked by the judge to state his position, Allen responded: “I cannot give up a guaranteed constitutional right Your Honor.”
[1] We think it apparent from the record before us that Allen at no time was willing to testify fully and freely as a witness in Johnson’s trials. He would have appeared had the court permitted him to select the questions to which he would respond and ignore those which he felt would be harmful to his interest. When the danger of self-incrimination was explained to Allen by the court and by his counsel, he unequivocally invoked the Fifth Amendment and claimed the privilege against self-incrimination. Allen never waived his privilege against self-incrimination. The court committed no error in refusing to require that Allen testify in petitioner’s trials.Page 432
[2] Johnson claims that had the court properly applied the provisions of Code Sec. 19.1-267,[1] it would not have excluded Allen’s testimony. This section read:In a criminal prosecution, other than for perjury, or in an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination, unless such statement was made when examined as a witness in his own behalf. No judge or police justice shall be competent to testify against the accused in a court of record as to statements made by the accused on his trial by judge or police justice or on his preliminary examination before such judge or police justice.
This section has no application to the case under review. Allen had made two statements to police officers which incriminated Johnson as a participant in both the breaking and entering and the larceny. Counsel for Allen and Johnson were aware of these statements. Had Allen testified before the jury in Johnson’s trial contrary to the statements he had previously made to the officers, this sworn testimony could have been used as evidence in a future prosecution against Allen for perjury. The provisions of Code Sec. 19.1-267 afforded Allen no protection under such circumstances. Allen was therefore entitled to invoke his Fifth Amendment privilege because he was confronted by “substantial and ‘real’, and not merely trifling or imaginary, hazards of incrimination.” Marchetti v. United States, 390 U.S. 39, 53 (1968); accord, Rogers v. United States, 340 U.S. 367, 374 (1951); Brown v. Walker, 161 U.S. 591, 600 (1896).
[3] We find no merit in Johnson’s claim that he was denied the effective assistance of counsel because his attorneys, Messrs. Neal and Berry, did not invoke the provisions of Code Sec. 19.1-267, a maneuver which would have indeed been a futile gesture. They represented him during all his trials and were thoroughly familiar with the cases. Neal discussed with Johnson the possibility of Allen’s testifying. Neal recalled that prior to the July 8, 1975 trial Allen said “[h]e didn’t want to say anything” and when asked if he would testify, Allen replied “no.” Neal characterized Allen as a “fairly reluctant witness” at Johnson’s first trial in April 1975,Page 433
and he did not plan to call Allen as a witness in the subsequent trials. According to Neal, Johnson, who was aware of Allen’s position, insisted that Allen be called as a witness, and he was called despite counsel’s reservations.
Berry’s recollection of the trials parallels that of Neal. He said Allen appeared “reluctant” to testify when asked. Berry and Neal were aware that Allen had made statements to police incriminating himself and Johnson. Berry stated that he was aware of the provisions of Code Sec. 19.1-267, but did not feel the statute could be utilized due to Allen’s prior inconsistent statements and his belief that Allen’s testimony could precipitate a charge of perjury. Allen was advised by Berry to consult with his attorney before testifying.
Thomas Province, Allen’s attorney, made an unsuccessful attempt at Allen’s trial to suppress the confessions implicating Allen and Johnson. He remembered discussing the consequences of Allen’s testifying in Johnson’s trial. Province stated that he advised Allen that if he testified in Johnson’s case, he would be committing “grave error, both strategic and tactical.”
We find no evidence in this case of ineffective or incompetent assistance of counsel. The record reflects a sound basis for their reluctance to call Allen as a witness. The decision to call or not to call a witness was a tactical decision to be made by counsel, and in this case the decision made was a correct one.
The judgment of the court below denying Johnson’s petition for a writ of habeas corpus is
Affirmed.
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