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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.
