Harris v. United States

promptly correctly so. The witness called enter the fort to do failure gave testimony perti- government majority data Since the who was reasonable. otherwise, (but Cortwright. emphat- nent arrest was Officer I respectfully holds testimony on reasons gave ically) He no dissent. delay. When the administrative its

government presentation, concluded his motion

R.E.G. was entitled have

granted. presented

nothing showing its satisfy burden promptly correctly

that its failure to report recovery

enter the was reasonable.

However, proffered in addition to the testi- HARRIS,

mony reported the vehicle Appellant, that Walker had Thomas E. (which February 4th the court recovered on true), taking as R.E.G. chose stated it was STATES, Appellee. making In call a witness—Joel Bristor. UNITED determination on the motion to ultimate No. 87-155. suppress, the trial court was entitled to See, testimony as e.g., consider his well. Appeals. District of Columbia Court

Franey v. United Argued en banc Nov. 15, 1992. Decided Jan. testimony. turn to Bristor’s Thus we Reading light it in the most favorable to must, government, as we D.C.Code (1989 provides Repl.), simply 17-305

§ satisfy government’s

nothing to burden essence, proof. In Bristor’s into the

was that the vehicle was entered computer p.m. 11:02

WALES as stolen at (some February

on hours after 3rd two report

Cortwright took the stolen vehicle Walker) as and was listed recovered (some after

at 11:20 a.m. four hours R.E.G. arrested). 4th, February On seven vehicle;

inquiries were made about the computer reported the vehicle

each stated, previously stolen. As

was not given as part of his

central

follows: you explain How do then

THE COURT: inquiries made on

when there were seven car as

the fourth to whether the answer came back “no”?

stolen that my exper- I’m sorry,

THE WITNESS: unless it is a I

tise don’t understand computer when

malfunction experience go through don’t —I why that would be

level to understand long scan.

indicated (if sum, evidence there is insufficient all) satisfy record to showing that its

government’s burden

(PCP) possession marijuana marijua- intent to distribute PCP 38-541(a)(l) inna violation of D.C.Code § (1988). appeal Harris On contends that “misconduct,” primarily prosecutorial in questioning arguing Harris and to the regarding “missing witnesses” without seeking permission first of the trial court, a trial sub- denied Harris fair and stantially prejudiced jury. At trial object Harris did conduct. hold that failed to We Harris has error, plain demonstrate and therefore af- firm.

I. application plain error Our of the rule strength require an of the will evaluation Therefore, government’s of the case. we in recite the salient facts some detail. The government’s on Au- evidence showed that Wallace, gust Byron Officer clothes, working plain assigned in drugs. ap- attempt purchase illegal At D.C., Zukerberg, Washington, proximately p.m., Paul 1:30 drove down H. Wallace Street, N.W., appointed by appellant. 6th Wash- for 1800 block of D.C., ington, personal in his vehicle. He Trosman, Atty., Elizabeth Asst. U.S. standing Harris on the east side of the saw Jay Stephens, Atty., with whom B. U.S. time, street. At that Harris Mary Ellen Michael W. Farrell and particular person visible in that block Abrecht, Attys. Asst. U.S. at the time the him Wallace if he had 6th Street. asked filed, Fisher, brief was John David and R. “loveboat,” a term for PCP. street Jackson, Gregory E. Asst. Schertler and he and Wal- Harris indicated that did told D.C., Attys., Washington, were on the U.S. it would cost After Wal- $15.00. lace that brief, appellee. agreed price, purchase Harris lace packet a tin foil from a brown removed ROGERS, Judge, Before Chief bag gave packet and paper Wallace. FERREN, STEADMAN, TERRY, packet of the checked the contents Wallace SCHWELB, WAGNER, and Associate a and discovered that contained brownish MACK, NEWMAN,* Judges, and odor strong a chemical of PCP. weed with BELSON,** Judges. Senior twenty dollar bill gave Harris Wallace Metropolitan Depart- Police from drawn ON REHEARING EN BANC prerecorded had ment funds that been BELSON, Judge: Senior Mitchell, Dwight part- Wallace’s Officer five dol- E. ner.1 Harris then handed Wallace juryA convicted Thomas change. away from Wallace drove phencyclidine of distribution of lars * Judge recorded the number Judge of the 1. Officer Mitchell serial Newman was an Associate argument. twenty status the time of His dollar in a court from the bill notebook and Judge changed on 1991. to Senior March gave it to Wallace to included the case file. ** During operation undercover unrelated another Judge Judge Belson an Associate one, contain- to the instant Wallace’s briefcase argument. His status the time of ing was stolen his vehicle. changed Judge July this file from on to Senior name, given the area and met Officer Mitchell in the 600 and that he the false Street, Harris, of 0 described block N.W. Wallace to Wallace.2 Harris further James 21, 1984, Harris to to 5'10" August Officer Mitchell as 5'9" that on testified between tall, approximately pounds, p.m., 160-170 wear- noon and 12:30 in the 1800 he was green shirt, ing pants, pinstriped Street, N.W., white playing of 6th dice for block golf hat. money alley with other men persons selling heard two the street Mitchell for assist- Officer then called losing fifty- drugs. forty-five After Washington ance. In addition to Officers had, nearby dollars he he to a one went unit, in a patrol and Davis uniformed Offi- get something change store to to drink or Sergeant cer Sovonick and Marshall from returning telephone. Upon for the the vice unit assisted Mitchell. The Officer store, stated, Harris he noticed officers saw Harris in the 1800block of 6th everyone previously who had been on Street, N.W., and him because he detained gone, except person, and block was for one description. matched the Officer lookout then approached that an officer and arrest- Mitchell searched Harris had been where him. Harris the officer ed asserted that standing, higher “an than the elevated area him, searched from then took six dollars sidewalk,” bag paper and found a brown him, him in placed police and of a the back containing packets three tinfoil POP. Street, He cruiser. was driven to M taken Washington in placed Officer Harris vehicle, placed out of and back in the prisoner transport him cruiser and drove 13th a then driven to and H Streets where Streets, N.W., 6th and O Wallace where placed also seat white male was the back positively person identified him as the who of the vehicle. Harris stated that next he had sold him the then POP. Two officers man First and the other were driven to the transported Harris to the First District. District, handcuffed at all times. got car, After Harris out of the Officer Washington cross-examination, During searched it and found a folded Harris denied twenty drugs dollar bill in trans- selling the back of the to Wallace.3 He stated port cruiser where Harris had been seated. at the his later arrest he arrived scene of Washington according Officer testified that or around 12 noon 12:30. When asked how police department there, procedures, the trans- gotten responded that he he had he port begin- Avenue, vehicle must be searched at from 11th Florida had walked & ning of each tour immediately after he Flor- volunteering that at the been prisoner transported has been to a station. visiting He also ida Avenue Grill a friend. According Washington, to Officer Harris place that he had left answered person was the had been trans- who or 11:45. Harris stated around 11:30 After ported day. in that vehicle that Officer ques- still knew that the friend that he compared Mitchell serial numbers tion, Harris, you prosecutor “Did asked twenty given dollar bill he had Wallace to you get that friend try to see could drugs purchase twenty and the dollar bill testify?” answer- come in here and Harris transport found in the The serial cruiser. ed: government matched. ad- numbers The Yes, they I did but don’t want to be— duced evidence that the substance recov- guys like, okay, I even seen one marijuana ered included usable amounts gambling they don’t I that was with but and POP. caught cases where- get up in no want charge might get can they another presented of mistaken as

