*1 proper ior could form a basis for reas-
signment. failed motion was
Given
significantly way related to and ad- cross-appeal Mr.
vanced Hunt's successful decision,
of the OEA we find that the un-
successful claim “cannot be deemed to ‘expended pursuit
have been ulti-
mate result achieved’.” Id. at Therefore, spent at 1940. “the hours
S.Ct.
on the unsuccessful claim should be exclud- considering
ined the amount of a reason- attorney’s
able fee.” Id. at 103 S.Ct.
at 1943. it is unclear from the record Since precise granted amount for this unsuc- motion,
cessful we remand the case to the
Superior Court with instructions to delete portion from the award.
Conclusion Superior
The order of the Court is and remanded Affirmed opinion.
actions consistent with this ALI, Appellant,
Azam S. STATES, Appellee.
UNITED
No. 83-858. Appeals.
District of Columbia Court of
Argued May 1985.
Decided Jan. *2 Hertz, Service,
Randy Public Defender Klein, with whom Public Defender James Service, brief, was on for pro appearance. Ali entered a se Azam S. Abrecht, Mary Atty., Asst. Ellen U.S. diGenova, Joseph Atty., E. U.S. with whom Farrell, Atty., W. Asst. U.S. and Michael brief, appellee. were on PRYOR, Judge, and Before Chief ROGERS, Judges. Associate MACK and MACK, Judge: Associate appeals Ali his convictions of Azam S. knowledge, D.C.Code 22-2801 carnal § 22-3502, (1981), child, sodomy with a id. § liberties, 22-3501(a), and en- indecent id. § 22-3501(b). ticing, He contends that id. § he admitted the trial erred when regarding certain “other crimes” evidence committed allegations of sexual abuse against younger sister of He complaining witness. also asserts tainted the admission that his trial was inflammatory testi- irrelevant and of other improper examination of witness- mony, by es, prosecutor’s unduly preju- by the agree that the closing argument. We dicial uncharged misconduct evidence challenged inadmissible, improperly sugges- asked, and that over- questions were tive closing argument impermissible stated or preju- also find sufficient used. We improperly they engaged dice from the admitted “other to his home in sodomy where crimes” evidence to warrant the reversal of and intercourse.
appellant’s convictions. S.S., F.W., and R.R. all testified that on July apart- came to the ment. He ordered the other children to Even the admissible does stay in the bedroom and took S.S. into the *3 pretty picture. present a appellant bathroom. S.S. said that there complaining introduced from the had intercourse with her. was sure S.S. witness, S.S., years who was seventeen old July the incident occurred on 4 be- at the time of trial. At the time of the special cause she related it to a her dinner offenses, charged appellant boy- was the prepared mother had and to the traditional S.S.; spent mother of he much friend of the display; fireworks R.R. certain of the apartment in the time two-bedroom which date took S.S. into the bathroom S.S., F.W., brother, younger her sister and birthday. because it was his mother’s yet family. In mother shared with another S.S., fact, However, away charging the mother of offenses re- who was the counts apartment every weekday from the from lated to this event were dismissed after early morning p.m., given appel- until 6 appellant presented including evidence— responsibility for the education lant and airplane passports ticket stubs and with discipline of her children. entry stamps proved and exit that he —that present in was not the United States on S.S.testified that the first incident of July 1981. alleged sexual abuse occurred when she years day was thirteen old.1 On a summer S.S.also testified about three other inci- 1979, appellant apartment went to the to sodomy dents of and sexual intercourse check on the children. He ordered the during by appellant July, 1981. initiated S.S., (F.W.), younger brother of sister encounter, ran Shortly after their last S.S. (R.R.) go child to and another He outside. away City, Maryland. After talk- to Ocean entered the bedroom which S.S. shared ing runaway at a house with counselors mother, siblings with her sat on the there, her mother and returned she called bed, and to instructed S.S. disrobe to the District of Columbia where she told stand in front of him. removed all her S.S. made a story her of to an aunt and abuse clothing except underpants. Appellant her report police. formal chest, “checking touched her shoulders and over.” He threatened to murder S.S. Appellant took the stand admit [her] anyone. if she told relationship a close with the children and charged deny their mother but to sexu- The next event S.S. oc- described testimony of a presented He al abuse. during following year. curred school including his wife dozen other witnesses day On a when S.S. was alone at home and four character witnesses. usual, appellant later than arrived on the pretext helping keys. of her search for lost young engaged He in intercourse with the II girl driving her Accord- to school. he here that has been Appellant claims S.S., engaged in
