Hawthorne v. United States

separate comply with four orders 17, 1980, on Janu- September

court: on and 6, 11,

ary September 1981. March justified. fully

Dismissal Rule 41 was under

IV appellants

Finally, contend that the com

Judge Murphy’s dismissing order Judge previous

plaint, as well as Scott’s compelling imposing

orders sanctions and Massengale,

discovery, applied only to Mr. Pia. does appellant

not to The record

support appellees’ their contention. All of “plaintiffs,”

motions were directed at the just plaintiff Massengale, which Massengale and proper

course was joint complaint

Pia had filed a based relating partnership.

claims to their Coun hearing

sel made for 3M also clear at the discovery

on March that all re

quests discovery compel and orders to plaintiffs;

directed at both see note su

pra. Judge September order Scott’s specifically “Plain directed at Pia,” Massengale

tiffs order, pertinent appeal,

the last to this Judge prior Murphy’s

issued dismissal of We complaint. therefore hold properly

sanction of dismissal was directed Massengale. Pia as well as

Affirmed.

Earl HAWTHORNE and Michael

Myrick, Appellants, STATES, Appellee.

UNITED 83-1269,

Nos. 84-292. Appeals.

District of Court Columbia

Argued July 1985.

Decided Jan.

As Corrected Feb. Stolker, Rockville, Md.,

Richard S. for appellant Hawthorne. P. Lyman,

Jennifer Public Defender Ser- vice, with whom James Klein and Mark S. Carlin, Service, Public Defender Wash- D.C., ington, brief, were on appel- for Myrick. lant Bebie, Wendy Atty., Asst. U.S. diGenova, Joseph whom Atty., E. U.S. Tourish, Michael W. Farrell and Thomas J. Jr., D.C., Attys., Washington, Asst. U.S. brief, were on the appellee. MACK, ROGERS, FERREN and had indicated he Before understood them and was Judges. willing questions. Associate to answer day, The next Douglas Officer questioned Norris Haw- FERREN, Judge: Associate thorne. Norris showed him form PD appellants A convicted Hawthorne asked Hawthorne if he understood his first-degree felony murder rights, told Hawthorne he did not have to armed, 22-2401, while D.C.Code -3202 statement, §§ make a anything added that (1981), 22-2901, robbery, and armed id. §§ against said could be used him. Haw- appeal -3202. Hawthorne contends on replied thorne that he did not want to talk deny- the trial court abused its discretion in attorney to an and wanted to make a state- ing his motion for severance and erred in declined, however, ment. He to reduce it failing proper to ensure redaction writing. admissions, refusing co-defendant’s The court denied Hawthorne’s motion to permit defense counsel to revive a witness’ suppress, concluding “knowing- that he had memory, finding and in Hawthorne’s con- ly intelligently rights and waived [his] voluntary. Appellant fession Myrick con- voluntarily made the statement that is the right tends that he was denied his to a fair subject litigation.” statement, of this That government’s knowing trial use of as memorialized in police report, a witnesses, testimony by false key two introduced into evidence. In this state- that the court abused its in deny- discretion ment, he, along Hawthorne admitted that ing his motion for a new trial based on Myrick, Thomas, with Farley, and newly discovered perjury evidence of planned Reed, to rob and that his role trial. Because we conclude that error during the robbery actual had been to was harmless under the circumstances and bring alley, holding gun Reed into the a discretion, that there was no abuse of we him. all affirm convictions. trial, Pounds, drug At Catherine a user acquainted

I. principals with most of the in case, provided govern- the basis for the This case mid-day relates to the execu- theory killing: ment’s “economic” of the tion-style killing drug of a dealer on No- appellants Reed, compet- had murdered vember 1981. The evidence at trial tend- dealer, ing drug because he was undersell- persons together ed to show that five that, ing them. in Pounds testified the fall alley in an killing: appel- at the time of the 1981, “Heavy” Curleytop Hinton and lants Myrick, Hawthorne and Melvin Thom- only suppliers pills were the wholesale as,1 Leroy Farley,2 and William Michael pills area. Reed distributed for Hinton. Reed, the murder victim. There was con- Myrick pills Curleytop, distributed for how, flicting evidence as to and in what pills “juggled” Hawthorne sometimes for order, persons (except these entered and result, Myrick. Myrick As a and Reed Reed) alley, left the and as to who was area, competed although for sales in the armed. regularly Myrick’s price. Reed undercut trial, appellant Before Hawthorne filed a suppress day motion to an oral statement to the Pounds further testified on the police. arrest, crime, day Myrick On the of Hawthorne’s of the she overheard make a police rights, threatening had read him his and he statement about Reed.3 She things, testify government 1. Melvin Thomas was a co-defendant who re- other for the at the quested, granted, and was a severance before trial of the others. began. the trial Myrick 3.Pounds testified that said to Melvin " Thomas, Leroy Farley gonna was a co-defendant for whom ‘We’re not let an out-of-towner charges recently part in this case were dismissed as come in and take over.’" Reed had plea bargain agreed, among Philadelphia. of a in which he District come to the from alley, pulled

