*2 flоor, shoulders rested on the basement Before MACK NEWMAN and *3 legs while his torso and ascended the SCHWELB, Judges. Associate bag Acqua stairs. The which Dell’ had carrying they seen Perez returned NEWMAN, Judge: Associate from work was still under his left arm. He Appellant voluntary was convicted of mop pail sitting also observed Perez’s manslaughter carrying while armed and of stairs; top gun. near the no saw pistol a appeal, without a license. On Acqua Dell’ testified that he had seen Per- urges grounds three Specifi- reversal. apartment ez in the building previous cally, 1) he argues: that the trial court day walking down the stairs to visit friends failing erred in to reinstruct on self-de- apartment. in a basement fense, despite its reinstruction on second The homicide detective who was called to degree voluntary manslaugh- murder and the crime scene testified that he found no ter; 2) prosecutor engaged in vari- body. defensive wounds on Perez’s The ous including “sandbag- acts of misconduct bag detective examined the contents of the evidence, ging,” mischaracterizing the ar- still tucked under Perez’s arm and found a guing evidenсe, facts not in impermissibly pair shoes, bulbs, light two broken commenting credibility on Coreas’ includ- dead lock bolt and a box of nails. He also ing up that Coreas set two of his defense long observed a knife with a blade witnesses, tucked arguing adverse inferences from waistband, in to Perez’s unbelted Coreas’ exercise of his sixth amendment portion sticking up. blade of the knife right witness, De- urging to confront spite fall, apparent the knife had nei- message” “send a with its verdict and ther torn Perez’s shirt nor cut him. appealing passions sympathy 3) jury; that insufficient evidence photo- Another officer who sketched and existed to sustain the conviction. We ad- graphed the crime scene recovered two dress the arguments2 first two and reverse bullets, twenty-two caliber one from the on the second. We hold that the cumula- step leading first down to the basement tive prosecutorial effect of the misconduct lobby, steps and the other in the near the rises to the level of error. to the basement. Dixon, following day, Douglas Dr. S. I. Deputy then Medical Examiner in the Dis- 30,1982, On the afternoon of March Apo- Columbia, performed trict autopsy an on (“Polo”) Perez, immigrant liano to this body. longer Perez’s Dixon was no Salvador, country from El fatally was Medical Examiner’s Office at the time of apartment wounded when he entered his Lynn McMahon, Dr. the trial so Carol also building upon returning from work with Examiner, Deputy Medical testified at Acqua, paid Dell’ Gustavo who had Perez findings trial and summarized the in Dr. help him apartment. clean an $10.00 autopsy report, Dixon’s which was admit- bucket, carrying mop who was into evidence. ted stopped briefly returning at a store before home, Acqua while Dell’ continued on. The medical evidence indicated that Per- Acqua Dell’ Soon after returned to his ez shot five times. Three was bullets en- apartment, gunfire arm, he heard the sound of tered his one entered his back and one lobby investigate. leg. out into autopsy report went entered his la- lobby gunshot through He saw no one in the but when he beled the wounds “A” “E,” leading indicating looked over the staircase down without order which Judge Judge Although extremely 2. Mack was an Associate of this this case was close on the self-defense, argument. court at the Her status argument time of issue of we find Coreas’ Retired, changed Judge, on October Associate that insufficient evidence existed meritless. 1, 1989. cer- with reasonable scientific body. entered Perez’s The re- the bullets bullets v port recorded the direction of bullets tainty. body, angle in once inside the Coreas, im- also an Appellant, Florencio they organs the internal entered and Salvador, migrant country from El death, were affected.3 At the time of his police the next surrendered himself to the shirt, striped wearing Perez with a that he had shot Perez day and admitted trial, At it dark shirt underneath. trial; He testified at there self-defense. striped shirt which revealed that the shooting. witnesses to the were no other originally custody missing. into taken porformed Apparently no test been that Perez had threat- Coreas testified *4 Therefore, the shirt it was lost. the before afraid past ened him in the and that he was any pre- could not make medical examiner Specifically, of Perez. Coreas testified that far Perez was from his dictions as to how he had heard that Perez had killed the four shots entered Per- attacker when gun brother and that Perez “had a and he Additionally, Dr. McMa- upper body.4 ez’s 551). (Tr. wanted to kill On [Coreas]”. could not determine the hon stated she occasion, Coreas, one according to he was bullets, trajectory the that is whether of with two friends on Perez the street when gun aimed from above or below the “stopped and kill me said that he wanted to Perez, way knowing she had no person there.... the who was with [B]ut positions gun of the and the the relative to do it said not there because [Perez] Finally, although body. autopsy report the persons was in the middle of other and he analysis contained no evidence or about the (Tr. 552).5 walking.” continued bullets, attempt- order of the Dr. McMahon incident, day On the of the Coreas hypothesize ed to about the order at trial. claimed that when he returned home from point, At one she stated that the three lobby.6 work he encountered Perez in the first; the arm shots to came then she stat- Coreas testified that “took out the possible leg it ed was that the shot to the however, gun According and threatened” him. Finally, came first. she admitted Coreas, hand, testify grab they that she could not as to the order of he tried to Perez’s According summary range gun 3. to Dr. McMahon’s between the muzzle of the and the A, testified, autopsy report, gunshot body. person wounds B and C all As Dr. McMahon "If a is upper body entered the left arm. wound A the area of the and Gunshot clothed or wounded arm, exiting by clothing, clothing entered arm and without covered