Bowler v. United States

BOWLER, Joseph Appellant, D. STATES, Appellee.

UNITED

No. 82-1701. Appeals.

District of Columbia Court of

Argued March 1984. July

Decided D.C., ap-

Gregory Glynn, Washington, C. court, appellant. for pointed Facciola, Atty., Wash- M. Asst. U.S. John Harris, D.C., Stanley H. ington, with whom D.C., Atty., Washington, at the time U.S. Farrell, filed, Michael W. the brief was Jr., Tourish, F. Thomas J. and Robert O’Neill, Washington, Attys., Asst. U.S. D.C., brief, appellee. were on MACK, NEWMAN, Judge, Before Chief GALLAGHER, Judge, Asso- Associate Judge, ciate Retired.

MACK, Judge: Associate On November Bowler, Joseph guilty D. found after degree in jury trial of murder the second §§ 22-2403, -3202 violation of D.C. Code acquitted of as of two counts § sault violation of D.C. Code (1981).1 Appellant sentenced on De- Appellant charges and machete. charges defended these connection with arose in 1. The assault theory and the trial on a of self-defense house on December incident in an 24, allegedly instructed the Pamela court self-defense he attacked in which respect counts. stick to the assault Joyner Jackson with a and the decedent imprisonment eember 1982 to a terra of the neck. Jackson was shot in hallway forty-five years. Appellant from fifteen to on the first floor of the house at 1133 Park prosecu- Street, contends that several instances of Northeast. He lived on the first prejudiced torial misconduct and coerced Joyner. Ap- floor with his fiance Pamela finding necessary into the malice pellant lived in the same house but on the support second-degree a verdict of mur- second floor. He and Pamela were cousins Specifically, argues prose- der. he that the (their sisters) mothers were and she had (1) cutor commented on his failure to testi- help moved into the ap- house to care for (2) fy, obtained from his common pellant’s ill mother before she died on Janu- spouse in law of the statuto- contravention ary 1982. Evidence established that ry privilege, improper and made appellant and Jackson were alone in the closing arguments.2 and rebuttal We house at shooting the time of the and that agree. impact pros- The cumulative of the appellant had drinking. Though been mor- sufficiently prejudi- ecutor’s conduct was wounded, tally Jackson went across the appellant cial as to have denied a fair trial. Street, street Northeast, 1134 Park But, Accordingly, given reverse. we collapsed where he at the door of Pamela’s particular nature of the misconduct on mother, Betty Joyner. Betty Joyner testi- overwhelming strength these facts and the fied that appellant Jackson told her shot evidence as to certain him.3 She further testified that she went case, aspects of the we hold that the mis- appellant’s house to find out whether only jury’s conduct contaminated delib- Pamela was safe and that at the house finding requisite erations on the of malice appellant told her Jackson talking for the verdict of murder in the second stated, about his mother and “I didn’t shoot degree. charged The on the less- him out there. Joyner stabbed him.” er-included manslaughter. offense stated that slurry words were Hence, disposition our is to remand the staggering. police and that he was case permit with instructions either to placed appellant were summoned and under government retry appellant to elect to on Upon station, arriving police arrest. at the charge second-degree murder or to appellant inquired of an officer where he judgment enter charge a of man- why was and up. he was locked The offi- slaughter appropriate resentencing replied cer that he had shot a man on Park follow. Street, point which blurted out: 21, 1982, “Well, February On you’d Claude Jack have shot him too if he tried single gunshot son died you, from a you.”4 wound to to touch being wouldn’t After appellant's arguments One of allegations before this court 2. Additional of error were raised on challenges appeal. merit, lacking the trial court’s denial of defense Because we find them to be give cursory counsel’s motion to sever the assault counts them but treatment. See 4, 8, supra charge. Clearly, appellant’s from the together testi dence described above with Shin, visited Lawrence who stepfather, his mony from witnesses who observed go him to to jail, appellant him in asked shooting. spoke appellant after the gun a chest retrieve a from behind house to theory appellant’s trial defense to gun, in his room. That recov- of drawers one of self-defense. Al was son, Joyner’s was subse- by Betty ered though appellant did not take witness police. It over to the was quently turned stand, theory predicated in his defense