saw Reed and Thomas enter the then guns Hawthorne out and robbed and Hawthorne, Myrick, later saw and Thomas killed Reed.8 Thomas and then ran alley. Myrick carrying exit “some- opposite directions. Defense counsel ex- cross-examination, thing black.” On de- tensively questioned Farley, initially who challenged fense Pounds’ belated charged had been with Reed’s murder reporting police identities of along appellants, about his bar- fleeing, the men she had seen as well as gain government. with the description height. her of Hawthorne’s Nancy McIntyre, neigh- who lived impeached also Pounds with Counsel her crime, borhood of the testified that she had pending drug charges, suggesting she heard the shots fired and saw man expected favorable treatment from the “carrying something in his left hand” run exchange testimony. for her alley. out of the She did not see his face. Butler, Jacqueline drug another user fa Appellant Myrick took the stand in his area, Myrick miliar with the testified that own behalf. He testified that he was had told her several times he did not want present played but no role in killing. selling drugs. Reed in the area He re Leroy Melvin Thomas and Farley planned peated day this sentiment on the said, robbery, Myrick and forced gun crime and showed Butler a in the go along plan. because he knew of their pants. of his waistband She later saw first, Myrick Reed, weapons. At saw no ap and someone named “Pete” Farley, and already Hawthorne were in the proach Reed.4 briefly Butler left the area alley when Myrick approached Thomas and buy drug paraphernalia. When she re Thomas, Farley, them. and Hawthorne turned, she heard three shots and saw pulled guns. Farley something out took “Pete,” men—Myrick, three and uniden pocket out of Reed’s and then shot Reed. person—running tified alley.5 other out the Myrick ran. He heard a second shot but Defense counsel extensively impeached did not know who fired it. prior Butler with convictions.6 counsel, attempt Defense in an to take Leroy Farley only was the eyewitness to sting out of an inconsistency between a murder, appellant Myrick, other than Myrick statement had police made to the who testified at trial.7 He testified on trial, and his elicited from murder, day Myrick had said he Myrick that Melvin Thomas had threatened going Appellant to rob Reed. Haw- therefore, Myrick, him. had been afraid to thorne, present, who was also if asked police tell the participated Thomas had join Myrick, he they could and walked off. killing. in prosecutor impeached The weapons saw no at this time. Far- Myrick with other and inconsistencies ley, who wanted to see happen, what would regarding cross-examined him motive. alley looked into one entrance of the accom- conviction, panied by After his They Myr- Myrick Melvin Thomas. filed a new saw alley July ick and Hawthorne enter the trial motion on alleged from the 1983. He side, along Myrick other with Reed. that Catherine guilty Pounds’ eventual Although 4. Catherine Pounds had referred to court issued a bench warrant to assure Butler’s "Pete," return, Hawthorne as Butler testified that the she was recalled to the stand and admit- referring strenuously “Pete” to whom she was was not Haw- ted the conviction. Defense counsel Butler, questioned forcing thorne. her to admit that she jury. had lied under oath to the person 5. Butler testified that the third was not Farley’s testimony Myrick Melvin Thomas. Butler knew who Thomas was also confirmed that and had seen him in the area earlier on the had an economic motive for the murder. afternoon of the crime. Myrick testified that he saw shoot Reed initially point, Farley 6. Butler denied a theft conviction in in the head. At this fled. Al- Pleasant, shots, Maryland July though Seat in 1981. After her heard two more he was not testimony, she left the court house. After the sure who fired them.

585 (1968), charges demonstrated that 20 L.Ed.2d 476 his pleas drug confrontation falsely when denied she had testified she rights Myrick’s were violated when confes- charges. guilt of these at his trial. At sion incriminated him. sentencing hearing September on

Pounds’ Appellant’s 14, 1983, contentions fail. A de prosecutor9 suggested guilty two of the fendant is entitled to the court treat earlier severance on the ba pleas pleas, thereby preserving as disparity of a only sis evidence when Alford sentencing her claims of innocence.10 “the complicity evidence a defendant’s hearing judge September did so. At the the overall criminal venture is de minimis motion, Myrick’s new trial defense coun- compared against when to the evidence effect, suggested, govern- sel co-defendants.” Christian v. United eagerness guilty ment’s to convert Pounds’ curiam), States, (D.C.1978) (per 394 A.2d pleas was to cover pleas to intended Alford denied, rt. U.S. ce up perjury. her Counsel therefore asked L.Ed.2d This standard opportunity present “independent for an Hawthorne, cannot met be guilt drug evidence of in the two [Pounds’] confession, planning own admitted felo reviewing pleadings and cases.” After ny- guiding Reed to the scene of the transcript sentencing hearing, of Pounds’ gunpoint. murder at judge the trial denied new trial motion. argument Hawthorne’s Bruton also

has no merit. The trial court redacted police, implicat statement II. Hawthorne, ing for introduction into evi dence before took stand.13 The A. accordingly applied court one of the alter Appellant requested Hawthorne sever problem native solutions to the Bruton an in a motion in his ance both written Carpenter nounced this court argument.11 He pretrial renewed this re (en (D.C.) quest Myrick’s opening the close of banc), denied, 852, 454 U.S. 102 S.Ct. cert. appeal statement. Hawthorne contends on 295, (1981). 70 L.Ed.2d 143 Once that the trial court’s denial of his motion testify, elected to substi (1) abuse of discretion because of tuted the unredacted version co-defendant, against Myrick, evidence statement for use in cross-examination. damaging was far more than the evidence problem presented No Bruton him, States, against v. 400 Sousa United co-defendant, taking Hawthorne’s 1036, (D.C.), denied, 444 A.2d 1041 cert. stand, was available for cross-examination. 981, 484, 100 U.S. S.Ct. 62 L.Ed.2d 408 O’Neil, (2) because, v. 402 U.S. 91 S.Ct. (1979);12 Nelson under Bruton v. States, 1620, 1723, (1971); Carpen- L.Ed.2d 222 see 391 U.S. 88 S.Ct. 29 government argues This was a different from the one in its brief that the de appellants’ denial of the motion for severance on this trial. ground minimis should be reviewed under plain error standard because Hawthorne failed Alford, 10. In North Carolina v. 400 U.S. 91 properly motion. We conclude to renew his (1970), Supreme S.Ct. 27 L.Ed.2d 162 an abuse that Hawthorne has failed to establish guilty plea Court held that a valid is not incon- any under standard of review. of discretion with the claim innocence sistent defendant’s strong where there is a plea. factual basis for the were deleted and 13. References to Hawthorne changed person” per- or "the other to “another read, son.” After statement incorporated 11. Hawthorne’s counsel also voluntary con- court instructed the fession arguments by Myrick’s for severance made only against person evidence was. counsel. who made it. 586

ter, court, The trial 430 A.2d at 503.14 derstood rights, those that he waived them therefore, did not abuse its discretion in writing, and according to Norris’ denying ground. severance on this See id. contemporaneously (admit report recorded at 502-03. evidence), ted into Hawthorne had said he only oral,