filters [the chest, proceeded stipling] clothing into the left side of the where So we examine out. Also, 309). perforated lung (Tr. upper it lobe of the left and that.” she indicated that the lodged stipling gunpowder clothing in the soft tissue in the breast- front of absence of or on gun greater eighteen bone. Dr. McMahon testified that this wound means that the than "hypothesized” away body. could have been fatal and inches slightly the arm was raised when the bullet entered it. Gunshot wound B entered and exit- Ayala, Metropolitan 5. Police Officer who had chest, ed the arm and then reentered the tra- police, advised Coreas to turn himself in to lung, pеrforated versed the lower lobe of the left supposed also testified that Perez "was to have pericardial lodged sac and then in the soft looking problems and had been armed right nipple. the chest above Dr. (Tr. 386-87). tissue of Ayala, Coreas." McMahon stated that this wound was fatal gun. Similarly, Perez’s never seen Perez with a probably pressed entered as the arm was left that he had never seen his brother testified against knew, the chest. Gunshot wound C entered gun and that as far as he brother with touching the gun. and exited the arm without bone. did not know how to shoot a his brother D, disabling wound which was but not Gunshot necessarily fatal, severing entered Perez's back Gomez, day Pedro who knew Co- 6. That same McMahon, spinal According to cord. Dr. reas, visiting lived his uncle who gunshot wound D would have left the "decedent building. entering apartment Upon the build- immediately respect being able 5:30, disabled with "suspi- ing at he encountered 5:00 to move his lower extremities." Wound E en- cious-looking” intentions.” Go- man with “bad thigh straight body passed him, tered the at mid when the man saw mez stated that up through pelvis. knife, tissues into the soft but when he realized brandished Gomez, anything” he lifted "didn’t have so, gunpowder replace As he did Gomez "Stipling" particles shirt to the knife. refers to the gun the man’s waistband. deposited saw a tucked into the skin and is used to indicate the two, or the rela- strug- on Perez’s movements floor where the men bullets fell to the gled gun and Coreas positions and Coreas was able to wrest tive the decedent point, up altercation). stood from Perez. At that Coreas during the As Perez and moved towards the wall. presented closing The defense then Coreas, started came toward Coreas argument, claiming essentially that Coreas shoot, staggering Perez “started defense, had shot Perez out fear self fell the stairs the basement of down during struggle. de- armed building.” that he “became Coreas claimed autopsy re- fense noted that based on the apart- very upstairs scared and ran to [his] port and medical examiner’s fire and out the and down ment window impossible how it was determine far pistol escape.” He testified he left the apart trajectory the two men or the stood lobby base- toр on the floor bullets. stairwell, not although police did ment its rebut- then delivered gun they arrived find argument. It a new tal articulated Finally, stated crime scene. Coreas lying of the case which knife, he although he never saw or felt a steps at the for Perez to wait basement *5 cut later that had been discovered his arm government appear. arguing, In so the struggle. not tell during the did Coreas complete explanation of the or- offered arresting officer his wounds. the about der, effect, firing trajectory and distance of Photographs injuries of his were admitted bullets which as well as the entered into evidence. positions the relative of Coreas Perez closing argument, government’s In the during shooting. objection the No attempted to show prosecutor primarily the rebuttal, however, during days two made killing surrounding the the that evidence later the defense for a mistrial in moved version of was inconsistent with Coreas’ jury The the middle of deliberations. mo- struggled he had with Perez events: that denied. tion was himself and had control to defend wrested deliberations, gun. day the third after proseсutor Perez’s The focused On over previ- Dell’ heard the Acqua having judge fact that had not sent the trial a note gunshots; indicating he heard the unable day scuffle before that it was ous bag (and he had seen Perez being earlier unanimous reach a verdict arm carrying was still underneath Perez’s by judge the trial to continue deliber- asked steps; lay at the bottom of the as he ations), jury judge sent the a note indi- lodged in waist- the knife Perez’s unbelted degree cating confusion mur- its on second shirt; had not cut his skin or his band voluntary manslaughter. Before der have fight if a ensued Perez would charges, on those defen- reinstruction knife and that had not used his court also rein- requested that dant injured alleged altercation. been The court indicated on self-defense. struct a reference to initially that it would include During closing the remainder of its initial reinstruction, during as ele- self-defense argument, discussed voluntary man- of the crimes of ment autopsy report, highlighting the murder, degree McMahon, slaughter and second but the medical examiner of Dr. who changed mind and did not actually perform autopsy, but thereаfter did not jury re- on self defense. who testified at trial as to the contents reinstruct thirty minutes report. The discussed its verdict within turned wounds, trajectory of the bullets five reinstruction. body, damage Perez’s and the sus-
within organs tissues. tained II. allege did not that Coreas jury Reinstruction of at the of the stairs lying in wait bottom again, this is asked revisit Once court consist- a scenario of the events articulate governing the reinstruction (i.e., the law the outward with such ent trial court bullets, jury. Coreas contends the effect trajectory of
599
when,
only
respond
response
erred
to a
it should seek not
note
jury asking
request
the court in its discretion
jury’s
to be reinstructed on second
as
degree
fit,
manner
voluntary manslaugh-
murder and
it should do so in a
sees
but
ter,
emphasize
aspect
the trial court refused
reinstruct on
unduly
does not
one
self-defense.