ing thereafter erroneous admis- fatally prejudiced activity a sexual with her “like two times sexual sion of usually apart- This week.” occurred F.W., younger sister of ment, occasion, conduct although Septem- on one agree. ber or October of took S.S. S.S.We Although subject granted. in- this incident was the dictment, acquittal judgment a motion for He wanted to dominate
A. those children. no love. children. This was act of those pretrial objection a Over an act of domination over those This was hearing, obtained children, them, control to maintain over permission to introduce un- court’s And, control their maintain over mother. evidence for the limit- misconduct gentlemen, guilty. he is ladies and showing a “common scheme purpose of ed permitted testi- plan.” Thus S.S. cau- At the end court times,” P.W. came out fy that a “few when jurors they tioned the were to consider towel, appellant, the bathroom clad conduct say call and he will what’s down “will her only: F.W. private and she—she—will there her very purpose for narrow [F]or touch on her breasts.” point and he will reason. This ad- evidence was testified that “more than P.W. likewise your consideration as mitted *4 I come out of the three” times “when bath- it or tends to show that whether showed on, room, know, you I a towel would have plan in- Mr. Ali had a scheme or which know, I way, kind of and have on you you the offenses with which are cluded vest, too, then he my panties and required You’re not asked to consider. time he was at the table and would—one And accept to this other evidence. me to here’ the told ‘Come and walked to you not is to you accept whether it or for slowly said, he and then he then start table it, accept if to you But decide decide. feeling said, on my breast. Then he he you pur- may only do so for this limited ” ‘[Wjhat’s pointed, and said down there?’ pose, or that is he had scheme had After taken the stand to offenses with which which included the him, prosecu- deny charges against the the may he on trial. You not consider is now tor, during cross-examination, to referred way tending any show F.W., and asked “Is it for he is guilt of the which offenses boyfriend normal for the mother’s when a on trial. now nine-year-old girl comes of the out bath- pull room to aside her and touch her towel B. point private her on breasts excluding evi- long-standing doctrine The area?” independent dence misconduct or crimes of argument, closing In his charged responds to several of crimes emphasized testimony: legal system: of our principles fundamental person only for those crimes with is tried
And
on that
and also
based
charged;
penalties
he has been
only
happened
on not
to which
based
what
appropriately imposed
gentlemen,
law are
ladies and
what the
of criminal
but
[S.S.]
charged, not
activity
began
[F.W.];
only
she
for the unlawful
defendant
do with
admis-
predisposition;
began
develop,
pull her
character or
how he would
bad
generally limited to
at trial is
apart
sible
towel
and look down and fondle
evidence
form
which
private
proof of the historical events
point
at her
breasts and
down
Thus,
charges.
courts
gets
the bases
area. And then he
stand and
uncharged
normal,
misconduct
“Oh,
evidence
says,
perfectly
that is
exclude
do.”[2]
presumptive irre-
recognizing the
or crimes
boyfriends
is what
mothers’
all
It
such
Well,
prejudice evidence.
gentlemen,
levance and
ladies and
that is not
inherently lacks
is that such evidence
perfectly
not what all
normal. That’s
value;
un-
rather that the
it is
probative
boyfriends
mothers’
That’s what
do.
uncon-
simply
are
charged collateral acts
this man did because he lusted after
normal,
fact,
by denying the incidents.
ques-
but
responded to the
In
by claiming
tion not
that such conduct was
may
of the which a contested fact
be inferred.
nected to the historical events
prejudicial.3
uncharged
highly
crimes and
Evidence of
crimes or miscon-
Crimes,
Vices,
Slough,
may
logically
Other
Other
duct
be admitted when
rele-
intent,
motive,
prove
absence of
vant
Kan.L.Rev.
accident,
mistake or
a common scheme or
presumption
inadmissibility
plan,
identity
perpetrator.
or
Id.
proponent
only
can
when the
be rebutted
(footnote omitted).
cisely
hypothesis
evidential
which
or
charges in an indictment
Where
may
consequential
fact
be inferred
of miscon
complaint involve discrete acts
proffered
from the
evidence.”