would make an not a written statement so that if he change wanted to B. his mind later he say could anything and Hawthorne also contends the trial pit thus against detective’s word his. improperly permit him court refused to to We will not disturb the findings court’s refresh Pounds' Catherine recollection fact on the where, issue of voluntariness as inability about her to describe him to the here, they have support “substantial in the police. The court ruled that counsel could evidence.” Bliss v. United police only use the notes if the witness (D.C.)(citation A.2d omitted), mod they stated that would refresh her recollec , on other grounds 452 A.2d 172 ified Counsel, however, tion. failed even to at (1982), denied, cert. 459 U.S. tempt way; to use the convince us that the trial court correctly voluntary was and thus in admitting the ruled Hawthorne’s confession confession into evidence. The volun court credit- tary. Bliss, ed See Indeed, Officer Norris’ 445 A.2d testimony fully that he at 631. apprised noted, Hawthorne of as the trial his court Miranda16 in expressly elect rights, that Hawthorne ing give oral, confirmed he un- to written, an statement, reason, not, that, provides part 14.For this the court did as Haw- 15. FED.R.EVID. 612 in while contends, testifying, may writing permitting a thorne err in use of witness use “a to re- memory purposes fresh his for the of [or her] unredacted statement. Hawthorne’s counsel de- testifying.” long-standing This rule reflects Dis- opportunity Myrick, clined the to cross-examine practice. trict of Columbia See Killeen v. United and, completion government’s States, 302, (D.C.1966). gener- 305 See cross-examination, which contained numerous (Chadbourne ally, Wigmore §§ 3 734-765 Rev. Hawthorne, references to for Haw- Supp.1985). &1970 attempt opportuni- thorne made no to renew the ty- 436, Arizona, 16. Miranda v. U.S. S.Ct. 86 (1966). 16 L.Ed.2d 694 good deal of intelli- “Hawthorne show[ed] disclose the terms of agreement such an to v making.” he was as to the decision gence jury. plea bargain, A Farley’s, such as to III. cooperate government with the in exchange contends, first, that the Myrick Appellant for favorable “recognized treatment is as a Leroy of presentation government’s proper exercise of [government] authori knowing of use in the resulted witness as a ty.” Librach, United States v. 536 F.2d Myrick’s of testimony, in violation perjured (8th Cir.), denied, cert. 429 U.S. trial. Central a fair right to process due (1976). 50 L.Ed.2d 308 bargain, Farley’s plea is argument Testimony by an accomplice always carries ¡ claims, which, implications some incentive to perjury. See United jury—to to the made clear Í Dailey, (1st States v. 759 F.2d prejudice. Cir.1985); Iverson, United States v. 205 j U.S.App.D.C. 258-59, 637 F.2d A. (1980), 804-05 modified, 208 U.S.App.D.C. govern- Leroy Farley testified for the 648 F.2d 737 But that risk is guilty part bargain plead of a ment as acceptable long as as agree the witness’ testify felony murder and to an unrelated contingent ment is not upon govern case, truthfully exchange for the ment’s satisfaction with the content of the charges against him in connec- dismissal testimony. Librach, 1230; 536 F.2d at murder, Reed’s as well as tion with Dailey, (wit but see 759 F.2d at 196-99 robbery with the armed of a connection plea agreement acceptable nesses’ even market. though contingent, terms, vague upon the “value” or Basically, appellant government “benefit” to the govern- contends the cooperation). their Farley’s plea ment entered bar plea bargain into this to in- gain was contingent agree-/ not such a testimony duce by Farley which the ' ment.18 government false, knew would be then cov- up trial, ered the false used it proper plea Because even a agree argue government’s case jury, to the may signal ment willingness witness’ td and even told the jury curry favor with the by color-] plea agreement, Farley had no motive to ing prosecu-i the truth for the benefit of the j lie. tion, process requires due full disclosure of j contentions, addressing these we must agreement terms of the as / deal, preliminarily, general with the validi evaluating credibility. aid to the witness’ ty plea bargains in exchange for testimo See Giglio United 405 U.S. ny government’s obligation 151-55, 763, 764-66, and with the 31 L.Ed.2d argues, 17. Hawthorne agreement also for the first time on 18. The terms of the were established appeal, right present that he was denied his only uncertainty before trial. The delay. Assuming ap ment without undue pellant yet had not been sentenced in the preserved appeal, has this issue for we felony pleaded murder case in which he had conclude that it is subsumed the Miranda guilty bargain part government. as of his rejected. claim which we have considered and apprised prosecutor's of this in the rights A waiver of Miranda includes a waiver of closing argument. (Farley rebuttal had testified right presentment, unnecessary the delay, without that no one had made deal with him about Pettyjohn as to the same offense. v. Unit sentence, although he admitted that he States, 69, 74, 651, U.S.App.D.C. ed 136 419 F.2d hoped get by testify- a more lenient sentence (1969), denied, 1058, 656 cert. 397 U.S. 90 S.Ct. ing Myrick’s at Hawthorne’s and trial. This 1383, (1970); 25 L.Ed.2d 676 accord Woodson v. hope illusory mandatory pun- because the States, 910, (D.C.1985); United 488 A.2d 914 n. 4 felony ishment for murder—deemed murder in States, 625, 633, Bliss v. United mod degree—is imprisonment. the first life D.C. grounds, (1982); on other 452 A.2d 172 ified 22-2401, (1981).) Code §§ -2404 denied, 756, 1117, cert. U.S. 459 103 S.Ct. 74 (1983). L.Ed.2d 972 588 (1972); Illinois, 264, only 360 the Napue