refer
the case. When the reinstructions
compose the of-
only to the elements that
regarding
Decisions
whether
how to
charged,
jury may be
fense or offenses
reinstruct
are committed to the
unduly persuaded what it has heard
broad discretion of
trial
court. Davis
Davis,
judgе
upon
instruct
last.
su-
trial
States,
1051,
v. United
510 A.2d
1053; see,
pra,
e.g.,
510 A.2d at
Bollenbach
(D.C.1986)
curiam)
(per
(citing Tyler v.
States,
607, 612, 66
326 U.S.
United
States,
1180,
(D.C.
United
495 A.2d
1183
402, 405,
(1946) (“the
S.Ct.
the reinstruction on
At a
the trial
should
self-defense. The
government objected
opined,
during
strive
reinstruction to achieve “the
without
citation,
neutral,
jury
that
a
asks for a
idеal of
balanced instruction.”
“[w]hen
specific
Davis,
instruction the court
supra,
should not
Since we reverse on other we do not decide whether this erroneous exer- Prosecutorial misconduct cise of discretion constitutes an “abuse argues discretion.” Coreas next that the See Johnson v. United States, (D.C.1979). prosecutorial 398 A.2d 363 committed various acts of We reemphasize, Spеcifically, trial he asserts that that when the misconduct. gives supplemental jury “sandbagged” govern- when the court instructions he was following jury point late. Defense counsel stated that she 7. After brief recess and rein- too struction, formally objected given defense counsel would have acted sooner but that reinstruction, and called the Davis case to ruling, impres- she was under the court's initial listening defense the court’s attention. After the court had intended to reinstruct on sion that case, portions counsel recite relevant self-defense. making her court chastised defense counsel for 600 (en States, (D.C.1976) argued in A.2d
ment rebuttal that Coreas banc)). lying in Perez to home from wait for return work, govern- case theory of the that prosecutor’s in this conduct closing;8 in its develop ment did not initial er under the case must be reviewed prosecutor argued not in facts to the object failed to ror standard. Coreas
evidence and mis-characterized evidence jury re before the prosecutor’s rebuttal support theory; prosecutor Instead, for mistrial two he moved credibility tired. impugned impermissibly Coreas’ mid closing arguments—in the days after by asserting he told “untruths” jury “set-up” testify jury and after the two defense witnesses to dle of deliberations favor; impermissi- reach it was unable to had announced that bly argued from Coreas’ objection adverse inferences This unanimous verdict. right to sixth amendment confront witness- too argument came prosecutor’s rebuttal es; impermissibly permit appropriate to take late to the court urged message” to “send a action.9 Haw and effective corrective Cf. verdict; appealed defendant A.2d thorne United national in an bias effort to arouse (D.C.1984) (objections made after jury’s passions prejudices. despite trial closing argument, initial contemporane to make court’s admonition analyzing alleged pros- claims of objections, preserve sufficient to ous misconduct, ecutorial we must first deter Powell, review); su prejudice substantial mine were whether actions (motion for 408 n. pra, 455 A.2d at improper. Jones v. United immediately rebuttal mistrial after made (D.C.1986). A.2d If misconduct review). prejudice preserved substantial then has occurred we must determine prejudice” resulted. whether “substantial contrary argument, In its rebuttal 405, 411 Powell v. during initial clos made to statements (D.C.1982); (Duane) Dyson v. United government argued that Coreas ing, the (D.C.1982). The Perez at the bottom lying wait *7 decisive factors of whether determinative the steps leading lobby of the has in prejudice there been substantial basement: case, clude “the the cen closeness crumpled at the bottom [Perez] error, trality of the issue affected the steps. fallen down at He has back steps mitigate effects taken steps. person who the bottom of the Powell, supra, A.2d at error.” 455 defendant, in him is the put that bullet object 411. Where the defense fails to him he made had to when be behind misconduct, alleged we review that shot.... only a error reverse conviction will falling. He turned before couldn’t have integrity “very fairness and where going up He must been have [sic] jeopardized. trial” is v. United Lewis [the] gentlemen, and steps, ladies and States, (D.C.1988); 146 placed the at bottom defendant A.2d McCowan v. United 458 (D.C.1983)(citing steps. v. United Watts government said.” Hall v. United "Sandbagging” what the has occurs when the 8. see, (D.C.1988); e.g., argues theory raised of its case that it has not A.2d closing. (D.C. initial Moore v. United in its A.2d Powell United (“As (1965) App. D.C. 344 F.2d U.S. 1982). rule, general should not Government counsel develop arguments rebut- new on be allowed to objection example, makes an For if counsel 9. answering the tal but should be restricted to argument, "sandbagging" the close of rebuttal at counsel."). put arguments “Im- forth defense corrective, possible at in some cases least one upon prosecutorial proper comments are looked opportunity permit may defendant an be to special they appear disfavor point. argument on for rebuttal argument point at defense because rebuttal clarify opportunity to has no contest counsel straight through We submit that the defendant was The other one went here,.... standing body down He was down his and into the internal cavities. waiting there for Mr. Perez. continued, gun fire and now he down, there, get away Now when Mr. Perez just walked wanted to out of having put pail his bucket and over to from the defendant continued so that he side, got walked down. He un- to turn and the third one in the back suspecting. He had going buddies down there of his arm to the front. That apartment Any- going bullet off ricocheted the wall after [in basement] arm, one of them through could have called him or top and landed at the motioned him to come steps. down.
