Opinion
Nos. 37937-6-II (consolidated with No. 38294-6-II).
Filed: September 9, 2009.
Appeal from the Superior Court, Pierce County, No. 07-1-05997-2, Linda CJ Lee, J., entered June 27, 2008, together with a petition for relief from personal restraint.
Judgment affirmed and petition denied by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, A.C.J., and Hunt, J.
Unpublished Opinion
Jeromy W. Freitas appeals his conviction for unlawful possession of a stolen vehicle, arguing that the trial court erred when it granted a witness, Michael Wolfe, a blanket privilege after he invoked his Fifth Amendment right not to incriminate himself and declined to allow the defense to call him as a witness to assert the privilege before the jury. Freitas also filed a personal restraint petition (PRP), which we consolidated with his direct appeal. We affirm Freitas's conviction and deny his PRP.
FACTS
Police stopped Frietas while he drove a car that was reported stolen. The car had a punched-out ignition and trunk lock and a broken steering column, was manipulated to start without a key, and contained several items belonging to Freitas. Freitas told police that a friend loaned him the car, but he did not know his friend's name or telephone number. Police had found a receipt with Wolfe's name inside the car and witnesses indicated that he had also driven the car. The State charged Freitas with unlawful possession of a stolen vehicle, contrary to RCW 9A.56.140. It did not charge Wolfe or offer him immunity, but Freitas included his name on his witness list. Wolfe signed an affidavit stating that many people used the car and no one, including Freitas, knew it was stolen.
During trial, Freitas's defense counsel told the court that he wished to call Wolfe as a witness and asked that the court give Wolfe a cautionary instruction notifying him that his testimony may implicate his Fifth Amendment privilege against self-incrimination. The prosecutor agreed that such an instruction was necessary because any knowledge that he had about the car could subject him to prosecution for the same crime for which Freitas stood trial, unlawful possession of a stolen vehicle.
The court instructed Wolfe that his testimony could incriminate him and Wolfe indicated that he did not know about that risk and would like to speak with his attorney. Wolfe's attorney was in the building and, after a short recess, explained to the court that he had consulted with Wolfe and his client was invoking his right to remain silent. The trial court placed Wolfe under oath, and Wolfe stated that he understood his rights, consulted with an attorney, was not influenced by an outside force, and chose not to testify in order to protect his right to silence (be free from self-incrimination).
The trial court then heard oral argument from the prosecutor and defense attorney on whether to grant Wolfe a partial or blanket privilege. The prosecutor argued that a blanket privilege was required because the only relevant evidence that Wolfe could offer would incriminate him. In making an offer of proof regarding questions that would not implicate privileged information, defense counsel stated he would like to ask Wolfe about how Freitas obtained the car; whether Freitas knew the car was stolen; whether Wolfe drove it or was a passenger in it; and whether Wolfe was aware that the car had a punched-out lock in the trunk, a broken steering column, and a punched-out ignition that allowed people to start it without a key. Counsel also stated that he would like Wolfe to testify in order to invoke his right to remain silent in front of the jury. The trial court recessed until the next day to allow Wolfe to consult with his attorney in more depth about the scope of his Fifth Amendment invocation and to allow the prosecutor and defense counsel time to research and submit briefs on the subject of blanket privilege.
The next day, the trial court reviewed the prosecutor's Fifth Amendment memorandum (defense counsel did not submit one) and heard further oral argument on whether a blanket privilege applied. Defense counsel agreed that any questions about Wolfe's possession of the car would implicate his right to remain silent, but argued against a blanket privilege. Counsel did not articulate any questions that he intended to ask Wolfe that would not implicate privileged subject matter. Defense counsel also added: "[O]bviously, the purpose I'm calling [Wolfe] is for his knowledge of the vehicle and what happened with the vehicle, and so those are my intended questions, Your Honor." 4 Report of Proceedings (RP) at 146.
The trial court ruled that Wolfe was entitled to a blanket privilege. It noted that, after consulting with counsel, Wolfe expressed that he did not want to testify. The court also reasoned that all the lines of inquiry that the defense intended to pursue would require Wolfe to incriminate himself. As a result, Wolfe was not available to be called as a witness.
Freitas claims that Wolfe did not request blanket immunity, but this misstates the record:
THE COURT: Okay. And my understanding, based on what [your attorney] represented to the Court, is that after your discussion with [your attorney], you wish to invoke your Fifth Amendment right and not testify in the State versus Freitas trial; is that correct?
MR. WOLFE: Yeah.
3 RP at 118 (emphasis added).
The jury found Freitas guilty of unlawful possession of a stolen vehicle and the trial court sentenced him to 12 months of confinement with no community custody.
Freitas appeals.
ANALYSIS
Fifth Amendment Privilege
Freitas's sole contention on direct appeal is that the trial court erred when it granted a blanket Fifth Amendment privilege to Wolfe, rather than a partial privilege that he would have to assert as to individual questions that counsel posed. We hold that the facts of this case support granting a blanket privilege.
Both the Sixth Amendment to the United States Constitution and the Washington Constitution protect a defendant's right to compel a witness's testimony. State v. Levy, 156 Wn.2d 709, 731, 132 P.3d 1076 (2006) (citing Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)). In opposition with this power to compel a witness's testimony, however, is the Fifth Amendment privilege prohibiting any person from being "compelled in any criminal case to be a witness against himself." State v. Parker, 79 Wn.2d 326, 331, 485 P.2d 60 (1971); see also Levy, 156 Wn.2d at 731.
