Allen v. United States

Our first say inclination to this will not may do. It cannot be that an attorney ALLEN, hold Appellant, Claude Bernard reserve, were, as it a mitigating condi- solely relating to the issue sanc- tion— STATES, Appellee. UNITED tion, not during the entire misconduct— disciplinary proceedings course and then No. 87-1247.

invoke it virtually when disbarment Appeals. District of Columbia Court conclude, him stares in the face. We nevertheless, inappropriate that it would be Argued 1990. Jan. pass judgment for court this August 1990. Decided respondent’s for his asserted reason si- lence—classic alcohol denial and the shame unnecessary

of admission. It also is duty to do still its court so and fulfill protect against public lawyer miscon- instead, shall,

duct. We remand the case to the Board for consideration alcohol- possible mitigating

ism as factor in re- case,11 spondent’s necessary but on one Respondent agree condition: shall immedi- suspend practice ately to District voluntarily pending of Columbia the out- proceedings come of further before proceedings Board and additional be- Hearing fore Committee that Board respondent accept order. Should this condition,12 proceed shall Board con-

sider issue of alcoholism under the guidelines of Kersey, In re A.2d 321

(D.C.1987), Miller, and In re 553 A.2d 201

(D.C.1989), findings and make recom- court;

mendations an order of dis- barment will await of those outcome proceedings. respondent accept Should stated, the notify

the condition Board shall us and order of disbarment be en- will tered forthwith.

Remanded. comply reject respondent’s request notification a remand He also must with the 11. We XI, concerning disposi requirements for additional 14 of the Rules Rule Sec. care in the tion of funds entrusted Governing the Bar of the District of Columbia. case. The remand will limited Grossman mitigation. only to the issue of pis- slaughter carrying while armed and 22-2405, license, tol without D.C.Code §§ -3202, (1989 grounds Repl.), -3204 on the first, rights Clause Confrontation were violated the admission inadmis- hearsay to show the sible evidence offered of mind of the decedent and that a state cautionary instruction was insufficient harm, second, prose- and cure missing improper use of wit- cutor made missing inferences dur- ness and evidence in- neither ing closing argument. We find hearsay of discretion admissible nor abuse concluding by the trial limiting jury could follow the instruction. However, prosecu- we conclude that missing and improper tor’s use of witness de- missing prejudiced Allen’s fense, accordingly, reverse.1 we

I. evidence showed Sunday, Samuel November helped Johnson,

Manning Annie a mutual Manning, of Allen and and several friend daugh- for prepare Johnson’s other friends Annie Johnson testi- birthday party. ter’s day Manning during asked fied that According to he could contact Allen. how Fam, Service, ap- Public Defender Samia Johnson, gave tele- Patrick Dixon court, pointed by this with whom James warning Manning while phone number to Service, Klein, Public Defender Manning going Allen to kill him. Service, Hill, Defender Henderson Public anyway, Manning called Allen and invited brief, appellant. were on apartment Johnson’s him come to Pelak, Atty., Asst. U.S. Steven W. and after- Allen called back afternoon. Stevens, Hel- Atty., B. Jay whom U.S. Johnson, wards, ap- according Manning Bollwerk, Atty., en M. Asst. “edgy,” pacing in and out of the peared brief, appellee. dur- apartment. also testified that Johnson summer, Manning was out ing that while ROGERS, Judge, Chief Before town,2 looking for him in Allen had been SCHWELB, FERREN and Associate tapes car and some with his connection Judges. taken, and that she had which ROGERS, Judge: Chief one say Allen to her husband on heard (Allen) going to kill occasion that appeals Appellant Claude Bernard Manning. man- from his convictions (Allen) Manning, 2. Allen had warned disposition we do not reach

1. In view our him,” get his convictions left town there- Allen’s other contentions that "would curtailment of his should be reversed because of after. right constitutional in violation defense, prior admission consistent statements. Allen, accompanied by trial, an unidentified months before the Allen threatened man, arrived at the Johnson home Cunningham’s within brother and his brother’s an hour of telephone the second Baldwin, call. Ac- girlfriend, Felicia she testified cording Manning’s girlfriend, Felicia against Allen. Baldwin, Manning Allen and greeted each Appellant sup- called three in witnesses friends, other as and Manning Allen told port of his claim of self-defense. James not worry the car. about Annie Johnson Baldwin, father, Felicia’s that af- testified and two other men testified that Allen shot, hearing ter a he saw Allen and anoth- Manning asked to come outside with him moving pace er man at a fast a toward van. something,” “to talk ... about and the two Baldwin then Dixon fumble around saw apartment together.”3 men left the Manning’s waist for about five seconds and outside, gun- After the two men went a object remove an awith handle that looked shot was heard. Annie Johnson saw Allen Edwards, pistol. like a Annie Orlando

push Manning anything but did not see brother, Johnson’s testified that he saw However, Allen’s hands. when she heard a Manning wrap hanger gun, a around a second shot she coming saw fire from Al- hook it onto himself and cover it with a Manning staggering. len’s hand and Feli- sweater. Edwards heard two shots later cia Baldwin saw Allen fire the second shot evening, gun Manning’s that and saw a Manning at Manning stagger and watched Manning Raymond hand after was shot. apartment building, into the where he col- Johnson, husband, estranged Annie’s testi- lapsed on the second floor.4 Allen followed that in fied the summer of 1983 Allen had Manning steps apart- to the front Manning told him had car and sold his building, prepared again, ment and to shoot going [Manning’s] that he was to “kick but then turned and ran. Allen and the denied, disputing butt.” He Annie John- got unidentified man into the van testimony, he son’s had ever heard away.5 drove Manning. Allen to kill threaten years Allen was arrested almost la- two Manning Allen testified had bor- ter, Miami, October 1985 Florida permission rowed his car without and sold the Federal Investigation. Bureau of He pay drug it in order to debt. On Novem- claimed at the time that his name was Manning had called him to tell ber Jenkins, Anthony knowing any- and denied car, money pay him he had thing Manning’s killing or the search apartment. him to the Johnson and invited way for him. Washington, On the back to apartment, spoke briefly In the Allen D.C., however, he told a detective that bedroom, Manning, who went into a back Manning had ap- been shot when he apart- men left the and afterwards two proached van, pulled gun on Al- ment, according Manning’s suggestion len, and shot at him. Allen claimed he shot appellant. gun back with a .38 calibre that a Gerard, outside, Allen that Man- companion, Manning.6 also shot at Once claimed ning having Manning’s An him Reformatory, inmate at the Lorton Vin- accused told Cunningham, Manning cent testified that five or six that he used cocaine. mother day coathanger anywhere, 3. Earlier that while in a back bedroom at but she saw a attached to apartment, Manning doorway. the Johnson had smoked Manning's pants lay as he in Davis’ marijuana with Patrick Dixon and another man. gun Manning Dixon took out a demonstrat- expended police shell 5. The found an .38 caliber hanger gun ed how a coat be used building. casing A in front of Johnson’s .38 demonstration, according holster. After the body, slug Manning’s caliber from was removed Prim, Manning gun placed Freddie Manning's gunshot was found on residue bedroom, hanger kept table in the at- sweater. pants. tached Manning George apartment fell into Davis's examination, changed 6. On cross Allen his sto- door; gun Manning’s did not see a Davis Manning. ry, denying that Gerard had shot at gun hands. Annie Johnson also did not see a rights confrontation under angry appellant. and threatened violated his become appellant mon- Amendment and should been Manning When offered Sixth car, prejudicial its effect out- ey appellant he him told excluded because owed for his Alternatively, money] weighed probative “he could take its value. Manning [his it,” could not follow Manning then away. stick walked maintains cautionary instruction pulled gun judge’s and told the trial out a ran, anywhere.” limited, use of Dixon’s going nonhearsay As Allen was “not Manning fired at him. Allen found a statement. he had in the van and warned brief, misconstrued the In his main ap- gun. continued When testimony. She nature of Annie Johnson’s After shoot- proach, Allen shot him. contends, Dix- that testify, did not as Allen Gerard, gun ing, kept the companion, Man- Allen threaten to kill on had heard dropped apartment. Allen at his off tell ning, only that heard Dixon but she thereafter, Shortly Dixon some after coming to kill Manning appellant was house other had come to his mother’s men initially judge struck him.7 The trial him, looking to Allen went Florida hearsay and testimony as inadmissible being by Manning’s to attacked