Harris the defense they to be able testifying lived at don't want identity. Harris denied that he had police them report no to see where address written on the arrest to like—like impeached appellant with the testified time of the arrest 2. Wallace that at the Harris, danger- following carrying represented prior convictions: himself as James (1980); (1979); (gun) larceny weapon petit appeared report. on the arrest ous the name (1980); robbery attempted with a identity and assault Appellant's true determined from (1980). weapon (gun) deadly fingerprints. his harassing like Similarly, could can have to be time he arrested. Officer police people. Because the harass them. Washington although Harris testified that ****** weapons was frisked for he was before cruiser, placed transport money no in the testify. saying I'm I They wouldn’t him. demonstrat- taken from He also got caught up something, you just Harris, ed how his with hands cuffed be- know, got They I it. to deal with back, placed hind could his hands testify won’t for me. testimony, pockets. in his In surrebuttal prosecutor Harris then asked to name Harris demonstrated the use of his how persons play- he had been whom gunshot left hand had been limited colloquy, ing ensuing dice. wound. acknowledged knowing play- one those Raymond ing dice as Jones and stated that him at trial testify

he had asked but II. witness said not come.4 De- he would com- Harris contends that the object fense counsel did not to this line of by failing to mitted “misconduct” secure questioning. permission mak- court before stating Wallace testified on rebuttal ing amounted to what purchased drugs at the time he from Har- argument Har- by his cross-examination of selling no one else in the area ris was contends, way, ris.5 In this drugs anyone he did playing and not see in- prosecutor jeopardized the fairness and dice. Officer Mitchell corroborated Wal- tegrity substantially preju- the trial and by stating that no else lace’s one requiring jury, diced reversal. in the area. Mitchell further was Officer identify will first the standard removing he did We stated that not remember any impro- any money possession by which will measure such Harris’ we following Okay, colloquy place: A there took That’s all was was three. it me, guys crap, per- playing was and one two Well, them, you you Q said knew some of selling. son was were their what names? person? Q you you only And knew one — Raymond was A One named Jones. person. only A knew one I Raymond Q And where live? does Jones Q you get tried to him come down And A I do not know his address. testify? here and Q You don’t know his address? Uh-uh, just A I seen I talked to him him. A No. out the time on the street. when I was last you Q What —how did—how do know Q was that? When him? May. A Back in around, do I I see him A How know him. Q say? what did he And you might evening work like in the time after for me. A He said he couldn't come something him at the like dance or like see Q Why is that? people know a that. I whole lot like not as just A won’t come Because personally, personally but mean far as like I mean, why, they just know man. I don’t personally just —I as far as like street like that. know, get you just gotta you you caught up, you Q else know in dice Who did is, way way best the best deal with it the game? you way That’s the it is. can. just guys, I knew A I didn’t know the other Raymond Jones. frequently been 5. The term "misconduct" has many playing people Q How were by counsel in used describe mistakes made game? dice suggests As the unethical of trial. term heat was A It Q three. behavior, unduly description an it is harsh many selling people drugs were on How relatively many minor of the unintentional or the street? during lapses McGrier v. trial. See of counsel A Was two. 36, (D.C.1991). States, United 597 40-41 Q Just two? "impro- opinion, look, we use instead the terms this Okay, playing crap, one was one A them, "improper." priety" use and As we selling. was convey "impropriety” “improper” terms playing craps Q one sell- One was prosecutor’s question or com- notion that the ing? They legally permissible. do not ment was not Yeah. A convey prosecutor’s behav- you notation that the thought Q I stud there were three ior unethical or immoral. people playing craps? States, 644, v. next Sherrod United case, priety by prosecutor this prosecutor actu claim that evaluate the any impropriety in his cross-

ally committed here, contends Harris, finally measure examination of however, agree, that because Har and we impropriety against that demonstrated concerning objection at trial ris made no reviewing allegations standard. When appeal, appro the errors he asserts an conducted examination priate apply here is more standard to argument first improperly, we determine v. plain error doctrine. Watts demanding or ac whether the statements (D.C. States, United 362 A.2d Gray improper. actually were tions accord, Jones United 1976) (en banc); States, (D.C. United 589 A.2d (D.C.1986); 512 A.2d 1991); Hammill v. United 498 A.2d 5; Mitchell, see at 183 n. (D.C.1985). Normally, we where 52(b). also Super.Ct.Crim.R. impropriety has occurred and find that It is that reversal under well settled appropriate the defendant has made justified only plain error doctrine objection, then determine we we “a exceptional where miscar circumstances assurance, say ponder can fair after “with riage justice otherwise result.” ing happened stripping all that without Frady, States v. 456 U.S. whole, action from the erroneous 14, 102 1584, 1592 n. n. L.Ed.2d S.Ct. judgment swayed not substantially otherwise, (1982). Stated “error[s] (Phillip) Dyson the error.” clearly prejudicial complained be so of must (D.C.1980) (quot rights jeopardize as to to substantial ing Gaither v. United U.S.App. very integrity of trial.” fairness and 1061, 154, 172, (1969) 413 F.2d D.C. 1079 709; accord, Watts, supra, 362 A.2d at (footnote omitted) (quoting in turn Kottea States, 1145, v. A.2d Allen United 495 States, 750, 765, kos v. 328 United U.S. 66 (en banc); (Frank) Arnold (D.C.1985) 1152 1239, 1248, (1946))). S.Ct. 90 L.Ed. 1557 States, 136, v. United 137-38 on “the gravity This is done based of error, course, (D.C.1983). “An of must be misconduct, relationship its issue of readily apparent in than more obvious guilt, by the effect of action corrective under trigger appellate order to review” judge, strength and the States v. error standard. United plain Gray, government’s supra, case.” 589 1, 14, n. (Billy) Young, 470 U.S. 17 105 (quoting Dixon v. United A.2d at 916 1038, 14, (1985).6 1 L.Ed.2d n. 84 S.Ct. 1047 States, accord, 72, (D.C.1989)); A.2d 75 stated, Supreme 565 recently As we “[t]he States, v. United 177, Mitchell plain A.2d for 569 reversal Court has cautioned that — denied, U.S.-, cert. (D.C.), alleged mis prosecutorial 183 n. 5 in error cases of ‘particularly 521, (1990); confined to 111 112 L.Ed.2d conduct should be S.Ct. 532 trigger Federal Supreme appellate review under Rule in which the used 6. The context Court 52(b). Following deci- Criminal Procedure Young language quoted from is instructive. Frady, States v. United sions such as United brought prosecutor there had error about Co., supra, Socony-Vacuum v. Oil [310 States by responding improper to defense counsel’s 150, 811, (1940)], L.Ed. 1129 S.Ct. 84 U.S. 60 by stating closing argument Atkinson, 157, U.S. v. [297 and United States "personal impressions” that the defendant own 391, (1936)], L.Ed. 555 federal S.Ct. 80 56 jurors fraud and that the had committed plain- consistently interpreted the courts jurors” "doing job as if ac- [their] not be appellate requiring an court error doctrine as situation, quitted In that the Su- defendant. error not seri- find claimed that the preme Court said: rights,” ously but that it “substantial affected Appeals prosecu- held The Court of that the jury’s impact on the prejudicial had an unfair improper “plain remarks constituted er- tor’s Only the court be then would deliberations. ignored solely because the ror” the error undermined able to conclude prohibiting responses. to a court’s rule such the trial and contributed the fairness of plain-error justice. per approach miscarriage review is se A 14, error, course, (Billy) Young, supra, at 16 n. 105 more 470 U.S. must be ñawed. An readily apparent S.Ct. at 1047 n. 14. in order to obvious or than 160 118, 121, States, v.