J. Wein-
duct,
allegations of a common scheme
(1986).4 After
stein,
IT 404[08]
prove
directly relevant to
one
plan are not
Evidence
proponent
showings,
made these
has
contested elements of the
or more of the
independently de
the trial court must still
charges.
su
See Graves v. United
prejudicial
value of
termine whether
(since appellants’
A.2d at 1140
pra, 515
*5
outweighs
probative
its
value.
the evidence
not an element of the
motives were
States,
1136,
v.
515 A.2d
Graves
United
inviting
purposes
of
charged offenses
(D.C.1986)(citing Campbell
1139
v. United
exception could
prostitution, the motive
of
430);
States, supra, 450 A.2d at
Minick v.
for admissibil
properly serve as a basis
(D.C.),
States,
1115,
1119
United
evidence doc
the other crimes
ity). Under
—
133,
denied,
U.S. -,
107
cert.
S.Ct.
trine,
inheres in an
intrinsic relevance
(1986).
76
93 L.Ed.2d
plan.
common scheme or
allegation of a
plan evi
Therefore,
scheme or
common
leading
jurisdiction,
in
The
case
this
proponent
unless the
4,
is inadmissible
States,
dence
supra note
118
Drew v. United
contested element
85,
specifically identifies the
11,
U.S.App.D.C.
331 F.2d
enumerates
the common
charged crime which
hypotheses” by
specific
“evidential
multiple
may
offenses than toward defendant
prejudice
with
The
inherent in such evidence
offense).
variety ways.
charged
The most
itself in a
of
one
manifest
with
jury may
problem
use evi-
obvious
is that the
disposi-
infer a criminal
dence of one crime to
variously
requirements have been
4. These three
part
defendant which in turn
tion on the
jurisdic-
throughout
of this
the case law
stated
finding
guilt
of his
on the other
results in a
(1)
is said
to which the evidence
tion:
the issue
States,
1,
charges.
A.2d
See
v. United
383
Crisafi
cert.
subject
genuine
to be relevant must be
931,
denied,
(D.C.),
439 U.S.
99 S.Ct.
3 n. 2
322,
States,
controversy, e.g., Campbell v. United
450
(1978).
jury may also
L.Ed.2d 326
58
428,
(D.C.1982); Willcher v. United
A.2d
States,
430
and
evidence of the various crimes
cumulate the
67,
(D.C.1979); (2) the
A.2d
76
408
charged
guilty of the
offense
find the defendant
although guilt might
convincing
prove by
government
clear and
must
found if
not have been
perpetrator
was the
evidence that the defendant
uncharged offense had not been
evidence of the
crime, see,
uncharged
co-perpetrator
or
Bussey,
v.
presented.
Id See also United States
479,
States,
e.g., Light
A.2d
480
United
360
v.
270,
1330,
268,
U.S.App.D.C.
432 F.2d
1332
139
(D.C.1976);
Bussey, supra,
United States
noted,
(1970).
"[I]t
As one commentator has
1335;
(3)
273,
U.S.App.D.C.
432 F.2d at
that members of the
an unalterable fact
remains
uncharged
must be
misconduct evidence
root,
supposedly
lend exces
jury,
of nobler
will
issue for
logically relevant to the contested
weight
of misdeeds and crime."
to a record
sive
power
independent
its
to demonstrate
reason
426;
Slough,
see also
supra, 20 Kan.L.Rev. at
States,
E.g.,
propensity.
Drew v. United
States, supra,
3H
argued
plan
inferentially
scheme or
ed. The
effect
evidence
proves.5
alleged
conduct with F.W. and
alleged conduct with S.S. established a
issue
Identification of the contested
plan. The
scheme or
common
common
here demonstrates that the introduction of
particular
rather than the
plan,
scheme or
generated
other crimes
indictment,
charged in the
became the
acts
impermissible “propensity” inference for
perhaps
cre-
ultimate inference. While
indisput
bidden Drew. Since S.S. was
compliance
with the
ated the illusion
old,
ably
years
under 16
and since
plan” exception,
“common scheme
interpose
did not
mistaken identification or
generated by other
defenses,
ultimate inference
lack of intent as
the actual occur
always
must
be the de-
rence of the unlawful sexual acts
S.S.
crimes evidence
with
supra
guilt
was the contested issue.