104 U.S. consideration Farley received in 265-69, 1175-77, 1173, 3 exchange L.Ed.2d testifying: for otherwise “no (1959); 1217 United 465 favors, McNeil v. payments, special no no promise at 807, (D.C.1983); A.2d 810 DuBose v. Le sentencing.” judge presided The trial who (2d Cir.1980); 973, 978 fevre, 619 F.2d presided over this trial also Farley’s over Barham, 231, 595 States v. F.2d United plea hearing and thus had knowledge and (5th Cir.1979); 239-42 United States v. control plea of the terms of the bargain. Butler, (9th Cir.1978); 567 F.2d 887-90 judge The plea ruled that the agreement Paderick, F.2d Boone v. 541 448-51 had fully to be jury. disclosed to the denied, (4th Cir.1976), 430 cert. U.S. counsel, in opening state- (1977); 51 L.Ed.2d 811 97 cf. ment, prepared jury Farley regard the Iverson, 256-57, U.S.App.D.C. 205 at 637 as a witness who had admitted in a murder (false F.2d at 802-04 statement witness separate case and who had made “the deal sentenced); already she had been that exchange his life” in testifying for Algarin, States v. Ramos 584 F.2d against appellants: government “The Cir.1978) (1st (witness 563-64 received 19 get let him away with murder.” [Reed’s] agreed plea better treatment than bar The then elicited the terms of jury). disclosed gain plea agreement in her direct examina- tion of Farley.20 counsel exten- record, reviewing After we are sively cross-examined about Farley’s satisfied the plea agree terms of charges pending against him at the time jury. ment were disclosed to See But struck plea bargain a with govern- ler, (“disclosure 567 F.2d at 890-91 of the ment—charges carrying potential a total exact nature of prosecution’s dealing seventy-three sentence years of from be- its key with witness” was necessary to parole fore plus to four life terms eleven jury properly weigh allow his testi years. Counsel jury also reminded the mony); Librach, (witness’ F.2d closing argument deal. The agreement plea compromise did not fair one contingency—the element of fact that trial where “the jury fully apprised Farley had been yet not sentenced—came the conditions testified”). under which [he] to the jury’s prosecutor’s attention argument. rebuttal supra note 18.21 present Both were defense counsel jury, therefore, The Farley’s plea position was in a hearing, they were aware agreement Farley’s credibility that terms of the were evaluate to the extent government prosecute you Counsel the any told the had been will charged case, in Reed's murder with all the counts charges in other and the being prosecuted against Myrick were government charge you will not for an armed charged Hawthorne. He also had been with restaurant, robbery of the and that Thai-Am shooting felony liquor murder a "for store own- government prosecute you the felony will for the charged five er armed times" and was about to be your this case? murder in Is that robbery Farley pled market. of a food understanding? murder, guilty liquor store the mar- Yes, [Farley:] ma’am. robbery charges dropped. ket Counsel you continued: "And do know what else [the 21."Only by being apprised that [the witness] government] They did? dismissed this case facing sentencing was still could the a have against gave him and him free ride on these deciding persist- rational basis for whether her charges.... government get away let him assign culpability share of ent efforts to appellant with murder.” product were the of a desire to tell the ingratiate truth or an prosecutor, herself with the effort to your understanding Was it [Prosecutor:] sentencing judge, or both." you agreement have an with the Iverson, U.S.App.D.C. United States v. guilty your plea felony in return for (1980), modified, 637 F.2d murder while armed connection with U.S.App.D.C. F.2d 737 Street, shooting liquor in a on 7th store plea agreement may have had a testimony requirement the truthful and the that bearing did government vouching, on it.22 the same Far- credibility likely ley’s

B. more than would be enhanced, diminished, not the de- unless nonetheless, contends, that substantially could fense undermine of Far basic terms of the disclosure story.23 un point; misses plea the ley’s agreement circumstances, jury he the says, the der short, any prejudice Myrick to would condi of the most crucial not informed knowing from government’s be derived the Farley would that agreement: of that tion testimony, jury’s use of false not from the the testimony”—a condition give “truthful ignorance potential consequences of all the dispute. not government does Farley agreement, if he to violated as oath, well as his to tell the truth. that, although jury the learned agree We flowing back the of all considerations about, appellant really What is concerned not agreement, it was plea under forth the appear, jury it would is that the failed not in addi- express warranty of this informed testimony require- learn of the truthful to gives warranty the that witness tion to plea bargain, ment of the see note supra Ac- to tell truth. sworn oath the when on government expect did not but to position not in cordingly, jury was a the respects—that Farley to tell truth in all the truthful- under the possibility, the consider was, effect, testimony there no truthful to clause, if testimony at is the requirement gravamen all. That might be con- truth there from the deviate Myrick’s complaint, of to which we now crediting or jury’s the sequences beyond turn. testimony—indeed, pos- discrediting his too, be Farley, still C. sibility could charged Reed’s murder. with knowingly prosecutor may A evidence, Myr- permit false or prejudice present