order avoid following prejudicial, a bench highly Felicia threatening friends. Allen denied potentially it as conference he admitted Baldwin. Manning’s state-of-mind probative of claim in his first of Allen’s Allen for murder in the view self-defense was indicted de- pistol jury.8 After carrying opening argument a degree armed and while 22-2401, efficacy license, objection to the nying the defense a D.C.Code without §§ request -3201, The returned a verdict of a curative instruction -3204. mistrial, judge mur- instructed finding guilty first-degree him telling jurors strike manslaugh- had guilty he erred der while armed but the evidence was carrying pistol with- from their minds since ter armed and while purpose.” admissible limited very “for out license. in- immediately purpose, That II. structed, that the statement was to show 13 in order to ex- November said on was Allen contends Manning may have said or done hearsay plain testi what admitting rank erred in he told. The was state based what mony Annie Johnson about the the statement was Manning, instructed the make ment heard Dixon she Allen what main not admitted going to kill him. He that Allen was may not have intended.9 admission of the statement tains that the Manning aggressor and had fired was the testimony state- about Dixon’ 7. Annie Johnson's appellant. first shot at ment was: you Okay. how Do know prosecutor]: [The [Manning] got phone number? [Allen's] jury was: full instruction to the 9.The [Dixon], From Johnson]: [Annie gentlemen, right. response dur- All And THE COURT: Ladies Prosecutor]: [The witness, testimony John- question ing son, Miss [Dixon] counsel’s] to [defense number, up you say just lawyers to the came giving phone [Dix- didn’t before conference, long [Manning] phone num- bench rather [Allen’s] what bench for that on] told you portion, a you tell to strike heard me ber was? testimony in Right. portion of the witness’s small Johnson]: [Annie anything say question was I response asked. prosecutor]: to a [Dixon] Did [The [Manning] gave actually [Manning] that testimo- have stricken when should not else to phone ny. number? [Allen's] testimony it was admissible but Yeah. The Johnson]: [Annie say? very purpose, only for a limited prosecutor]: What else did admissible [The man, said, explain you come now. He and that is what want Johnson]. [Allen] [Annie testimony witness about you. to kill Manning say to Mr. ... [Dixon] she overheard testimony argued government 8. The phone Manning gave num- Mr. when he ber, Manning’s potential necessary explain credible find that to be appellant’s gun, given claim that possession aof that, up did that’s and that she hear Since the statement was accident, introduced dant claims suicide or self-de- made, fense). show that it was not that Beginning it was attorney’s with his true, it was not hearsay objec- opening jury, statement ground tion on that fails. Manning planned The statement claimed that to kill him was offered neither and lured him apartment, as evidence to Johnson’s that Allen where waiting threatened with a hand- nor as evidence of gun in a hanger. Dixon’s belief holster made from a wire that Allen coming to kill dispute Manning. that Man- See Jenkins v. United ning may possession had a in his (D.C.1980) (defining hear- Consequently, when shot him. say evidence) (quoting McCormick, Evi- government’ disprove had the burden to (2d 1972). dence, 246 at 585 ed. To that § that Allen why self-defense and extent problems confrontation did not Manning may gun. have carried a Al- Street, Tennessee v. arise. 471 U.S. though Dixon’s statement was neither di- 414, 415, 85 L.Ed.2d rect Manning’s nor indirect evidence of (1985) (prosecutor’s nonhearsay use of mind, state of it was relevant to the extent prejudicial evidence admissible to de rebut Manning’s it affected fear and his Peaden, United States v. theory);10 fense carrying gun reason for day.12 If 1493, (11th Cir.), 727 F.2d cert. 1500 n. 11 believed, testimony Annie Johnson’s was it denied, 857, 185, 469 U.S. 105 S.Ct. 83 explanation why Manning offered an (1984) (value L.Ed.2d 118 of statement of day. had acted as he did later that That nonhearsay fered for purpose is that it was definitively statement does not answer said only defendant needs to cross- Manning protec- whether carried a person it). examine the See who heard purposes tion preemptive or for of a strike Evans, also Dutton v. 74, 88, 400 U.S. 91 v. point. See Reavis United misses the S.Ct. (1970) (no 27 L.Ed.2d 213 States, 75, (D.C.1978) (proba- 395 A.2d 78 conflict with confrontation clause when evidence) Punch v. United (citing tive witness testified “not as to States, 1353, (D.C.1977)). 377 A.2d 1358 seen, heard”).11 but also as to what he Furthermore, suggest Allen’s contention that the instruc that the evidence of the statement was of tion mitigate preju ineffective probative ignores limited value reality part dice in is based on a mischaracteriza of his defense at trial. Clark v. United tion of judge the record. The did not ask States, 21, 412 (D.C.1980) (victim’s A.2d 25 jury by to consider a appel statement particular state of mind of jury interest coming lant that he kill Manning, degree in first murder case where defen- but rather to receive Dixon’s statement for you, prove any way was not government’s admitted to contention that reliance on may Street, 409, truth of what not, ... have said or [Dixon] Tennessee v. 471 U.S. 105 2078, and was not admitted to what Mr. misplaced unpersuasive. S.Ct. is is Al- may may not have intended. though prosecution permitted in Street the admitted, however, you It was find it to to introduce the codefendant's confession was a said, simply have been to show that was said copy, nonhearsay carbon the basic use is therefore, day. to Mr. you may on that And comparable to that in the instant case. explain consider it to what Mr. Man- ning may have said or done based on what 11. The defense could have satisfied its confron- him was told to to the extent that find Mr. by calling tation concerns Dixon. That there 13th, Manning’s state of mind on November why might were reasons not want to do so any to be relevant to 1983 of the issues that does not mean that the failure to you're going to be asked to decide in this case call shielding Dixon involved the kind of including, presented you, any if it is de- prevent. Confrontation Clause seeks to See presented. fense of self-defense that be Street, supra, Tennessee v. 727 F.2d at n. 1500 Armontrout, 220, Sargent 10. See also v. 841 F.2d 11. (8th Cir.1988); Francis, 226 Collins v. 728 F.2d denied, (11th Cir.), 1336 cert. 469 U.S. exception hearsay The state oí mind to the S.Ct. 83 L.Ed.2d inapplicable 105 297 rule is since Dixon’s state of mind

230 very armed, him man purpose possible limited of its affect and convicted while Thus, contrary Manning. testimony appellant’s slaughter. While Johnson’s clearly obviously suggestion,

