Irick v. United States

mouth,” in the was less than a counsel] NEWMAN, Before BELSON and A model of decorum. few comments made SCHWELB, Judges. Associate during the trial were plainly inappropriate, and a number of oth- SCHWELB, Judge: Associate and, ers were close to the line from the calm perspective appellate and detached review, might better have left been unsaid. THE CASE Some of what the did trig- but, appeals gered excused, These we emphasize, consolidated arise out not shooting wounding troubling of an undercov- some tactics J.D.’s counsel. police balance, investigating er officer who was illic- On we agree cannot with J.D. and The use of initials Daniels brothers roles in the events which have resulted in this appears way easiest us be the to differenti- respective opinion. ate between we them as recount their still police J.D. Lewis were officers.

Irick that conduct was Indeed, ground, told Irick: “Get “unprovoked” “egregious.” we seated on the all) (though them, note that much Don’t let them Boo [or Butch].... alleged passed objec- without take get misconduct Don’t let them me. Shoot them. by any attorneys tion the me,” began three defense to effect. Lewis or words that challenged and is for the first time on Irick to for his service revolver. reach appeal. Appellants were not entitled to a weapon fired from pointed his at Lewis and trial, they perfect and we are satisfied that The struck a distance of five feet. bullet Accordingly, a received fair one. af-we body, vital or- Lewis’ thumb and missed firm their convictions. abdomen, some three gans in his and exited spine. J.D. millimeters Irick and

II chase, he gave and fled. Officer Wallace in the and fired shots Officer Lewis both THE FACTS2 fugitives’ then returned direction. Wallace prosecution The A. case col- for his to assistance wounded obtain prosecution The introduced evidence he league. A civilian testified that witness 9, 1986, tending January to show that on scene, and running saw men from the two Byron Jimmie Lewis and Officers Wallace say he had that he heard one of them that clothes, assigned to casual enforce- “got that motherfucker.” drug ment of the laws. Between 6:15 and police officers came to the scene. More p.m., they for 6:30 monitored a broadcast bag They Wendy’s a a warm found with drugs nearby subjects selling play- at a packets three hamburger, as well as area, ground. They drove to the and even- cocaine, the had been at location where J.D. tually group saw near the a men door the standing. fingerprints J.D.’s were on building. a school officers walked Wendy’s bag. group, the of the and direction Wallace Shortly shooting, Wil- inquired “anybody got halves co- after the Officer [of as He responded A man later identified L.D. liam Herndon the area. caine].” away he approached jump the officers. He said that saw fence L.D. over a and walk fifty halves pace. clothing had for dollars and asked for a rapid at L.D.’s matched money. Wallace, however, the had description Officer the one of the of that worn a seen man later identified as J.D. some 25 drug original radio lookout. sellers delivering away actually drugs. to 30 feet stop. Herndon ordered L.D. to Officer go told he straight volunteered, He L.D. that would readily apparent L.D. for no man dope. with officers reason, just got he of a cab. had out walked towards J.D. in sight. No cab was J.D., pouch appar- hand still in a with his long heroin Dorsey, a term Cassandra ently he filled with cocaine which was facing possible and cocaine addict who selling, asked Officer Wallace “what do her testified probation, revocation of also you need?” identified himself as a Wallace prosecution. for At the time of told police officer and J.D. he was offenses, living boyfriend she was with her under arrest. J.D. offered resistance Daniels, L.D., Tommy a of J.D. and brother ground. pre- sat on Officer Lewis mother. and with Daniels brothers’ pared transportation for a unit over call J.D., Irick a third She testified that radio, police but there was “chatter” on house 6 and 7 man arrived between which he intended to use. channel p.m. day shooting. The men on the officer, police waiting having shot

As Officer Lewis was talked about clear, man, suggested had better channel to a tall later identified and Irick Irick, get gave large gun approached group, carrying as out of town. Irick J.D., Tom- large handgun. passed Irick he it on to brother Wallace told who necessary lengthy comprehend this in this as is 2. The evidence trial was exten- much of it opinion. complex. only outline sive at times We so anyone my bury selling operation with J.D. or else. directions to it. Based on Dorsey purchase, information Ms. way received from and On his to make he Daniels, Tommy police eventually picked up handgun recov- at his a .44 caliber gun ered hand a van behind the under garage purpose taking father’s garage near the home. Daniels’ The bullet Upon his to his mother’s home. arrival at passed through pos- Lewis Officer $45.00, playground, gave he J.D. itively having identified come from this J.D. asked him a few minutes so to wait handgun. procure that he a “half” of cocaine could for him. Detective Johnny Valentine St. Brown expert testified witness for the awaiting While was arrival of the government, primarily subject the of the cocaine, apparently he witnessed two men operandi drug modus dealers. He re- attempting gunpoint. rob J.D. Con- lated, among things, other that more so- $45.00, cerned had his because J.D. Irick phisticated drug distribution units in- pulled weapon out his and ordered one of a clude “lieutenant” “enforcer.” This the men—who later turned out to be Offi- job individual’s is to on the scene of the drop gun cer his and raise Wallace—to activity, weapon, distribution with armed a who, hands. The other man unbeknownst protect the engaged individuals in the Irick, Lewis, began pull was Officer drugs sale of the “stick-up boys” from and appeared out his revolver and to be about

police.3 He testified individuals who to shoot Irick. Irick then shot in Lewis close are to each other in the same location shooting, hand. After some further Irick distributing drugs, they likely are are to be and J.D. fled. Irick went to J.D.’s house part of the organization. same money. because J.D. had his Neither of apparent two announced robbers B. The case defense officer,4 police he was a and only Irick L.D.’s general denial, defense was a and identity learned of his victim’s from J.D.’s he called no J.D. witnesses. likewise did Tommy, brother had who heard it on a counsel, testify. Through he admitted report.5 television news guilt charge, of the vigorous- PWID but ly contested the weapons assault and

charges. doing so, In Ill relied on the presented evidence by his codefendant

Irick. L.D.’S APPEAL L.D.