egregious’ situations.” Doe United Graves v. 150 U.S. United (D.C.1990)(cita- 40, 41, (1893). This 670, 14 S.Ct. 37 L.Ed. 1021 676 omitted). in court the circumstances has clarified tions may argument which addressing allega when This proce permitted established the and has error, plain must review the entire tions of by dure to counsel who wish be followed simply possible not because record “[i]t emphasized argument. make the We have appellate to assess the for an serious must first determine trial court by any of the claimed error other ness question pecu the witness both “that (Billy) supra, 470 at Young, means.” U.S. party liarly against whom available 16, 105 S.Ct. at 1047. sought, that the the inference is and ... cases, reviewing particu- it is criminal elucidated witness’ would have important appellate larly courts at issue.” v. Unit transaction Lemon imaginatively relive whole trial 1368, (D.C.1989) ed A.2d 1375 564 episodes to extract from isolation States, 514 (quoting Lawson questions proce- of evidence and abstract 787, (D.C.1986)); 789 see also Ger To turn trial into a dure. a criminal 596, States, 525 A.2d 611 man v. United promotes quest for error no more (D.C.), denied, 108 S.Ct. cert. U.S. acquiesce justice ends of than to in low 331, (1987); Thomas L.Ed.2d prosecution. standards criminal (D.C.1982); (quoting Id. Johnson v. United States, 309 A.2d Conyers v. United 189, 202, 549, 555, L.Ed. 63 S.Ct. U.S. (D.C.1973); 312-13 United States (Frankfurter, J., (1943) concurring)). (James) 103- Young, U.S.App.D.C. “exacting (1972). definition of 05, Relaxation 939-41 F.2d error,” Young, plain (Billy) requirement, peculiar first should be U.S. S.Ct. availability, is satisfied “the avoided; to do “would otherwise skew produce physical ability to locate and balancing need en- ‘careful of our ... a relation the witness and there such courage participants all trial to seek a fair facts as ship, legal status or on the first time around and accurate trial the party as to it natural claimed make against injus- our that obvious insistence expect party to have the wit called ” promptly (quoting redressed.’ Id. tice be Thomas, at 57 supra, ness.” 163, 102 at Frady, supra, 456 U.S. at S.Ct. 150 (James) Young, supra, (quoting (footnote omitted)). 1592 943); ac U.S.App.D.C. at 463 F.2d at case, ultimate focus in this there- Our Lawson, 791. supra, 514 A.2d at cord fore, the asserted errors is whether must aspects peculiar availability of Two integrity very fairness jeopardized First, physical a witness must be be met. to a miscar- the trial and contributed of brought available, i.e., capable being of ly simply justice than on the riage of rather not, can “no factual conclusion to court. If actions. See propriety him. produce the failure to be drawn from States, 506 A.2d Black United physically is not avail general, In witness a (D.C.1986). is ... and unless he can be located able subpoena power of the court.”