about did not consid Dixon’s statement was prejudicial appellant, prejudice to a virtu er the statement “tantamount mitigated variety first, ways: by premeditation ... first al confession potential degree fact that Dixon’s statement had murder.”15 Sherrod favor, (D.C.1984) appellant’s namely, States, (jury inference is A.2d first; armed himself attacked to the presumed, unless there second, by impeachment of Annie John- contrary, to follow the instructions third, by credibility;13 son’s the evidence court) (citing v. United Smith Manning; by appellant kill denied, other threats (D.C.), 419 U.S. cert. fourth, any mention of by the absence (1974)). 42 L.Ed.2d Dixon’s statement in the clos- Accordingly, no of discretion we find abuse fifth, ing argument jury; admitting Johnson’s limiting fact the instruction avoided testimony See Dixon’s statement. of Dixon’s mention of the substance Bennett v. United Furthermore, the trial statement. (D.C.1977) (no poten error where 503-04 clearly carefully explained the limited testimony ad tially prejudicial nonhearsay use of the instruction); limiting Pead mitted without com- proper use of the statement was not (same). en, supra, F.2d at 1500-02 plex. Accordingly, the trial reasonably conclude that III. limiting his instruction. See able to follow Street, 471 at supra, v. Tennessee troubling is Allen’s contention More 417, 2081-82, 414-15, at 2088 105 S.Ct. by prosecu the cross-examination (where by accomplice carried confession closing arguments tor the and potential prejudice for unfair greater jury to make miss improperly invited the defendant, instructions court concluded missing inferenc ing and evidence witness against of adequate protect misuse es, of thereby, the burden and shifted truth).14 its co-defendant’s confession for missing on and proof. The law witnesses is settled.16 Before addition, missing the evidence well suggests In the record infer to draw the jury may the be asked the instruction since it found jury followed testimony missing witness’ degree first murder ence that a guilty of (1974) (factors jury determining likelihood the in the case. United is irrelevant to issues 190, 194, Brown, proximity U.S.App.D.C. 490 include its 160 misuse statement States v. will 758, case, corroboration, extent F.2d 762 and it issue in vital inflammatory), Shepard v. United and disputing addition to the defense evidence 13. In 106, 22, 26, 96, 104, States, S.Ct. 78 54 290 U.S. testimony heard that she had Annie Johnson’s (court theory rejected state-of-mind 196 L.Ed. going kill he was Allen tell her husband that Manning, admissibility wife that her hus- of statement she had Annie Johnson admitted that prejudicial had her as too band-defendant killed conversation, and the never told about fact about the assertions of because contained closing argument counsel attacked defense case, issue). Dixon’s In the instant ultimate regarding had credibility whether her issue of self-de- relevant the statement was fense, hearing Dixon’s and her and not contain the direct assertion did statement. mistakenly complains his main which Allen factually Consequently, Allen’s reliance explosive “so as could be or matters brief cases, hearsay distinguishable in which the Brown, limiting instruction." contained the trial, at see is used statement a co-defendant 207, U.S.App.D.C. F.2d at 775. 160 490 2056, Illinois, 106 S.Ct. Lee v. 2061, 476 U.S. Shepard, can inferences Unlike the statement in (1986); United 514 Bruton v. 90 L.Ed.2d support which be drawn from this statement 123, 1620, States, 20 S.Ct. L.Ed.2d 391 U.S. 88 the theo- either Allen’s defense or States, (1968); A.2d 548 Foster v. ry- (D.C.1988), misplaced. is 16.See, Brown, e.g., 150 U.S. Graves v. United relies United States 15. Allen's (1893); 207-09, 37 L.Ed. 1021 U.S.App.D.C. 490 F.2d 775-77 unfavorable, would have been the the anything van to see if there was judge must determine help witness prove is that he acted in self-de- able to elucidate the transaction and is fense. When the asked peculiarly party available against to the night, “That you and Gerard inside look whom Arnold, the inference is made. su there anything van to see if in the pra note 511 A.2d The at 415. rule is help prove ,” van that could defense that — designed prevent the abuse the miss Nevertheless, counsel objected. prose- ing witness inference and the use of half- asking cutor question continued before truths, “the validity missing judge could rule: “— self- witness inference solely cannot tested judge stated “He doesn’t defense?” on the jury,” basis evidence before the prove it,” have to When defense counsel jury unlikely since “the before it bench, asked judge to come to the necessary information with which to so, refused to let do that he stating counsel make a determination” witness’ objection. had overruled the availability ability to elucidate. Givens request also denied Allen’s (D.C. v. United Although a mistrial. conceding that 1978). Givens, supra, the court found question “probably, notably, unartful- defendant, error nonharmless where the ly phrased,” observed that the defense, who asserted claim of self interrupted objection answer was when the given opportunity never was made. The also that in stated trial court jury evidence before his final make instruction relating to absence was incom [a witness’] burden, clear that Allen had no such plete misleading,” referred to the fact killing that the defendant did the was abun rephrased question proper Al- form. proof dant but the that defendant did not though prosecutor’s question was inter- entirely act in self defense was circumstan rupted by objection, prose- the defense hardly tial overwhelming. Id. at 28. completed question cutor still so the Thomas, supra, (revers See at 60 knew was after. The ing credibility conviction where relative judge objec- also heard the overrule the paramount importance); Haynes v. United tion.17 States, 901, (D.C.1974) (re A.2d 318 903 versing conviction where the defendant’s closing argument prose- In rebuttal credibility important “all to his de again cutor told the jury, over defense ob- fense”). jections, truly that if Allen had self-defense he would have “scoured that Here, prosecutor, over defense get casing to that preserve van shell and to objection, cross examined Allen about gun” keep and would have “tried to whether ever he looked for Gerard after ..., Gerard or know his last Fur- name.” the shooting, whether he his sister to asked ther, argued he that Allen’s self-defense keep the van from which claimed had claim should be disbelieved because “he did Manning, attempted shot whether he to nothing, nothing preserve to what would preserve casing shell support arguments him.” The same were popped out after he fired the bullet that prosecutor closing made in his initial Manning, killed whether he had asked Ger jury. preserve ard to that he had used to Manning, The position appeal, shoot whether he Gerard looked, night shooting, prosecutor on the had did not focus on Allen’s 1257, States, protested Chappell judge v. United A.2d 1259 17. Defense counsel 519 that the States, (D.C.1987); simply instructed the but “said that Lawson v. United 514 A.2d comment in a low tone of 787, States, voice as if (1986); Arnold v. 511 790 United just talking prosecutor]. to [the There’s no evi- 1986); States, (D.C. United A.2d Thomas v. 399 judge dence that the heard it at all." The 52, (D.C.1982); 58 v. United 447 A.2d Shelton disagreed with the characterization his tone 859, States, (D.C.1978). 863 388 voice, out,” stating “I barked and declined 232 his intention to cross exam- at trial that it was not