note 5
on a
greater
fendant’s
likelihood
(listing
charges).
the elements of the
Evi
in the case.
contested issue
appellant allegedly unlawfully
dence that
Success at this
due at
inversion was
least
touched F.W. on three to five occasions is
to manner in
which the terms of
charges
appellant engaged
relevant to
plan
broadly gen-
were
sodomy
sexual intercourse
eralized. The
ap-
claimed that
entirely
separate
different individual on
oc
pellant desired to dominate S.S. and F.W. in
only by
casions
means of one inference:
F.W.,
order to maintain control over their
because
did so
he
mother.
did
precisely
“propen Characterizing
general
so with S.S. That is
in terms
of a
sity”
See,
inference
may
probative
forbidden
Drew.
bad motive
be
of an ac-
e.g., Gordon v. United
127 U.S.
person,
cused’s status as a bad
but if there
App.D.C.
(1967)
383 F.2d
specific plan
is no inference of a
(describing
pressure
lay
“the inevitable
accused’s mind which interconnects the un-
jurors to believe that ‘if
did
acts,
[the defendant]
charged
then the other
”),
he probably
did so this time’
nothing
crimes evidence is offered for
oth-
denied,
cert.
88 S.Ct.
propensity
er than the accused’s
to commit
The true nature of the ar- gument pattern systematic A or course of proper obscured because the sequence logical of plan: inferences was invert- conduct is insufficient to establish a (1) (2) phrase plan" 5. The "common scheme or as used Liberties: the defendant Indecent immoral, attempted improper, in the other crimes evidence doctrine must be to take took or distinguished attempt- from situations in which a "com- liberties or committed or or indecent plan” upon mon scheme or constitutes an element of ed to commit a lewd or lascivious act or charged upon body part crime and thus is admissible a or there- with the or some member (4) theory (3) example, specific of direct relevance. For evi- under 16 of of a child to, plan provides gratifying arousing, appealing dence of a common scheme or or intent of desires, proof direct of one of the elements of a crime passions either of the lust or or sexual contrast, conspiracy. By defendant, child, both; such the elements or knowledge, (2) (1) of carnal § D.C.Code 22-2801 the defendant for the Enticement: 22-3502, (1981), sodomy, immoral, id. indecent liber- taking improper, § purpose or in- of ties, enticement, 22-3501(a), id. id. 22- § § purpose or for the of commit- decent liberties 3501(b), proof plan. do The not involve of a upon ting any act or with lewd or lascivious thereof, elements are as follows: body part or member the enticed, or some (3) persuaded place or to a allured (1) (2) Knowledge: Carnal the defendant (4) specific intent of child under 16 with the (3) engaged in sexual intercourse with a fe- arousing, gratifying 16; appealing to or the lust or male child under passions fendant, desires either of the de- (in (1) or sexual Sodomy part): relevant the defend- child, (2) or hoth. organ person ant took the sex of another Jury for the District Criminal Columbia, placed Instructions her mouth or his or her into or (Carnal Knowledge), 4.79 Nos. 4.71 organ person the mouth of another sexual (Indecent (Sodomy), Liberties and Entice- copulation person 4.77 another or had carnal Liberties) Taking Purpose body except Indecent opening sexual ment for (3d in an 16; 1978). (3) parts person ed. was under alone, Standing a series cover-up of similar acts existence of the plan raised the does not establish the existence of a true probability of the appellant’s participation plan. A series of similar robberies could by setting apart him persons from other separate be the result decisions to rob. plan. who had no such Imwinkelried, permissive There must inference be 3:20, supra, Furthermore, ch. 3 at 50. § that both crimes were related to an over- subsequent murders demonstrated a goal all in the defendant’s mind. plan true in the accused’s up mind to cover Uncharged murder; original Imwinkeleied, original but E. Misconduct 3:22, (1984) (foot- ch. 3 at 58 subsequent murder the § murders would not Evidence omitted) (hereinafter *7 adopted by judge. the trial We are thus plan common scheme or evidence inferen tially proved perpetrator’s a in which identity: the met in this case with situation Stone, Hackney represents (citing 6. The case Id. The Rule Exclusion the admission of crime. America, upon common scheme or evidence based Similar Fact Evidence: 51 Harv.L. strong 988, inference of (1938)). an inter-connected chain 1009 Rev. theory, of crimes. Under the "chain” a series of roughly equal magnitude crimes of are seen as Indeed, approved court last the introduc- necessary steps accomplishment of a tion of evidence "to show the intent and lustful specified goal covering-up such as a murder or defendant,” disposition Dyson v. United eliminating heirs rival to an inheritance. Im- 135, (D.C.1953), before the 137 3:22, supra, By § ch. 3 at 57. con- winkelried, Drew, supra, decision in in which the circuit trast, admissibility upon based an inference of a firmly court announced "that evidence of one crimes, sequence of inter-connected