within (citations Thomas, A.2d supra, 447 at 57 III. omitted). Second, availability is practical missing a turn to discussion We reasons required. party’s ability or recognized for rule. It has been witness strong “must producing the witness be party it century “if a has a that almost party seeking infer er than those of produce wit- power his peculiarly within at in favor.” Id. 58. ence testimony would elucidate nesses whose it requirement, second transaction, To meet the that he does not do the fact wit that the absent must be demonstrated presumption that the testimo- creates the the trans- testimony ness’ would elucidate be unfavorable.” ny, produced, would inquiring action. This determined from court even before the trial needed incomplete missing wit- is “relevant and ma- counsel makes an (James) Arnold, disputed case[,] argument. supra, in terial to issue ... ness noncumulative, ‘important By doing, so part’ and an of 511 A.2d at against of that the case whom the court can “ensure the foundational (citations possibly im- inference is drawn.” Id. at issues are addressed before omitted). proper suggested inferences are jury.” (emphasis original) (quoting Id. requirements Both must be met 58). Thomas, A.2d at may permitted make before counsel closing argument We note partial incomplete missing even a wit prosecutor made no mention of argument. Lemon, supra, ness A.2d here, potential defense witnesses discussed partial 1375. Counsel makes a or incom i.e., playing persons Harris said were missing argument plete witness when coun dice him arrest or the before his sel notes the absence of a witness but fails friend seen at Ave- had the Florida step asking to take the additional recognized, nue court has how- Grill. This to infer witness’ ever, impact techniques some par have been adverse other substantially can be cross-examination step, If counsel ty. argu takes that incomplete missing same ar- as an witness missing ment complete becomes a witness gument. Chappell v. United Id.; argument. Lawson, supra, A.2d (D.C.1987); Sherrod 789-90; (James) Arnold v. United (D.C. States, 478 A.2d United (D.C.1986). 415-16 A.2d 1984). Thus, Judge for the Nebeker wrote seeking the party Unless to use a court in Price v. United States: argument require witness can meet both questions suggested The [prosecutor’s] ments, preclude the trial court must coun draw an inference adverse making type sel from either not fact that the witnesses argument, and the trial itself court infer- resulting testified. The adverse give missing must witness instruc may ence have been the absent wit- tion. See Dent testimony would been unfa- nesses’ have 169-70 way, the cross- vorable to Price. this long It has juris been clear this Price in much operated examination of making missing diction that before wit incomplete as an miss- same manner argument, ness counsel must ad obtain ing argument. We conclude vance consent from the trial court. See government’s inquiry should not Chappell v. place without the trial taken (D.C.1987); (James) Arnold, accord determining precondi- first that the same 415; supra, 511 A.2d at Parks v. United miss- necessary incomplete tions for an States, 591, (D.C.1982), 451 A.2d 614 cert. ing argument present were also witness denied, 945, 461 U.S. 103 S.Ct. 77 here. (1983). counsel, L.Ed.2d 1303 ei “When (D.C.1987); accord, 984, 993-94 defense, prosecution ther for the or the Lemon, A.2d supra, 564 at 1375.7 argue to intends an infer recognized per is that it ence to be derived from the absence of a We witness, ruling to from the trial missible for counsel cross-examine advance establishing purport a sought should and a view that court be obtained.” toward this is States, not exist and that U.S.App.D.C. 135 ed witness does Gass United missing implica 11, 19, (1969) (footnote 416 775 different from a witness F.2d omitted). injecting generally Alston v. United prejudicial avoid tion. See “[T]o (D.C.1989). Be- trial,” permission A.2d error into advance may recognize that apply ment also to cross-examination We the case before tried that us was operate we in Price and that the before clarified Lemon the same manner. in much applicable missing argu- principles to witness however, may cause, explore pro- counsel other amounted a “mere witnesses to fact, whether, actually cedural error.” a witness exists suggest missing a in such a fashion as to agree We with the that inference, permission advance from witness questions did not amount to sought. the trial court should be The trial complete missing argument. This witness court, exercising when its discretion wheth- prosecutor is so did not direct because permit questioning, give such er to should ly urge jury to infer that from the fact holdings it per- consideration to our that Raymond Harris as a did not call Jones attempt called, for counsel to establish that, missible to if would have witness Jones Black, adversely cross-examination the non-existence of a to testified Harris. See 1132.9 purported supra, A.2d at witness. satisfied, We are also for the reasons we Finally, we reiterate explain below, prosecutor that had the discretion, if re court has even sought permission ques the trial court’s to quirements peculiar availability of both persons he tion Harris he said about met, request deny are for a elucidation with, playing been dice would have argument and instruction. discre within the trial court's “considerable Thomas, supra: As stated in we on this tion” allow cross-examination discretionary This decision should be matter. Garris United guided by underlying reference to the denied, (D.C.1983), cert. doctrine, by considering for the rationale L.Ed.2d 243 U.S. 104 S.Ct. “whether from all circumstances an in- (1984). contrary reach a conclusion We ference of unfavorable questioning prosecutor’s brief about an absent witness is a natural and rea- concerning friend Harris had visited one.” sonable Grill, find that the Florida Avenue but Thomas, supra, (quoting A.2d at 58 lapse consequence, will also of little as we 165, 171 404 A.2d at Dent v. United explain. (D.C.1979)); German, supra, see also game dice respect With to whether the 611; Lawson, A.2d at A.2d at to Har- peculiarly available witnesses were 791; Miles v. ris, he on cross-examination answered Raymond trial he had asked Jones case, the govern the instant dice friends, allegedly playing who were rule, it appropri as ment violated Gass arrested, to he just with Harris before was concedes,8 ately prosecutor cross- when they re- testify come to concerning Harris his failure to examined however, did not response, fused. This supposedly call witnesses who could have inquiry automatically foreclose the Harris, given favorable with peculiarly Raymond Jones was obtaining permission of the out first It is Harris. available as a witness for Arnold, supra, 511 court. See trial true, course, such as a witness government argues, however, at 416. or not within cannot located Jones engage in did not he is subpoena power of the argument complete tes- But Harris never physically available. interrogation prose and that equivalent not be Raymond tified Jones could located; merely trial contrary, failure obtain the court’s cutor’s Ray- questioning appellant re he did not know where consent before stated that fact, standing That Raymond Jones and mond Jones lived.10 garding the absence of conjec- colleagues engage dissenting Judges and Schwelb ex- 10.Our Associate Steadman government’s opinion press suggesting as his no to whether ture in that Harris “had asked witnesses, appropriate. concession was attorney subpoena missing but to (Dis- attorney not them. that his could locate prosecutor’s cross-examination of Harris 9. The 171) (footnote omitted). The record sent at missing concerning alleged witnesses could determining purpose wheth- served the of have er, fact, actually the witnesses existed. See Alston, supra, 552 A.2d at 528. of this case it alone, govern- under the circumstances is insufficient to counter argument that trial court’s Raymond Jones have been within the ment’s would Reasonably to peculiarly permit available Harris. to discretion to broad diligent produce Raymond to Jones efforts interroga- engage missing in the witness investigation and the have included would concerning per- he tion that conducted process by the compulsory provided use of dice engaged said were sons Harris employed by apparently not means game him. with Harris. same, however, cannot be said doc- distort witness It would concerning the questions if a court were to find that a witness trine the Florida who was with Harris at friend party peculiarly available to a based is not fifteen minutes or more be- Grill Avenue testimony that that an merely upon party’s he arrived at the location where fore Harris preferred come to not to absent about an hour and half later. was arrested testify did not court to that the circumstances, it is doubtful that Given cir- the witness’ address. Under the know light upon the friend could have shed cumstances, say Harris we cannot Har- or occurrences that led to transactions a fide made “bona reasonable effort[] nothing record There in the ris’ arrest. the witness success.” produce without See met at suggest friend Harris Thomas, supra, 447 A.2d at 57. vicinity of anywhere in the the Grill was requirement, turn now to the We second any point of the Harris’ arrest at the scene testimony elucidate witness’ would at the restaurant between their encounter Raymond respect transaction. With and a half Harris’ arrest some one Jones, example, have to the court would degree of remote- later. Given this hours his testimony satisfied that would be be ness, not have acted would disputed issue “relevant and material to a permitting its discretion in within just in the case.” Id. Harris testified that interrogation to the argument, or being in the prior played arrested he dice effect, But concerning this witness. same alley some men that he saw two unlikely that this obviously it was because drugs. street Because selling men on the light the circum- could shed friend Raymond one Harris stated that Jones was arrest, surrounding it is Harris’ stances playing of the men with whom Harris was unlikely jury attached highly that the also dice, corrobo- Raymond Jones could have from trial significance to absence much credi- testimony, Harris’ his rated bolstered Harris at friend who had seen theory supported bility, and his defense the time restaurant well before distant identity. If had Raymond Jones mistaken arrest. defense, called as witness for the been' Har- proceed with our assessment To relevant would have been error, eval- must also plain we ris’ claim general- case. and material Harris’ strength government’s uate (John) ly case. Jones (D.C.1981)(missing witness’ reason- find it a We to ex- material been case, recognize though strong even we ably vicinity of presence in the plain defendant’s credibility that questions of there were crime, important and it Wallace, expe- jury had to resolve. at is- eyewitness to the event witness be officer, undercover made an sue). police is that rienced The sum of this discussion stated that the witnesses. He redirect ex- names of in this that on reflects connection amination, give addresses affirmative witness’ in the couldn't Harris answered reason he by your you attor- “were asked when asked ever the addresses I didn’t know was "because subpoe- counsel, ney you had witnesses give Defense ’em to me." won’t on to answer to—for trial?" He went naed here for redi- the stand recalled Harris to who had given street names his counsel the that he matter, solely adduced no to deal with this rect witnesses, could not but that he the stated of proffer testimony concern- and no made other asked give never their addresses. He was subpoena the witnesses. ing locate efforts to and given attorney the actual his he marijuana buy questioning laced with PCP from also observe the We likely gave issue most did not create an “unfair then Mitchell a Harris and Officer prejudicial impact on jury’s the delibera- description of other offi- Harris. Several tions,” Young, 470 U.S. at n. Harris who cers soon located and detained because, n. 105 S.Ct. at 1047 even if the description. matched the An officer matter, prosecutor did not this the raise searched the area Harris had been where jury would have been aware from Harris’ bag standing paper and found a brown playing that the men dice with containing packets three of mari- additional just prior to arrest had not come Harris his juana positive- treated with PCP. Wallace testify in court. have It would been ly identified Harris at location as another apparent Harris had been illegal the the individual who sold Wallace only person who he had testified that drugs drugs. paid for the Wallace had engaged relatively in this innocuous been by twenty pre-recorded with a dollar his bill activity shortly an- before his arrest while partner. twenty The serial of the number person hawking drugs nearby. other by Washington in dollar bill found Officer that, significant Harris It also when seat of police the back cruiser which prosecutor’s questions, he answered the transported Harris num- matched the serial explana- opportunity give used money ber of the used in the undercover men, viz., tion for the absence of the buy. testify to come to court to did want government’s These facts make case position place themselves where strong. reasonably theory The defense bring charges police might harass them or agreed, for that all the officers involved might against them. The well reason, conspire some fabricate from explanation plausible.11 found this Harris, against a case while not whole cloth Thus, prosecutor while we find that impossible, virtually support finds no some into this case injected at least error testimony. than record other Harris’ own permission failing to the advance obtain suggested why defense no reason questioning appel- of the trial court before police would wish a case to fabricate appear at persons who did not lant about against ques- him. defense did raise trial, find error was of we cannot that the the loss tions about of the record It is serious nature. clear that used twenty serial number dollar bill not of itself questioning here did buy transport