As he steps walked down the steep, de- It was a narrow stairwell. He is fendant walked out from the darkness turning injured wobbling legs, on his up gun and he lifted and he fired his as he turns his face hits that wall and shot, first gen- the first shot ladies and scrapes on the scrapes side. He has tlemen_ if walking So Mr. Perez was scrapes right. the left and on the very steep down these steps sig- he was turned, As he now shot four times and nificantly above the defendant who was there, just tries to run out of the defen- down here. one, dant fires slightly upward the last The defendant was at the bottom of straight gunpowder but aim with no steps. those wound, around the eighteen more than (Tr. up inches because it is 698-99, 702). step. another Mr. Perez fell back. The last bullet No direct presented evidence was at trial head, went over his bounded off the wall support Coreas waited ground. and landed on the As Mr. Perez steps, the bottom of the or even that Perez steps fell down the and slid the last few way Thus, was on his down them. in its steps bumped right side of his argument rebuttal head causing on the stairwell the abra- rely exclusively forced to autopsy on the bruisings, just sions that were not abra- report and the medical examiner’s testimo- right sions on the side of his head.... ny order, effect, establish the trajectory and distance of the bullets: shooting As the defendant was the— Mr. leaning Perez was forward. That side,
The first shot went into [Perez’s]
explain why
would
wound went
upward angle,
leg
as his
was out-
straight,
up
but when he stood
there
go
stretched to
steps.
down those
As
actually
path
diagram shows,
downward
on the bullet
and it
all
body.
tilt
of his
way
lodged
back
pelvis.
in his
*8
(Tr.
What was the
699-701).
natural reaction to the
first shot?
brief,
Although
government
in its
the
Mr. Perez started to bend and lean and seeks
merely,
to characterize its rebuttal as
grab
turn to
the wound. Before he even
theory
appellant’s
“a more detailed
of
loca
lifted his arm the second shot
in
went
as
sequence
tiоn and
of shots at the time of
he turned into
straight
the side on a
killing,”
the
depicted
its rebuttal
much
angle, when the man is still at the bot-
In supposed
only
more.
reliance on the
of
steps,
firing.
tom the
testimony
evidence it had—Dr. McMahon’s
Now, as he leaned in
autopsy report
closer to that
and the
—the
wound he leaned in closer to the defen- outlined in vivid detail a scenario that went
beyond
any
dant who was down at the
He
bottom.
this evidence and
reasonable
gotten
eighteen
could have
Irby
within
inches
inference therefrom.
See
gun,
gotten States,
(D.C.1983)
of that
(prose
and he could have
A.2d
“
gunpowder on his sleeve. He continued cutor
‘entitled to make reasonable com
grab
[urge]
for his arm and his
in
arm lifted as ments on the evidence and
such
turned,
got
testimony
support
reached and
and he
that
ferences from the
as will
case,’”)
theory
(quoting
second wound in the side of his arm.
of the
Tuck
[the]
son v. United
extrapo-
attenuated chain of evidence
(D.C. 1976)).
lying
even further
prosecutor
The
exceed the
lated her
will
wait
bodily
permissible
by depicting
explicit
the evi
thе
movements
line of
comment on
Perez,11
misstating
mischaracterizing
position
the
the victim and
by
dence
or
of
of
Lewis,
supra,
the evidence. See
the
gun,
trajectory
and the
shots.
the
(plain
at
prosecutor
error
respect
positions of
With
to the relative
evidence).
misstate and mischaracterize
explicitly
Perez,
Dr. McMahon
tell,
autopsy
report,
merely
that
not
The
which contained
testified
she could
where
in-
nothing
autopsy report,
more than
the
Coreas and
recordations
from
injuries, along
point of en-
in relation to each
ternal
the
Perez would have stood
with
path
provid-
try and internal
the
other at
the time the shots were fired.12
bullets
theory.
prosecutor's
autopsy
ed the
for the
Neither Dr.
nor the
re-
base
McMahon
McMahon,
examining
fired
port
Dr.
who was not the
indicated that
the shots were
any particu-
physician,
interpreted
report
then
this
from below
or aimed
with-
way.
angle
testified as to the
lar
The
statement
bullets
possible
body
“autopsy report
and the
...
orders
rebuttal
tells
you
angle
every
and it
may
which the bullets
havе entered
wound
tells
body.10
prosecutor
already-
you that
The
took this
defendant had
be behind
prosecutor
argument
Perhaps
necessary
10. based
as to the
it was
focus on
her
what
reaction,
perceived
prosecutor
the bullets on
examiner's
order of
the medical
as the natural
testimony
possible
this
that it was
that the shot to
because there was no evidence on
record to
first,
bodily
leg
support
sequence
came
the shot to the
this
movement. The
followed
back, although
autopsy report
nothing
about the
medical examiner was hard-
effect
said
ly
point.
consistent on this
each bullet
had on Perez’s move-
would have
Although
“hy-
ments.
the medical examiner
initially
Dr. McMahon
"I don’t have
testified:
pothesized”
position
arm
about the
that the
came
doubt
three to the arm
first.