failure to evidence preserve his failure to evidence after ine his efforts to contact Ger- Allen about missing shooting, thereby produced no suggest that Gerard’s testi- ard in order inferences, missing un- evidence or witness Allen; rather mony would be adverse missing missing dermines the evidence Al- attempt being made to show that The witness rule and the record. misreads his tes- len’s actions were inconsistent with improper inference from the cross-examina- defense timony. judge The overruled the closing arguments no less tion and de- explicit to make objection, and declined preserve evi- than that Allen’s failure availability, Gerard’s terminations about probative trial was dence to introduce at ruling prosecutor should not be guilt. prosecutor properly asking questions about precluded from shooting ask Allen about his actions after shooting even after the what Allen did argue properly unavaila- Allen could demonstrate Gerard’s flight and concealment were inconsistent to hear bility.19 also declined v. testimony. his trial See Christian diligent proffer defense 1, (D.C.1978), States, 394 A.2d 32-33 United Gerard, to contact efforts had been made denied, 442 99 rt. U.S. S.Ct. ce have an stating that the defense would (1979)(no error 61 L.Ed.2d 315 where evidence to opportunity post argued flight crime and concealment later time. 391 A.2d jury); v. Gale United denied, (D.C.1978), cert. from the creation The risk inherent (1979) 1057, 59 L.Ed.2d 96 requires evidence out of nonevidence including flight, con (post crime conduct be ad- preconditions to its admission ad cealment and intimidation of witness potentially dressed before Brown, missible); N.H. State v. suggested to the are improper inferences (1986)(claim of acciden 517 A.2d Thomas, supra, A.2d at 58. jury. conduct). The shooting, post tal crime moving required party manner the this not, however, ques ask prosecutor could basis for the factual substantiate upon Allen’s constitu impinged tions that party is afford- opposing inference Al present a defense. right tional oppose introduc- timely opportunity ed a acknowledged this though (citing tion. Id. Simmons conference, during strategy, a bench (D.C.1982)). The implement judge, was described to the trial con- impermissibly permitted the created ed in a manner that questioning, despite of evidence.18 a de- evidence from the absence line tinue his Arnold, 511 A.2d at 415 supra note prior ruling, See see note request for fense 16, 142 U.S. (quoting supra note Burgess, persuaded by supra, because 226, 234 F.2d App.D.C. proffer his cross-ex- prosecutor’s (1970)). credibility, Allen’s would address amination focusing Allen’s conduct on whether Following objection, prose- a defense his claim of self-defense. conference consistent proffered at bench cutor had him, Gerard, he should have found hold of request to be for an instruction the defense casing, that shell judge looked for and he should have given jury at The also this time. to there, so that could objections remained in it must have two overruled defense counsel's prosecutor saw The night his self-defense.” question you establish tell Gerard on "Did asking why 13th, stay problem had not turned Allen you no him to wanted November judge disagreed, but still say really happened himself in. The that he could what close so general questioning, about line viewed the in the van?” shooting, to address after the what Allen did Gerard’s absence efforts rather than Allen’s prosecutor judge could The ruled that the his instructions would of the view that attempt claim ask- a self-defense to discredit proof. had no burden clear that Allen make ing to find the other if he had tried conceded, however, prosecutor person. The judge’s trial atten- counsel called the get very 19. Defense to the line about that "it does close (im- witness, Chappell, A.2d at 1259 missing tion that his circumstances suggest have, gotten proper examine in order to cross he should have that he should such But tying questions evidence, and assertions including sonable from inferences Gerard, gun, about casing and the shell flight concealment) prosecutor —the to Allen’s inability prove that he not, guise in the meeting its burden self-defense, the prosecutor invoked the self-defense, proof ignore to show no type of impermissible nonevidence and ar- missing strictures of the evidence and miss- gument that the missing evidence and miss- ing rule. prosecutor witness What the did ing witness designed rule is preclude, here, although egregious not as as the clos- particularly where serious efforts Givens, supra, ing argument 385 A.2d been made to locate a witness or where the (during closing at 26 argument prosecu- nonevidence shifts proof. the burden of why eyewitness, tor asked a friend everyday, whom defendant saw did not While there prosecutor is room for the testify), accomplished and, thing the same respond to the defense claim of self-de- thereby, prejudice crossed the line. The fense —here to flight show Allen’s out of Allen judge was clear once the overruled fear that he believed, would not be objections defense prosecutor’s ques- concealment indicating his consciousness tion guilt, Christian, finding Gerard in order to supra, 394 A.2d at 32-33, closing self-defense and to attack credibility be- linking proof cause he Allen’s inaction things said and did differently see Streater v. trial,20 than he testified of his Although at self-defense claim.21 prosecutor 1058-59 had the burden to rebut Allen’s (D.C.1984) (prosecutor may argue claim, all rea- points self-defense these it was weighed to asking poses prejudice arising ruling by tion was A.2d at 415 and absence of turn, absent witness’ testify could demonstrate Gerard's referred to Lawson v. United overruled the defense of the bench conference what Allen did after the (D.C.1986),Arnold, the trial improper. but should not be prior ruling by probative prepared similar judge from the value of the evidence. that the cross examina- cases, would be supra objection assume, questioning court), which, precluded discussion, stated that the shooting. unavailability note requested adverse in from pur- out- your the time that me to do with the gun? objection] the van that could [Q]: [Q]: [Q]: sister Between ... November Did Gerard ask Did ****** ^[******] ****** ^[******] you ... you you ask brother-in-law about Gerard? left for help prove acted in self defense? gun? Gerard you, Florida, what do to hold onto the did ,., you [defense you want ask 20. Based on the 21. The questions during his cross-examination of Allen: pears cross examine Allen about his actions shooting. mind when he ruled that the your January brother-in-law to hold onto the van? the time that shell look in the van and see if inside the van to see if there Gerard [Q]: [Q]: [Q]: [Q]: [Prosecutor]: that this is what the trial casing? You never asked That You didn’t Between the ****** ****** ^{[******] [******]} again? night, you Between November instructions to the asked the look for did left for Florida did night you them, him, following ask they and Gerard look did was your did shooting you could find a anything jury, you? 13th after to take a sister or series of you had in see ap- both evidence and witness. ued to infer that Allen had failed to In his gun. walked with the But in the van know what last name November someone ask him to might pened away from he fled from it. He didn’t look close so that he could [Q]: Did [Q]: Gerard. [Allen] night, closing argument, I’m He didn’t still be there. He didn’t ^[******] away just asking you, nobody [Emphasis stranger. nobody you stay after 13th, it, went over there with a happened? [Emphasis van? from him. Not in touch with me because tell try you else knows. He went over there cartridge He shot Gerard on the added] shot you knew, keep say did wanted him to [Manning], prosecutor hold Gerald or somebody [Manning]. case to see you try ask really hap- to added] stranger, night keep Gerard, walked contin- whose stay if you He it 234 cross-examination); beyond permit Sampson v. going

clear the sim- was (D.C. ply questions argument about Allen's 576 United post-shooting prosecu- When the conduct. 1979)(defendant’s of material fact omission tor had asked Allen he told Gerard him, it impeach unless may not used stay say really close “so he could prior state is omitted from defendant’s inference, as it happened,” the clear much natural ment where “it would been Givens, supra, was in was so that Gerard fact and later testi mention” the material really happened. say could court what trial); v. Beale fied defendant Similarly, closing argument, prosecu- (D.C.1983), States, 465 A.2d 805 try that Allen did not tor’s statement denied, 1030, 104 465 U.S. S.Ct. rt. ce simply clearly keep hold of Gerard was (1984). 694 also Hill 79 L.Ed.2d See keep had failed to that he (D.C.1979), States, 404 A.2d 531 v. United testify at Al- Gerard around so he denied, 1085, 100 444 U.S. S.Ct. rt. ce not, government len’s is as the trial. This (1980). 62 770 L.Ed.2d conclude, Donnelly citing us v. would have DeChristoforo, Accordingly, question U.S. whether we 1868, 1873, (1974), a matter assurance, L.Ed.2d ponder- “say, with fair after can to an giving damaging interpretation stripping the ing happened all that without ambiguous prosecutor’s in- remark. whole, that the action from the erroneous negative infer- tent to do more than raise a swayed by substantially judgment was apparent credibility ence about Allen’s was the error.” Kotteakos v. United during from the own words 1239, 1248, 90 S.Ct. 328 U.S. Nor Allen's cross examination. was previous- court This has L.Ed. doing, unaware of what was defen- where the ly observed “... strate- acknowledging that his beforehand credibility key is a issue dant’s gy raising missing came close to witness goes to that missing inference witness inference; yet in cross-examination in- improper argument or credibility, an explicitly to Allen’s nevertheless referred ordinarily require reversal.” will struction get his self-de- failure to evidence we Thomas, 447 A.2d at 59. While closing arguments ham- fense claim and government that readily with the agree can by emphasizing idea mered home the same strong that Allen shot there was preserve such evi- that Allen’s failure evidence of Manning, claim. dence belied his self-defense impressive, is less of self-defense absence pre focusing failure to By on Allen’s credibility entirely on the relying almost evidence, moreover, physical serve only non-threats evi- witnesses. then prosecutor created a strawman and is Allen’s government offered dence It irrelevant against it Allen. was used shooting. flight Miami after van, gun, or preserved whether Allen testified other defense witnesses no evidence Man casing. There was shell gun. govern- Even Manning had it, damaged into ning fired the van witnesses testified ment’s undisputed had used it that Allen apartment, Allen to had invited finding a cas Manning; shell to shoot angry gun, was edgy, seen with a of itself proved little ing would have permission Allen and without casing the location since was tapes. Man- car and taken sold his shooting important, where the to show witness, ning’s girlfriend, a Hale, place. took United States Cf. apartment Johnson’s that while at testified 2133, 2138, 45 171, 180, 95 S.Ct. worry the about not Allen told (1975)(post-arrest silence inher L.Ed.2d 99 of whether Allen The resolution car. prejudicial; ambiguous potentially ently shooting in self-defense impeachment); Walker cannot be used jury’s only the evaluation be resolved (D.C. States, 427 402 A.2d v. United witnesses’, including appellant’s, credibili- 1979) (failure of rea parole to tell officer probative ty- flight insufficiently son for