log for the miscarriage justice. about bring about a passen- that referred to a second seat back IV. ger. gave But ex- witnesses and, sig- more planations for those matters during re argues Harris also plausi- nificantly, other lent circumstances im- closing argument buttal bility government’s case. Harris argued testimony of that the permissibly vicinity of individual in the believed over police officers should be police offi place of his matched Harris because arrest who commit to risk cers had too much stake description given the made the officer who conduct, argues, This ting perjury. Indeed, buy. only person he visi- was the credibil improper declaration about anwas Additionally, in the block at that time. ble prejudice ity and occasioned cumulative unlikely drug dealer had it is another which, missing witness coupled with the happened to his valuable just abandon jeopardized the fairness questioning, appellant happened to stash near where disagree. integrity of his trial. We sum, standing. having In assessed strength government’s case as a we disagreeing, do not overlook it, impor- plain analysis, credibility our error we deem the issue part of fact that closing said, strong case. Defense counsel stated in reasonably tant. as we have (2d Cir.1932); ability 11. With respect typical jury’s E. Cleary, McCor- 60 F.2d 1984). Cotter, (3d matters, ed. § at 807-08 out such see United States sort mick on Evidence V. intro- government had argument that the demon- prior convictions to duced Harris’ Harris’ contention reject alsoWe per- not a credible that Harris was strate during re comments prosecutor’s son, the same time pointed out that at and completed the closing argument buttal testimony and in-court police officers’ shifted the argument and missing witness in con- documentary evidence were certain prosecutor stated: proof. The of burden closing prosecutor, in rebuttal flict. The Furthermore, as police officer each in to find Har- argument, stated that order testified, testimony officer’s they each jury have to be- guilty ris not would parts of another different corroborated perjured them- police officers lieve that met, they how testimony, where officer’s careers, futures, selves, risking their their do, met, they decided to what they what The fur- retirements. and their they ar- Mr. Harris when happened to decid- if the officers had ther observed any kind of cor- him. there rested Was they could testimony, their to fabricate ed testimony. Harris’s for Mr. roboration air-tight case up an easily have made sup- anything to corroborate Is there against Harris. There’s not. you. he told port what argument was The rebuttal hold, permissible argument, we Such response to defense arguably least a fair conveyed jury merely because if assume closing. But even we counsel’s credibility evaluating of wit when prosecutor should have refrained that the ness, a lack thereof of corroboration or making these statements because The be considered. should evidence, not on record were based interro by government, its slight. resulting prejudice, any, argument, subsequent gation of Harris and jurors to think It be reasonable for would proof. of the burden did not shift consequences facing an officer argue the right government had the caught giving perjured who is contrast it with strength of its case and enough conduct. to deter such are severe That mode defense. of Harris’ weakness Finally, the trial court instructed itself, not, shift the argument did arguments of counsel could not be that the Moreover, the proof to Harris. burden in and that a crimi- considered as evidence jurors instructed the properly trial proof shifts to nal the burden of never case the wit “consider whether they could presumed the defendant. or corroborated contradicted ness has been instructions, v. followed these Clark in the case.” evidence by other credible (D.C. States, 593 A.2d United Dis Jury for the Instructions Criminal 1991), “upset this court will not and 1978); (3d Columbia, ed. No. 2.11 trict assuming jury declined to do verdict Sensi, 279 States see also United at 918. Gray, supra, 589 A.2d so.” 42, 53-54, 899- 879 F.2d U.S.App.D.C. Glantz, Considering argument con- (1989); both Harris’ States v. United denied, Cir.), officers’ motivation for cerning police (1st cert. F.2d arguments L.Ed.2d 701 avoiding perjury and the 107 S.Ct. U.S. issue, Gotchis, it is missing witness 803 F.2d (1987); makes on the States ap- Cir.1986). has not even (2d to us that Harris clear 79-81 prejudice that showing of the proached a convic- foregoing, Harris’ Based on essen- required to undermine its tion is constitute a of the trial and to tial fairness Affirmed. Although pros- miscarriage justice. proceedings into the injected error ecutor concurring WAGNER, Judge, Associate have discussed limited extent we dissenting part: part area, assuming by the reached in the result I concur police officers’ argument about the its reason- agree with much of I did the error objectionable, careers goes only to the ing. My disagreement plain error. the level of reach through the testi occurred cross-examination determination that error court’s missing would have mony an of a witness failed to obtain when States, Chappell ruling from trial court before adverse. v. United advance been 1257, 1259(D.C.1987); cross-examining the exist- appellant about 519 A.2d Sherrod 644, (D.C. States, availability of claimed witnesses. 478 A.2d ence and missing 1984). witness my opinion, prevents In neither counsel from This rule requires pre- fairness through questioning rule nor reasons of he or suggesting what ruling proper foundation- prior arguing lay precluded view she is from without support a miss- propounded questions obtaining al ing proper foundation and argument or instruction. ing witness ruling the court on the ade advance evidentiary predicate. Cross- quacy of the rule, underpin which forms the The Gass simply explores the ex which examination error, finding of nings of the court’s estab availability peculiar of a wit istence and permission must be that advance ob lished party, essentially foun ness to the adverse counsel for from the court before tained phrased questioning which is dation argues jury that an ad either side suggesting that the absent wit a manner may drawn from the verse inference be have been unfavora ness’ States, absence. Gass v. United witness’ ble, Chappell and precluded is not under 11, 19, 767, U.S.App.D.C. 416 F.2d view, challenged my In Sherrod. Gass, (1969). prosecutor argued not exceed here did cross-examination inference from the failure of Gass adverse these bounds. eight allegedly had call witnesses who to his defense. Id. information crucial course, held that it this court has also Of However, availability of the witnesses error, prior approval, to without court is during testimony. explored had not been missing argu- incomplete witness make an Therefore, of the two essential one Id. jury, i.e. one which notes ment to the making missing wit requirements for urging the of the witness without absence obtaining missing argument or ness inference. Arnold v. United adverse (i.e., peculiar witness instruction availabili (D.C.1986). The made) party against whom ty to the holding said to for the is rationale not been established. See Graves Unit argument ordinarily essentially such an 40, 41, 118, 121, 14S.Ct. 150 U.S. ed may con- suggests jury that the one which (1893); Lemon v. United 37 L.Ed. been testimony would have clude that the States, 564 A.2d to call the party who fails adverse to ruling preliminary be The rationale for a prohibition is Again, witness. Id. im argument guard against the fore is to having the effect only arguments against inference where proper use of an adverse Prior inference. suggesting the adverse lacking. evidentiary foundation See approval under these circumstances Gass, U.S.App.D.C. 416 F.2d at the foundational to assure that is deemed However, nothing in deci the Gass 775. propriety of met and the requirements are preliminary ruling suggests that a sion upon adverse argument ruled before cross-examining a required before would be jury suggested to the are inferences for a to establish a basis party in an effort It is for the court through argument. Id. instruction argument or whether in the first instance to determine during witnesses disclosed about claimed the ad- appropriately deduce jury can trial. evidence,1retaining the fact from the verse in- argument or permit the discretion to holding in Gass Subsequently, inference even if on the adverse is error struction rule that it here into the evolved are met. Price preconditions for it two suggest prosecutor to for the testimony of deciding infer that the given, whether to instruction is If the ultimately a witness have been unfavorable. witness would determines Jury the transaction the District of who could have elucidated Instructions Criminal Columbia, 1978). peculiarly (3d and whether available to 2.41 ed. No. sufficiently for before accounted absence was previously undis interjects 993 n. 16 v. United inquiry opens the door to (D.C.1987); closed witness German denied, (D.C.1987), cert. witness’ existence about the claimed 98 L.Ed.2d 358 108 S.Ct. U.S. im disclosures availability. To leave such simply which (1987). cross-examination, Cross-examination of mune from the test availability and of wit probes the existence circumstances, will exceptional absent does not suggested a defendant nesses the impression with likely more leave the unfairly suggest presumption or create a cor exist who jury that claimed witnesses Thus, jury. to the an adverse inference the by the portrayed as the events roborate not com underlying rationale Arnold does unfairly preju party, thereby testifying cir preliminary ruling a under those mand question Since such dicing the other side. cumstances. of cross- permissible limits ing is within the Arnold Although took the and we Gass examination, not special permission should Price, supra, 531 step in rules a further requirement required to conduct it. be 984, my opinion, in step one too far pre questions be that such foundational only in again decision found error the Price unnecessarily undermines viewed suggests “that the which cross-examination credibility is by which the witness’ means un- missing provided witnesses would In re during cross-examination. See tested In testimony.” Id. at 994. favorable 1062, 1067(D.C.1979); W.A.F., see Price, beyond typical questioning went States, 402 A.2d Letsinger v. United also questioning In and questions. foundation 411, preliminary re Such 415 prosecutor suggested argument, final unduly spontaneity restrict views witnesses, pro- who could absent during elicited cross-examination answers alibi, Price’s only corroboration for vide and, therefore, required should be view, and, in were available the court’s excludable necessary placing to avoid when inference. at suggested an adverse Id. jury. evidence before the go not so far prosecutor 993.2 The did Rather, and sought bearing to ascertain on the existence this case. he Evidence name, address men- potential knew witnesses availability of witness, and how to locate the claimed during by party cross-examination tioned a get to them to whether he made an effort evidentiary on generally excludable is not court. ruling prior on requiring In a grounds. way long a have come questioning, such we my opinion, potential In harm associ- reason- the sound rule and Gass incomplete missing witness ated Gass, supra, ing supporting it. See proper argument present is not when foun- It is 416 F.2d 775. U.S.App.D.C.at questions regarding the existence dation gone.4 have not federal circuits distance the posed dur- availability of witnesses are as even characterizing questions such hand, In the other ing cross-examination.3 On error, grounds are laid harmless defendant, prosecutor or other who analyzed of whether Price, in terms ultimately are call witnesses denied 2. In right to implicate the defendant’s missing because the three witness instruction the comments equally to both witnesses were available to shift constitute an effort silent or remain Price, Johnson, sides. proof. See United States burden denied, Cir.1983), (11th cert. F.2d say be cir- not that there will not 3. That is to 79 L.Ed.2d 104 S.Ct. 465 U.S. ruling might prior cumstances under which a Hager, (1984); F.2d United States (e.g., required prejudice to avoid undue Gotchis, Cir.1974); (8th States v. having potential privilege). Under witnesses Cir.1986). (2nd F.2d circumstances, preliminary examination such upon failure to the defense’s free to comment ruling as in the case can be obtained long comments are so as the witnesses call excludable, prejudicial potentially evi- other interpretation as a comment subject to dence. Gotchis, testify. failure to defendant’s circuits which for cases in the federal 4. A search White, 74; States v. also United F.2d see rulings on foun- rule to advance extend the Gass Cir.1986). (8th F.2d unavailing. federal questions In the dation circuits, on a defendant’s failure comments gravi- majority in future both the repetitive revisitation of the issue underestimates my opinion, required preview ty of the error this case and error’s cases. questioning goes appellant’s far importance before foundational trial and beyond po- meet the necessary system what as In view of judicial a whole. Chap- sought harm tential be averted long-standing decisions pell or to trial to Sherrod assure a fair clear. prosecutor’s misconduct was Yet Therefore, respectfully I dis- both sides. judge inexplicably trial failed to correct portion opinion sent from that which Furthermore, defense coun- the situation. be ob- ruling holds that an advance must object unprofessional. failure to sel’s the court cross-exam- tained from before virtually This combination circumstances ining lay for a a witness a foundation tri- compels appellant’s the conclusion that argument missing witness or instruction “miscar- al can be characterized as a suggest questioning where that does not circum- riage justice.” such Under may adverse be drawn that an inference stances, plain find error the should produce from failure to the witness.5 prej- the had an “unfair both because error impact on deliberations”