expended with one a .22 caliber revolver testimony defense part upon the of two Because no bullet and one misfired round. witnesses who testified that on two occa- autopsy did not reveal found and the sions, presence appellant, outside of the passed through of the bullet which the size against him. In ad- Jackson made threats neck, only circumstantial evi- decedent’s dition, upon Also, appellant relied his own state- shooting. gun tied this to the dence ments, already referred to and gun, practi- both those given particular type no others,7 Jackson attacked performed determine if to indicate that cal test could be to Innis, your Q. What did he call mother? Island v. 446 U.S. 100 S.Ct. Rhode (1980). my could A. He called mother a MF. 64 L.Ed.2d 297 The officer Q. “were reason- kind of knife did he have? not have known that these words What likely incriminating response." pocket ably knives. to elicit an A. Both of us had omitted). (footnote your happen, Q. house? Id. at 100 S.Ct. at 1690 Where did this at add, however, reject patently that we as A. Yes. you Q. absurd the characterization of the feel now? How do response commonplace greeting.” as "a going officer’s A. I think I’m into DT’s. upon asking reliance Morris v. United you Q. Hence its what I'm Do understand (D.C.1983) misplaced. you? A. Yes. Q. appellant’s ankle holster was found on 5. A black you him? Did shoot weapon bed with no in it. A. No. you Q. he hit with a knife? Did passed through completely de- 6. The fatal bullet A. tried. He presence in the cedent’s neck. The of blood you drinking your Q. house Were both hallway was shot there. indicated that Jackson today? 7. Detective Clark read into evidence A. Yes. questions by responses posed after he your him Joseph, Q. was there someone else at agreed appellant rights and he had read his house? questions. testified: answer The detective A. No. contained happened. Q. The statement as read to also Tell me what appellant observations that My He said some- the detective’s A. mother is deceased. fighting. "suffering my got from withdrawals of alcohol and re- thing and we about mother quested go hospital." I had a knife too and both He drew a knife. statements, high cutting. In addition to these Lawrence Both of us was of us was drinking. Shin, stepfather, swing- when testified that All I could see was blades appellant jail, appellant happened. told him ing. he visited know what I don’t court, however, arguments, appellant him. The trial refused to asserts that buttal government offended this constitution- instruct on self-defense with re- opening principle. al spect charge.8 the homicide following: statement included the There are no witnesses THE COMMENT ON FAILURE TO produce can government in its case to TESTIFY shooting, because, you see there Nearly twenty years ago in Griffin people day, two there Mr. 1229, 14 California, 380 U.S. 85 S.Ct. and Mr. Jackson. Bowler (1965), Supreme L.Ed.2d 106 Court held now, And Mr. Jackson is dead so he by that comment talk. can’t accused’s silence violates the fifth amend- closing argument, During he stated: Id. ment. 85 S.Ct. at 1233. Based February upon following year, you 21st of this statements made On know, afternoon, prosecutor during opening, closing, at about 4:40 in and re- And, gun gunshot jumped up from a that "Mr. Jackson and drew the Jackson died wound. him_ gun They physical struggle. tussled and the went off.” was no evidence of there a True, as to Shin’s later appellant's arguments 8. Another of is that the perhaps lucid said sheds more more sober refusing give request trial court erred in Nonetheless, light upon the incident. the trial disagree. ed self-defense instruction. We De position in the best court was from which to fense counsel’s to the trial court in reflect the evidence and assess whether a support requested pointed of his instruction fair inference of self-defense was raised. On only to the threats uttered Jackson record, we affirm that determination. appellant, appeal additionally but on he relies upon all of his statements admitted at trial. point Appellant One final must be made. government posits that because defense argues that the trial court’s refusal to instruct bring did counsel not to the trial court’s atten penalized exercising on self-defense him for his support argument, tion the broader his we testify. fifth amendment not to This ruling should review the court’s under the Undoubtedly, postulation is meritless. the like error standard delineated in Watts v. United States, introducing lihood of a defendant sufficient evi (D.C.1976) (en banc). 