A Hearing To Consider Conferring Use Immunity is not a “Critical Stage” at Which a Defendant Has a Right to be Present.

State v. Booker, Minn.Ct.App., 7/28/2009.  Two men, one of whom was alleged to be Mr. Booker, robbed a taxicab driver at gunpoint.  The investigating officer got the cell phone number used to order the cab and traced it back to an apartment located at the same address that the taxicab driver had picked up the two men.  R.G. lived at this apartment and he did not fit the description of the two assailants.  He did lead the officer to two men who had come to his apartment at the time of the robbery:  J.R., and Duckworth.  R.G. picked photos of both of these men from a photo array.

The investigating officer then built two photo arrays to show to the taxicab driver; one had J.R. as the suspect and the other had Duckworth; neither array contained a photo of Mr. Booker.  The officer showed the arrays to the taxicab driver, who picked J.R. and Duckworth from them.  Finally, the officer showed the taxicab driver one last photo array, intended to rule out J.R. as a suspect; it contained a photo of Mr. Booker.  The taxicab driver then said that he had been wrong about J.R. but that he was 100 percent certain that Mr. Booker was the person who had pointed the gun at him.

But all of this has little to do with the meat of the Opinion.  Rather, the central issue was whether Mr. Booker had a right to be present when the trial court pondered whether Mr. Duckworth could assert a Fifth Amendment privilege and refuse to testify.

Duckworth gave a confession of sorts; it at least put Booker in the cab – the right cab – at the time of the robbery.  Duckworth, however, got cold feet and refused to testify at Booker’s trial, whereupon the state offered him use immunity.  Because Duckworth had already been tried and convicted for his roll in the robbery, the trial court held a hearing to determine whether Duckworth still had a Fifth Amendment privilege to assert; the trial court held this hearing in secret with neither Mr. Booker nor his attorney present.  When Booker’s attorney complained, the trial court held a second hearing after which it ordered Duckworth to testify.

On appeal, Mr. Booker argued that he had a right to be present at the first hearing where the court considered whether there was a Fifth Amendment privilege to be asserted.  The appellate court rejects this argument for three reasons:  the rules of criminal procedure don’t mention hearings under the use immunity statute, 609.09; the statute only requires notice to the person whose testimony is to be compelled, omitting any reference to the defendant; case law suggests that use immunity is often granted before the start of the trial, without the presence of either the defendant or counsel.  Although the appellate court said there were three reasons, it actually mentions a fourth one:  a defendant has no standing to challenge the court’s ruling to grant immunity.

Mr. Booker made various pro se challenges to the identification procedures, all of which the appellate court rejected.