udicial the ROGERS, Judge, Chief with whom “seriously af- and because errors MACK, Judge, dissenting: joins, Senior reputa- integrity public the ... or fected] United judicial proceedings.” tion of [the] occasions, prior the en banc court On two Atkinson, 160, 157, v. 56 States 297 U.S. Allen v. Unit See plain error. has defined 391, 392, (1936). 80 The L.Ed. 555 S.Ct. States, (en (D.C.1985) A.2d ed 495 1145 plain here error failure to do so leaves the States, 362 A.2d banc); v. United Watts Therefore, meaning. I with little doctrine (en Thus, (D.C.1976) banc). 706 respectfully dissent. government agrees plain error occurs complained error so clear when “the [is] ly prejudicial rights as to substantial I. very integrity

jeopardize the fairness and Watts, supra, at of the trial.” 362 A.2d prosecu- According majority, agrees plain It further error 709. in case was misconduct1 the instant tor’s applies to “a trial infected with error rule permission failing judge’s to ask trial prosecutor trial ‘plain’ judge so in a man- cross-examining appellant before it, countenancing derelict in even ab were inferences. that raised witness ner in timely the defendant’s assistance sent prosecutor clearly erred in agree I detecting Appellee’s petition for re it.” permission failing judge’s to seek the trial United hearing (quoting en banc at 2 cross-examihing appellant about before 152, 163, 102 Frady, v. 456 U.S. States missing witnesses he had asked (1982)). 1584, 1592, 71 L.Ed.2d 816 S.Ct. The testify his behalf.2 to court to come proper application of this my opinion concludes, however, this er- majority requires reversal here. test relatively unimportant, because ror was judge’s sought prosecutor prosecu- majority concludes that the “it would been within missing permission, have violating in “impropriety” tor’s to al- ‘considerable discretion’ trial court’s rules was insufficient to warrant Majority cross-examination.” In order to this conclusion low reversal. reach [the] States, misconduct”); Price, v. United A.2d 984 is torial Hammill the extent that 531 5. To 551, interpretation contrary, (D.C.1985); subject to an to the v. United 554 Sherrod 498 A.2d my opinion, 644, (D.C.1984); the en banc court should overrule States, United A.2d 478 655 it. (en (D.C.1978) Harvey, 392 A.2d 1049 States banc). Although majority in this case refers alleged "impropriety,” I retain prosecutor's States, A.2d United 564 2. See Lemon v. referring long-standing tradition of court’s States, (D.C.1989); 531 A.2d Price v. United See, 1375 e.g., Gray v. "prosecutorial misconduct.” States, (D.C.1987); (de- Chappell (D.C.1991) v. United (D.C.1987). approach "prosecu- scribing general cases of omitted). opinion (quotation They testify. saying I I’m I can- A: wouldn’t agree. up you just got caught something, know, got They and I to deal with it. raising missing infer- Before testify for me. wouldn’t “(1) ence, party must demonstrate question peculiarly avail- the witness in Q: prior Is that because have against whom the infer- able criminal records? (2) sought, ence is that the witness’ knowledge I have no of that. A: [Em- have the trans- elucidated phasis added] action issue.” Lawson United questioning clearly This violated the purpose prosecu- witness rules prevent because of this rule is from prior permission being exposed tor failed to argument “may to an obtain weight supra. judge. add a to one note More fictitious side anoth- trial case_” important, er of Arnold v. United even if the had asked (D.C.1986) (quot- permission, judge would have ing Burgess U.S.App. denied it. The “Florida Avenue Grill 198, 206, (1970)). D.C. F.2d friend” observed hours before drug away. It many sale and blocks is During appel- the cross-examination of arguable whether the witness could have lant, prosecutor asked how he testimony; the wit- offered even relevant scene arrived of the arrest: surely not ness could have offered testimo- Q [by government]: And how did ny that would “elucidate the transaction.” get you there? A.2d Dyson [byA appellant]: I walked. (D.C.1980)(“appellant’s testimony Q: From where? ... earlier on the that he was with friends say A: Walked from I 9th to—it was night observing the incident fire some a visiting over the Florida Avenue Grill one two to blocks from warehouses. friend I and walked from there. That testimony ... shed no would have [T]heir 11th would be at and Florida Avenue. light appellant did did not on whether or Q: you visiting your What time were later break into the warehouse that eve- friend? Haynes ning”); v. United 11:30, I say A: maybe around about (D.C.1974) (“[t]he absent witness quarter to 12:00. present at the door of the here ... was Q: you Do still know that friend? house, lived, shortly allegedly where she A: Yeah. appel- encountered before the officers first Q: Did you you try ask—did to see if manner We cannot see what lant. ... you get could to come in friend transaction which she could elucidate that testify? here and subject prosecution”). is the of this Yes, they A: I did but want don’t to questions did ex- thus like, okay, I even seen one of the be— is missing witness rule de- actly what the gambling guys they I was with but they suggested signed prevent: that the to get caught up don’t want to in no cases improper adverse inference draw they might get can another whereas Grill friend’s ab- from the Florida Avenue charge testifying they or don’t want for Lemon, sence at trial. See police to like—like no to to be able see in- (“even where no adverse they to A.2d at 1375 where could can have be them police requested, the effect harassing expressly them. like Because ference people. argument is ‘incomplete’ harass substantial- one”). explicit ly as that of a more the same Q: I’m sure I understand. You clear, make the fact As decisions our your testify mean that wouldn’t friends did not friend the Florida Avenue Grill prior criminal because he had proves only that testify at trial records? nothing important appellant’s “practically to add de- unavailable” unavailable” fense.3 government. “We have held that lant about another lant’s A: No. A: One was IA: them, what Q: with some play regular Q: [byA you playing dice with? Q: Well, you Q [by Where does You don’t know cross-examination, ^[*] do not know appellant]: ’ guys ^[*] government]: were around Raymond said went Raymond ^[*] their his I you play, on, during appel- names? address. ^[*] Jones. Well, address? area. knew some question appel- witness: you Jones live? playing dice ^[*] who were know, ^[*] we ness, that [are] ing an inference in his practical tile.” Id. cause his parties, beyond ed available” addition, a ment ...” Id. at 1012 ‘physically available’ witness, stronger has a can be sense witness becomes unavailable witness can be subpoena power special example, one or his reasons for than those peculiarly “party’s (quoting relationship (citation omitted). to a expected opposing party favor.... ability only (D.C.1982); Thomas v. Unit- “practically available defendant, one of the party doing produce govern- a wit- [I]f Dent when (D.C. seek- hos- in a but un- be- so, Q: per- one you you And knew 1979)). — son? Applying principles, these it becomes I only person. A: one knew that the failed to demon- clear Q: get you tried to him come down And peculiarly Raymond strate that Jones testify? here and First, govern- appellant. to the available Uh-uh, just A: I seen I talked to him. to that Jones was ment failed demonstrate him when I out the last time on the party. Harris physically to either available street. did gave that he uncontradicted Q: that? When was lived, and that Jones not know where Jones May. A: Back in voluntarily. testify not Further- would Q: did he say? more, And what use to the that Harris could extent in, bring process Jones the compulsory to A: He he couldn’t come for me. said option. More- government had the same Q: Why is that? over, as a the fact Jones was described they just A: come to Because won’t enough not to show “friend” of is why, I don’t man. know practically unavailable to that Jones was mean, know, you get just you —I Carr, government. supra, 531 A.2d at gotta caught you just with it the up, deal (“Friends against testify other is, way way you best it the best can. relationship That alone cannot friends. is. way That’s the instruction, missing at justify the witness flawed, questioning equally This both Thus, exploration”). further least without to ask for because the failed showing of una- government no made permission, supra, note prior see vailability. permission would not have been because granted. government did particular, In contrary majority’s The conclusion “pecu- Raymond show Jones was not requir- missing rule distorts the appellant. liarly available” against party whom ing a defendant —the disprove inference is raised—to