Irick contends evidence was testified substance that he had playground beyond come to the insufficient to a reason buy establish cocaine J.D., able only from whom he knew doubt that he aided abetted the slightly, having purchased drugs possession from him with intent to on a cocaine distrib previous against occasion at different ute it.6 case him Although a location. was denied being any drug overwhelming, He perhaps associated less than we cannot prosecutor’s objection, by prior Over the never heard such identification granted testimony by a defense motion to strike statements Officer Lewis which he did not Detective Brown to effect claim that he had so identified himself. that the other members of a unit would distribution know of presence Williams, friend, At the girl enforcer. close of the 5. Irick’s Deborah testified case, government consistently with this rul- prior to his whereabouts the commission ing, judge granted judg- defense motions for that he the crime and confirmed stated he acquittal conspiracy charges against ment going buy was She out to cocaine. admitted on reasoning appellants, the three that there grand was had the witness stand that she lied to the proof beyond doubt jury jury, reasonable of an petit and the and to the trial agreement credibility between them. remarked that her had been annihi- lated. attempted 4. J.D. and Irick to bolster their de- apparent judge granted judg- fense that the two robbers never iden- 6. The L.D.’s trial motion for police acquittal charges tified themselves as officers their ment of on all of the other against cross-examination of civilian witnesses who him. up him for his Billy Kid’s “set support brother agree inadequate to that it was agree guilt by association death.” We jury’s verdict. in- dangerous principle, and that very is a evaluating insufficiency, a claim of we culpability an accused’s blood ferring light in the must the evidence consider wrongdoer likewise relationship to a government, giving most favorable fraught peril.9 of all reasonable benefit case, however, L.D. present In the v. inferences from evidence. Patterson of law us to rule as matter effect asks (D.C. 337-38 A.2d that must have been a coincidence10 1984). Neither this court nor very drug which advertising L.D. prerogative may usurp jury’s court away, selling 25 to 30 feet his brother was credibility, determining weighing the evi legitimately jury could not and that dence, drawing inferences. reasonable beyond them infer collaboration between 159- Stack United happen do doubt. Coincidences reasonable but, light of Detective especially L.D., against all which evidence testimony, re- was not Brown’s uncontradicted, following: included the quired it fortuitous that to believe to be (1) to cocaine to the L.D. offered sell engaged in activities two brothers were officers; time in this at same disclosed record J.D., (2) brother, jury whom the with place. and in almost same presume reasonably could that he was that, Brown argues as Detective L.D. acquainted, away, was 25 to 30 feet sell- nego- purport to acknowledged, people who a ing pouch; out of cocaine no of drug tiate deals often have intention (3) Brown testified that street Detective merely to steal selling drugs, but are out drugs distribution units of illicit often purchaser’s money. More- the would-be “juggler” contain “runner” or ad- a who over, L.D., he did if it is conceivable sale, product vertises the for and that officers, to propose provide to cocaine prox- in close drugs individuals who sell might it from someone other have secured imity ordinarily part to one another are hypotheses, than These while his brother. unit; of the same L.D., exactly complimentary to are con- not (4) a make L.D. climbed fence to a mod- particular of this sistent with innocence erately po- exit to hurried7 and lied charge. 8 lice about where he had been. however, settled, It is well argues appeal L.D. on that brothers can- to government’s evidence be sufficient concert, presumed noting acquittal not be to act in judgment motion of survive a among examples “sibling rivalry” every other of not reasonable even if it does exclude subsequently hypothesis guilt. de- other Holland v. that Cain slew Abel and than 121, 139-40, States, 75 U.S. knowledge of and that United 348 nied the offense relationship independent 7. At altogether of the blood a We given that little or no fast walk. conclude "flight" weight relationship L.D.’s under rele- should be to That between him J.D. particular hawking these circumstances. question only whether vant J.D., of L.D. and its sale when cocaine 278(2) 2 ON § 8. See WIGMORE EVIDENCE apart twenty-five feet and far two men were (Chadbourn 1979); v. rev. ed. Fox United 133 home, operation. part were of the same (D.C.1980). exculpato- “False 421 A.2d 9 recognition in that We not think that our do ry enforcement officers statements made law of the men’s sib- of the relevance two context linghood independent evidence constitute circumstantial (to question whether there guilty Commonwealth v. consciousness.” one) any- only impairs drug operations two Glass, 334, 346-47, A.2d 1242 486 Pa. 405 constitutionally protected associational one’s (1979). rights. colleague dissenting Our takes us task for guilt by principle condemning association 10.Or, precisely, not could more but, view, countenancing practice. beyond a doubt that it was find reasonable to our words. We think our deeds conform coincidence. undisputed that L.D. offered sell an It cocaine, proof he did officer so was

31 surmise, 127, 137-38, (1954); quote daily press might S.Ct. 99 L.Ed. 150 Cha well Brown, you “when relate to v. 798 Detective conas United marriage,” (D.C.1974). evidence, words, guns a it was drugs it’s like other judge to finding guilt beyond surely for the trial compel need not reasonable expert’s explication an Curry a reasonable doubt. conclude that (D.C.1987) (em proposition background melancholy of this ease, phasis added). helpful jury. present the would be required, jury was not in order to convict “The trial court has discretion to broad L.D., permissible “cross bounds testimony, and expert admit or exclude its territory inference and enter the forbidden way decision either will not be disturbed on conjecture speculation.” Id. Ac appeal manifestly unless it is erroneous.” cordingly, aff L.D.’s conviction must be States, 520 A.2d Hinnant v. United irmed.11 operandi Since the modus drug the ken traffickers is within

IV testimony lay person, expert the average subject may be admitted relevant. THE EXPERT TESTIMONY case, Id.12 think We Hinnant controls objection, Over defense Accord, and find no abuse of discretion. judge permitted testify Detective Brown to Dunn, U.S.App.D.C. United States v. respect to the role “enforcer” 373, 375, (1988); 846 F.2d see also drug organization. noted, previously As Resto, United States v. F.2d struck Brown’s (2d Cir.1987) (testimony as to role of of other members the unit distribution “steerer,” York apparently equiv- the New would be aware of presence. the enforcer’s “juggler”). alent of a “runner” or We hold that the exercised discre his judiciously tion and that there no er V ror. ALLEGED PROSECUTORIAL J.D. contends that im the evidence was MISCONDUCT

