Appellant Kenny Dampier was arrested along with Kenny Dickey and Karen Batton and charged with murder, auto theft and armed robbery in February, 1977. Charges against Karen Batton were dismissed, and she never testified at any hearing. Dickey and Dampier were tried separately. Dickey was convicted of murder and sentenced to life imprisonment. Appellant Dampier was convicted of murder and given the death penalty. This court affirmed.
*300 Dampier filed an extraordinary motion for new trial. He moved for a grant of immunity for Karen Batton. In a hearing on the motion, he made an offer of proof that if she were granted immunity she would testify that Dickey, and not appellant, was the triggerman. The motion for immunity was denied, and this court granted appellant’s application for an interlocutory appeal.
There is one enumeration of error in this appeal. Appellant contends that the trial court erred in denying his motion for immunity for a defense witness.
Appellant contends that he has been denied his Sixth Amendment right to compulsory process to obtain witnesses in his favor. In this case appellant’s alleged Sixth Amendment rights are apparently in direct conflict with the witness’ Fifth Amendment right to be protected against self-incrimination. Appellant argues that the solution to this conflict is that Karen Batton be granted immunity from prosecution by the court so that she can be compelled to testify. Under Georgia law, the district attorney has discretion to grant immunity to witnesses for the state. Code Ann. § 38-1715. Our statutes provide no such discretion to the court and, further, make no provision for a grant of immunity to defense witnesses.
The weight of opinion in the federal appellate courts which have considered the possibility of a defendant’s right to defense witness immunity is against the grant of such immunity. United States v. Turkish, 623 F2d 769 (2d Cir. 1980), cert. denied,
While appellant has made the argument that defense witness immunity is compelled by the Sixth Amendment to the United States
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Constitution, it is difficult to extrapolate from the Sixth Amendment guarantee of compulsory process a right to the testimony of an immunized witness. In United States v. Turkish, supra, the court found: “Traditionally, the Sixth Amendment’s Compulsory Process Clause gives the defendant the right to bring his witness to court and have the witness’s non-privileged testimony heard, but does not carry with it the additional right to displace a proper claim of privilege, including the privilege against self-incrimination.” Id. at 773-774. Acknowledging that the United States Supreme Court in Washington v. Texas,
Appellant relies upon the Governor of The Virgin Islands v. Smith, supra, as authority for his contention that the court has inherent power to grant use immunity and that that immunity should be exercised in the present case. Georgia courts have not adopted the rule of Smith. However, even if this state accepted the premise that when there are no countervailing state interests a defendant is entitled to immunity for a witness whose testimony is potentially exculpatory, the present case is clearly distinguishable from Smith. The testimony here is potentially exculpatory and essential to the defense case. Although Dickey testified at Dampier’s trial that he (Dickey) had been the triggerman, the prosecutor was able to introduce Dickey’s prior inconsistent statement that Dampier had been the triggerman. Therefore, testimony of Karen Batton which, Dampier alleges, would be that Dickey was the triggerman, would tend to be exculpatory and essential to the appellant’s motion for a new trial.
The real question, therefore, in comparing this situation to that in Smith, is whether the state has such an interest in denying use immunity to Karen Batton that this interest outweighs the defendant’s need for her testimony. We conclude that the state’s interest is such that immunity is not justified in this case.
Even those who argue most convincingly for defense witness use immunity recognize that where the state has not gathered its
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evidence against a witness who is also a potential defendant, a grant of even use immunity may jeopardize subsequent prosecution of that witness. Note,
The Sixth Amendment Right To Have Use Immunity Granted To Defense Witnesses,
91 Harv. L. Rev. 1266 (1978). This is true because “[i]n a subsequent criminal prosecution, the prosecution has the burden of proving affirmatively that evidence proposed to be used is derived from a legitimate source wholly independent of the compelled testimony.” Kastigar v. United States,
The district attorney in this case has indicated that, although he has no present intention of prosecuting Karen Batton because he cannot presently prove her guilt, if such evidence were introduced as that outlined by defendant in his proffer of her testimony, the district attorney would initiate proceedings against her. We therefore find that under the present circumstances the state’s interest in a possible prosecution of Karen Batton outweighs the interest of defendant in obtaining her testimony.
Judgment affirmed.