But what could be evidence false, go Gig known to be uncorrected. particular ick from this nondisclosure? lio, 765; vouch for 405 U.S. at 92 S.Ct. at Na Suppose were to 1177; testimony suspected pue, or 360 U.S. at strongly it knew Holohan, it 294 U.S. by permitting Mooney false stand uncor- rected, by 79 L.Ed. 791 More arguing its substance to over, ‘reliability given stressing “[wjhen no of a jury, or bargain. may guilt plea witness be determinative motive lie because innocence,’ result, af make nondisclosure evidence government, as would general fecting falls within this testimony credibility whether it effective use of 92 S.Ct. at requirement Giglio, rule.” 405 U.S. testimony waived truthful (quoting Napue). A defendant is ac option to the bar- or exercised its revoke cordingly new trial if there is prosecute Farley mur- entitled to a gain and for Reed’s ” “ false jury ‘any of the reasonable likelihood’ yet, der. And if the were told Dailey, "truthful counsel was aware 22. See States v. F.2d 196 23. (1st Cir.1985) (to credibility testimony” requirement, the has of an ac- re- test as the agree- complice-witness extensively who struck it in a bench conference ferred to ment, necessary it is “that the be informed testify. During Farley began to another before agreement, that de- of the exact nature cross- conference in the midst bench permitted fense counsel be cross-examine examination, Myrick’s indicated accomplice agreement, and that the way jury’s go out of his call the would weigh specifically ac- be instructed to require- testimony” attention the "truthful care”) (citations complice’s ted). omit- up subject, open ment: 7 would rather not factor, ” Regarding final do not have we obviously. [Emphasis added.] the court’s final instructions in the record challenges appeal, appellant those but neither instructions. “ testimony judg- involvement; most, could ‘have affected the his own she could ” Id. jury.’ (quoting Napue). believe, ment the especially by reference to the bargain, Farley “an accomplice was Farley contends lied on the stand (as he whether admits it not” or she told (1) minimizing in his own and Thomas’ roles during conference). the court a bench Ac- (contrary Myrick’s in the crime to own tes- cordingly, prosecutor the did not (2) that, knowingly timony) denying and in while incar- permit Farley give to false pretrial, Farley cerated had about had a conversa- Butler,24 role. Johnny tion with own Melvin Thomas’ (or figure)—a father father in conversation contrast, prosecutor In the did an purportedly which Butler had warned Far- ticipate might that Farley lie threat, about the ley, protect under to Myr- Thomas. Thomas, involvement of who was be government ick further asserts the to lies, prosecuted separately. knew these Before Farley were and that the failure tes tified, therefore, jury preju- to disclose the lies to the was she asked the court for effect, dicial because their disclosure have permission, impeach would in by to Farley raised serious doubt about who Reed. that, killed eliciting incarcerated, while had he particular, disclosure would have en- had a conversation with Butler—informa Myrick’s credibility testifying hanced Farley tion which prosecutor had told the Johnny that his own fear of Butler was the permit before trial. This would the to reason he initially had declined tell the to its reach own conclusion as to whether police about Thomas’ involvement in Reed’s Farley testifying under threat. The murder. agreed. court prosecutor The was thwart ed, however, when, examination, on direct representative

Because no of the Farley denied he had had such a conversa government present at the crime and, cross-examination, tion on government because all most con the witnesses impeachable another, ceded he did way or not remember. The one court prosecutor concrete, have a exploration did not reliable forbade further of the issue on disbelieving basis for Farley’s version of or rebuttal otherwise.25 Johnny Jacqueline Butler was not related charged ed Farley effective cross-examination: he Butler, remembering the witness. with not the conversations case,” Johnny this with quently Butler "about and subse- stand, Farley prosecutor, prosecutor drug 25. Before took the with the because use repeatedly impeach destroyed memory. permission prosecutor asked the court for had The permission Farley: asking Farley for are asked examination about the court refused on the should have claimed amination. to lead "We as a on redirect court conversations, representative permission but the ground prosecutor might to introduce believe evidence cause a during Farley surprise ques- direct ex- that Mr. was biased on the permis- gave tion of Mr. sion. Thomas.” court however, examination, chief, Farley government’s On direct At the end of the case in having denied Myrick’s prosecutor had conversation John- with counsel asked that ei- ny refused) repeated (she questioning during testify (she Butler. On stipulate ther or agreed) cross-examination as whether he had had as to her with interview about Butler, Johnny Johnny conversation with as well as a the tially agreed necessary Butler conversation. The court ini- prosecutor Johnny conversation with the that one or the other be would Butler, Farley legitimate denied or said he know” an area “[didn't] is ”[i]t point- or impeachment testimony" remember." "[didn’t] of the witness’s edly Johnny asked perfect impeachment.” whether Butler had is a need to “[t]here talking point, threatened don’t objected him: "You remember At this Hawthorne's counsel on saying Johnny ground although ‘B’ the versation with impeachment evidence of the con- you lay something?” told Johnny might off his friend or At proper be Butler point, objection any exploration sustained Farley, court would ground question bring light among purported conspiracy had exceeded Hawthorne, prosecutor's proffer regarding Farley’s Farley, conver- and Thomas to kill Reed. Johnny proffer difficulty sation that jury’s separating Butler—a elicit Given impeachment natural evidence, place conversation taken not its but from substantive counsel, however, said, persist- substance. his client would be hurt the disclosure. Farley’s testimony Myrick contends of his conversation denial (1) gave two crucial for reasons: the by ex Johnny impugned Butler was testimony only Myrick trig- the pulled that cross-examination, supra note see tensive Reed; ger (2) on and the about truth Far- Thus, 25, flatly never contradicted. but ley’s Butler, Johnny conversation with own and his Farley's testimony about implicitly warning which included a not appeared killing in the minor roles Thomas’ Thomas, implicate Melvin have would tend- have, would than it otherwise more credible only Farley’s ed not undermine testimo- enhance likely lie is any since unchecked ny his Thomas’ and roles but also to Napue, 360 U.S. credibility. See a witness' explain Myrick’s for similar reason omit- 1177; Butler, 567 F.2d 269, at 79 S.Ct. at ting any reference to Melvin Thomas in his “presen there was a Accordingly, at 890. short, police. own In statement to the evi- known false evidence” that went tation of dence about the Butler conversation would 153, 405 at 92 Giglio, U.S. uncorrected. improved Myrick’s credibility have as wit- 269, 765; Napue, see 360 U.S. at 79 S.Ct. at presenting ness in a version of the events 1177.26 S.Ct. at Farley’s. at odds with