properly admitted question because the he working whether and Irick were in con Irick J.D. and claim that each was denied lay cert was well within “ken” ju prosecutorial the of a fair as a result of trial rors, and appropriate subject thus not an They primarily of misconduct. contend that expert testimony. Dyas integrity the v. United attacked the of Cf. 827, (D.C.), counsel, 376 expressed personal A.2d 832 de his cert. defense nied, 973, 529, witnesses, 434 opinion veracity U.S. 98 L.Ed.2d to S.Ct. 54 as the of (1977). view, however, jurors argued evidence, 464 our depicted In not in facts and operations appellants unfamiliar with illicit drug drug could of a members sinister be in their by organization. government aided search for the truth The denies that expert light prosecutor’s which casts on the some actions constituted miscon- likely duct, noting the kind of relationship objection that is to that there was exist, city, on the the streets of this between a trial to much of the chal- court conduct drug placed appeal, seller lenged arguing gen- who has been under ar on and that in gunman responded temperately rest who comes to assist eral Although average alleged improprieties by ance. of to reader J.D.’s counsel. money, together pure quantity has with a L.D. not claimed that was denied a sum of misconduct, prosecutorial fair trial as a result of bag ready go,” "one to heroin and street is directly and we do our therefore not address likely "selling dope." is be He further testi- dissenting colleague’s prejudicial assertion drug fied that a seller such circumstances spillover. Our affirmance of the convictions carry being likely gun would avoid be any Irick and J.D. makes issue academic admission of robbed. This court sustained the event. evidence, rejecting this contention jury’s usurped prerogative or addressed the Hinnant, testified, expert In witness "ultimate issue.” Id. 294 n. 2. among things, person large other that a awith alternative, “particularly In duct should be confined government con- tends egregious” that even court were to find situations. United v. States occurred, 1, 1046, improprieties 15, 1038, the convictions 105 S.Ct. Young, 470 U.S. light (1985). should not be reversed 84 L.Ed.2d strength government’s We case. cognizant of fact We also be must agree that, taking whole, record as a commodity, that is a rare perfection appropriate. reversal is not likely to misjudgments are mistakes long liti- during hotly contested occur legal A. The standard if every conviction follow- gation, and that contentions, evaluating appellants’ we aside, a ing imperfect trial were set prosecu must first determine whether run judicial process by mere mortals would tor’s comments constituted misconduct. Supreme aground. soon Court run v. Hammill A.2d Young that a criminal conviction warned (D.C.1985); Sherrod United lightly “is overturned the basis If miscon alone, standing aof comments occurred, then, viewing duct has the com in con- must be viewed the statements context, ments in we must consider the text.” at 1044.14 Id. at 105 S.Ct. misconduct, gravity relationship of the its in mind our must also We bear guilt, to the issue of the effect of dynamics of the a trial assessment judge, action corrective limited to what can be discerned from strength government’s case. Ham recognized in cold record. As this court mill, supra, 498 A.2d at 554. Where a States, 315 A.2d Smith v. United properly preserved objec defendant has (D.C.), denied, 419 U.S. 95 S.Ct. cert. tions, the court must determine (1974): 42 L.Ed.2d 139 assurance, say whether we can with fair knowledge It peculiarly within strip- after that has happened all without remarks coun- whether ping the action from the erroneous prejudice the during sel the trial tend to whole, judgment was not sub- party. courtroom atmo- of a cause stantially swayed by the error. pro- sphere, prior remarks which have States, (Philip) Dyson v. United 418 A.2d statements, questioned the and voked 127, (D.C.1980); Hammill, supra, 132 498 appraised factors cannot be other A.2d at 554. Where the defendant failed to reviewing re- by render a court hand,13 object, will on the other we reverse innocuous, although of counsel marks only his conviction if the misconduct so viciously prejudicial they may appear clearly rights prejudiced substantial setting.15 their when removed from jeopardize integrity the and fairness Sherrod, 478 at 658 Sherrod, 655; supra, A.2d A.2d See also supra, his trial. 478 States, 17; 706, n. v. United States, A.2d Sherer v. 362 709 Watts United denied, 732, (D.C.1983), (D.C.1976)(en banc). 469 U.S. Supreme 743 cert. Court 931, 325, 83 (1984) L.Ed.2d 262 plain has for error 105 S.Ct. cautioned reversal significance” (court alleged prosecutorial in attached “considerable cases of miseon- cases, reviewing particularly determining it is purposes For de- criminal 13. whether a In rights, preserved appellate we held important fendant has have courts to the for relive that a prosecutor’s at the end motion for mistrial imaginatively and not extract trial whole argument timely, closing initial is questions episodes in abstract isolation contrary encourage disruptive for a interruptions rule would procedure. and To turn a crimi- of evidence closing. Haw- of the quest pro- error no into a for more nal trial 164, thorne A.2d 169-70 v. United 476 acquiesce justice than to the ends motes (D.C.1984); Powell United 455 prosecution. low standards criminal 405, n. 1 408 16, 470 U.S. at 105 S.Ct. at quoted The States, from Johnson Unit- Court also v. 555-56, quoting from United States v. 15.This court 549, 189, ed 318 U.S. 63 S.Ct. Goodman, (7th Cir.1940). F.2d J., (Frankfurter, (1943) 87 L.Ed. 704 concur- ring), as follows: adversary in the his astonished following to bust judge’s to trial denial of mistrial trial denounced arguments of attor- improper “heated” and mouth. “absolutely scurrilous” neys). questioning as counsel “outrageous,” and criticized J.D.’s although Finally, emphasize that we highly ethi- slandering the most “one of for appellants’ complaint primarily with the is Attorneys” the Assistant United States cal our prosecutor, function to review Although the dealt with. judge had ever legal record for of discretion error abuse of the tempered his criticism judge later judge, by the trial not counsel. Such little doubt attorney,18 there can be defense sure, may, error or abuse to be embrace incident generated that the tensions also, only rulings on occa incorrect but trial. future course of the affected the sion, sponte failure to intervene sua when for, such intervention is called pros- argument, the Early in his rebuttal Jenkins, U.S.App.D.C. States v. “thank- complained that it was his ecutor (1970), or to react 436 F.2d accused of less task to be slandered and promptness vigor with sufficient Citing chapter and verse misconduct.” prosecutorial King misdeeds. v. United government had proposition that 318, 330-31, U.S.App.D.C. evidence, drugs, including gun, (1967). Nevertheless, ab F.2d 395-96 bullet, rhetorically: inquired and the improper ruling or omission sent some say they do? Let’s So what else can [the ordinarily16 re judge, we cannot truth. prosecutor] manipulating conviction, our ultimate focus verse a Well, And about character. this is case judge did or must therefore be on what the my I value character. failed do. state: He went on to mind, principles With these we address manipu- know What else do we about appellants’ principal contentions in turn. They lators of truth this courtroom? back and slandered the Government “Attacking integrity B. of defense ” in the last five ping-pong forth like a ball counsel weeks. During his cross-examination mistrial, denying Dorsey, inquired, Cassandra J.D.’s counsel remarks directed at ruled that these presence jury, whether Irick, (the judge) did and that he J.D. impris had her with threatened deliberately had not think from her testi onment order to secure impute any improper motives attempted to mony government. Al favorable Donnelly counsel. though Dorsey responded firmly in the to See Ms. DeChristofo ro, 643-44, 94 S.Ct. negative,17 contrary and no 416 U.S. evidence (1974) (court 1871-72, adduced, L.Ed.2d 431 prosecutor personal took of fense, possible sinister trig incident that should not attach the most and was this rem (in interpretation prosecutor’s gered apparent threat the court arks).19 Although there some ambi- presence jury) house but outside the except improprie- aware of no doctrine of law that I'm 16. We are not concerned here with civility gentility judge that not be for notions of and would ties of which the aware, was not or could withholding exculpatory require be- the defense to first ask the court such as the inquiring in that area. fore evidence. that, given any impro- judge expressed Dorsey emphatically also the view denied 19.The 17. Ms. integri- personal prosecutor’s by prosecutor, that J.D. attacks on the priety but testified trial, ty any accusatory response telephone a conversation after his earlier in told her in by prosecutor pretend that she could not which carried over to defense arrest that she should judge repeated facts because she had been counsel—and the his view that remember relevant carry-over drugs. no such occurred—would be less under the influence prejudicial than under other circumstances. words, judge’s 18. In the Supreme point The Court made the same Young, Assuming good supra, a faith basis to believe that United States v. 470 U.S. at occurred, stressed, really inquired about there 105 S.Ct. at 1047. The Court also and event States, supra, v. United Sherer said,20 guity al. prosecutor in what the we are v. United see also Mathis that, context, 742; his remarks satisfied at A.2d having would have been understood as been directed at the defendants and not to to done better prosecutor would have The counsel, comparison that with J.D.’s and cool,” more “keep to choose his words though per- attorney, prosecutor,