in which prove disposition to crime is inadmissible to lay earlier crimes the foundation for 15, (em- F.2d at commit crime.” Id. at 89 crime, by is illustrated the classic exam- original). phasis in ple gun of the defendant who steals the which is subsequently carry primary used to out admitted, Q. him and improperly jury You don’t know about Shir- was instructed, ley and the Kumar? properly not was changes argument on government now its No, having Shirley A. Kumar? he’s not hard- would be appellate review. We Shirley an Kumar. affair with pressed to call this error harmless. Q. you Are certain about that? Yes, I’m certain. A. Ill fight that Q. you Did know about the argues preju- Appellant also cumulative Shirley Kumar had mother] [S.S.’s prosecutor’s a result of the dice as she died over Mr. Ali? just before attempt, through improper questioning, to No, any fight, Mr. A. I’m not aware of place jury other instances of Myers. misconduct. Q. You not aware of that? are generally accepted principle It is a No, Myers. Mr. A. government may attempt that the rebuttal, During called creating im manufacture evidence testify two witnesses to jurors through in the minds of the pression relationship Mrs. Mr. Kumar Kumar. questions imply the existence of facts. separated two testified that he and his wife Questions assuming the existence of a fac trial, after he had heard weeks before the grounded predicate good tual must be in a having relationship rumors that she was susceptible faith belief that those facts are R.R.’s mother testified with someone else. proof by competent B. evidence. Gersh speaking she heard the mother of S.S. 9-4(a) MAN, PROSECUTORIAL MISCONDUCT § telephone person identified on the 1808(2) (1986); 6 Wigmore § on Evidence Shirley Kumar. the mother S.S. (Chadbourn 1979). See also United rev. conversation, mother During the S.S.’s Silverstein, v. 864, States 737 F.2d hav- Shirley asked Kumar whether she was Harris, (10th Cir.1984); United States v. ing an affair with (7th Cir.1976), cert. 542 F.2d denied, 97 S.Ct. Here, questions put appel (1977); United States L.Ed.2d 779 knowledge of a ru lant’s wife about her Brown, (6th Cir.1975); 519 F.2d appel affair between mored extramarital 3-5.7(d) § Standards for Criminal Justice the defense witnesses were lant and one of (2d 1980). ed. subsequent admission improper, as was the designed to demonstrate A. govern relationship. The existence of the Appellant points prosecutor’s first to the of the existence argues ment that evidence wife, Ali, cross-examination of his Janet only “to relationship offered such a was who had testified on direct that willing to Mrs. Ali was how much show affair with the mother had taken of S.S. partial she was to and thus how endure place when she and her husband were Therefore, appellant.” spending together little time and their mar- proper as contends, question itself was riage undergoing great stress. The subsequent as the admission well prosecutor asked Mrs. Ali if she aware However, testimony. there is rebuttal that, trial, appellant even at the time of the affair and logical connection between an affair with defense witness Mrs. Ali of Mrs. Ali unless credibility *8 Shirley Kumar: in the the affair. No evidence about knew Q. Now, just prior time believing to the that for suggests a basis record after — that died and even now knowledge of the relation any Mrs. Ali had [S.S.’s mother] somebody Mr. Ali’s an affair with Con- gossip its existence. ship or of about else, prose isn’t he? for the misconduct sequently, it was . in- first question No, knowledge. cutor to ask my A. not stance, Q. you and further misconduct for him la- you Weren’t were in out —when yesterday the hall afternoon you were ter to introduce evidence of rumors in the talking to another man? community affair.8 response.] A. [No As the trial observed when he Q. For a little while yesterday after- agreed jury ignore to instruct this noon? evidence, in colloquies question imply A. I can’t remember. appellant was “some sort of a Don map Q. Well, you didn’t and another making everything Juan ... out with in you have a conversation in which and he Guyana.”9 danger prej- from town talking party you were about this and great in especially udice is a case such as saying and he were “Mr. Ali wants me to this, very fraught which its nature is say I party, was at this but I can’t re- “[Bjecause emotional overtones. this with I member because was too drunk?” gone should never have before A. No. jurors, necessity indulge there in [is] Objection. [Defense Counsel]: assumption questionable their say You didn’t that? [Prosecutor]: partially awareness can be erased....” A. No. v. United A.2d Williams Q. say noticing You didn’t that not (D.C.1978). Furthermore, in- the curative just Detective McGinnis was a few feet struction, given twenty pages at the end of away overhearing you and what said? transcript, in of instructions did not say A. I that. did impermissible prejudice. alleviate the Id. $ ‡ sjc ‡ $ sk Q. you yes- cafeteria Were down B. terday afternoon? Finally, appeal, ap- first time A. Yes.