Obviously, Farley key govern- was against Myrick, ment witness but testi- D. mony by was means all the had to no determine We therefore must admitted, go Myrick on. himself in his Farley’s testimony false “could whether trial, police to the statement at that have any likelihood af ... reasonable killing at Reed. present of Two judgment jury.” Giglio, fected the other witnesses—Catherine Pounds and 154, 766; Napue, 405 at 92 S.Ct. at U.S. Jacqueline them Butler—testified between 271, 1178; at 360 at 79 S.Ct. see Unit U.S. threatening something that Myrick said — U.S. -, - n. Bagley, ed v. States murder, day on of about Reed 3375, 9, 9, n. L.Ed.2d 481 105 S.Ct. 3382 87 waistband, gun in carrying he was (1985); v. 427 Agurs, United States U.S. fired, that, Myr- after shots had been 97, 103, L.Ed.2d 342 96 S.Ct. 49 ick, black,” “something ran carrying out of States, (1976); Butler v. United alley that Reed had entered minutes — (D.C.1984), denied, n. 30 447 cert. Nancy McIntyre, provid- not while earlier. -, U.S. 105 84 L.Ed.2d 786 identification, ing also heard shots and McNeil, In (1985); A.2d an 465 at 810.27 alley carrying saw a man run out of the question, swering this we must consider Farley’s eye- something in his hand. Farley’s testimony, importance of therefore, although testimony, crit- witness Farley’s credibility to which extent ical, circum- supported considerable independent impeached, and the evidence of Myrick to the mur- linking stantial evidence Boone, key govern- Myrick’s guilt. short,.Farley 541 F.2d at was the See der. In witness, strong although there was ment 451. Thus, agree of false note that the nondisclosure testi- counsel refused to to a We Hawthorne’s part stipulation place. mony willful on the Af- need be that the conversation took Giglio court—agreeing v. listening argument, to result in sanctions. ter 150, 154, States, admitting U.S. 92 S.Ct. United 405 there was no foundation for evidence (1972). Johnny pur- L.Ed.2d 104 Butler conversation pose impeachment—ruled that this other than admitted, given "the evidence would not be tan- usual harm standard is stricter than the This gential particular and “its nature event” v. under less error standard Kotteakos 1239, 1248, speculative 750, 765, nature.” collateral U.S. 66 S.Ct. perspective hindsight, appears Iverson, (1946), it From the n. F.2d L.Ed. 1557 20, see presented solution the conflict when "equivalent Chapman one [constitu but objected have would been Hawthorne’s United States harmless-error standard.” tional] — U.S. -, - n. point—a to sever Hawthorne’s trial reme- Bagley, requested. dy neither defense counsel which 87 L.Ed.2d 481 3382 n. independent, Right [Farley]). circumstantial evidence of there. (Indicating In con- Myrick’s guilt. tradiction all the other in the case, from Myrick Mr. and from the record, is, As we evaluate there witnesses, government’s own Leroy Farley balance, a reasonable doubt put prose- won’t Melvin’s name it.” The government have could convicted cutor did not contradict this her rebuttal (we Farley’s testimony without do not short, argument. the defense suggest mean to effective- absent testi- mony, ly planted could have sur- a seed jury. of doubt for the judgment acquittal). vived a motion for may We also the consider fact that Far- Accordingly, question believe we the ley’s credibility successfully was under- whether Farley's testimony false about the in ways. McNeil, mined other See Butler conversation could have affected the 811-12; Algarin, A.2d at Ramos 584 F.2d judgment jury turns on whether 566-67; at Napue, but see 360 U.S. at Farley’s credibility sufficiently was im- at 1177. place, In the first the peached to suppression make court’s of jury was aware time Farley was that beyond falsehood harmless reason- a cross-examined that he had connections supra able doubt. See note 27. Johnny with family, Butler and his for Far- manage, despite Defense did counsel evi- ley girlfriend had testified that his at the restraints, dentiary supra see note to time of murder was the sister of John- convey jury Farley—like Myrick that ny plea bargain, Butler’s wife. From the himself28—was under threat John- from moreover, jury reason suspect had to ny implicate Butler not to Melvin Thomas. Leroy Farley that was himself involved in The asked Farley he whether testimony the murder and that his as to his had any had conversation with Butler own innocence was unreliable. Further- answered, Farley about the case. “No.” more, Myrick’s extensively counsel cross- by Myrick’s counsel, On cross-examination Farley many examined charges about the Farley at first denied conversation with outstanding which, against him absent the Butler, any as well as discussion such a of plea bargain, would resulted in have a total prosecutor. conversation with the Soon years. minimum sentence of Finally, thereafter, however, he said he “didn’t forced Farley counsel to admit that he was know” or “didn’t supra remember.” See “willing just to do anything get about to Then, Myrick’s note 25. counsel made the back,” some that including time his testi- jury: connection for “According you, against mony Myrick. In closing argu- [i.e., Melvin with you was with involved ment, jury counsel reminded of Far- the murder], you just saying ley’s desperation: “He knew that he could help you out Melvin because are [that] get up say there and just anything, afraid of Johnny ‘B.’ Isn’t right?” In long pointed finger as as he closing across the argument, Myrick’s counsel re- Both peated table.” point: you vigorously “Do see defense counsel want to impact, conveyed to jury Farley cooperat- the influence of Melvin Thomas and father, ‘B,’ Johnny his he, on people whether ed with him- say will things entirely self, that aren’t true? was involved in Reed’s murder.29 statement, threat, opening In his implying defense counsel it was a threat of retaliation suggested Myrick that Melvin Thomas warned and death. it"; result, “keep name [Thomas'] out of as a opening argument, Myrick’s counsel said Myrick did not mention Thomas in his state- got ”g[o]t away “the deal of his life” examination, police. ment to the On direct de- with murder” when struck his [Reed's] Myrick fense counsel elicited from he be- bargain. artfully Hawthorne’s demon- lieved Melvin Thomas’ threat because he strated, Farley, cross-examination "kn[e]w the connections that he with had Farley’s credible, inherently was claim of innocence in- [Johnny many people father Butler]” and "[n]ot he would have because otherwise had argument, closing cross live." In [Butler] and nothing gain charges against by having the jury counsel reminded the of Melvin Thomas’ accordingly enough quent prosecutor. infor- interview jury with The motivated argued to infer that in closing mation Counsel against Myrick for least two testify memory partial was “so and so broken connection with Melvin Thomas’ reasons: a untrustworthy down” that he was an wit- Butler) (if Johnny not a threat from family ness.30 plea agreement to do so. and a See successful, We conclude that 812; Barham, McNeil, see also degree, impeaching to a considerable (“[Appellant] F.2d at 243 was entitled against Myrick Farley both as bias deciding story which to a before McNeil, credibility general. as to credit, truthfully any apprised (extensive at 811 cross-examina- A.2d interest of wit- possible Government regarding “credibility tion witness testifying falsely” (emphasis ness in general specific as well as ... bias or mo- original)). compensated partial tive” nondisclosure impeached Farley, Defense counsel also plea bargain). had sufficient convictions, generally, prior more weigh Farley’s information with which to McNeil, 465 A.2d at which included see against conflicting testimony felony robbery murder and armed convic- witnesses, including Myrick. of other See in December 1977 in addition to the tions Barham, 238-39, 595 F.2d at 242-43. The felony Farley pleaded murder which to Farley’s testimony failure to correct false part bargain of his guilty as with conversation, Johnny about Butler government. The court ruled that counsel therefore, not, could reasonable like- present any Farley’s details of could lihood, judgment have affected the of the previous sug- crimes this would because refusal, jury. supra The trial court’s see Nevertheless, propensity. gest criminal permit, require, note let to alone probed Farley Hawthorne’s counsel about though it clear to the disclosure—even was felony pleaded murder to which he had lied on Farley court and counsel that had suggesting Farley “just guilty, that beyond the stand—was harmless a reason- [i.e., him and the vic- sho[t] walk[ed] able doubt. severely reprimanded The court tim].” this, doing counsel for but information IV. jury. reached the Myrick complains misleading that also Farley Defense counsel also discredited prosecutor’s closing argu- remarks in the McNeil, drug his use. 465 A.2d at with See credibility Farley’s tended to enhance ment Farley admitted he had used PCP as prosecutor argued The as a witness. recently couple days as a before the liquor felo- Farley’s guilty plea to the store that, day murder. testified on the ny murder should induce the to believe murder, Farley smoking was “love- testimony: his (PCP). in- ly” Defense counsel used this is, may offensive be challenge Farley’s ability formation to [A]s [as] him, why you reason should believe including some accurately, remember his conver- ago ... when he said a month Johnny Butler and his subse- because sation dropped: point the defense discred- in Reed’s murder "So all of this 30. Another on which him testimony Farley implausible was his making ited you matter about a deal with the Farley gun carrying. testi- ..., Hawthorne was you, no deal that was Reed, gun to he saw Hawthorne hold a fied that it, you anything anyhow?... because didn’t do Farley though crime even minutes before the guilty anything. you’ve—you So You weren’t gun, but did not notice saw Hawthorne really yourself. just didn’t have a deal for You Farley long had which was a foot and which guilty gratuitously entered a in the other without for several weeks lent to Hawthorne closing argu- case. Is that a fair statement?” In back, Farley though asking it cost for it even ment, suggested Hawthorne’s counsel it was extensively ex- $100. Hawthorne's counsel Farley pulled trigger who on Reed. plored matter on cross-examination. this against (The this to testify Myrick. when he came into courtroom before motive said, “Sir, I judge going Farley’s expressed and am not was not aware that this murder; hope I for a pled guilty illusory. I killed lenient sentence was trial: 18). supra note somebody,” you I submit has your bearing on some decisions about Very however, disturbing, is Farley, said, he sat Leroy when here prosecutor’s insinuation because “I not kill Reed.” did Mike Farley pleaded guilty to murder in a case was dismissed That before tes- case, separate be It tified. was dismissed. It is over. So above, argument quoted trusted. her Leroy Farley have come in here could prosecutor said, effect, Farley’s said, it,” I did “Okay, the truth is roles, assertions of his and Thomas’ minor nothing happened because could have and responsi and Hawthorne’s already him. It was dismissed. It bility, trustworthy, yet minutes pending. wasn’t earlier, conference, a bench prosecu promptly objected to tor Farley had referred to as accom “an plice.” statement. govern