J.D.’s identify precisely carefully, and to more invective, was, any- haps prone to use if mischief, attributing he was those to whom thing, against sinning. more than sinned clearly defen- distinguishing more between counsel, also remarked that de- as between dants and their well “sandbagged” fense counsel Officer Lewis agree attorneys. We cannot the individual by Irick adducing that believed however, remarks appellants, that his armed the two officers were robbers they had egregious, or that in context interrogating subject. without Lewis on affecting the any significant potential “sandbagged” We find the use of the word verdict. ill-chosen, especially since the could have recalled Officer Lewis to opinions re- “Expressing personal C. witness stand did not do so.21 There but witnesses” garding credibility however;22 objection, had was no there been, judge could have taken cor- pros Irick J.D. contend that the proportionate rective action to the use of improperly vouched for the credibili ecutor epithet. the ill-chosen ty denigrated that of of his witnesses relatively one

Ad hominem Irick. We hold that with against opposing attacks exception relating peripheral a unprofession- counsel are uncalled for and minor Weisberg agree, wrongs right, many judges, Judge had a we that two do not make a 22.Like judge appropriate discouraging objections during policy and that it is to con- stated by improper trol defense tactics corrective in- closing argument, flow of counsel's so that the structions or an admonition to the "errant presentation interrupted. not be He ex- would advocate,” by allowing rather than the adver- however, plained, this rule was not 12-14, sary respond in kind. Id. at 105 S.Ct. judge one, recognized that "there are "ironclad” problem for the trial 1044-45. [they] things objectionable so some that are this case was that J.D.'s counsel created a fait interruption damage simply require so (as by posing accusatory questions, accompli practice, might be done can be undone.” This recognized judge eventually that counsel judge, entirely described seems to us do), legal right seeking prior had a without p. authorities cited at n. reasonable. See so, repeat leave of court. Even we that al- objections supra. contemporaneous Where though attorney which the conduct defense however, judge’s discouraged, it is the have been incompatible deems with notions of civili- responsibility assure that counsel have an ty gentility may subsequent impro- make rights. opportunity protect their clients' understandable, prieties by more appears treading to be close to When counsel justify it cannot them. prejudice, that could cause substantial matters context, convening allusion to "ma- should consider bench truth,” although plural, ap- nipulators during argument, sponte, sua even conference appellant pears to have been directed to J.D. protect litigant prejudice. who, Dorsey, urged according to Cassandra had case, present J.D. claims that his coun- In the testify that she could not remember the her to object "sandbagging,” the word but sel did to prosecutor’s The remark that relevant facts. relating transcript are 22 lines of to other there "they slandered the Government back and forth prosecutor’s that matters between the use of ping-pong a ball in the last weeks" like however, five objection. term and the next defense When referring construed as to could be made, judge objection overruled it sum- was the counsel, attorneys their clients since the but not interrupting prosecutor marily to without throughout were in action five-week trial. objec- precise the defense discern the nature of de- The reference could also have been to the argu- prosecutor's tion. At the conclusion ment, collectively. fense witnesses requested a mistrial on sev- J.D.'s counsel "sandbagging" grounds, Moreover, but the allusion to eral the defense contention was not among them. Under these circum- was not stances, robbing were J.D. but that Irick that the officers think that the issue was Questioning we do not believed were. Officer not, adequately preserved appeal, and find no perception might for we Lewis about Irick’s view, in our productive. plain have been error. a or directly in the form these prosecutor’s ny, remarks on either issue23 judge denied question. The trial permissible on the matters were comments rhetorical judge applied correct motions because mistrial evidence. reversi- legal and committed no standards on entitled to comment certainly is Irick_ failing sponte in

ble error intervene sua Mr. The Court credibility of in his objection where no was made or sarcasti- may day say some Appeals motions for a denial of mistrial. a truth referring to a as cally witness im- arguably same kind of is the teller Defending veracity, Dorsey’s Cassandra a calling a argument witness proper during heavy had come under attack which improper liar, thought I never was which cross-examination, argued the prosecutor I said so. Appeals Court of until the that she had demonstrated “character” Appeals has said think the Court of don’t willingness to merited admiration her argument yet and don’t think testify government. He noted that any way improper.... inwas risked acknowledged her she addiction enmity family, with Daniels analysis.24 agree judge’s with the trial We lived, courage whom she and that it showed dozens, Despite the law decisions effect, say, “it’s in and come prosecutor may a or governing what cop why I’m wrong to shoot a and that’s testifying say credibility not about attorneys None of the defense ever here.” always or defense is not defendant witness remarks, objected to these were which hand, apply. or the one easy to discern On during ini- primarily prosecutor’s made as repeatedly has condemned “this court closing argument. tial had lied by counsel that a witness sertions than doing drawing no more a reasonable witness stand.” v. United on the Jones evidence, inference from and there was (D.C.1986). “It is 512 A.2d inject for the himself reason jury to decide a witness whether being into the matter without asked to do truthful, attorney may inject an so. opinions as to the personal evaluations and veracity.” Appellants (Philip) Dyson also contend that the witness’ (D.C. should have declared a mistrial because prosecutor allegedly 1980); Jones, supra, Irick as A.2d at 257.25 characterized liar, primarily by testimony referring to him sarcas- of defense Characterization hand, tically permissible, as Irick “the other truthteller” and incredible is on the stating implying ways logical from the other that he it is inference “when telling evidence, prosecutor’s merely was not truth. The context of and not veracity.” as to personal opinion appellant’s these comments reveals that all those but relating Irick’s A.2d employment and resi- v. United Hammill Indeed, “characterizing made in de- dence were connection with accepted and an scriptions contrary of evidence to that of as incredible is contradictory They generally coupled proper Irick. form comment (Philip) supra, 418 jurors testimony.” Dyson, to the other invitation to believe testimo- at 130. Kleinbart v. United witnesses and discredit Iriek’s rhetorically during on some asked remark was based 23.The closing argument why possession. did not tell initial Irick information in his undisclosed employment He Moreover, the truth about record. it most the issue collateral and explicitly provid- allude evidence failed to any impact unlikely on the that the incident had employers ed Irick’s contradicted Ir- verdict. testimony. objection, and There was no ick’s responded counsel some detail in his Irick’s stay judge expressly cautioned counsel 24. The closing argument. and, particular, away name-calling prosecutor's Although description of calling any witness a liar. untrue, testimony subject on this with- Irick's evidence, discussing supporting was un- out fortunate, ethical re- For a discussion an advocate’s jurors could we are confident that the Young, supra, regard, sponsibilities in this see description testi- that the record connect mony 7-8, 1042-43. U.S. at 105 S.Ct. at 470 point that would not believe 36