pellant challenges other cross-examination Q. When Mr. Ali was down there? prosecutor appellant which claims him, yes. A. I saw allega- laid the foundation for unfounded Q. Around the lunch break? perjury tions that he “suborned and influ- A. Yes. enced defense witnesses.” Q. you? Did he talk to A. did talk.
Appellant We called two alibi witnesses to testify during Q. you say as to his one of “Re- whereabouts Didn’t he come something July member incidents. The —remember there, this, that?” remember remember witnesses, cross-examined one of those Paul, Robbie as A. No. follows: Moreover, fact, probative assessing appellant even if we assume had In the relevance engaged knowledge problematical. been edge type in such an affair with the knowl- is of this value wife, government, of his was of little Contrary position of the to the probative already value. It was obvious probable with appears equally that a wife jury that Mrs. Ali was aware of her husband’s philandering knowledge would her husband's relationship spite with the mother of S.S. In on his be motivated to make knowledge this tionship she rela- continued her marital more, less, than favorable to behalf rather be- testified on his position. Any half at trial. bias on her was manifest and needed no further demonstration. There- Kumar, relationship who described her 9. Mrs. fore, probative compared its value was minimal sister, had that of brother and prejudicial impact. to its States, Tinker v. United America, Cf. Guyana, South known U.S.App.D.C. 417 F.2d S.S., country. they born came to this (counsel only is accorded a “reasonable country when she was Guyana, came to this witnesses), opportunity" explore bias of adverse years with her mother who old to live nine denied, 141, 24 rt. 90 S.Ct. ce years before. come here several L.Ed.2d 118 *9 Q. You didn’t notice ing Detective McGinnis “You remember this. you Now re- being either, you around you? that time did member this don’t you Now re- you? member this.” Who is it that making is up testimony, the gentlemen? ladies and A. I don’t know who Detective McGin- Who is? nis is. It is clear that the detective’s rebuttal testi- brother, Paul, When Robbie Paul’s David mony constituted a slim upon reed which to witness,
took the stand as a defense the hang the inferences of miscon- prosecutor pursued the same line of in- duct prosecutor which the placed before quiry: jury. the Q. you your Were brother when your brother talking was about Mr. how Thus it is that questions by we have Ali wanted him to prosecutor remember he was at suggesting sepa that two party and he could not improper remember rate incidents occurred: one in because he was too hallway drunk? where a witness was suppos edly overheard No, saying appellant A. I was that not there. had him testify asked falsely and another in Q. You were not you there? Were appellant cafeteria where suppos was down in the yesterday cafeteria after- edly talking seen to his urg witnesses and noon, shortly after the Court recessed A. No sir. Mr. Ali them for lunch? A. Q. [******] And were Yes, to remember I went down there. coming up you one of things? to and tried to people that get tive in Although himself to had overheard a defense witness claiming house ing them to about the appellant corridor rebuttal, alleged provide “remember.” The had implied conversation in the court appellant with an alibi. urged prosecutor that the detective called this detec him perjure question elicited The from him no information presented thereafter re- about this inci dent. any buttal Nor is there from other evidence that Detective McGinnis. suggests He such a actually made no reference conversation appel- took seen place. Clearly, asking speak lant these anyone apparently in the courthouse questions relating baseless hallways, alleged but stated that he ap- had seen hallway pellant prosecuto- conversation constituted in the courthouse cafeteria “walk- rial misconduct. ing up to his witnesses and putting his face right up say[ing], ‘now remember prosecutor The did elicit from the ” However, this.’ the detective admitted detective that he ap had heard “That’s only thing I overheard.” pellant say “Now remember this” to wit closing argument,
In
nesses in the cafeteria. The
detective had
ar-
heard, however,
gued:
what
asking witnesses to remember. This bit of
[Appellant’s
said “We don’t
witnesses]
hardly a
evidence is
sufficient foundation
you expect
know. How do
us to remem-
prosecutor’s questioning
appel
ber that?” And no one asked them
lant as to whether this was
particular
about this
party
just
until
behavior,
argument
“normal”
nor for his
in
day.