We first address the had notified court the prosecutor’s govern ment’s assertion that re from the trial outset “nothing happened “vouching portion mark that could have ment for some says.” to” was accurate Mr. Farley what have al We plea bargain prosecu ready him prosecutor, insulated from discussed that de murder, despite prevari spite efforts, tion for Reed’s her own best was restrained support evidentiary cation. There is some for this the court’s rulings from im position, peaching extensively see White v. United as as she 616, (D.C.1980)(“the government A.2d 618 wished. We therefore believe was most it a of compliance inappropriate go must meet standard strict for prosecutor the to out [plea] agreement”); govern with its of toway Farley’s credibility, her vouch for position not may by bargain, ment be in a revoke to plea reference when she plea agreement absent witness’ fraud in knew—based on her own interview with negotiating agreement. Farley—that See United he had lied on the The stand. Blackwell, 350, U.S.App.D.C. prosecutor States v. 224 had posi to know of this court’s 1325, 1338-39 argue 363-64 & n. 694 F.2d n. tion may properly & that counsel not (1982). complexity 18 Given the that “pled guilty uncer one who when he was tainty area, guilty of law in this that we cannot meant innocent here.” say prosecutor (Duane) States, this Dyson remark amount v. 450 United A.2d any event, ed impact (D.C.1982). to misconduct. In 440 This comes too close dulled, expressing opinion this remark was if not an veracity conclusive about the rebutted, ly response Myrick’s tactic, of a when witness—a forbidden even counsel, closing argument, him, injects counsel believes because it “ government’s “nonsense,” testimony.” assertion ‘unsworn’ ‘irrelevant’ Farley States, (Phillip) Dyson that if had confessed to 418 Reed’s mur v. United A.2d “[t]hey (D.C.1980); der on stand would have re 130 accord Sherrod v. offer,” States, (D.C. plea Farley voked the and that was United 657 throughout 1984); States, testify motivated the trial v. 455 Powell United A.2d against Myrick. prosecutor (D.C.1982), (1983); The never 408 modified cf. — U.S. -, challenged response in her Young, rebuttal. United States v. 105 Indeed, argument (1985)(misconduct her remark in rebuttal 84 L.Ed.2d opinion still sentencing express faced for the for that de felony support guilty). prosecutor, unrelated fendant The as an murder tended to attorney defense counsel’s comment that had officer of the court and “the guilty charges only she was sovereign,” duty has a outstanding against agreed her and to serve the vigorously, but also prosecute suggestion they counsel’s were “bad justice is done. See to see that truth and beefs.” The focus of new trial 110-11, 96 S.Ct. at 427 U.S. Agurs, her- perjured motion was that Pounds had standard, we Judging by this 2400-01. self when she said she had no deal with the prosecutor’s comment in clos- conclude government, she as well as when she said bargain “may argument ing outstanding charges, was innocent of the why you should believe reason be some subsequently pleaded guilty because she circumstances, was, im- under the him” them. proper. grant We review the trial court’s or deni- Prosecutorial misconduct necessi only al of a new trial motion for abuse of reversal, however, “the only when tates Derrington discretion. v. United to the level of statements rose erroneous (D.C.1985). A.2d We will ” prejudice.’ McCowan ‘substantial uphold the trial court’s decision it is where (D.C. States, 458 A.2d United upon findings which are “reasonable based 1983) 418 A.2d at (quoting (Phillip) Dyson, supported by the evidence in the above, 132). For the reasons discussed omitted); (citations at 1339-40 record.” Id. fully Farley’s proba jury was informed Johnson, see States v. 327 U.S. in the murder and also ble involvement 111-13, 464, 466-67, L.Ed. 562 protectiveness of some of Thomas. learned judge Far equipped was well note, first, there no evidence We is any impro ley’s truthfulness. We deem deal with Pounds had made undisclosed here harmless. priety government in the use im- addition to munity jury. some known to Under V. circumstances, moreover, may a defendant tri Finally, Myrick asserts that the entering innocence a valid claim while de court abused its discretion when it al guilt guilty plea when the evidence of is newly his new trial motion based on nied Fi- strong. Alford, supra note 10.31 ruling evidence that Catherine Pounds nally, discovered the trial court’s was based large part upon its observation perjured herself at trial. At the time had sub- credibility already been Pounds’ testified, pending Pounds had six cases she stantially undermined at trial32 and Although Pounds had use against her. would not have the additional information regarding testimony about immunity her Butler, 481 the outcome. affected See matters, that she drug-related she testified sup- find A.2d at 446-47. We substantial govern agreement other with the had no finding. port in the record for this about the outcome of these cases. ment cross-examination, Pounds asserted Under Affirmed. might help you in may in a homicide case have witness