States, 343, (D.C.1981), likely jurors were misled or 352 this acceptable it for the appellants improper court held was rea- they convicted prosecutor to call defense “sus- sons. picious” “perjured,” and to claim that may people differ about Reasonable up “conjured the defendant witnesses prosecutor’s appar appropriateness of the you,” lied to there ... where was [who] referring to Irick as a ent sarcasm charges. basis in the evidence for these necessary “It should not be “truthteller.” Although may difficult to rec be explain that sarcasm and ridicule are ... oncile the results in these cases with one good good argument or not the stuff another, support proposition all judicial proceedings. When the taste in key inquiry is whether the attor behavior, we government resorts to such evidence, ney commenting on the v. United Carter poorer for it.” are the do, may expressing personal opin or States, 259, 261, U.S.App.D.C. 141 437 F.2d ion, A which is taboo. comment will be denied, 692, (1970), cert. 912, 402 694 U.S. acceptable range long within the as it is (1971). 1393, 91 28 L.Ed.2d 655 S.Ct. general argument, in the nature and not hand, prose other prosecutor may, on the outright Logan expression opinion. vigor.” Berger cute “with earnestness States, 485, v. United A.2d 489 490-91 States, 78, 88, v. United 295 55 S.Ct. U.S. States, (D.C.1985); Arnold v. United 467 633, (1935); Young, 629, 79 L.Ed. 1314 (D.C.1983) (per 136, cur A.2d 138 n. 2 supra, 470 at 105 S.Ct. at 1042. U.S. iam) .26 govern as he need not sanitize the Just case, present In the ex- ment’s evidence or cleanse it of its emotion pressly jurors, stated to the both his Powell v. United impact, al rebuttal, closing argument initial and in denied, cert. (D.C.1984), A.2d claiming anyone that he was was 88 L.Ed.2d 339 U.S. 106 S.Ct. lying, responsibility and that it was their (1985), required so too he is not to artic lay.27 decide where the truth As stated dreary arguments ulate his in a monotone above, appellants the remarks of which stripped emphasis, spirit, indigna of all complain sufficiently tied in to the Mathis v. United tion. Cf. discussion of the evidence to avoid prose A 1348 n. 10 suggestion in ef- “certainly cutor is free to strike hard blows adding testimony28 fect his own unsworn credibility he is chal witnesses whose to the evidence in the record. His recita- Harris lenging.” jury tion that must decide issues of 105, 108, U.S.App.D.C. 402 F.2d credibility, together judge’s with the in- effect, (1968). Although name-calling is out of structions to the same made it un- attorney, jury, Supreme analyzed problem 26. The Court who told the as the 18-19, did, way Young, saying anybody supra, lied in 470 U.S. at that "I'm not this courtroom,” govern- nevertheless said of the S.Ct. at 1047-48. say anything” expert ment’s that "he’ll and that prosecutor’s vouching credibility for the you tell needs to be told.” He also "he’ll what personal expressing opin- of witnesses and ambiguous made some remarks which could concerning guilt pose the accused ion accusing govern- reasonably be construed as dangers: convey two such comments can "molding” "shaping” ment of the evidence impression presented that evidence not guilty. seem Irick's to make his client counsel jury, prosecutor, supports but known to the argued Dorsey that Cassandra came down to charges against the defendant and can information, court "to share fabricated we sub- right jeopardize thus the defendant’s to be mit.” solely tried on the basis of the evidence jury; presented to the and the prosecutor’s comment that he valued his 28.The opinion imprimatur with it the of the carries character, appellants complain, of which also Government and induce the to trust obviously directed to the intimations judgment Government’s rather than its attorney pressured J.D.’s that he had Cassandra own view of the evidence. Dorsey government. to lie for It cannot vigorously reasonably vouching as a statement 27. Defense counsel also attacked the viewed veracity credibility opposition’s witnesses. J.D.’s witnesses. fact, added.) In bounds, (Emphasis presentation the ad- a bland robs Detective Brown’s had stricken versary system zest of the life and which of the distribution that the other members capture jury’s are needed to and retain was the enforcer unit know would attention and ensure an interested and in- them. protect there to formed search for the truth. The Constitu- require prosecutors tion does to be any made objection No was boring. passages these to either of defense counsel argument, nor did prosecutor’s in the in the There extensive evidence was a mistrial on the basis defendant seek support record to that Irick contention decide either comment. We must therefore lying,29 agree was and we with plain judge committed whether the trial prosecutor’s that the tactics in re- sponte. by failing error to intervene sua gard credibility to Irick’s did not exceed are satisfied that he did not. We propriety. bounds of argued prosecutor, Appellants by adding go “I to to words don’t want D. “Arguing not in evidence” facts selling dope” to jail for Officer Wallace’s Officer Irick Wallace testified that when remarks, description effectively of J.D.’s scene, drawn, J.D., approached gun still that J.D. knew that Lewis created evidence ground, on the said: police officers. and Wallace were Whether identified the officers had themselves Get them Boo Don’t let them [or Butch]. police, appellants knew that and whether take me. Shoot them. Don’t let them officers, they major was a factual take me. government re- issue the case. The closing argument, prosecu- In his initial prosecutor simply sponds that following tor described the event drawing reasonable inferences about J.D.’s manner: mind, on J.D. said and state based what Jerry doing what he knows Curtis other evidence of collaboration between paid letting him do. He’s know now’s precise him Irick. The used words Curtis, get the time ’em off me. I don’t reasonably could con- be go jail selling dope. They want describing said strued either as what J.D. got guns then, ain’t their out I’m not (in improper)30 or which case would be going caught be the cross fire. You probably thinking arguing what he was get them off me. (in being case the inference drawn would, view, all in our from of evidence later, A few minutes ad- reasonable). dressed Irick’s state of mind: precision Isn’t that the mind a man on the wanted Greater who undoubtedly helpful night? Running part to kill that with his would have been was, however, knew, partner. jury. As it defense business Who as Detec- opportunity to address the you, tive Brown told that Curtis Irick counsel had closing argu- in their purpose alleged was out there for one and that’s misstatement ments, points” with pistol protect perhaps him. to “score to have a E.g., Offi- when Irick was about to shoot Irick testified that he came a substantial themselves although Lewis, buy ju- he distance to cocaine from J.D. or even thereafter. Reasonable cer bought drugs did not know him well and had might improbable find it that the officers rors once, only He from him at a different location. augment avoid the risk of death to would thus that, coincidence, evidently by related transporting disclosure. weapon "antique” one garage parent's parent’s when to the other home doubt that the 30. We entertain some ap- extraordinary using occasion for it—an an parent to be understood as de- intended his recitation robbery robbers who armed of J.D. scribing precise words. The occasion was J.D.’s unexpectedly police turned out to be officers— hardly in which J.D. would have focused one He then fled to the home of a man he arose. hardly danger precise which he was in violation for knew, gun "antique” and left his being imprisoned. required man’s brother. Irick's version also identify to believe that the officers failed Irick, jury by the the demonstrating prosecutor’s the tion demonstrate use of the weapon with which Officer Lewis had been inaccuracy imprecision. judge The trial shot. jurors instructed the that their recollection controls, of the evidence and we do not think that the theme of the We basic