Generally, a witness who invokes his or her Fifth Amendment privilege must still take the witness stand and assert the privilege only if it applies to the particular question that counsel poses. See Levy, 156 Wn.2d at 732. But "[i]f the judge has `specialized knowledge' of the likely testimony, and can determine whether the privilege is properly asserted for that witness, the judge may allow the witness to refuse to answer all questions." Levy, 156 Wn.2d at 732 (quoting United States v. Moore, 682 F.2d 853, 856 (9th Cir. 1982)). A trial court properly grants a blanket privilege only in narrow situations in which the court can conclude that the witness could legitimately refuse to answer essentially all relevant questions based on the court's knowledge of the case and of the witness's expected testimony. State v. Delgado, 105 Wn. App. 839, 845, 18 P.3d 1141 (2001) (quoting Moore, 682 F.2d at 856). If a trial court errs in granting a blanket Fifth Amendment privilege, we may affirm only if the error was harmless beyond a reasonable doubt. Levy, 156 Wn.2d at 732 (citing Moore, 682 F.2d at 858).
Here, the facts support granting a blanket privilege. The trial court conducted extensive proceedings regarding whether to grant a blanket or partial privilege and repeatedly asked defense counsel to explain what questions, if any, he could ask that would not infringe on Wolfe's right to remain silent. This gave the judge "`specialized knowledge' of the likely testimony" supporting its holding that all of the proposed questioning would lead Wolfe to properly refuse to answer under the Fifth Amendment. Levy, 156 Wn.2d at 732 (quoting Moore, 682 F.2d at 856). This is not a case, such as Levy, in which the trial court granted a blanket privilege simply because the witness's attorney asserted a blanket privilege on his client's behalf. 156 Wn.2d at 732 (granting blanket privilege based on attorney's statement, rather than witness's, is reversible error). Nor is this a case in which the trial court failed to determine whether defense counsel's specific lines of inquiry would expose the witness to criminal sanctions, as in State v. Lougin, 50 Wn. App. 376, 382, 749 P.2d 173 (1988) (allowing a witness to claim the Fifth Amendment in general, without determining whether the specific question exposes the witness to jeopardy, violates the defendant's Sixth Amendment right to compulsory process).
Here, the trial court repeatedly gave defense counsel the opportunity to identify specific questions or lines of inquiry that would not lead to incriminating answers. Defense counsel could not identify any and conceded that the only relevant evidence that Wolfe could offer related to his knowledge of the car and what happened to it. Specifically, defense counsel stated he would like to ask Wolfe about how Freitas obtained the car; whether Freitas knew the car was stolen; whether Wolfe drove it or was a passenger in it; and whether Wolfe was aware that the car had a punched lock in the trunk, a broken steering column, and a punched ignition that allowed people to start it without a key. Answers to such questions would incriminate Wolfe because they could demonstrate that he possessed a stolen car and knew it was stolen, based either on direct knowledge or by inferring that the car's damage indicated that it was stolen. See RCW 9A.56.140. Defense counsel also stated that he would like Wolfe to testify in order to invoke his Fifth Amendment privilege in front of the jury. But invocation of this privilege is not evidence that a defendant has no right under the Sixth Amendment to the United States Constitution or amendment 10 of the Washington Constitution to call a witness solely to have that witness invoke the privilege. Moreover, because the jury may not draw inferences from a witness invoking the privilege, such witness's testimony is not evidence. State v. Smith, 74 Wn.2d 744, 757-58, 446 P.2d 571 (1968), overruled on other grounds by State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975).
Here, the trial court granted Wolfe a blanket privilege only after it made appropriate inquiry and properly concluded, based on its knowledge of the case and of the witness's expected testimony, that Wolfe would legitimately refuse to answer all relevant questions. See Delgado, 105 Wn. App. at 845 (quoting Moore, 682 F.2d at 856). Personal Restraint Petition
In a timely PRP, Freitas asserts that (1) he did not steal the car, (2) he did not know the car was stolen, (3) trial testimony indicated that Freitas had permission to use the car and was told that it was not stolen, (4) he has three small children to care for who he loves and misses, and (5) he will be employed when he is released.
Issues one through three essentially challenge the weight and credibility of trial evidence. But we cannot review weight and credibility issues because they are solely reserved for the trier of fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). To the extent that Freitas may be contending that the evidence was insufficient to support his conviction, we disagree. See State v. Hernandez, 120 Wn. App. 389, 391, 85 P.3d 398 (2004) (when reviewing a challenge to the sufficiency of evidence, we view the evidence in the light most favorable to the State and determine whether a rational fact finder could find the elements of the crime beyond a reasonable doubt). The State presented evidence that the car that Freitas drove was stolen, had a punched-out ignition and trunk lock, was manipulated to start without a key, and contained several items belonging to Freitas. Freitas said that a friend loaned him the car, but he did not know his friend's name or telephone number. A rational fact finder could conclude that he knowingly possessed stolen property, knowing it was stolen, to withhold or appropriate it from its true owner. RCW 9A.56.140; Hernandez, 120 Wn. App. at 391-92. The evidence is sufficient to support the conviction.
Freitas also claims that he should not be confined but perhaps should serve only home monitoring or community custody because he cares for his children and would be employed if not incarcerated. These claims do not assert that he is subject to unlawful restraint, and we may grant relief only when the petitioner demonstrates that his restraint is unlawful. RAP 16.4(c). We have no power to order a sentence modification for these reasons.
We also note that Freitas's appellate counsel indicated that he has already been released from custody. On our record, we are unable to verify whether he is on community custody for the duration of earned early release.
We affirm Freitas's judgment and sentence and deny his PRP.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and PENOYAR, A.C.J., concur.