The court Carr United As our of the inference. (D.C.1987), appropriateness clear 1012-13 made however, clear, make “peculiarly is available” decisions that witness case, raising this “physically the inference—in the defendant if the witness is import prosecutor’s examina- Contrary majority’s speculation cross appellant’s importance to think that much to this tion invited the not attach something absence, to offer at trial. majority opinion at friend would have witness’ see which government obliged carry weight” “fictitious to “establish can —is repeatedly court’s has declared off lim- foundation conditions to the this court two Carr, II, supra, A.2d at its. See Part satisfaction.” infra. (quoting Simmons v. United (D.C.1982)). Although 444 A.2d II. majority government’s refers to “the prose- question The remains whether Raymond pecu- argument that Jones was misconduct reversal. Be- cutorial warrants [appellant],” majority liarly available object at cause counsel did appellant’s 163, majority's focus on the opinion at trial, the errors we must decide whether appellant’s inadequacy “response,” ma- view, “plain my In re- constituted error.” 162-163, opinion misplaced. at jority reasons. is warranted for two versal had government the burden of demon- strating justified; inference was meet its

because the failed to A. burden, appellant obligation to had no First, complained of the “error[s] [were] fide make a “bona reasonable effort[] rights clearly prejudicial so to substantial ” produce Majority opinion the witness.... jeopardize very fairness and in as Thomas v. (quoting Watts, supra, tegrity of the trial.” (D.C.1982).4 Appellant did Thomas, supra, In the court A.2d at 709. respond, govern- not need to because the clear that the defendant’s made “where showing. made a ment never sufficient credibility key is a issue and Moreover, majority ignores appellant’s credibility, goes inference to that redirect, testimony on indicated which improper argument instruction will an subpoe- asked his attorney ordinarily require 447 A.2d at reversal.” witnesses, na the that his at- but Lawson, supra, quoted torney could not locate them.5 Simmons, 965; see 790; 444 A.2d at sum, disagree majority’s I Coombs pointed prosecutor’s characterization of error The court has moreover, out, impor majority “repetition this case. concludes that determining gravity the error serious in the of was no more tant factor Parks v. United game in than an infraction the children's of such misconduct....” States, “Mother, view, (D.C.1982), cert. may I?” In error is A.2d my the denied, failing serious. to 461 U.S. 103 S.Ct. far more addition to Dent v. United permission, (1983); judge’s prosecutor ask the the L.Ed.2d If, (D.C.1979). engaged in raised 404 A.2d that cross-examination however, overwhelming evidence missing inference: an there improper guilt tactical choice judge, that the trial had he been a defendant’s or of a inference of defendant, intentions, alleged error the then the apprised by of the “miscarriage justice” jury effect a of permit. have refused to The does not would ap- on a conviction thereby exposed requiring inference that reversal of was to an judge majority’s a trial majority opinion quotes only part statement 4. The 5. The required accept statement about fide” efforts. Thomas's “bona be a defendant’s should not to actually witnesses, stated that "if a has made Thomas testimony about to locate ma- efforts 163, produce wit- bona fide reasonable efforts to the strange, given opinion the jority at is a little success, no will ness without adverse inference Presumably majority posture case. the of this Contrary permitted.” 447 A.2d be at 57. defense counsel had be more satisfied if implication, majority’s not hold Thomas did judge representations about his to the trial made always available the inference will be missing Because locate the witnesses. efforts to against who not shown that he a defendant has judge’s prosecutor trial failed to ask the the Indeed, produce to made efforts nothing a witness. missing raising permission before the general rule in Thomas undermined the however, inference, the defense had counsel for party who seeks raise the that the any representations. opportunity to make no has of demonstrat- witness inference the burden peculiar availability ing to the oth- witness’s the party. er See discrepancies appellant’s Allen United peal. testimony, in (D.C.1985). prosecutor closing argu- in his noted ment, were minor. Appellant’s credibility important was “all Haynes, supra, to his defense.” government emphasizes The that the tes- Thomas, supra, 903; see 447 A.2d at 60. timony of the three officers corroborated jury His entire rested be defense on the other, custody the chain of each lieving his innocent about well-established, cruiser was and that the explanation how the behavior and his jury judge appel- trial instructed the prerecorded came found bill to be $20 produce required any lant was not evi- police evi cruiser. Some corroborative of proof dence and that the burden never transport dence was in the provided police presumed jury shifts. to follow log, which indicated that there was another Hairston instructions. appellant picked run between the time was up the police and his arrival at station.6 however, arguments, These overlook Although police three officers testified centrality credibility at issue contest government, only Officer Wallace jury in- and the fact that the was never transaction; drug involved in the the other how, all, if at view structed about should two relied on Wallace told them. what appellant so-called did not evidence he Wallace admitted that never checked call his friend or Jones as witness alley where claimed he had been his misidentification otherwise corroborate playing had on craps and he heard others clear Long ago this court made defense. calling street out while “love boat” permit should selling drugs. produce He also could not prosecutor to make continued comments serial documentation to confirm the inviting reason speculate prerecorded that he number bill $20 Conyers v. for the witnesses’ absence. used; sto he claimed that it had been (D.C. prosecutor len his car. When the 1973). Here cross-examined could how a handcuffed man demonstrated witnesses, appellant about two pocket into discard a reach either back respect appellant’s friend and once with bill, appellant that he had showed Further, hav- again respect to Jones. causing shot in one arm been the back during ing jury’s directed the attention paralyzed the time of his arrest. individ- the absence of cross-examination to log, explanation transport officers’ eluci- could uals whose not stated view what was drug earlier unrelated to dated events report, hardly compelling. More sale, argue to prosecutor proceeded to over, log neither a transport contained appellant failed jury that the recovery of nota log notation of nor a $20 de- corroborate misidentification to appellant had tion of a vehicle check after fense, polite of the but that the is un taken out of it.7 The record been worthy of more belief because to officers was appellant seen clear about how close was sidewalk,8 and on they put and their careers retirement bag on the paper the brown transported being First log po- police transport the two defendants showed that 6.The later; at 1:20 lice received an initial run he also that no cruiser had District occurred testified Streets, upon p.m. to 6th and O and that assist at seat of cruiser with else was in the back the one police go arriving p.m., to the were told at 1:24 appellant. Street, arriving at 1:38 of 6th to the 1800 block p.m., p.m. Appellant picked up and was at 1:45 Washington testified that he checked 7. Officer get from the took 10 to 15 minutes to it between it, appellant after was taken out of the car According the police to scene to the transport station. found bill behind the cushions. $20 that he the log, police a call cruiser received the th and H Streets at 1:45 for another run at 13 the that he found Officer Mitchell testified Washington p.m. the 1:45 testified that Officer paper bag top on a of a railroad tie brown on involving ap- p.m. run from that was different standing. appellant had been "hill” where and, contradicting pellant, was stated what log transport log, to that the reference in the the