235 problem identified coun- opportunity That Allen had the on the defense sel, harm, jury cure the since the about his nor evidence efforts locate told to consider evidence in the case with- inability gun Gerard and his to find the identifying proper out the use of casings, explaining the shell he did not see physical nonpreservation of a witness and shooting, the van two months after the Indeed, judge’s the trial overrul- evidence. does not cure the harm. United States Cf. objections enhanced the ing of defense Hale, 422 U.S. 95 S.Ct. government’s position and weakened that (1975)(defendant’s 45 L.Ed.2d 99 ex- Givens, 385 of the defense. See planation prior unlikely silence to over- prosecutor’s cross A.2d at 28. Given strong negative jury come inference is like- examination, argument, closing rebuttal draw). ly judge the trial enter- Had proper instruction on and the absence of an request tained defense counsel’s to rule on evidence, given unlike that with use of the availability, might Gerard’s statement, note respect to Dixon’s see found that had a Fifth Amendment Gerard the evi- supra, the instructions to consider himself, privilege not to incriminate since government had the dence and that Allen claimed that also at Man- Gerard shot were, best, ambiguous proof at burden of scene, ning, kept gun, from the drove on cross respect to Allen’s admissions Gerard’s, thereby and that find examination that he had failed to Ger- precluding appel- use of his physical ard look for the evidence. (John) lant’s trial. Harris v. United States, (D.C.1981); n. 9 Accordingly, hold that the error was we Anderson v. United 352 A.2d harmless, and that Allen’s convictions not (D.C.1976). 394 n. But even Gerard must be reversed. right

not have a to invoke the Fifth Amend- Reversed. ment, prosecutor’s cross-examination beyond purpose proffered went he SCHWELB, Judge, Associate implied, subtlety, the trial part dissenting part: concurring in nonpreservation, that Allen’s and necessar- ap- Benjamin Harrison President Before nonevidence, ily nonproduction Supreme Court of the pointed him to that he could showed self-de- ago, years and one United States a hundred fense claim The likelihood that on the Su- Brewer served Justice David negative inferences from his draw Kansas. As a member preme Court of physical failures to locate Gerard tribunal, opinion of the wrote evidence, produce much less to them Grebe, 17 Kan. 458 court State v. trial, heightened by prosecutor’s Grebe, had instructed the closing arguments urging to con- jury that an inference unfavorable The effect was to sider this nonevidence. may arise “where evidence defendant credibility and shift to undermine Allen’s explain refute or certain facts which would his self-de- him a burden to substantiate suspi- grave and circumstances of claim.22 fense the defen- peculiarly cious nature is within reach, knowledge and he makes dant’s final instructions informed testimony.” procure that Id. no effort to require does not the defen- that the “law upholding propriety at 459. In prove his innocence or dant to instruction, the court said: instructions, at all.” But It us clause is seems to more than no recognition principle of a government had the burden well-understood defense, of self- self did not focus of human action. The instinct proof to show no (D.C.1979) (error government's on Jenkins v. to cross examine defen- reliance 22. Anderson, parole that he dant failure to tell officer (1980), light unpersuasive in L.Ed.2d 86 guilty fled not because he was but because carefully limiting the use of decisions court’s parole, was on where was his trial testimo- impeachment of a defen- or omission for silence ny). See, e.g., v. United Walker dant. dice, respectfully rever- preservation impels peril in I dissent from the one of penitentiary whatever testi- sal of Allen’s conviction.

mony may he him from have deliver peril. Every such man will do what he I disgrace can to shield himself from the crime, of a of the burden conviction and killed at trial that he Allen admitted punishment. this. We We all know Manning to have so but claimed done a fact expect all it. Whenever then is had intro- protect own life.1 Once Allen his prove upon shown which tends to crime a case, govern- duced that issue into the defendant, any explanation of such beyond a rea- obliged ment was peculiar- in facts is the nature of the case in Allen had not acted sonable doubt that reach, knowledge a ly within his dead, his Manning self-defense. explanation must tend failure offer an not available version of the encounter was Will to create a belief that none exists. Allen’s jury. In to contest to the order can, man, explain who that which justification, proffered criminal unexplained stamp will him a probe Allen’s account deter- obliged to consign him to the felon’s cell? claim of if with the mine it was consistent Id. attempted to self-defense. The principle,” II general This J. “undoubted at although Allen’s words demonstrate (Chad- 286, at 199 Wigmore, § Evidence innocence,2his supported the claim 1979), of the is at the heart bourn ed. Manning’s death time of conduct at the case, question guilt in which the guilt. with was more consistent entirely appellant's on turned innocence Allen’s principal at trial was issue In cross-exami- of self-defense. assertion question presented to intent. The during closing argument, nation and and killed Allen shot was whether that, af- prosecutor attempted to establish Al- in criminal intent or self-defense. death, Manning’s did not act like Allen ter directly, proved “be len’s intent could not attempt did not an innocent man and fathoming and way no there is because then information which would assemble scrutinizing operations of the human which, alone and available to him have been for the Jury Instructions mind.” Criminal sup- existed, arguably Columbia, (3d 1978). ed. No. 3.02 District of I Because ported his claim of self-defense. Instead, of mind could best be his state right prosecutor had the believe that the surrounding circum- “from that, inferred and be- obligation argue just Id. preju- no stances.” my Allen suffered cause in view very sorry for what he that he was self-defense to his claim of 1. Allen’s adherence occasion, judge to he asked the fol- each In October done. On was less than consistent. Florida, Although he he mentioned in the first lowing apprehension in where merciful. his be name, living drugs and see Allen was was on under an assumed these letters that “I way nothing danger,” my back to said to the District. On he returned life was D.C., initially having Washington, told a detective he about communication either Manning's anything having did not know shot that he or about self-defense however, changed Eventually, ac- his death. him. counsel, Manning pulled gun through prior and stated that July count him, his On Manning, plea and that Gerard he shot at his to withdraw Allen filed motion decedent, same. did the Mr. guilty. that “the He asserted guilty plea Manning, have a on his did in fact Allen entered Samuel On June carrying pistol fact degree person and was in murder and on November to second plea against attempting the defendant.” The record to use it without a license. us, Judge obviously objection, made no claim of Weis- before Over the self-defense, required granted to admit berg for he was motion withdraw accepted. plea Sen- guilt plea. before the July tencing was scheduled they jurors argued sentence, 2. Defense counsel awaiting two let- Allen wrote While self-defense, part each, Allen had acted Judge Weisberg. explained knew ters to so. had told them because Allen drugs at of the crime the time that he gainsaid that, It cannot probing in get would have “scoured that van to that intent, prosecutor the incidentally casing preserve gun” shell and to the brought jury’s attention the fact that keep would have “tried to or Ger- Gerard Allen did not undertake efforts collect or ald, argued or his know last name.” He preserve arguably relevant nothing, nothing pre- that Allen “did self-defense, an issue as to the which support serve what would him.” A similar government, Allen, bore the burden of appeared prosecutor’s in theme initial proof. my opinion, however, the trial argument as well. reasonably permitting appeal Allen contends on that infer- “the prosecutor My colleagues to do say so. government urging ence the was that claim it focused appellant’s gun, failure to on preserve Allen’s failure to evidence af- casing pre- shell or Gerard created the shooting, ter the propose and that it did not sumption if produced the [evidence] “missing inference, evidence” “under- agree be unfavorable.” cannot mines the rationale behind the in this law prosecutor urging pre- such a jurisdiction.” My view is the exact con- sumption, directly implicitly. either or verse; “missing the extension of the evi- Rather, focus was on the dence” doctrine to reach the facts here plausibility of Allen’s claim of self-defense prosecution’s right undermines the to con- conduct, light pre-arrest of his and not thorough exploration exposition duct a any “missing “missing witness” or evi- impairs of relevant facts and the even- dence” inference. handed balance that is essential to adver- litigation.3 sarial cross-examination, During prosecutor sought to if Allen killed show had