think question comments war- by facts. One case was determined rant reversal. J.D., selling appellant, was cocaine from advertising the pouch. His was brother Turning prosecutor’s infelicitous away. same wares a short distance When said, allusion to what had Detective Brown arrested, J.D. was Irick came to his rescue undoubtedly inappropriate predi- it was magnum. prosecution’s a .44 bal- with argument cate an that J.D. that Irick knew expert weapon listic identified the as protect was there to him on the detective’s handgun largest powerful and most avail- testimony. Although govern- stricken able, explaining largest it fires the correctly ample ment claims that there was highest velocity. Irick bullet shot support basis in the record to an inference behest, at J.D.’s and the two men officer that J.D. Irick knew that was there and together gun fled and caused the to be why, improper this does not excuse the attempted tamper hidden. J.D. also testimony recitation of which was not government’s If the witnesses witness. in support hotly disputed record of a happened, were believed as to what then proposition. boys this was not a case of some choir An objection to this mischaracterization Rather, engaged naughty prank. in a might of the evidence well have resulted in record illustrates the force Detective a firm judge, correction who testimony the intimate rela- Brown’s about previously had legal ruled on the relevant tionship and, drugs, guns between in this was, question appellants’ favor. This case, potentially pros- lethal violence. The however, hardly a situation so extreme that obligation pull punches ecutor had no required or even warranted intervention describing depicted by the sordid scene objection the absence of an (William) Powell, the evidence. See su- any of the defense attorneys. By pra, 485 A.2d at 599. failing object, even at the conclusion of That Irick a “bodyguard” was or “en- prosecutor’s argument, defense counsel reasonably forcer” could be inferred from precluded remedy pros- a measured prosecu- the evidence of what he did. The plain ecutor’s misstatement. There was no occasionally Expert tor called him both. error. judge properly which the trial supported prosecutor’s admitted also “Improper depiction appellants E. as characterization of Irick’s role. There was members a sinister and vicious impropriety. ” drug organization Dorsey Cassandra testified that she J.D. and to some extent Irick claim that “Dirty Harry.” Irick knew The trial prosecutor, by “inflammatory use judge, recognizing potential preju- rhetoric,”31 otherwise, improperly de- term, resulting dice from the instructed picted organized them as members of an Dorsey both and Ms. not to drug ring. They contend that this de- occasion, subsequent use it. On one piction accomplished by the basic prosecutor, apparently inadvertently, made case, also, “pitch” among other “Dirty Harry” a reference to while exam- thing, by “Dirty to Irick Har- references Ms, ining Dorsey. Dorsey Ms. also re- ry” weapon and “the enforcer” and to his peated approximately the nickname on They complain as a “cannon.” also being three occasions after directed not to allowing so, abused his discretion in properly reproved do prosecutor, judge. during his cross-examina- There is no indication of com- jectives egregious, outrageous, exactly In rhetoric that itself is not understat- impact such as “rife with ed, where, prejudicial improprieties,” J.D. claims that "the classic writer, etc. at least to the misconduct cannot be over- nouns and verbs would have been at Indeed, replete persuasive. stated.” J.D.’s brief is with ad- least as During the Dorsey’s cross-examination plicity by the in Ms. directions,32 judge’s trigger failure to adhere to the the Irick, prosecutor pulled the however, and under these circumstances to weapon on occasions several the latter’s the lapses are not to her attributable time each it had to be recocked that show States, government. Carter v. United explained firing. judge The trial before fol as the demonstration purpose the Harry” “Dirty Irick References to as lows: Dorsey’s jury the also came before on Ms. the trial where In the context this examination, held judge redirect but after just has testified that witness he — the door.”33 had “opened the defense panicked, and even just the first shot agree dissenting col- Although we with our to hurt trying shot to the first wasn’t admis- league that the doctrine of “curative pan- he the first shot anybody, after over-used, although sibility” can be he took the ... and therefore icked^35! judge acting have been within would heads, it gun at which down their jury grand discretion if he had excluded the originally pointed, Officer was to shoot inquiry testimony despite defense counsel’s cross-examination, in the hand. think that Lewis on we do not ruling the he abused discretion firing me that mech- It seems to the —the cred- way. Dorsey’s The issue of Ms. other is, particular gun, anism of this critical, ibility implication was and the pull to back effort it takes the hammer testimony prior cross-examination that her you pull trigger can is a rele- before recently about Irick was fabricated went piece of vant evidence. Moreover, directly issue. even to judge has discretion de- The trial broad errone- the admission evidence was fashion,36 whether, termining and in what ous, we are confident error was per- should be courtroom demonstrations harmless, little to nickname added itself.34 mitted, position to for he is evidence best judge, position knowledged having who with him on an 32. The trial was in a taken it hand, purchase drugs evaluate the situation remarked that expedition first unlawful —rather [Dirty happened it "the reason Harry] is because that antique that he an odd destination an —and only way by.” is the she knows him shoot a turned out to be had used it to man who facts, surely On it was Officer Lewis. these cross-examination, Dorsey 33. On had been Ms. and use evidence of Irick’s connection with interrogated about un- whether she knew Irick magnum, proscribed the .44 rather than a different der implications nickname. To counteract nickname, alleged that resulted allusions to his questioning, of this line of Any prejudice to in his conviction. claim of jury Dorsey’s grand read Ms. testi- tenuous, for J.D. in this connection is even more mony jury. to the ruled that personal and con- the nickname was to Irick Dirty Harry, the reference to all that was a anything veyed little if about his codefendants. quotation questions from the and answers in grand testimony. it the witness’ And happened had testified that "it so fast 35. Irick only fairly opened to me that it seems up by was not way" trig- pulling think no before couldn't counsel], it almost nec- [Irick’s ... was ger. up, essarily opened ex- that the redirect entirely proper. amination was If, attorneys objected suggests, the defense the dissent the demonstration None of witness, Dirty Harry expert this allusions while effected had been Instead, being requested days given read redaction. might had have occurred after Irick remedy they moved for the drastic of a more events the version of offending allegedly words had mistrial after by showing weap- attempting to refute how the been read. Moreover, im- it would have been on worked. contemporaneously possible confront Irick Following popularity East- of the Clint apparent between his tes- with the contradiction titled, “Dirty picture motion so the term wood Harry” mag- timony operation the actual of the .44 tough come to man with has connote a Skinner, 138 also United v. num. See States magnum. There more than a .44 was far 121, 124, (1970) U.S.App.D.C. 425 F.2d sobriquet to was such show that Irick unwanted prosecu- (proper exercise of discretion to allow weapon in a man. He admitted that he had the to simulate stand on courtroom table kept tor to question previously it at and that had position ledge of an above victim garage. been defendant's assault). He claimed to have his father’s transporting He ac- it to mother’s house. light than heat. produce rather signed can “judge game is worth the whether dle,” i.e., against However, system weigh probative value heat often results.1 Our Pepsi Hamilton prejudice. potential to mini- primarily to the trial looks Co., (D.C.1957), Bottling Cola it and to counteract when mize the heat denied, 961, 78 S.Ct. rt. 356 U.S. Counsel, light.2 interfering ce 1000, risks (1958); 2 L.Ed.2d 1068 McCormick on course, duty regard as have a of (3d 215 at 677 ed. 1984 § Evidence of an evaluation This case involves well. judge’s Supp.1988). mayWe disturb performed in one trial participants how the probative decision that the evidence is more impact and the of respective duties their showing prejudicial only upon a than on the constitutional performances those Morgan v. Dis grave abuse of discretion. fair trial. defendants to a right of the Columbia, 69, trict U.S.App.D.C. 263 ever, seldom, if found Perfection will be (1987); see 83-84, 1049, F.2d 1063-64 824 Thus, wrought by humans. what things Columbia, 554 Dailey also v. District of litigants is a guarantees to the Constitution 339, Appellants A.2d 340-41 cannot, trial, I perfect one.3 fair not showing here. have made no such however, the numerous and seri- overlook VI prosecutorial misconduct ous instances accept- in this as an unfortunate but appellants’ oth- case We have considered all of imperfect legal system. they product are of an er contentions and conclude able Applying legal majority, stan- company without merit.37 from the part Where I 32-33, supra, pp. dards set forth at we are holding that Curtis Irick and is with their prosecutor’s lapses de- satisfied that trial Larry Jerry Daniels had the fair opinion, individually in this or in the scribed they constitutionally are entitled. to which aggregate, nearly as serious as were not my did not. strongly I assert that claim, judge Irick and J.D. view, bymet inade- the misconduct was responsibly, handled the issues inappropriate sometimes quate —re- —and case, believed, compel- government’s was court, by the trial sponses and correctives ling, and that Irick and the Daniels broth- thereby deprived Jerry Irick and Dan- According- ers were not denied a fair trial. Larry iels of a fair trial. would reverse appellants ly, the convictions of all three evidentiary sufficien- Daniels’ conviction hereby are Affirmed. cy- NEWMAN, Judge, Associate I. Prosecutorial Misconduct dissenting: trial, repre- was In this the United States perforce