you
What do
going
think is
closing
“orchestrating
making up
on? Who is
testimony? Who
“making up testimony.”
witnesses” and
bringing
is
in
up
witnesses to make
evi-
bringing
dence? Who is
in witnesses to
questions
conver-
up
you
make
stories? Then
hear Mr.
hallway
argument
sation
and the
Ali—about
AliMr.
exaggerated
down
the lunch
the content
the remark
day
room the other
orchestrating
wit- overheard
the cafeteria insinuated that
nesses, running
say-
attempted
from table
prevent
ju-
to table
*10
performing
rors from
their
During
function. The
prosecu
course
implication
striving
that
to
tion
bearing
appellant's
elicited evidence
very
integrity
undermine the
fairness and
behavior
complainant’s
towards the
young
judicial process
jurors
of which the
so,
er sister.
In doing
upon
it relied
one of
prejudicial.
were a
recognized
exceptions—common
scheme or
in Drew v.
—enumerated
States,
11,
United
118 U.S.App.D.C.
IV
(1964).
however,
F.2d 85
appeal,
On
single
This case is not one in
which
argument
seems to shift its
to
technical error occurred as an isolated
premise
that the evidence was admissi
Rather,
event in the course of a trial.
we
appellant’s
ble because of
disposition are confronted here with a situation in
commit an unusual sex
Dy
offense. See
highly prejudicial uncharged
which
miscon-
States,
(D.C.
son v. United
S.Ct. Anita, girlfriend, Shirley government, by failing argue ask court, if appeal, it does on that an Kumar she was an affair with trial *11 Nevertheless, theory appel- of the in view of alternative for the admission appellant’s predispo lant’s admission of his affair with Anita evidence was to show sition, appellant opportunity to and the nature of the evidence of the sec- denied affair, proper object,2 jury and left the without ond do not view this to have been closing argument, of this error. In the instruction on the limited use evi reversible prosecutor appellant it on this did not state that had dence had the trial court admitted theory. Contrary to the limited had an affair with Kumar and the trial alternative plan purpose jury common scheme or for which court instructed the that there was admitted, prosecutor support prosecu- the evidence was the “no evidence at all” to the moreover, appellant question appellant’s (allegedly argued, that was tor’s wife bias) guilty taking indecent her whether she liberties with show knew about complainant affair testimony because of what he had done the second and that the Thus, only “completely” disregarded.3 not to her but to her sister. the was to be States, 163, presumed prejudice from the erroneous ad Smith v. United 315 A.2d 167 evidence, Tinsley v. (D.C.1974) presumed, (jury mission of other crimes absent record States, 531, United (D.C. contrary, 368 A.2d 533 evidence to the to follow instruc- 1976), tions). appellant objected to which had
trial, becomes manifest. regarding The claim the subornation of true, however, problematic simply
The same is not with re- witnesses is more be- gard appellant’s relating prejudice claims of error inherent in the alle- cause of the to a second gation affair and to subornation of itself. The trial record reveals that First, perjury. respect affair, prosecutor’s questions appel- prosecutor purported record reveals that with his lant’s two conversations adequate inquire lacked an adequate basis to about witnesses not on an were based alleged Shirley predicate. Appellant object Kumar affair. This be- factual did not especially government’s came clear in the questions at trial to the about his conversa- case, following by appel- government’s rebuttal the denial tion in the lunchroom. The affair, witness, McGinnis, any knowledge lant’s wife of Detective was unable to Shirley explanation testify anything Kumar’s rela- had said that tionship wife, and his and his witness other than “remember this.” Mr. Kumar’s secondhand witness information about Faced with the denial occurred, rebuttal, hallway the