II self-defense, Manning justifiably in then it logical him would have been to do what objection, judge permit- Over defense he find could enable authorities to ted the to cross-examine Allen really happened. Specifically, out what Manning’s detail about his conduct after prosecutor suggested that an innocent man death. Did Allen look for Gerard after the gun, the car kept would have searched shooting? Did he keep ask his sister to clues, told his sister and brother-in-law Manning? van from which he had shot Did death, Manning’s attempted about with attempt preserve he casing a shell which help con- preserve their the van its “popped out” have after he fired the tents, stay in requested Gerard to fatal Did he and shot? Gerard search the closing argument, Similarly, touch. anything van to see there was in it that prosecutor focused on Allen did what support his claim that he had acted in killing. argue He even after the pre- self-defense? Did he ask Gerard to absence from the trial. (Allen) mention Gerard’s weapon serve with which it, Judge Weisberg put such cross-ex- As Manning? request killed Did Gerard jury something amination “shows the keep say really in touch “so he could whether conduct is consist- happened in the van?” In his ar- rebuttal [Allen’s] story gument, prosecutor reemphasized ent a man who tells the with [that of] today.” truly telling if Allen had acted in self-defense he he’s here privileged 3. “When a defendant in a criminal trial takes the cross-examination can embrace very scope impor- the stand the of cross-examination is proscribed or otherwise matters. The Raper, U.S.App. broad.” United States v. providing a fair tance of Indeed, D.C. 676 F.2d testifying opportunity defen- to cross-examine a Raper, the trial instructed the dant, however, against applying here militates stand], you put "when [the defendant] [the regard extension of what I as an unwarranted anything might can ask him missing missing evidence doc- witness and relevance to the case. And that in- trine. eyes grandmother’s cludes what color cow any light has if it sheds on the issues of this And, by analogy, argument. such Obviously, case.” Id. this does not mean that “missing “missing my colleagues correctly suggest, As the afoul of the or witness” evidence” doctrine. “missing “missing witness” and evidence” designed principle is to avoid the creation judge, It is axiomatic that the trial who is put To it in of evidence from nonevidence. opportunity has to on the scene and an vernacular, indeed, prosecutor or, the the is not a “feel” for the case which obtain — reviewing appellate court any attorney be allowed available to an not —should record, paper is invested with wide latitude jury by trying the to make mislead some- determining permissible in limits of the thing my nothing. opinion, out of In how- argument. closing cross-examination of ever, policy significantly not that wise is opinion, show my In Allen has failed to implicated government here. The was not abuse that discretion. Rather, making something nothing. out of recognized, prosecu- as the trial the Ill asking tor the to draw reasonable was imper- the Allen contends that time, inferences from Allen’s conduct at a proof him missibly shifted the burden one, spoke if actions ever there was when respect to the of self-defense. with issue louder than words. says during this He occurred both argues, that there implausibly, not argument. closing cross-examination and in legitimate reasons for his failure altogether un- this contention to be find immediately the preserve after persuasive. every opportunity, how killing.5 He had instructions, Early judge ex- in his ever, jury.6 explain these reasons to plained presumption of innocence. He The of Allen’s conduct overall character government had the told Manning’s report failure to the time—his guilt beyond a rea- prove burden preserve death or to the scene for investi specifically He stated that sonable doubt. an flight assumption gators, and his Judge proof never shifts. this burden to an identity assumed all relevant require- to the Weisberg again referred —were of his of mind. informed assessment state doubt proof beyond a reasonable ment on this prosecutor’s explained The concentration ele- that he on each occasion Addressing offense.7 during particular cross-examination ments of a .theme self-defense, said: not, view, question of my run closing wholly being think that after Reply unreasonable to argues Brief: 5.Allen as follows in his emotionally wrenching experi- involved in have van condition of the van would The friend, having appel- nothing to kill his best proved ence there was no since lant, damaged legal expertise, it imme- fired into the van or has no would who gun any way. Preserving cas- or shell diately keeping witnesses for a list of start equally meaningless ing been would have there possible use court. Nor was future dispute was that the defendant since there no any that Gerard would want reason believe to kill the decedent. The used prep- cooperate appellant in such trial why. question It the location of appellant would rea- aration or itself, casing casing, the shell shell not find Gerard to think he could son shooting important, proof where the him in the future. needed Thus, have been useless it would occurred. for a shell to search the van 80 n. Dixon v. United Cf. casing having casing in court a shell because (D.C.1989): from, prove came or that where it does may appropriate to observe It casing. The would the same shell having allegedly argued im- [an appellant’s that. word on still have to take Moreover, preclude coun- proper did not defense theme] expect wholly it is unreasonable to fact, arguing contrary. de- sel from pre- shooting, appellant could that after so, forcefully and in detail. fense counsel did trial, that, the location of in a future dict issues, appro- many this one was Like other shooting dispute be in and that jury to each priately decide after left casing help prove the loca- ejected shell say. its lawyers police side had technicians It takes and training tion. years to learn of education instructed on number of 7. Since the significance of such details. offenses, jurors heard this lesser included have elucidated transac- Gerald could However, times. it is several been available. had he tion required prove right. govern- defendant is not [Defense counsel] ment has to have to be that he self-defense. Where evi- beyond a satisfied reasonable doubt as present, dence of self-defense is every element of the offenses of first-de- prove beyond must a reason- second-degree gree or of murder murder able doubt that the defendant did act not voluntary manslaughter while armed. in If you self-defense. find that the And to a you beyond be satisfied government prove beyond has a failed to doubt, there’s evidence reasonable of if doubt that the defendant did reasonable act self-defense, that he didn’t in self- self-defense, your not act duty it is to defense. guilty. applies find him not And that to added.) (Emphasis the judge, the Since you may all the of levels homicide that prosecutor attorney9 and the defense consider, depending on what find as undisputed of agreement point all on this the facts of this case. law, I the am at a loss to understand how jurors possibly have been misled as clarity the of could Given these instructions and party proof. to had which the burden of any person the ease reasonable with which not exclud- Probative evidence10 should them, apply could understand I would here ed rele- because of notions of “crabbed Justice Holmes’ for the observation court juries.” excessive of vance or mistrust States, 474, in Graham v. United 231 U.S. 690, Kempiners, 831 F.2d 698 Riordan v. 481, 148, 151-52, 34 58 L.Ed. 319 S.Ct. (7th Cir.1987) (Posner, J.). (1913), upset to that be absurd a “[i]t course, is, It true that the of upon speculation jury verdict that the respect proof had to the the burden with duty not do their the follow instruc his issue self-defense and that cross-ex- tions of the court.” also Coates v. See closing argument revealed amination 1148, (D.C. 558 1150 by de- presented the lack of evidence the 1989). subject. by fense that That is no means on Judge Weisberg ju- also instructed the however, equivalent, attempt an your accept rors that “it duty the law Wigmore “shift” burden. As Professor the you.” Accordingly, as state it to even written, has argued the that Allen had prose- it is that the is on the true burden proof the burden respect self-de- the accused is cution ... fense, presume jury one would the required by any produce of law rule applied judge, by the law as stated But runs evidence. nevertheless non- event, risk an inference from by prosecutor. In prose- [adverse] production. presented no cutor such contention.8 On began contrary, argu- his rebuttal at 450.11 VIII Wigmore, § by agreeing ment McCowan v. United occasion, energeti- prosecutor, might expect, counsel