362 A.2d 706 We dence to warrant a self-defense instruction is find, however, objection that defense counsel’s where the enhanced defendant himself testifies. sufficiently precise as to call the issue to the But, applicability of such an instruction is thereby allowing court’s attention full consider precluded testimony. a defendant’s not without upon ation of it based all the evidence. Case circumstances, Under certain such as those at law establishes that an instruction on self-de bar where indirect evidence of self-defense is given upon request fense should be ‘any "if there is instruction, support an that fact insufficient fairly tending upon evidence to bear penalty upon does not constitute a the exercise _" States, issue' Belton v. United 127 U.S. rights. amendment of fifth Where defend 201, 206, App.D.C. 382 F.2d 155 support ant alone can introduce evidence in of States, (quoting Stevenson v. United 162 U.S. defense, give “the his constraint him to 313, 315, 323, 839, 842, 16 S.Ct. 40 L.Ed. 980 simply ... from the [arises] force of (1896)); States, Montgomery see v. United 384 any circumstances and not from form of com (D.C.1978); 660 Rhodes v. United pulsion forbidden the Constitution.” Yee It bears 864 Hem v. United 268 U.S. S.Ct. 45 emphasis that this is the standard which to 470, 472, (1925); L.Ed. see Barnes v. given determine whether an instruction is to be 837, 847, 412 U.S. 93 S.Ct. jury in the first instance. to deter It is for the (1973) (“The massing L.Ed.2d more mine whether a defendant had reasonable of evidence a defendant cannot be re grounds danger to believe he was in imminent garded privilege against as a violation of his bodily of raises a close harm. While this issue Florida, self-incrimination.”); Williams v. facts, prepared question under these are not 1893, 1897, U.S. 90 S.Ct. 26 L.Ed.2d 446 We to overturn the court's decision. trial (1970) ("That the defendant faces such a dilem that in different Jackson’s threats were uttered demanding complete ma a choice between si by appellant. contexts and were not heard presenting lence and a defense has never been Moreover, we are of the view that the substance thought privilege against an invasion of the raising possibility statements short, self-incrimination."). compelled ap struggle arguably of a in with Jackson were pellant free to or not as he so remained credible. The evidence belied that either of the chose. fought two men with knives and it was clear And, part prosecutor so we you on the killed. duct Claude Jackson directly prong to the second may move know, because Claude Jackson also now Accordingly, we will review the the test. you and tell come before he’s dead can’t the statements were made context which happened. you what And pened inside that house. But we right. what sel] concerning the exiting decedent can’t We will never know Over and over finally, ^{[*] [*]} do know one man left died, said no one can bring happened. the front said: and he left the house as was in. The decedent ^{[*] [*]} during government person ^{[*] [*]} do know the again he door. rebuttal shooting. apartment say what exactly what ^{[*] [*]} cannot here that house ... [defense argument, the —inside ^{[*] [*]} Well, he’s to tell following: happened bring dead, he coun- ^{[*] [*]} hap- that you Jackson was whether keeping to determine because it was unknown at ments tone for his later statements which rally and theless, served to ed a comment on the stand. opening statement could not have constitut- defense’s Watts, supra, Obviously apparently not to be comment on Indeed, in mind the necessarily two witnesses testified.9 None- harp prosecutor’s language dead, no one would ever know whether the and the the decision language employed would take the witness resolved underlying have taken the state- precedent failure fact that because until after the not to would natu- rationale of it relies on set the testify, failure in the time all as to murder two on Decem- And also happened. The state- what 21st, me, February be- moreover, ber—excuse ments, disingenuous. although any have wit- we do not maintained, cause True, opening as the statement inside, happened exactly nesses to what produce no witness- government could enough to show us we do have evidence by the shooting; but it was clear es to the defendant when person, that the that the would never close of evidence Not he killed the decedent shot twice. eyewitness an account as have Nonetheless, once. glaring unspo- happened. again was that alluded to time and ken fact open or at objection was raised court No present in the someone who was there was language. prosecutor’s the bench survived, house, presumably and who who we deter The standard which jury relate to the knew and could propriety mine the of these statements And, prosecu- we find that the happened. prosecutor’s language ‘was “the whether necessarily naturally and tor’s statements manifestly of such charac intended was person that this had highlighted fact jury naturally and neces ter that the would failed to failure to sarily it comment on take to be ” Watts, recognized supra, (Donnell) testify.’ v. United Watts prosecutor’s a 308, (D.C.1982)(quot that even where States, 449 A.2d 312 “of a reference to uncontradicted States, A.2d consists 364 ing Byrd v. United evidence, jury will not nec government (D.C.1976));see, Wright v. Unit e.g., 1218 (D.C.1978); essarily States, construe it as a comment 387 A.2d 584-85 ed the defendant’s States, 232 defendant’s silence unless A.2d Blango v. 335 United States, only possible source of testimony is the (D.C.1975); Peoples v. United (citations 449 A.2d at There is no alle contradiction.” A.2d omitted). Thus, in Wright v. United miscon- faith or intentional gation of bad testify Evidently, as criminal record. appellant chose not to so prior impeachment based his avoid States, supra, deny appellant we found no error in the diced the as to a fair prosecutor’s refutation of defendant’s alibi trial on the second-degree mur- pp. See der. pointed 685-686. defense in which he out that no infra testimony placed defendant at a location other where the crime occurred (2) THE MARITAL than(jthat PRIVILEGE because “the had no reason to believe summoned May Elsie Lin- verify pres alone could his [defendant] part der as during ence at the restaurant the critical doing, ease-in-chief and rebuttal. so 585. See Chris period.” time 387 A.2d however, that testimony we conclude tian v. United 33 n.86 her in elicited from contravention of the (D.C.1978) (prosecutor may argue that the protected under D.C. Code government’s evidence is uncontradicted so § (1981).10 long directly implicate as he does not de prosecutor sought Linder’s testimo- testify); Manago fendant’s failure to cf. ny as to the December 1981 assaults on (D.C. Pamela Bowler and Claude Jackson to 1975) (prosecutor’s argument “[a]ll apparently she was a which witness. On government” the evidence came from the examination, direct Linder introduced her- did not constitute error where it was self as common law wife and passing “a reference to the fact that indicated she had lived with him for three uncontroverted”). evidence was But years. and one-half That White United 248 A.2d 825 unimpeached. unrefuted and She testified 1969), we held that the state 24th, fight that on December she had a government’s testimony ment that the appellant and ran downstairs to the provided uncontradicted basis rever room shared Bowler and Jackson where only sal defendant because and two offi get point, came to her. At this (who testified) present cers both when however, longer Linder no wanted con- Id. the incident occurred. 826 & n.2. testifying. tinue The record indicates the us, Under the circumstances before we find following interchange between Linder and prosecutor’s repeated statements prosecutor: equivalent were the functional of asser Q. You don’t want here tions that evidence was [appellant]; you? him do uncontradicted, from which it was all too only appellant clear that could No, have contra figure A. I do not because I don’t I Watts, supra, dicted it. See 449 A.2d at Joseph my I should because consider 313; White, supra, 248 A.2d at 826. think I testi- husband and don’t should fy against him. While we have concluded that Q. Well, asking you any ques- no one is prosecutor’s statements were tantamount any you tions conversations had about appellant’s to comment on failure to testi only asking you with him. am fy, are not we convinced that this error you saw. requires alone reversal on the of basis the anything, I didn’t see A. sir. Chapman bar. See record at v. Califor nia, 18, 20, 24, 824, 826, 386 U.S. 87 record further indicates S.Ct. that Linder 828, (1967); Brown v. Unit spoken immediately 17 L.Ed.2d 705 had 1082, ed (D.C.1978). prior 383 A.2d 1085 to trial and had informed him then Nonetheless, “didn’t testify.” we find that this error is but that she want to Nonethe- myriad prosecutor continued, preju- one of errors which so less the albeit unsuc- (b) provides: proceedings, 10. The statute In civil and criminal a hus- competent testify band or his wife is (a) not to as proceedings, In civil and criminal a hus- any by to confidential communications made competent band or his wife is pellable but not com- during marriage. testify against one to the other the to for or the other.