A trial is a contest. The rules Kleindienst, an Assist- by de- sented Wallace under trials are conducted are opinion may express about another's specifically com- an We hold that the attorney impropriety by “folksy” credibility, preclude recitation does not an from mitted no during saying” drawing his clos- Arizona that if the defense reasonable inferences "old weak, prosecutor." contradictory testimony "you ing argument case is slander the Curry v. United 520 This case is unlike the record. 255, (D.C.1987), court A.2d 267 in which this expect impossible that a criminal trial 1. "It is improper prosecutor's character- viewed as showing some shall be conducted without ization of a defense on the merits—that feeling; high, participants are and the the stakes drugs police “planted” last resort of a a—as inevitably charged are with emotion." nothing “who left.” defendant had Cir.1935), Wexler, 526, (2d F.2d States v. 79 529-30 reject We as baseless J.D.'s contention also 384, denied, 703, U.S. 56 S.Ct. 80 rt. 297 ce engaged in misconduct (1936), quoted L.Ed. in United States 991 truthful, that, arguing if Irick’s 10, 8, 1038, Young, U.S. n. 105 S.Ct. 1043 470 prosecution lied. The witnesses must have (1985). n. 84 L.Ed.2d 1 salutary that a cross-examiner not ask rule lying, a witness whether other witnesses are Young,supra, 470 U.S. at S.Ct. at 1043. (Wayne) Carter v. United denied, (D.C.1984), U.S. cert. 673, 681, Arsdall, because, (1985), v. Van 475 U.S. 3. See Delaware S.Ct. 84 L.Ed.2d 362 1431, 1436, case, (1986). 106 S.Ct. 89 L.Ed.2d trial ruled in this one witness previously testified ing. She had Attorney; Jerry Daniels ant United States Delgado, cases. When represented Samuel in two murder government Public Defender Service.4 The conduct Kleindienst had by Delgado whether asked primarily counsel at issue in this case her respect to testimo- threatened her with lawyers. that of these two case, responded, “No.” she ny in this government, and af- by the Upon objection merely notion conference, short bench responded to offensive tactics the de ter a jury. itself in several fense counsel manifests excused opinion. Most nota aspects majority Delgado inquired of judge then The trial prosecu bly, majority asserts that question, faith for his good as to his basis per provoked, and thus tor’s remarks were I consider characterizing it as one “which missible, previous response” “fair good faith at least in absence of to be Young, counsel. actions of defense See basis, outrageous quesi- of the most one 11-14, 105 1044- supra, at S.Ct. at U.S. in of a witness tons I’ve ever heard asked (discussing re doctrine “invited (Tr. jury.” in a IV open court front of then colored another sponse”). This notion 1165). Later, explained: “The the court aspect majority, of this trial —for the as I’m so exercised about it Mr. only reason court, misapplied as the trial the doc well you’ve accused an offi- Delgado is because “opening part of its trine of door” court, an Assistant United cer of this simply prosecution thesis that was my experience in Attorney, and States reacting to the defense and allowed defen highly him the most ethical Assist- one of repeatedly dant Irick to referred to as Attorneys ever run ant I’ve United States “Dirty Fi Harry.” infra, at 44-46. See witness, into, I threatening a majority analyze nally, the claims (Tr. my in heart he did not do.” IV know prosecutorial in effect of misconduct 1167). later, “And the trial court said: Still Having of the entire trial. context jury if it put in front of this you’ve what analytical approach, stated the correct Kleindienst has been majority apply fails to it to this case. were true is that Mr. Rather, they analyze allegation each And that’s not threatening witnesses. prosecutorial an misconduct without ade true, Dorsey say Ms. would no matter what quate of the “cumulative effect” 1170). evaluation (Tr. about it.” IV misconduct, (much of all of the of which during matter Having thought about the occurred), majority concedes to deter recess, judge ampli- overnight prejudice mine whether substantial oc He stated: fied his views. curred, depriving thus defendants of a fair a my temper I lost bit excused See, e.g., trial. Mathis v. United I think that was jury and because did not (D.C.1986); 513 A.2d Powell v. question, regardless of a—the kind of (D.C. Delgado Mr. good faith basis whatever 1982). I discuss the doctrine of invited it, had for that should have have response opening and the doctrine jury in front of this without asked been since, view, my in more detail in door that it was in fact strong basis believe grossly misapplied by majority. so were true, it having first cleared and without uneventful; likely totally No trial is to be with the Court. during surely this one not. The events overnight and thought about it have began during here trial which are at issue same, although I remains the my position Delgado prin- the cross-examination if I in Mr.—in guess I can see witness, Dor- cipal government Cassandra why role I would take defense counsel’s Dorsey sey. testimony, At the time of her point of view about that. Ob- a different awaiting a was confined at the D.C. Jail right to cross- proceed- viously the defense has a hearing probation in a revocation Esquire. Larry represented by Daniels was Charles Stow, Irick, Durban, by Roger Esquire, Curtis supra, reply” Young, issue examine the witness based on bias or “invited Young, In testify assuming good motive to U.S. 105 S.Ct. argument closing ac faith basis to that the event in- defense counsel believe of, occurred, among other quired really government there no cused counsel about conduct, making state except things, doctrine I’m unethical of law that aware of poison your un civility gentility designed that ments “to minds notions of prosecuting the require fairly” would and of defendant the defense to first ask guilty. inquiring knowing he was not Id. Court before that area. while 4-5, hoped any lawyer prac- I would at 1040-41. The have S.Ct. so, responded