173 pro highlighting points the Appellant line.9 had no burden to of evidence, see United States made.10 any improperly duce Alston, 129, U.S.App.D.C. F.2d 315 any there that defense Nor is indication (1976), sup to and there was no evidence of object to the result counsel’s failure was policemen’s port the comments about govern- tactical a reasonable decision. Toliver v. See and retirement. careers suggests testified appellant ment that since States, (D.C.1983). 468 A.2d 958 United on the people there were several Coming closing argument in rebuttal made street, might con- defense counsel prejudicial a fair the misconduct more tactically advantageous to have it sidered See, States, e.g., Jones v. United trial. why explain on cross-examination Powell v. United (D.C.1986); present any those of he was unable States, (D.C.1982); see 455 A.2d The record defense witnesses. people as Young also U.S.App. fallacy argument of that illustrates 98, 104, (1972) (prop 463 F.2d D.C. Appellant’s responses on cross-ex- here. argument by prosecutor when com er support inference that hardly amination improper argument “may with actu bined strategy defense was involved. a tactical impact ally improper, escalate addition, if asked defense counsel had just may as some truth for bait hook appellant on direct examination partial libel”). impact of a lie or crap in the any people of his friends judge The trial not indicate in did him, game agree testify way jury that the cross-examination highly unlikely that have asked he would of appellant’s on the failure friend and associating appellant crimi- questions testify improper, Jones nals. closing prosecutor’s argument improp since Accordingly, non-evidence, erly based on or that directly the issue of inference related to witnesses’ would have been instructions, were no guilt, there curative appellant’s limited relevance the issue of primarily of the evidence consisted Conyers, supra, 309 A.2d at See guilt. against appellant, that of word Wallace Young, 313; supra, see U.S.App.D.C. suggests nothing the record F.2d general 934. The instruc object defense counsel’s failure arguments tions to the decision, I the er- would hold that tactical counsel are not and that evidence appellant’s jeopardized rors fairness prove appellant’s had to identi reverse. trial and beyond a fication doubt were reasonable Logan to cure the harm. insufficient B. (1985); v. United 489 A.2d Perhaps important, reversal is also more v. United Villacres integri- preserve in order to Miller (1976); appropriate judi- 13, 16 Rather, judicial system. ty While portions days, these system is overburdened judge’s in combination with cial instructions coun- argument prosecutors and defense judges, had the effect that, example, government’s court instructed unlike 10. For trial 9. The contention Price, judge credibility the basis it could the defendant where defense, contradicted "whether the witness had been raised an alibi the cross-examination by appreciable negative credible evidence had no effect on or corroborated other here unpersuasive. not tell the misidentifi- case.” The instructions did verdict is A claim of give greater weight implies present not not to cation police simply they were police officers because that he was not the scene crime or officers, States, had a did tell the that counsel perpetrator. Garris 559 A.2d but v. United Here, Price, any missing object duty evidence which 323 as in admissible, thought properly leav- appellant’s thus could have tes- witnesses timony confirmed that, possibility absence of playing craps ing open the in the that he was and that an- contrary, jurors bolstering selling drugs, thereby any some instruction other man thought missing inference credibility linchpin may witness which of his have was the appellant. be used to convict defense. could 174 Young, supra, also omitted). understandably anxious tions may

sel be to move (“a through sys- judge the trial trial deal the cases 105 at 1043 should S.Ct. continue to tem must nevertheless function coun- any breach either promptly with States, in a manner consistent with fundamen- v. sel”); U.S. Viereck United 318 right of a a fair tal defendant to trial. The 561, 236, 248, 566, 734 87 L.Ed. 63 S.Ct. need motive by court not find evil sponte (1943) (obligation sua to act where a participant conclude that trial did not highly prejudicial). remarks are up Supreme live to this standard. As the appel- It is combination factors Atkinson, supra, made 297 Court clear clearly prosecutor violating lant’s a case—a may U.S. 56 S.Ct. at rule, failing to judge the trial established plain prosecutorial find error if the miscon- failing to respond, defense counsel ob- “seriously integrity ... duct affect[ed] miscarriage justice. ject created a —that judicial public reputation pro- of [the] depends A on each of these criminal trial ceedings.” prosecutorial misconduct participants doing job. their all fail When long in the instant line of case follows so, integrity and reputation to do improper cases of similar only judicial can diminished. system be arguments. Therefore, I would reverse. Ar- beginning In a series of cases States, (D.C. nold v. United 511 A.2d 399

1986), emphasized danger the court has raising infer- improper repeatedly

ences. Prosecutors were argu- that cross-examination and

warned

ment which such an inference re- raised

quired permission advance States, 531 A.2d judge, Price v. United ARTHUR, Appellant, Morris (D.C.1987); Chappell v. Unit- 993-94 States, 519 (D.C.1987), ed 1259 A.2d permission granted STATES, Appellee. UNITED show the inference if the could 90-381. No. See, Lemon, e.g., justified. to be Thus, A.2d at the cross-examina- 564 1375. Appeals. Court of District of Columbia raising missing witness inference

tion flag to prose- a red should raised Argued Nov. 1991. States, cutor. See Lemon v. United Decided Jan. (D.C.1989); Brown v. United A.2d 1368 States, (D.C.1989); Singley A.2d (D.C.1987); States, A.2d 245 United States, (D.C. v. United

Carr Price v.

1987); United A.2d 984 v. United

(D.C.1987); Hinnant (D.C.1987); Chappell v. United

A.2d 292 Lawson (D.C.1987); (D.C.1986); States, 511 A.2d 399

Arnold v. United

(D.C.1986). It have raised a also should See Hammill flag judge.

red trial States, (D.C.

v. sponte should court sua

1985) (“[t]he trial appellant was jury that

have instructed the required to call witness] [the negative inference could not that a (cita- testify”) failure

drawn

Case Details

Case Name: Harris v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Jan 15, 1992

Citation: 602 A.2d 154

Docket Number: 87-155

Court Abbreviation: D.C.