685 denied, 219, (1963), 322 cert. cessfully,11 testimony to without F.2d 432 376 elicit ob- 917, 672, court or jection from either the defense U.S. 84 S.Ct. 11 L.Ed.2d 613 (1964) counsel. that: privilege defined 14-306], that, Because of we think [§ § 10, 14-306(a), supra, clearly pro presence jury, outside the of trial the the testifying spouse may that the not be vides judge tell one should who is called to compelled to for or the oth against his spouse for or his that spouse. Though er we have never held testimony may cannot be compelled but applies privilege that the to common law if be received volunteered. marriages recognized by the of District Id. at (footnote F.2d at 434 322 omit Columbia, Young, v. Johnson 372 A.2d ted). is binding upon statement This us (D.C.1977); McCoy v. District of 994 Ryan, M.A.P. v. (D.C. under A.2d 310 Columbia, 1971), recently by and was reaffirmed the 1969), find in law or to no basis reason Lewis, United States circuit court privilege apply. the does not hold that so n.13, U.S.App.D.C. 44 & 433 F.2d above, As indicated Linder’s assertion that (1970). protestations, 1150 & n.13 Linder’s appellant’s common law she was wife was particularly those voiced the com before Thus, undisputed. the we conclude that trial, should mencement of not have been prosecutor’s direct examination violated the ignored. safeguarding privilege her not to statute Furthermore, AND CLOSING REBUTTAL ARGU- failure appellant’s object to MENTS questioning by raising at trial alleges Appellant further in- numerous of privilege any constituted a waiver alle during prosecutorial stances of misconduct gation appeal, unpersuasive. of error arguments closing rebuttal wherein and In Trammel v. United U.S. opin- prosecutor expressed personal his (1980), 100 S.Ct. L.Ed.2d witnesses, credibility of ion on the certain Supreme privi Court made clear that graphic gory and inflamed the the witness lege belongs only spouse. waiving death scene details of the Thus, Id. S.Ct. at 913. revolver, and drew inferences as matter before us is not one of waiver but testimony which witnesses’ conduct statutory impact rather of a violation as it upon evidence introduced were not based of trial. ed fairness unnecessary to address trial. find it See pp. 685-686. infra Instead, contentions. each of light fact that a violation egregious on the most primarily we focus the marital went unnoticed concerning Linder’s statements rejected erroneously indeed plain error. which constituted court, governm defense counsel and the apparent explain effort Linder’s ent,12 In an opportunity we take this revital concerning testify as to incidents refusal to given by ize the instruction District solidify testimony on appellant yet to her Appeals Circuit in Pos Columbia Court points, following remarks were other U.S.App.D.C. tom agreed court Linder testimony ultimately ecutor and the arguable stated It is right testify against case. did not have the refuse to elicited harmful to the fact, however, ruling. appellant "they’re affect our This does not marital com- because not in Moreover, the irrelevant that may find it to be From this we assume that munications.” prosecutor persisted he trial, in his efforts because stage applicability of the at this later in testimony anticipated in to have been Linder’s was, briefly, The however raised. support case. counsel's record does not indicate that defense was in mistrial made at that time motion for rebuttal, During testimony on a col- Linder's any way privilege. based pros- loquy transpired the bench in which the by prosecutor during made closing ar- you was. And did what hear [Jackson] gument: about Junior from those two witnesses? remember, you When some of that tes- That on two occasions he said that timony rely had to on Elsie Mae [Linder] defendant was an S.O.B. and to deserved type herself. Was she of woman get it. going testify against who was And what were the occasions? Both Well, man. you repeatedly she told she times dealt when the defendant [with] would testify against not. She wouldn’t beating had been on Elsie Mae. How you testimony him. look at her So when many you? it, of you You saw saw the you really cutting have to do a mental sitting here, up you woman saw what she Everything dealing half. people with opportunity looked like. You an had defendant, other than the I submit good take a body. look at her whole you, it, you have to look and she was good Took a look at her face. How quite credible. She was honest. She many you would have said the same hung sorry her head and said she was thing? events, testimony about her certain but was truthful. When it dealt with the Clearly, project we cannot from the bare defendant, you right she told at the be- picture record a appearance. Linder’s ginning going she wasn’t But what we find impli- unmistakable is the against that man. cation disfigure- that whatever scars or need point not further belabor the that ment existed on body Linder’s face and testify against Linder’s decision not to her appellant. prose- were attributable to protected by common law husband was cutor properly point could out the informa- such, statutory privilege. wholly As it was tion he had elicited on cross-examination of improper prosecutor to further witnesses, the two defense that Jackson’s highlight her refusal and to use it as a against appellant threats apparently means to buttress im- appellant fought uttered after with Linder. peachment arguably of her adverse testi- But, language used was both mislead- mony concerning alleged assaults on Powell, supra, unreasonable, see ing and supra see December depict appel- 455 A.2d at and served to juxtapose it as a basis which the simply lant as a wifebeater. jury might (not credit her other Where, here, we have found concerning appellant) which to the went misconduct, prosecutorial this court will re particular, of homicide. these “ only verse if the errors created ‘substan groundwork statements laid the for further ” appellant. Dyson prejudice’ tial from which we find the States, (D.C. United 450 A.2d inference that Linder did not be- Arnold, 1982); supra, see 467 A.2d at appellant cause she was afraid of in-—an Powell, supra, 455 A.2d at 411. Thus, evidence, com- unsupported by ference ruling whether the misconduct infected the pare Powell v. United 455 A.2d jury’s analyze verdict we must the “close (D.C.1982) Arnold United case; ness of the nature of the miscon (D.C.1983), case; vel non centrality duct and its light privilege.13 untenable of the marital and, forcefully emerged objection; This inference more whether there was defense from the steps statements which taken the trial court to lessen promptly followed. The added: of the misconduct.” Fornah v. impact on two witnesses to put

