                                           COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judges Decker and O’Brien
PUBLISHED


            Argued at Alexandria, Virginia


            JUAN CARLOS REYES
                                                                                OPINION BY
            v.      Record No. 1349-15-4                                 JUDGE MARY GRACE O’BRIEN
                                                                              OCTOBER 25, 2016
            COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                            Burke F. McCahill, Judge

                            James P. Bohnaker for appellant.

                            J. Christian Obenshain, Assistant Attorney General (Mark R.
                            Herring, Attorney General, on brief), for appellee.


                    Following a jury trial, Juan Carlos Reyes (“appellant”) was convicted of aggravated

            malicious wounding in violation of Code § 18.2-51.2 and malicious wounding as a member of a

            mob in violation of Code § 18.2-41. The court imposed the jury’s recommended sentence of twenty

            years of incarceration for the aggravated malicious wounding and an additional five years of

            incarceration for malicious wounding as a member of a mob. Appellant asserts that his Sixth

            Amendment right was violated when the trial court prevented his co-defendant, Marcus Guevara,

            from testifying in appellant’s favor.

                                                     BACKGROUND

                    On August 23, 2014, the victim left a bar and was surrounded by approximately six men.

            They began to comment on the victim’s red clothes, and made a gang reference. One of the men

            pointed a gun at the victim. When the victim began to move away, another man, identified as

            appellant, stabbed him in the chest. The victim collapsed and was transported to the hospital where

            he underwent surgery. He sustained permanent injury and scarring as a result of the attack.
       While the victim was in the hospital, detectives showed him a photo array of six people,

including appellant. The victim recognized appellant as the man who stabbed him.

       Appellant was arrested and the matters were set for a jury trial. Two days before trial,

appellant filed motions to continue and to compel the testimony of Marcus Guevara, a co-defendant.

Guevara had previously entered into a plea agreement with the Commonwealth. He agreed to plead

guilty to unlawful wounding and to waive his right against self-incrimination and testify truthfully if

called as a witness by the Commonwealth in any other case. At the time of appellant’s trial,

Guevara had pled guilty but had not yet been sentenced.

       Appellant asserted that during a police interview, Guevara made exculpatory statements

concerning appellant’s involvement in the offense; specifically, that appellant was not present when

the crime occurred. Guevara filed a motion to quash the subpoena and invoked his Fifth

Amendment right against self-incrimination. The court denied the motion to continue and deferred

its ruling on the motion to compel Guevara’s testimony until the conclusion of the

Commonwealth’s case.

       At trial, after the Commonwealth rested and appellant called two witnesses, appellant

renewed his motion to compel Guevara’s testimony. Outside of the presence of the jury, the court

requested that appellant’s counsel proffer the specific questions he planned to ask Guevara, so it

could make a question-by-question determination of whether Guevara was entitled to assert his

Fifth Amendment right against self-incrimination. Appellant’s counsel proffered the following

questions:

               [H]ave you been found guilty of a charge arising [out] of the incident
               on August 23rd involving a stabbing?




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               Have you, in fact, pled guilty to a reduced charge for that event?1
               Were you at the scene of this incident on August the 23rd?

               Do you know [appellant]?

               Was [appellant] at the scene during the stabbing of the victim?

               If he was, what did you see him do?

               If he wasn’t, were you telling the investigators the truth when you
               were interviewed immediately after your arrest?

       Guevara’s counsel objected to each question. The court allowed Guevara to assert his Fifth

Amendment right and decline to testify. The court reasoned that although Guevara had pled guilty,

he still faced exposure to increased punishment at sentencing, his potential answers could possibly

implicate him for federal charges, and while Guevara was entitled to use immunity under Code

§ 19.2-270, the statute did not provide for derivative use immunity. Based on these considerations,

the court denied the motion to compel Guevara’s testimony.

                                            ANALYSIS

       Generally, a trial court’s exercise of discretion in determining whether to admit or exclude

evidence is reviewed using an abuse of discretion standard. Egan v. Butler, 290 Va. 62, 69, 772

S.E.2d 765, 770 (2015). “However, whether a defendant’s due process rights are violated by the

admission of evidence is a question of law, to which we apply a de novo standard of review.”

Henderson v. Commonwealth, 285 Va. 318, 329, 736 S.E.2d 901, 907 (2013). In this case,

appellant contends that the trial court’s ruling allowing Guevara to assert his Fifth Amendment right




       1
         While the answers to the first two questions do not implicate the Fifth Amendment,
those questions would only be relevant to lay the foundation for the following questions. In this
context, the trial court did not err in allowing Guevara to assert his Fifth Amendment right and
decline to testify.