(“[t]he
gunshot wound A
arm had to be
entered
first.
two are
I think those came
But those last
through
go
armpit
[the
raised
(Tr.
bullet]
body and it
the lower
is kind of difficult”
(Tr.
it doesn’t
and re-enter.”
because
292),
exit
334).
She also stated that "the one on
testimony hardly supports
"grab-
pelvis
two,
one on
the last
and the
the back were
leaning,
bing,
running”
(Tr. 333).
that.”
She then
I do believe
argued
theory.
its
to flesh out the facts of
changed
agreed
her mind and
the one to
attempted
leg came first. The
then
court
trial,
produced
12.At
Pinocchio doll was
so
and stated
summarize
doctor's
posi-
that Dr. McMahon could demonstrate
this,
not,
you
saying
"what
are
is it
body.
following colloquy
tion of decedent's
A,
involving
you are convinced that B and C
occurred:
cluster,
arm came in a
the first three ...
left
you asking
D,”
Are
me where the muz-
DOCTOR:
preceded
preceded
D
E E
and then either
gun
zle of the
was?
responded
affirmative.
to which the Dr.
COUNSEL: Yes.
Later,
questioning
in reference to
defense
Or
the assailant was?
counsel,
DOCTOR: where
agreed
witnessing
the Dr.
that "without
Yes.
COUNSEL:
shooting]”
way
there
to know
"is no
with
[the
necessarily
Not
we
[sic]
DOCTOR:
certainty
sequence
was.”
scientific
what
necessarily
body
dealing
in an
aren’t
(Tr.
336).
holding your
position.
upright
You are
stick
very deliberately
11. The
outlined the
right.
necessarily
figure up
That is not
how
body
movements of Perez's
to coincide
gun
it is
decedent
when the
So
say
fired.
*9
theory
lying
and
the bullets.
in wait
the ordеr of
say,
me to
back and
the
to track
for
difficult
Thus,
rebuttal,
the
asked rhe-
in its
gun
and
assailant is here.
is here
torically,
was the
reaction to the
"What
natural
you were
COUNSEL: But with
discuss-
arms—
She
that:
first shot?”
continued
legs
something
being
ing
and
about his arms
equally
It is—is
difficult or more
started to
and lean and turn
mobile.
it
"Mr. Perez
bend
judge
grab
a
entered an arm or
as he leaned
difficult
how bullet
the wound....
[n]ow
mobility?
leg
of
closer to the
because
their
to that wound he leaned in
closer
You
see
...
DOCTOR:
difficult.
can
who was
at the bottom
.It’s not
defendant
down
necessarily
they
you
grab
don’t
arm and
where
entered. But
continued
for his
[h]e
skin,
turned,
and he
from the wound on the
external
know
arm lifted as
reached
wound,
position
body.
why
just
That’s
got
of the
the second wound
and now
...
body
in the
get
you
the wound
out ...
to turn
follow
track of
wanted to
so he continued
goes,....
just
where it
tries to
out of there.”
to see
...
then
run
322-23)
(Tr.
(Tr. 700).
at
lost some
Mr. Perez”
evi-
formed. Perez’s outer shirt was
is a statement without
was
dentiary support
autopsy
in the record
after the
and therefore
whatsoever.
time
at the trial. Dr. McMahon
produced
not
Similarly,
clearly
the medical examiner
chance to examine the shirt.
never had a
stated that she could not determine the
gunpow
inner
contained no such
His
shirt
trajectory
angle
of the bullets:
Further,
rings.
although this court
der
I
say
gun
can’t
aimed.
I
presume to draw medical conclu
does not
say
straight
can
the bullet came
in.
I
sions,
autopsy report
simple
review of the
say
angle
can’t
much
about
that the medical examiner who ex
reveals
gun
into con-
you
because
have to take
striped
amined Perez stated
“[t]he
gun and the
angle
sideration the
of
multiple de
[missing
shirt
at
reveals
trial]
angle
body,
do both
can’t
of
three
inch circular
fects. There are
lh
you.
gray ring
holes ... each surrounded
(Tr.
329)
added).
(emphasis
at
The doctor
deposited
of
on the surface
material
of
continued soon thereafter:
cloth.”
say
gun
straight
I can’t
was held
government hinged
lying
its
in wait
body
body
angled
if
were
argument
autopsy report and the
on the
straight
the bullet came
the bullet
testimony of the medical examiner—in so
body
angle.
would enter at an
If the
doing
extrapolated
it
too much from toо
angle
gun
at an
angle
and the
is at an
little. Such mischaracterization of evi-
might
straight.
then it
enter
But there
dence has
held to constitute
been
positions
body
are all kinds
of
Lewis, supra,
error.
suggesting Perez would so on this information. that do particular know day Coreas]. or that Coreas would argument intent to do so. This Perez’s (Tr. 705). at in on facts not evidence and was based Second, argued prosecutor Jones, improper. supra, also 512 A.2d at testimony comport to Coreas tailored his testimony examiner’s af with medical prosecutor testify. The hearing asserts that addition to ter her
Coreas also
claimed that:
lying
theory,
en-
wait
gaged
acts of
defendant,
in several other
misconduct.