The defense Powell, 1983) (citations person omitted); tell us see su- terrible Junior many may may testify against 13. There reasons a are witness that Linder have refused to impropriety love, choose not to out of not fear. readily inference herein is the fact borne out

687 411; appellant’s silence, 450 supra, A.2d at er comment on contami- Dyson, 455 pra, raised no 437-38. counsel jury’s A.2d at Defense nated the deliberations on the ele- argu- any prosecutor’s of objection to the Fornah, supra, ment of malice. 460 Cf. is Thus error standard ments. (error closing prosecutor’s A.2d at 562 in States, supra mandated. Watts v. United argument require did not where reversal addition, 8, the trial 362 A.2d 706. In involuntary jury appellant guilty found of the facts and court instructed murder). manslaughter, not argument of counsel are not evidence. (The re- made this same had recognize re Moreover, during closing argument.) mark prosecute zealously. sponsibility to Powell govern strength find that the of the we States, supra, at 408. v. United overwhelming. Appellant ment’s case in the midst We also are aware that while when in the house and Jackson alone trial, appreciate it is often of a difficult to hallway shot on the in the Jackson strength of the evidence introduced and Betty Joyner that floor. Jackson told first perspective gain a as to constitutes Joyner, Appellant shot him. told argument. Despite these proper bases for inaccurately, Jack that he “stabbed” albeit rigors of we practice, inevitable trial when he later asked Lawrence Shin son and one, with a are confronted case such as gun Other retrieve a from his bedroom. replete improper arguments and ex with supported of also the commission evidence aminations, register, must res without supra pp. 680-681. See homicide. ervation, improprie disapproval our of such distinction; here, we draw a critical But The role in a criminal ties. amply strong as to the crime evidence was (if all) that of prosecution solely crime of mur is not manslaughter, not to the of degree.14 money. second These crimes public der in the its giving the most for of distinguished by sole element are govern strength record the On this necessary to a of second-de malice verdict evident, have case is and should ment’s v. Alex gree murder. See States United trial, as to the just as evident before been ander, U.S.App.D.C. F.2d 152 471 manslaughter. Overzealous offense of denied, 34 93 S.Ct. cert. U.S. for mur prosecution geared a conviction (1972). conclude that L.Ed.2d 494 And we degree impermissible at in the second der directly prosecutorial misconduct bore fair right of an to a expense accused’s of Malice has been on the issue malice. the cu therefore conclude that trial. We showing a as “a state of mind defined miscon prosecutorial instances mulative life and regard for the heart that is without trial on deprived appellant of a fair duct v. Hin safety of others.” United States degree. charge of murder in the second F.2d kle, U.S.App.D.C. for Accordingly, remand we reverse and (1973). per prosecutor’s charge in the murder on the retrial Lin- from efforts elicit sistent degree entry judgment for of a second conjunction the statements der manslaughter with di for of conviction her closing explaining made v. resentencing. Moore for rections Cf. that Lin- inference refusal resulted States, 388 A.2d United appellant. further refer der feared 1978) (where supported petit, but evidence provided a body Linder’s face and ences larceny, disposition grand, appropriate not appel imputed fear for such and basis grand larceny conviction is to reverse character. a violent and malicious lant entry judgment of conviction errors, remand for Therefore, con we hold that these larceny); improp- petit States United along with the sidered Branch, noted, slaughter. instructed See States previously As second in the of murder 1035 n.1 both of man- degree offense lesser-included Thweatt, U.S.App.D.C. 128-29, dence appellant acted malice (1970) (same). F.2d weak, and Linder’s testimony tended to counter impor- that evidence. the Given