8.On one in what the 9. As one defense cally govern- emphasized to "slip later characterized as of the guilt beyond prove the burden to tongue,” ment had asked Allen if he and Gerard had issues, specifically in- reasonable doubt on all any- searched the van to determine if there was cluding the issue self-defense. thing help prove that he it that interrupted question self-defense. arguments infer- 10. And based on reasonable objection. "he stated that doesn’t from such evidence. ences " Later, contradicting have to it. defense heard re- contention that mark, had not this "the Wigmore also between differentiates stated that “I barked it out.” generally prohibited the ac inference from Although majority explicitly fails to ac- claiming privi testify by cused’s own lege, failure 17,1 knowledge point, maj. op. see at 231 n. permissible his inference from judge’s description tone think the of his of voice Wigmore, produce II other evidence. failure supra, judicial finding juror original). amounted to a (emphasis §at 215 prosecutor’s prosecutor may heard him correct statement on the of the A comment failure defendant, problem defense, opposed was therefore resolved on counter to the spot. there Bor explain Since is no evidence to the or chardt, the evidence. United States v. (5th Cir.1987). contrary, binding judge’s finding is us. F.2d 1119 on 809 240 Cir.1983) son, (11th (D.C.1983) (pros F.2d case not discussed —a majority a very emphasis court resolved failure to ecutor’s defense’s —this similar issue as follows: infer evidence to rebut reasonable prop evidence was ence from prosecu

Appellant claims that the also prosecutor acknowledged that er where erroneously represented tor to the proof and trial bore burden during argument that he bore burden denied, cert. instructed), inability judge so proof regarding explain (1984); 79 L.Ed.2d reading 8. Our July whereabouts Glantz, United States v. indicates, 810 F.2d contrary, record (1st Cir.) (prosecutor comment on de was di produce sup appel rected at fendant’s failure to evidence the unreasonableness attempts may and porting theory lant’s to ascertain his his of the case limited assert, explicitly evidentiary It did not foundation on whereabouts. attack the weak denied, rests),12 cert. implicitly, appellant or that was bur which the defense his proving 929, 107 3214, dened with whereabouts. 482 S.Ct. 96 L.Ed.2d 701 U.S. Cf. 1152, Gotchis, v. 379 A.2d Whalen United v. (1987); 803 F.2d United States (D.C.1977) (prosecutor’s closing is 74, (2d Cir.1986) 1165 (prosecutor’s com 79-81 appellant’s it refers ina proper produc where to ment that the defendant could trial, bility, prior explain to where ed did not evidence not to a and does refer abouts co-worker drugs in his cocaine and that was a user testify trial), appellant’s failure at possession for did not were not distribution 684, grounds, rev’d other 445 U.S. had an suggest defendant obli the 1432, (1980). 100 63 L.Ed.2d 715. S.Ct. or gation produce those witnesses shift * * * * * * proof).13 the burden court, moreover, instructed the occasion, recently most This court has on times that bore no bur- several 2:1 decision in Harris v. United its proof. presume the un- den of We pet. 421, (D.C.1990), 425 instructions. derstood and followed those pending, argu- an reh. intimated that for the defense’s (Citations omitted.) prosecutor the See also United ment may Sensi, 42, present particular evidence v. failure to States U.S.App.D.C. 279 879 proof jeopardize 888, (1989) the burden of and (prosecutor’s com “shift F.2d 899-900 appellant’s trial.” Whatev- the fairness of ment that defendant’s was cor for suggestion and, er merits that he “never the only by roborated witnesses — herein, I it one which stated produced at trial” not shift reasons this v. this should re-examine14 —it United States John proof); think court burden of death, testifies, did, Manning’s than to rather on the the time When a defendant court, case, may present prosecutor the rea- comment what he failed to merits of the Johnson, Sensi, deny incriminating soning explain Gotchis his failure to or Glantz already Massey, applies evidence. McGahee v. facts fortiori. denied, 1357, (11th Cir.), cert. F.2d 1362 459 667 255, 943, 74 103 L.Ed.2d 199 U.S. S.Ct. beyond proof government’s burden of 14.The "provides substance doubt concrete reasonable jury, judge instructed the 12. Since the innocence,” In re presumption of Win acknowledged, prosecutor that the 1068, 1072, 25 ship, U.S. 90 S.Ct. 397 self-defense, proof as to bore the burden (1970), "the which in turn describes L.Ed.2d 368 other cases cited since McCowan right to 'remain inactive accused from, and the permit omissions comment on secure, prosecution up taken its until has case, of, agree I cannot the defense weakness produced per and effected burden judge’s my colleagues' view that the in- ” Taylor Kentucky, suasion.’ problem identi- "did focus on struction n. L.Ed.2d 468 n. (1978) Maj. op. at 230. The counsel." fied defense (quoting at § J. Wigmore, Evidence party had the as to which court’s instruction 1940)). (3d right "remain inac ed. That arose, applied any situation burden however, secure,” manifestly does tive and not. defense counsel "identified" or whether attacking de prevent from stand, case, Since, credibility prosecutor’s when he takes present fendant’s inconsistency probing preserve note what Allen failed to see reference was to surely presupposes a violation of the “miss- proper that it was for the ing “missing witness” or evidence” rule. flight, cross-examine Allen about his Since, view, my there identity, was no such viola- assumed his false statements to here, quoted authorities, tion language alleged from Har- and his threats to ris does not come play. escape into witnesses. It is difficult to the con-

