COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff, Judges Decker and O’Brien Argued at Alexandria, Virginia

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

FROM THE CIRCUIT C OURT OF LOUDOUN COUNTY Burke F. McCahill, Judge James P. Bohnaker for appellant. J. Christian Obenshain, Assi stant 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 woundi ng as a member of a mob in violation of Code § 18.2-4 1. The court imposed the jury’s recommended sentence of twenty years of incarceration for the ag gravated malicious wounding and an additional five years of incarceration for malicious woundi ng as a member of a mob. A ppellant asserts that his Sixth Amendment right was violated when the trial cour t prevented his co-defendant, Marcus Guevara, from testifying in appellant’s favor.
BACKGROUND On August 23, 2014, th e victim left a bar and was surrou nded by approximately six men. They began to comment on the victim’s red clothe s, and made a gang refe rence. One of the men pointed a gun at the victim. Wh en the victim began to move aw ay, another man, identified as appellant, stabbed him in the chest. The victim collapsed and was transpor ted to the hospital where he underwent surgery. He sustained permanent in jury and scarring as a result of the attack.PUBLISHED- 2 - While the victim was in the hospital, detectives showed hi m a photo array of six people, including appellant. The vict im recognized appellant as the man who stabbed him. Appellant was arrested and the matters were se t for a jury trial. Tw o 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 agreem ent with the Comm onwealth. He agreed to plead guilty to unlawful wounding and to waive his right ag ainst self-incrimination and testify truthfully if called as a witness by th e Commonwealth in any other case. At the time of appellant’s trial, Guevara had pled guilty but ha d not yet been sentenced. Appellant asserted that during a police inte rview, Guevara made exculpatory statements concerning appellant’s involvement in the offense; specifically, that appella nt was not present when the crime occurred. Guevara filed a motion to quash the su bpoena and invoked his Fifth Amendment right against self-incri mination. The court denied the motion to continue and deferred its ruling on the moti on to compel Guevara’s testimony until the conclusion of the Commonwealth’s case. At trial, after the Commonwealth rested and appellan t called two witnes ses, appellant renewed his motion to compel Guev ara’s testimony. Outside of the presence of the jury, the court requested that appellant’s counsel proffer the spec ific 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 ag ainst self-incrimination. Appellant ’s counsel proffe red the following questions: [H]ave you been found gu ilty of a charge arising [out] of the incident on August 23rd involving a stabbing?- 3 - Have you, in f act, 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 durin g the stabbing of the victim? If he was, what di d you see him do? If he wasn’t, were you telling the investigators the truth when you were interviewed immedi ately after your arrest? Guevara’s counsel objected to each question. The court allowe d Guevara to assert his Fifth Amendment right and decline to test ify. The court reasoned that a lthough Guevara ha d pled guilty, he still faced exposure to increa sed punishment at sentencing, his poten tial answers could possibly implicate him for federal charge s, and while Guevara was entitled to use immunity under Code § 19.2-270, the statute di d not provide for derivative use immu nity. Based on these considerations, the court denied the motion to compel Guevara’s testimony.
ANALYSIS Generally, a trial court’s exercise of discreti on in determining whether to admit or exclude evidence is reviewed using an abuse of discretion standard. Egan v. Bu tler, 290 Va. 62, 69, 772 S.E.2d 765, 770 (2015). “However, whether a defe ndant’s due process rights are violated by the admission of evidence is a questi on 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 questi ons do not implicate the Fifth Amendment, those questions would only be rele vant to lay the foundation for th e following questions. In this context, the trial court did not err in allowing Guevara to assert his Fifth Amendment right and decline to testify.- 4 - and refrain from testifying viol ated appellant’s Sixth and Four teenth Amendmen t rights to call witnesses on his own behalf. 2 Therefore, we apply a de novo standard of review. The Sixth and Fourteenth Am endments to the United Stat es Constitution guarantee a defendant in a criminal prosecutio n the right “to have compulsory pr ocess 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 whic h 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) (c itation omitted), the Un ited 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 co nviction under a federal criminal statute but likewise em braces those which would furnish a link in the chain of evidence needed to prosecute the claima nt for a . . . crime. But this protection must be confin ed to instances where the witness has reasonable cause to apprehend danger from a direct answer. The Supreme Court has held that a defendant ha s “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 Constituti on.” Dearing v. Comm onwealth, 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 pr ivilege against compulsory self-incrimination). However, the “simple invocatio n of the right by a witness do es 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 dur ing the trial, and he did not specifically object to the court’s failure to grant Guevara use immu nity. Accordingly, he may not ra ise this objectio n for the first time on appeal. See Rule 5A:18.- 5 - right to present evidence.” Ca rter v. Commonwealth, 39 Va. App. 735, 748, 576 S. E.2d 773, 779 (2003). The trial court must cons ider whether a proffered question has an incriminating implication and, if so, “the privilege rests with the witness and its assertion must be ho nored 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 mu st make the determina tion by considering the proffered questions because “the [F ]ifth [A]mendment does not provid e 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, 3 61-62, 344 S.E.2d 389, 391 (1986)). Th ere is no requirement that the witness volunteer an an swer; otherwise “he would be co mpelled to surrender the very protection which the privile ge 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-incri mination. 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 procedur e in the present case. Pursuant to Carter, the court properly asked counsel outside of the pres ence of the jury to proffer each specific question that appellant planned to ask Guevara in order to determine whether Guevara coul d invoke his privilege for that question. Counsel proffered numer ous questions relating to Guevara’s guilty plea to unlawful wounding and his statement to the police that appellant was not presen t at the scene of the crime. The court analyzed each question individually an d found that the questi ons could still implicate Guevara despite his plea of gu ilty to unlawful wounding. The court noted that Guevara had not yet be en sentenced and face d 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 de fendant may have a legitimate fear of adverse consequences from further testim ony.” Mitchell v. United States , 526 U.S. 314, 326 (1999).- 6 - Further, the court accepted Guevara’ s argument that some of the pr offered 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 eviden ce in his favor against the witnes s’ Fifth Amendment right to be free from self-incrimination and we affirm the ju dgment of the court granti ng the motion to quash the subpoena for Guevara. Affirmed.