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and refrain from testifying violated appellant’s Sixth and Fourteenth Amendment rights to call

witnesses on his own behalf.2 Therefore, we apply a de novo standard of review.

        The Sixth and Fourteenth Amendments to the United States Constitution guarantee a

defendant in a criminal prosecution the right “to have compulsory process for obtaining witnesses in

his favor.” U.S. Const. amend. VI. However, that right must be balanced with the witness’ right

under the Fifth Amendment to the Constitution which provides that “[n]o person . . . shall be

compelled in any criminal case to be a witness against himself.” U.S. Const. amend V. See also

Va. Const. art. I, § 8 (also providing a defendant with protection against self-incrimination). In

Hoffman v. United States, 341 U.S. 479, 486 (1951) (citation omitted), the United States Supreme

Court interpreted the Fifth Amendment right against self-incrimination as follows:

                        The privilege afforded not only extends to answers that
                would in themselves support a conviction under a federal criminal
                statute but likewise embraces those which would furnish a link in the
                chain of evidence needed to prosecute the claimant for a . . . crime.
                But this protection must be confined to instances where the witness
                has reasonable cause to apprehend danger from a direct answer.

        The Supreme Court has held that a defendant has “no right to compel . . . his co-defendant[]

to testify . . . if [the co-defendant] elected to invoke his right against self-incrimination guaranteed

by the Fifth Amendment to the federal Constitution.” Dearing v. Commonwealth, 259 Va. 117,

122, 524 S.E.2d 121, 124 (2000). See also United States v. Apfelbaum, 445 U.S. 115, 126-27

(1980) (absent grant of immunity, witness has privilege against compulsory self-incrimination).

        However, the “simple invocation of the right by a witness does not end the responsibilities

of the trial court in resolving the conflict between the protection of the witness and a defendant’s


        2
          Appellant also argues that the court could have “exercised its judicial authority to grant use
immunity to [Guevara].” However, we note that appellant never requested that the court grant
Guevara any type of immunity during the trial, and he did not specifically object to the court’s
failure to grant Guevara use immunity. Accordingly, he may not raise this objection for the first
time on appeal. See Rule 5A:18.

                                                   -4-
right to present evidence.” Carter v. Commonwealth, 39 Va. App. 735, 748, 576 S.E.2d 773, 779

(2003). The trial court must consider whether a proffered question has an incriminating implication

and, if so, “the privilege rests with the witness and its assertion must be honored by the court.”

Gosling v. Commonwealth, 14 Va. App. 158, 166, 415 S.E.2d 870, 874 (1992).

        As we explained in Carter, a trial court must make the determination by considering the

proffered questions because “the [F]ifth [A]mendment does not provide a blanket right to refuse to

answer any questions.” 39 Va. App. at 747, 576 S.E.2d at 779 (quoting Cunningham v.

Commonwealth, 2 Va. App. 358, 361-62, 344 S.E.2d 389, 391 (1986)). There is no requirement

that the witness volunteer an answer; otherwise “he would be compelled to surrender the very

protection which the privilege is designed to guarantee.” Id. at 748, 576 S.E.2d at 779 (quoting

Hoffman, 341 U.S. at 486-87). The court must therefore make the determination, question by

question, whether a witness may invoke his right against self-incrimination. Carter, 39 Va. App. at

751, 576 S.E.2d at 781. See also N. Am. Mortg. v. Pomponio, 219 Va. 914, 252 S.E.2d 345 (1979).

        The court followed this procedure in the present case. Pursuant to Carter, the court properly

asked counsel outside of the presence of the jury to proffer each specific question that appellant

planned to ask Guevara in order to determine whether Guevara could invoke his privilege for that

question. Counsel proffered numerous questions relating to Guevara’s guilty plea to unlawful

wounding and his statement to the police that appellant was not present at the scene of the crime.

The court analyzed each question individually and found that the questions could still implicate

Guevara despite his plea of guilty to unlawful wounding.

        The court noted that Guevara had not yet been sentenced and faced additional exposure

during sentencing if he answered the questions. As the Supreme Court of the United States held,

“[if] the sentence has not yet been imposed a defendant may have a legitimate fear of adverse

consequences from further testimony.” Mitchell v. United States, 526 U.S. 314, 326 (1999).

                                                 -5-
Further, the court accepted Guevara’s argument that some of the proffered questions and subsequent

potential cross-examination could expose him to federal prosecution for gang activity.

       For the reasons stated, we find that the court properly balanced appellant’s Sixth

Amendment right to compel evidence in his favor against the witness’ Fifth Amendment right to be

free from self-incrimination and we affirm the judgment of the court granting the motion to quash

the subpoena for Guevara.

                                                                                            Affirmed.




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