The
he heard
Specifically,
claims that the
after that
last shot
too. Polo
going anywhere.
on
wasn’t
So now we
impermissibly: commented
cred-
Coreas’
say,
got up
“He
[meaning
ibility;
“set-up” two of
argued that Coreas
Coreas]
”
I shot
struggled
we
and then
him....
witnesses;
on Co-
defense
commented
right
reas’
to
wit-
exercise of
confront
(Tr.
709).
at
nesses;
implored
jury
to
a mes-
“send
inference from
“Drawing an adverse
verdict;
sage”
to
appealed
its
with
of his constitutional
defendant’s exercise
national bias.
impermissi
right
to
witnesses
confront
Stаtes,
ble.”
Hart v. United
First,
to
credi
in reference
Coreas’
1146,
(D.C.1988);
v.
1149
Fornah
United
bility,
closing
in its
government
initial
556,
(D.C.1983);
States,
A.2d
460
argument asserted that Coreas’ statement Dyson,
A.2d at 127. We have
supra, 418
serving
police
was “self
and untrue.”
repeatedly
such tactics and do
condemned
“un
assertion that
statement was
Fornah,
A.2d
again.
supra, 460
at 561
so
improper; prosecutor’s may
true”
not
States,
(citing
374
v.
A.2d
Jenkins
See, e.g.,
that a witness has lied.
assert
denied,
894,
(D.C.,
434
584
cert.
U.S.
id.;
Miller v. United
(1977));
182
98 S.Ct.
54 L.Ed.2d
Villa
(D.C.1982); (Phillip) Dyson
16
v. United
A.2d
v.
426 n.
cres United
(D.C.1980).
A.2d
(D.C.1976);
Hyman United
(D.C.1975).
A.2d
attempt
impugn
In a further
Co-
Third,
government
very
at the
credibility,
government argued
reas’
rebuttal, urged
jury
close
up”
“set
rebuttal that Coreas
two defense
mesage”
its verdict:
“send
witnesses,
officer,
including police
tes
only
and return the
Look at the evidence
tify untruthfully. Specifically,
regard
case,
in this
just
true and
verdict
Gomez,
for the
a Mr.
who
testified
defendant that in
verdict that tells this
suspicious
he saw a
character
defense that
country
jury decides and that the
this
apartment building
lurking in the
Mr.
jury
let him convict
Perez
will not
shooting,
gun
just prior
knife
and a
sentence,
give
that this
him his own
prosecutor stated:
at the bottom of the
defendant stood
in Mr.
Mr.
bring
Gomez.
he did
Now
steps
a conscious decision to
and made
he saw someone with bad
Gomez said
shots and he
plug
Perez with five
Polo
supposed
You are
to believe
intentions.
can’t do
here.
Perez_
Polo
Mr. Go-
that this was
(Tr.
711).
encourages
Argument
at
set-up.
Mr. Gomez is a
mez is a friend.
message”
to “send a
has been
something
you
convince
He is here to
Powell,
court.
improper by
found
other evidence
is no
there
of.
comment, “Isn’t it time
we stated that the
argued
(Tr.
705).
also
jury, acting
that this
as the conscience of
set-up by
Coreas:
police officer
that a
up and sent
community,
stood
a mes-
defendant,”
got
sage
he is no hero. He
was “irrelevant
Ayala,
Officer
Supra,
set-up.
inappropriate.”
He comes
A.2d
He was
taken.
jury is to
all of
410. “The function of the
deter-
you that
heard
here and tells
presented.
evidence
rumors,
get his mine facts
and where did he
based
these
*11
jurors
theory,
exception
empaneled
possible
are not
to send mes-
in wait
with
bullets,
sages
for which the
community.”
on behalf of their
Id.
of the order of the
(citing
several inconsist-
Viereck v. United
318 U.S. medical examiner offered
trial,
(1943)).
upon
was based
“hypotheses”
S.Ct.
prosecutorial improprieties which Coreas
conjunction
in
with the
when considered
if
complains,
they constitute misconduct at
argument,
“lying
justify
in wait”
reversal
all,
required
fall short of what is
to estab-
plain
my colleagues acknowl
error. As
error,
respectfully
I
lish
must
dissent.
show,
edge,
in
must
the absence
timely
any prosecutorial
objection,
clearly
his sub
prejudiced
misconduct so
Contrary
government’s argument,
jeopardize
fairness
rights as to
stantial
“lying
wait”
of his trial.
v. Unit
integrity
Sherrod
It
presented
first
in her rebuttal.
far
went
(D.C.1984).
ed
beyond anything
said
has
that re
Supreme
Court
cautioned
closing.
initial
Whether or
her
not the
alleged
plain error
cases of
versal for
various inferences which
con
misconduct should be
prosecutorial
from the medical
rea-
drew
were
“particularly egregious” situa
fined to
sonable,
simply
inject
it was
unfair to
Young,
v.