Reversed remanded. testimony tance of Linder’s case, GALLAGHER, I improper credibility do not Judge, Retired, view Associate I, therefore, concurring dissenting join attack as harmless. in statement: disposition court’s of this case. agree I majority do not with the that the prosecutor's statements “were tantamount comment failure to testi-

fy.” prohibition on such comment is

being too stretched far. The comment in nearly

this case came more under our rul-

ing Christian United 33 n.86 The comments were

“within the bounds of reasonable advoca- cy” and were not of such VANN, a character that Petitioner, James E. necessarily would take them to be a comment on the failure of defendant DISTRICT OF COLUMBIA BOARD OF FUNERAL AND DIRECTORS agree, however, I prej- do that there was EMBALMERS, Respondent. when, notwithstanding udicial error No. 83-362. privilege, marital attacked during the witness Elsie Mae Linder clos- District Appeals. of Columbia Court of ing argument for her refusal against appellant, her common-law hus- Argued Feb. 1984. agree band. privilege marital July Decided applies marriages to common-law and that effectively privi- here Linder asserted However,

lege. privilege violation always Rather,

does not warrant reversal. elicited in violation

privilege must be assessed under a harm- analysis prejudice

less error to determine if Pariente, United States v. See

resulted. (5th Cir.1977).

558 F.2d

Ms. Linder testified that aggressor

not the initial in an assault that

preceded shooting question. This negate the

tended to “malice” element of degree

second murder and therefore clear-

ly prejudice appellant. did not This testi-

mony, although obtained in violation of the privilege,

marital was harmless. however, prejudicial, prose-

I view as in closing

cutor’s comments hesitancy

reference to Linder’s

against appellant. The comments amount-

ed to use of Linder’s unsuccessful asser- impeach-

tion of purposes.

ment evi- homicide notes 12. infra prior assault the decedent would have "Joseph 3. This statement that had shot him” was second-degree been admissible in the murder admitted into evidence as an excited utterance. States, prosecution. Drew v. United 118 U.S. (1964); App.D.C. 331 F.2d see Rink Appellant’s objected counsel to the admission States, v. United A.2d 55-56 particular into evidence of this statement but against Joy The inclusion of the assault count objection the trial court overruled his without may ner have resulted in some confusion and inquiring into the issue of voluntariness. De- case, prejudice appellant's given but the inter prior fense counsel had not moved to trial to judicial efficiency, say est in we cannot that the suppress reject appellant’s the statement. We refusing trial court abused its discretion in appeal on that the trial court erred in sever this count. Robinson v. United summarily admitting these remarks. Even if (D.C.1982); Warren v. United inquiry court should have conducted an (D.C.1981); 436 A.2d Wines admissibility, to their we believe it that the tock v. United response appellant’s ques- officer's words in 1981). interrogation tion did not constitute under fingerprints were it. gave a rights, appellant his Miranda read there police autopsy officers did reveal were no to one of the statement addition, body. related In wrote down and on decedent’s the officer bruises which officer, ap- According to the jury. gunpowder marks on either the absence of “ him, guy said ‘the pellant body clothing told indicated he [Jackson] .decedent’s died; my just who something about mother from a distance of least two was shot gun’ then I guy had the the other Finally, evidence derived from a re- feet. gun is now and he asked him where the crime indicated of the scene of view ” said, died T don’t know man.’ Jackson signs struggle there were no shooting. shortly after the the house. inside dur- police recovered gun No sum, case-in- premises,5 and no ing their search of the pri chief on the homicide consisted But, hallway.6 was found bullet marily of the scientific and technical evi appellant had with during a conversation

Case Details

Case Name: Bowler v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Jul 16, 1984

Citation: 480 A.2d 678

Docket Number: 82-1701

Court Abbreviation: D.C.