31. The trial court surmised Pounds that, vigorous impression your because no This cross-examina- the mistaken own cases.” had drugs money ruling finding, on her supports or had ever been found tion the trial court’s motion, guilty person, could not be found she had been new trial that Pounds on the drug charges. Derrington substantially impeached. (D.C.1985). Myrick’s impeached counsel had Pounds trial, ques- defense court had curtailed At grand jury police trial with her statement and unlitigated charges tioning on the Pounds’ testimony, a refer- neither of which contained added that ground The court it was collateral. Myrick’s threat about the "out-of-town- ence to argu- “plenty of fuel for defense counsel had Pounds er” Reed. Counsel cross-examined Indeed, closing, jury right now." ment to the outstanding charges suggesting her jury argued would that the defense counsel had deal, “you though she had no formal ex- even elephant” believe Pounds have to "swallow govern- pect you testify favorably that if for the govern- expecting a from the was not reward here, you have a better ment in this trial ... will testimony. for her ment "being lenient treatment" and a star chance for MACK, Judge, dissenting Associate

part: case, the circumstances I can- agree prosecutor’s that the closing ar-

gument, tending to enhance credi-

bility witness, aas was harmless error as Myrick. Farley eyewitness was the sole testify government. He said he bystander,

was an innocent that the mur-

der was idea and that he saw shoot Reed. defense was it was he by- who an innocent

stander; it Farley’s plan

shot prosecutor’s argument Reed. The jury should believe lie,

he had no motive to combined with the

jury’s understanding charges

against Farley dropped, Farley’s had been

maintaining innocence, of his and the ina-

bility impeach Farley respect to a

relevant matter about which counsel knew lying, obviously

he was Farley's bolstered

credibility and Myrick’s. diminished It is

unavoidable, understands,

prosecutors upon rely times must

testimony of less-than-savory characters

but should not be told that the

testimony bears government’s stamp of

approval. I Myrick. would reverse as to Lynn HILLMAN, Appellant

Marcia

, v.

William FUNDERBURK and the

Washington Hospital Center,

Appellees.

No. 83-658. Appeals.

District Columbia Court of

Argued Nov.

Decided Jan. notes (1983); L.Ed.2d 972 see Unit merely giv asked Pounds whether she had Alexander, ed States v. 49-50 description police en a detailed (D.C.1981); 17-305(a) (1981). D.C.Code § challenge did not her affirmative answer. assuming pre- Even that Hawthorne Independently, we must resolve appeal, perceive served this issue for we no legal question whether Hawthorne’s ruling. abuse of the court’s discretion in its confession, under the totality of the circum Socony-Vacuum See United States Oil stances, was voluntary. Miller v. Fen Cf. Co., 150, 233, 811, 849, 310 U.S. 60 S.Ct. —ton, -, U.S. L.Ed. 150 The court’s limitation on (1985)(ultimate L.Ed.2d 405 issue of volun- police use of the proper notes was under tariness legal, factual, is question re Furthermore, jurisdiction.15 the law of this quiring independent federal determination the statement which Hawthorne wished to ruling). state court Although there is impeach use to Pounds was admitted later no evidence of prior Hawthorne’s involve as substantive evidence in the form of a ment with the justice criminal system, in stipulation. cluding experience with Miranda warn ings, the foregoing facts concerning Haw waiver, thorne’s plus C. absence of record evidence trickery or coercion or Finally, Hawthorne contends the trial delay between confession, arrest and ruling court erred in that his confession

Case Details

Case Name: Hawthorne v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Feb 10, 1986

Citation: 504 A.2d 580

Docket Number: 83-1269, 84-292

Court Abbreviation: D.C.