470 U.S.
tions.
States
case
ambush scenario into the
at a time
1038, 1046,
84 L.Ed.2d
105 S.Ct.
no opportuni-
have
defense would
here,
Where,
objection
(1985).
as
no
least,
respond.
very
prose-
ty to
At
made,
trial
question is whether the
leave
requested
should
of court
cutor
have
inter
failing
error
judge
advance,
making
committed
than
such an
rather
v.
sponte.
United States
Jen
jury.
vene sua
argument
presence
performance.
judge is in a far
noting
their
The trial
defense
It is also
that when
worth
impact
position
counsel made her belated motion
a mistrial
than we are to assess the
better
began
day
deliber-
more than a
ations,
after the
of the trial
alleged
context
misconduct
grounds
plethora
but
she based it on
as a
See Smith United
whole.
"lying
theory.
in wait”
Af-
never mentioned the
denied,
(D.C.),
U.S.
cert.
arguments
completed, the
all of the
had been
ter
(1974).
S.Ct.
case, said: Ayala also said of Officer hero,” taken,” you parts “got
Now told state- that he was “no [his] “set-up” received ment would not be corroboratеd be- that he was and that he closing. arguments, particular, 2. Rebuttal have to be has said in his or her improvised light of what defense counsel context, This, according majority, an his information from Coreas. attempt jury to persuade draw response these remarks were in defense from defendant’s ex- adverse inference description of the as “a counsel’s Officer right witnesses. ercise confront “good police hero” as well as a officer nothing wrong man.” I nice see In Jenkins v. United drawing counsel’s inference (D.C.), denied, defense 434 U.S. cert. *14 circumstances, prose- (1977), or with the L.Ed.2d one of the S.Ct. 54 182 drawing a my colleagues rely,4 cutor’s different one.3 Adver- on cases which may properly argue opposing prosecutor saries infer- said: ences from the same evidence. Once only the one and witness Defendant was however, again, inappro- “set-up” the word testimony during sat trial who for all priately introduced a characterization every- advantage He over ... had beyond went well the facts. body. already knew what the evi- He was, exactly dence and knew what twice, use, The word of the ill-advised away explain everything had to did “set-up”, however, appears to me to be explain he could to it. base, weak reed on in or in which to whole pro- questioned at 584. The court Id. part, substantial the reversal of a convic- trial priety of these remarks and directed following tion long hard-fought homi- in courts not to countenance such conduct integri- cide trial. It did not undermine the Nevertheless, the future. Id. the court ty or If had fairness of the trial. counsel conviction, noting among affirmed Jenkins’ objected argu- even at the conclusion of things judge’s other trial view ment, judge could have taken corrective only he “entitled to some reliance because States, In 458 action. McGowan v. United appraise to the effect opportunity had (D.C.1983), A.2d reversal for setting.” of remarks their plain inappropriate error was found where v. Fornah United prosecutor’s improper statements were (D.C.1983), my colleagues on 556 apply far more serious. I would McCowan rely, suggested also here. presenсe during prosecu- that Fornah’s testimony him to his tion enabled tailor Drawing C. an adverse inference from testimony present plau- own most right. exercise a constitutional defense available. There was no ob- sible prosecutor argued The that Coreas but, appeal, Fornah jection, on asserted changed story having his after heard the disagreed. In the plain error. This court prosecution’s testimony. medical said: She Kern, writing for Judge a unani- words defendant, mous court: he heard that too, shot, impermissible Polo after that last held that it is have [w]e going anywhere. attempt now we ad- wasn’t So to cause the draw [meaning say, got up appellant’s “He from exer- verse inferences Coreas] right to struggled and I shot him.” constitutional confront then cise however, am, cop my make I side this will me look concerned what seems misleading good me to be a rendition of the testimo- later." ny No, government’s brief this court. that either. A I don’t know Ayala "essentially government says that Officer Basically, Ayala saying don’t Officer that "I acknowledged that he could not be certain any thing.” He was not acknowl- know such up by appellant been as a set he had not used edging government says he ac- what the questions superiors].” The relevant [his knowledging. were as follows: answers majority, cited Villa 4. Two the cases Q defendant You don’t know A.2d 426 n. 4 cres v. United (D.C. 1976), using you your supervi- set-up as a [was] Hyman sors, and (D.C. you? do No, 1975), with comments on A.2d deal I A don’t. do you trying demeanor and not address Q if he the defendant’s And don’t know as, got you you “Hey, at all. later I the issue here under discussion befriend and use not understood against They him. would have been Dyson v. United er. witnesses (D.C.1980). juror attempt A.2d as an by a reasonable Perhaps, prosecutor’s exercising from certain for penalize or discredit Coreas isolation, case, closing remarks against right to confront the witnesses could be to her. The that intent ascribed inappro- if her comments were him. Even objection- sorts of remarks we have held provide they not think would priate, do able, explic- have been far more of this significant support for reversal See, e.g., [supra it comments. Jenkins ]. error. conviction 560-61. A.2d at The court noted question the remarks in were “buried gone awry. D. Patriotism closing,” lengthy id. and that the colleagues My fault the part comments were of an at- *15 “in that urging jury to “tell”5 Coreas explanation perti- an tempt supply of the jury