affair. In incident4 had that presented only testimony he un- of the com- and that jurisdictions ing question 1. Other of no evidence but of have reached the same it was not factually reliability conclusion in See, similar circumstances. of Mr. Kumar’s secondhand infor- States, 645, e.g., Shockley v. S.W.2d 585 his wife’s affair. Nevertheless the mation about (Tenn.Crim.App.1978); People 652-54 v. McMil- although trial found lan, 208, 15, Ill.App.3d 86 (1980); 41 Ill.Dec. 407 N.E.2d jury’s improper, had not affected the 44, Martin, People Colo.App. 207 v. 43 verdict. Eubank, (1979); 602 P.2d v. Ohio State 60 St.2d 398 N.E.2d witness, Rob- asked defense 4.The Paul, whether, hallway outside while bie Drew, supra, approved 2. Since this court has not courtroom, another man that he had told the introduction of evidence to show "intent he, Ali, say him to had wanted disposition,” Dyson lustful as was done in party. Appellant’s pres- particular been at a (be- (D.C.1953) United ability party to his at this was relevant ence parties). tween different States, Miller v. United Cf. the occasions on U.S.App.D.C. an alibi for one of 207 F.2d establish (1953) (between parties). complainant same claimed he had molested which the her. denying appellant’s In motion for a new however, view, judge changed stat- the trial going to remember from table to able table lunchroom, absence of ambig- evidence other than an remark, prosecutor’s
uous comment in
closing argument appellant was “orch-
estrating witnesses” without evidentia- support
ry and constituted misconduct.
However, appellant object did to these gave trial
remarks at trial.5 The court argu-
standard instructions counsel’s jurors’
ments and the recollection of the *12 Viewing
evidence. the comments in the Fornah v. Unit
context of the entire States,
ed (D.C.1983), 460 A.2d particularly view fail see note 5 and object appeal,
ure until text, supra; Parks v. Unit
accompanying States,
ed (D.C.1983)
(absence objection of defense some evi prejudicial),
dence that error not viewed unpersuaded plain
I am error oc
curred. United Watts v. (D.C.1976)(en banc).
A.2d
Accordingly, join reversing the con-
viction because the erroneous admission of crimes substantially preju-
diced harmless. ACHESON, Appellant,
Alice S.
R.B. SHEAFFER and Jack Thomas
Elmore, Appellees.
No. 85-754. Appeals.
District of Columbia Court of
Jr.,
Harris, Washington, D.C., for
Don V.
Argued
1986.
July
26, 1987.
Decided Jan.
Burke,
Counsel,
Corp.
Asst.
Beverly J.
Suda,
Corp.
Acting
H.
with whom John
filed, and
Counsel at
time brief was
Counsel,
Reischel, Deputy Corp.
L.
Charles
Nor did
in his motion
new trial.
he raise the issue
for a
notes
place.
here,
have taken
The situation
“Imwinkel-
distinguishing
The
characteristic of which the
Ried”).
allegedly
accused has
committed
plan exception
the common scheme or
a series
non-interlocking
of similar but
inadmissibility
of a
is the existence
true
crimes,
distinguishable
is thus
from the
plan in the
mind
defendant’s
which includes
plan
true common scheme or
case of Hackn
uncharged
crimes as
ey.6
stages
plan’s
execution: the series of
mutually dependent.
crimes must be
Id.
C.
3:21,
Completely
ch. 3 at
dissimi-
§
inis
no better
may
part
plan
lar crimes
form
of a true
position
argues
appeal
when
on
that the
Likewise,
scheme.
Id. at 53.
similar
other crimes
relevant to show
crimes are often not admissible under the
disposition
the defendant’s
to commit an
plan theory
common scheme or
of rele-
argument
unusual sex offense. This
WigmoRE
3:23,
62;
vance. Id.
ch. 3 at
§
made
and we decline to retroac
(Chadboum
304 at 249
rev.
§
on Evidence
tively approve
ruling
of the trial
1979).
on the basis of a rationale that he did not
good example
A
proper
use of the
apply and
applicability
open
whose
was not
plan theory
common scheme or
of rele
challenge
ap
the defendant.7 Such
provided
vance is
in Hackney v. United
proval
particularly inappropriate
would be
(D.C.1978),