clusion juror that a reasonable would view these aspects of Allen’s conduct after the IV killing gravely far more alleged than his prosecutor’s Even if the Al allusions to evidence, failure preserve which Allen len’s Manning’s conduct after death were given to, did, opportunity ex- improper they do not think were—I —and plain. affirmance, nevertheless vote for My colleagues say I am satisfied such impropriety case strong was not on the issue of self-de- Surely, was harmless. fense. It be of little consequence closing cross-examination and I disagree. The strength of the evidence is did not rise “to the level of serious miscon effectively more by jurors assessed who reasonably duct which could be viewed as and had opportunity having swayed jury.” the Arnold v. Unit credibility assess the of the witnesses in (D.C.1986) ed the flesh-and-blood context of the court- (quoting Hammill v. United by judges room than compelled who are (D.C.1985)). operate in the atmosphere ap- rarefied judge permitted The trial Allen to pellate review, printed and who see the present regarding his efforts to word rather than the faces of those who locate Gerard. Allen explained also his told their stories to jury. the Neverthe- inability to find the and the shell cas- less, quote following I the govern- from the ings, pointing out that he did not see the brief, my ment’s which view characteriz- van for approximately two months after prosecution es the evidence16with reason- Thus, the shooting. subject on a which objectivity: able Allen himself views as collateral or even shooting, Prior to the appellant had said bogus, see note the heard the Manning. eye- he intended to kill Two prosecutor’s questions arguments and and shooting witnesses testified about the testimony.15 sworn Since the trial and related that it occurred in a manner judge instructed that the testimo- entirely by different from that described ny evidence, of the witnesses was but that appellant. The evidence also showed questions arguments and of counsel appellant immediately fled the scene not, were explicit and since no “missing following killing shortly there- “missing witness” or evidence” telephoned apartment after Johnson’s made, I find it difficult to discern how Manning. ask about When he told prejudiced. Allen could have been that he had killed and that the challenged there, police cross-examination and ar- hung up. were guments part constituted a small Appellant later fled the District of Co- week-long, Miami, Florida, the record in a spiritedly con- attempted lumbia to My colleagues acknowledge tested trial. identity. to establish a new When applicability an affirmative defense with the defendant’s That decision turned on the overtones," "grave own conduct in the wake conceded kill- constitutional n. id. ing. 95 S.Ct. at 2138 n. which are not here. Hale, colleagues My quarrel my colleagues’ 15. cite United States v. 16. I have no recita- (1980), Maj. op. 45 L.Ed.2d 99 of the tion defense evidence. at 227- believe, however, proposition permitting the defendant to I that Allen’s lies and explain post-arrest important part silence will not cure in- contradictions are an of the distance, fringement privilege of his picture attempt, constitutional overall in our from a against by strength self-incrimination occasioned to assess the overall of the case for the prosecutor’s questioning subject. prosecution response of him on that from the defense. Florida, the witness stand of finally apprehended in absence from [t]he persons all one who being Allen and denied denied Claude defen- supposed to have been with killing knowing anything [the night of the crime on the Then, awaiting dant] Manning.!17! while jury no matter been obvious Columbia, appellant District of said, eye- harm one of the threatened to correctly instructed boyfriend her she testi- witnesses proof be- government had the burden of appellant. against fied yond a reasonable doubt and substantially impeached. He Allen was obligation to prove had no defendant himself of issues. contradicted on number anything. particular, he told an officer that Gerard Id. at 1376. shot at but testified that Gerard colleagues on an respect my due With credibility His further under- did not. court, I think divides the issue which often that he obtained mined admission ability of place more trust we should papers, including a birth certifi- false false apply their common sense jurors to cate, lawyer from an for $150. unidentified judgment to at hand and good the case powerful infer- these facts and Given rather verdict on the evidence base their guilt arising from ence of consciousness of assertedly arguments improper than on protestations his false of innocence follow- has stat- attorneys. Professor McCormick 14, supra, ing apprehension, see note ed, is to hold agree, wiser “[i]t to me to be a prosecution's case seems argument on failure that if an my colleagues sug- good stronger deal than fallacious, remedy the usual proof is gest. one, namely answering argument good Cleary, jury’s sense.” States, 447 A.2d E. McCor- In v. United Thomas (3d 272, ed. at 807-08 mick On Evidence § (D.C.1982), this court stated that 1984). key credibility is a “where the defendant’s missing inference issue and the witness impor of consummate Proportionality is improper argu- goes credibility, adjudication. The Mika judicious tance require ordinarily ment or instruction will punish to let the “object all sublime” do’s have, however, appropriate- prosecu- reversal.” We apply to the crime should ment fit flexibility regard. ly in this retained some of as to the misdeeds torial errors as well In 564 A.2d 1368 transgress Lemon v. United our criminal statutes. those who (D.C.1989), example, propor is determining whether reversal In case, as we characterized almost in this alleged made what violation tionate missing argument. guided “complete” witness might do well be we respect Moreover, part Judge Hand. Unit he did so with of Learned wisdom (2d Cotter, Cir. the courthouse and 60 F.2d 689 who were in States v. witnesses ed 1932), that his con side. Never- demanded testify for either available the trial theless, con- be reversed because affirmed the defendant’s viction we jury to dis against to instruct him had declined the evidence viction because argument based regard compelling because against as indi- him an conduct is receivable exculpatory made law statements 17. "False independent is cir that his case constitute of his consciousness enforcement officers cation guilty one; evidence of consciousness.” con- cumstantial and from that or weak unfounded 30 n. 8 v. 565 A.2d Irick may the fact itself be inferred sciousness (citations omitted). Wig- (D.C.1989) As Dean merit. The lack of truth and the cause's infer- explained, compellingly more has any necessarily apply to thus does not ence inference, always It has been understood —the cause, operates, specific in the indefi- fact indeed, expe- simplest in human is one of the strongly, against nitely though the whole mass party's or other rience—that fraud constituting falsehood alleged his cause. facts presentation preparation of his in the (emphasis add- at 133 § II Wigmore, cause, suppression evi- or his fabrication only). ed last sentence by bribery spoliation, and all similar dence witnesses, the defendant’s failure to call to reassemble its witnesses opinion affirming match, In his for the court and evidence for a return or for conviction, Judge Hand wrote happened witnesses to remember what Id. at 469 n. 9.18 More- required many years ago.” is intervene

[a] any over, here more than in issue of other “the addition of an old case to an indeed, always fact. He must as he requires overloaded docket the deferral must, keep prosecution in a criminal ones, presumptive- newer some which bounds; just case within ... as he must pretrial innocent defendants ly keep passion out of the debate and hold States, detention.” Scott v. United parties to the issues. But he is not banc) (concur- (D.C.1989) (en sequi- their non correcting charged ring opinion). Finally, appellate reversal turs; are to these for find alleged for an error which has conviction themselves. judg- played bringing no role in about the added). Id. at 692 (emphasis which, view, my exactly ment — “encourages litigants has occurred Judge Nor is Hand’s assessment obso here — judicial process and bestirs lete; abuse Supreme as the Court reiterated in — U.S. -, v. Boyde California, Delaware Van -, public it.” v. to ridicule Arsdall, 1190, 1200, 110 S.Ct. 108 L.Ed.2d 316 106 S.Ct. 475 U.S.

(1990), only ago, few months 89 L.Ed.2d 674 arguments generally carry of counsel beings. Per- Men and are finite women weight less with a than do instruc- commodity. should fection is a rare Courts tions from the court. The former are meaningful guide judicial treat as a usually in advance to the billed rhetorical analysis, rather than as mere evidence, argument, matters [cita- flourish, oft-repeated Supreme Court’s transcript omitted], likely tion to and are has a that a criminal defendant directive advocates; as the statements of viewed See, trial, right perfect to a fair not a one. latter, recognized, we have often are Oklahoma, 81, 91, e.g., Ross 487 U.S. binding viewed as definitive and state- (1988), 101 L.Ed.2d 80 ments law. States, quoted in Dixon v. United (Citations omitted). case, In this we (D.C.1989). Believing that Allen re- noted, crystal clear made protections to which ceived all the defendant did not have to entitled, I would affirm his convic- anything. tion.19 being, my opinion], appreci “There no [in alleg possibility [prosecutor’s able edly improper contributed to tactics] [Al conviction, it would a waste of be

len’s] resources, might imperil jus time and Helm v. tice, try again.” him all over States, (D.C. 1989). always easy for the “It is not so considered, case, may maj. this evidence be see

18. In the these difficulties are which 9, might great by delays only by op. be a deal more compounded occasioned not at 228-229 n. concealment, (but flight by hu- but also reasonable nevertheless difficult for man) degree taxing original plea guilty jurors to second murder to follow than the far less license, carrying pistol proof. defining later I note and to without directive the burden of Judge Weisberg originally six and a half withdrawn. It is now more than ordered the chal- stricken, Manning’s years lenged testimony subsequently since death. changed hearing argument after his mind agree my colleagues Although potential prejudice with troubled counsel. 19. I am discretion, abuse of of Annie that there was no Allen occasioned admission trial, surely, per- event of a new she heard a third will in the Johnson’s going re-weigh probative value of that Allen was to kill authorized to son tell Manning. effect, view, judge’s limiting against prejudicial my its In the trial the evidence cf. Evidence, in respect purpose the Federal Rules of for Rule 403 of instruction INC., LTD., Appellant, LEX TEX SKILLMAN,

Henry et Howson al., Appellees. No. 89-570. D.C., Schultz, Washington, E. Daniel Appeals. District Columbia Court was on with whom James Crabtree brief, appellant. for Argued March 1990. Durbin, D. P. with whom Paul David Aug.

Decided Washington, Jayson Spiegel, Krause and L. D.C., brief, appellees. were on the ROGERS, Judge, and Before Chief FARREL, Associate STEADMAN and Judges.

STEADMAN, Judge: Associate we question proceeding, certified this interpret the of Co- are asked to District “long-arm” lumbia statute. D.C.Code 13-423 § brought corporation A has suit Florida District Court for the United States Pennsylva- against a District of Columbia law attorney partners nia firm, malpractice legal represen- alleging Patent and tation the United States before Office, all located at relevant Trademark District of Columbia. times jurisdiction is our statute alleging basis of Columbia provides that a District jurisdiction personal exercise court relief person “as a claim for over a transacting person’s arising from the ... of Columbia.” in the District business 13-423(a)(l). D.C.Code § and, attorney Pennsylvania That him, his firm through law “transacted] the District Columbia business” meaning phrase cannot be ordinary legal question now before gainsaid. possible limitation of a us arises because personal juris- imposed on exercise by the District of Columbia diction “government principle. contacts” so-called apply principle does hold that that We to the facts before us. again. presented once which will arise as new context

Case Details

Case Name: Allen v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Aug 16, 1990

Citation: 579 A.2d 225

Docket Number: 87-1247

Court Abbreviation: D.C.