guilt inno- country decides or different from For- this nent events “here,” exculpatory cence,” account. Under these or relative nah’s and that a victim circumstances, relying passage his may not take the law into of a victim Donnelly v. discussed from They say and seek own hands retribution. DeChristoforo supra that p. court concluded clearly calculated that this comment “was “simply prosecutor’s remarks do not sympathy to arouse the national bias affecting ‘plain rise to the level error’ jury improper.” of the and was rights.” Id. substantial decedent, Both Coreas and the my opinion, this much like In case is If, country El Salvador. came to this from prosecutor’s allusion to Co- Fomah. contrary Donnelly DeChristoforo, su- rights, what reas’ exercise of if that is to be pra, prosecutor’s comment was was, “he remark consisted of the words implicitly construed as chauvinistic Fornah, in heard that too.” As prejudiced against foreigners persons or argu long remark was “buried” in a defen- Hispanic origin, belittling of the ment. It was a far more restrained equally to apply in this manner would dant than isolated comment the remarks in Jen unlikely I that think it most the decedent. improper. which this court kins found to be by her remarks intended Moreover, prosecutor’s alleged im- disrespect people from El convey towards in the propriety occurred midst of a discus- case, it would In homicide Salvador. major sion of what she as a described self-defeating suggest to the surely be change story. in the defendant’s I think it person of little jury the victim was a counsel, permissible discussing worth. veracity, to highlight any defendant’s con- prosecutor’s trast between defendant’s account be- remark about I think the apprised govern- fore he has been as readily explained, is more country this and his ment’s evidence thereafter. version it in which many things, the context are Here, presence the allusion Coreas’ described made. Counsel for prosecutor’s incidental to court was a father and a “a husband and his client as exposing alleged theme of main incon- States who “came to the United carpenter” sistency accounts. She between two the freedoms that we have simply explained the circumstances under the United because of the United view, which, government’s in the the defen- guarantees these Constitution which States story changed. dant’s had him as a depicted also freedoms.” She police remarks, law-abiding man to the my opinion, prosecutor’s who went In context, improp- particular were not his brother was killed. this (D.C.1982), agree that a should not ask the United I anyone message, particu- jury but this U.S. quoting send Harris v. from below, was, message 105, 108, (1968) in the context lar discussed App.D.C. 402 F.2d argument” anything, cliche-type a "distasteful if J.). (Burger, (Duane) irrelevancy.” "boring Dyson v. or a er; suspi- suggest gullible I either do not that what the defense not to be cious, attorney over-pliant: improper. agree said was intolerant or government, abiding right chal- firm and mind to do to all lenged part justice people, rebuttal manner of to seek cаre, understanding good coun- response
was a fair to defense counsel’s tenance. appeal emotional to find that appellant law-abiding sound, merely high lover This is a note to and often freedom, Fear, himself de- who now found hard to hear in noise of battle. conceit, fending against unjust charge fame, may the lure of or his own Apoliano away high had murdered Perez. lead a ideal. man from this it, always
But if he a dull could follow light hurly- fellow whose dim in the Ill burly might prove more than a worth sum, appeal In is based on one seri- brilliant brother touched with the vices which, view, my impropriety ous did not profession. of his Coreas, significantly prejudice and several Gaffy, which, alleged transgressions less serious F. Role Of The Prosecution Legal System (World they improper to the extent were The Autralian Through 1981). all, Peace Law Center relatively potential preju- little *16 This, me, dice. is insufficient to reverse conviction, especially
Coreas’ for er-
ror.6 repeat, presentation
I “lying jury, in wait”
a time when the defense would have no
opportunity respond, was most unfortu- Jeffrey In the D. government Matter of nate. When the seeks to take HIRSCHBERG, advantage, unfair our freedoms are less Respondent. conclusion, suggest secure. I following distinguished words Austra- No. 88-1281. lian merit consideration Appeals. District of Columbia Court of counterparts everywhere: prosecutor performs A a function which Sept. Submitted 1989. approaching calls for detachment that of Decided Oct. 1989. know, judge.... [Tjhere is much to scope judgment. and much skill and doings,
But in rule all his of conduct Queen’s
should be that as one of
men[7] it him— behooves indict,
[njeither speak nor on trial to except upon credible evi- conviction guilt;
dence of nor to do even a little expediency, or
wrong for the sake of pow- pique any person please any voicing agree that in these noble I with the both that the 7. It is unfortunate verdict, sentiments, support the apparently presumed evidence was sufficient to the author should not be reversed and that the conviction Fortunately, prosecutors that all are men. sup- self-defense was omitted from the Washing completely is untrue in the context judge gave plemental instruction which the ton, Buren Ten D.C. See also Winchester Van response jury. Davis v. note Columbia Rental Hous ants Ass'n District of (D.C.1986) Comm., (D.C.1988), ing n. 10 ). agree majority, (per ever, with the how- curiam unenlightened phraseology noting similar response that a more balanced to such a part of Justice Cardozo. request preferable.