ticing my objected. The court would have done never argument. I am there an in kind in rebuttal de but not at all sure that requirement objected requested it cura absolute in the law that fendant never Supreme Court be done. tive instructions. given pointed presented, out that the issue way In case the was left was objections, plain one the absence of upon request that I would at least voir language poignantly error. relevant to presence of dire the witness out of the case, the issues this the Court said: morning to determine what advocacy by this “The kind of shown questions her answers to that series of place record has no in the administration of ruling would be and then make a out of permitted justice and should neither be nor presence jury of the whether or not rewarded; judge a trial should deal pur- that line of examination could be by promptly with breach either coun that, I’m willing sued. still to do but it 9, at 105 at 1043. The sel.” Id. S.Ct. during overnight occurred to me re- proper Court made clear that the course cess that for Mr. Klein- tactical reasons prevent judge for the trial is to or correct that, may prefer dienst that I do not do side in a trial: improper conduct either allow the line of examination. emphasize judge has We added). (emphasis Tr. IV 1197-98 in responsibility to maintain decorum opined: The court further “I think the keeping proceed- nature of the with the is, [Delgado] night, as law stated it last moderator, ing; judge mere “the is not a complete impeach- that even he can’t governor of the trial for the but is good ment if he has a faith for under- basis assuring proper purpose of its conduct.” 5 it, (Tr. taking right he has a to do so.” IV Quercia 466, States, v. 289 U.S. United 1201). 698, 699, 469 S.Ct. 77 L.Ed. 1321 [53 inquiry, After further the court that held (1933). meet situations “must Delgado good did in fact have a faith basis they cope arise with able] [be thus, they questions Dorsey, for his in contingencies inherent the ad- ... proper.6 versary process.” v. Geders United States, 80, 86, 1330, Supreme recently Court has dis- U.S. S.Ct. [425 (1976) course, 1334, response” cussed the so-called 47 L.Ed.2d 592 Of “invited ]. quoted judge’s he was confronted 5. I have the trial remarks exten- house escalators when sively who, waving finger for I deem it fairer to do so than to while in Kleindienst Holy face, characterize or summarize them. See ble, Bi- Delgado’s Delgado to "bust" in threatened Edition, King The New James Act 26-1 Delgado reported that the mouth. the threat Paul, ("Then Agrippa permitted said to ‘You are presence repeated was several times in the speak yourself.’”). officers, apparently police number of who were Delgado witnesses in the case. stated that he during overnight It was the same recess any jurors could not tell whether witnessed the opportunity provided the trial with an requested be voir dired. incident prior expression of reflect on his dissatisfaction indicate, only response Kleindienst’s was Delgado's with conduct that an incident oc- court, objec- when asked that he had no curred, Delgado reported to the trial hereafter, tion to such a voir dire. As I set forth morning. reported by Delga- the next As court do, upon Kleindienst resumed his verbal assault after the about ten to fifteen minutes court (and closing argument. had excused the thereafter excused counsel counsel), proceeding down the was court- errant necessary, admonition in crimi- avoided “hard blows” cannot be advocate. trials; prosecutor and de- nal both the appro- kept within

fense counsel must be 13, at 105 S.Ct. Id. New priate Herring v. bounds. See is the here relevance particular Of 2550, York, 422 S.Ct. U.S. [95 re- preferable observation Court’s (1975). 2555, 45 L.Ed.2d 593] engaged has counsel sponse when one court is for objectionable conduct 10-11, S.Ct. at 1043-44. Id. 470 U.S. at objectionable promptly with to deal review, retrospect, upon appellate It is thus, need for and, obviate conduct response be- that the evaluation of invited holding that After response. adversarial relevant, only for it is when comes argu- “responsiveness” prosecutor’s deprived the de- prosecutor’s conduct has error, noted the Court Young ment of a fendant of a fair trial that reversal first error prosecutor’s context, appropriate. “In this conviction court to deal failing to ask the trial conduct, as the counsel’s as well defense Id. improper conduct. counsel’s defense response, is rele- nature analytical framework It is within this (empha- vant.” Id. at 105 S.Ct. at 1044 miscon prosecutorial that I consider the added) (citing Socony- sis United States “In place in this case. duct which took 150, 242, Co., Oil U.S. Vacuum is a possible elicit bias quiry designed to (1940); 84 L.Ed. 1129 S.Ct. and, major purpose of cross-examination” Crumpton v. 138 U.S. basis, good faith long as counsel has 355, 356, (1891)). 364, 11 S.Ct. 34 L.Ed. 958 proper. Springer questions are See such Indeed, Young as the Court in stated: (D.C. v. United “invit retrospect, perhaps the idea of 1978); see also Sherer v. United way not response” ed has evolved in a denied, (D.C.1983), cert. contemplated. Lawn [v. 83 L.Ed.2d 469 U.S. S.Ct. 311, 2 L.Ed.2d 321 355 U.S. 78 S.Ct. (1984). case found judge The trial this (1958) and the earlier cases cited above ] part on the good lack of a faith basis no suggesting judicial should not be read as Indeed, judge trial defense counsel. encouragement—of re approval or— a correctly “[Ajssuming that: recognized sponse-in-kind inevitably that exacer the event good to believe that faith basis the tensions inherent in the adver bates occurred, really no there inquired about indicates, sary process. As Lawn itself except I’m of law that aware doctrine prosecutor’s the issue is not the license civility gentility that for notions of improper arguments, to make otherwise require the defense to first ask would “invited re but whether (Tr. inquiring in that area.” court before context, unfairly preju sponse,” taken in 1198). correctly stat As the trial IV the defendant. diced thereafter, is ... that “the law ed the law 12, 105 complete the im at 1044-45. can’t Supra, 470 U.S. at S.Ct. even if [counsel] for good faith basis peachment further stated that: if he has The Court it, right to so.” undertaking he has a do by any means have not intended Courts (Tr. 1201). IV encourage practice zealous to in the going “out of bounds” grounds counsel’s articulated the Defense counsel here, or to manner of defense counsel support good faith basis for to cross-examination, encourage prosecutors respond to At the time record. ought Reviewing courts to be a Dorsey, “invitation.” who was known Cassandra weighing put position in the and to have testified drug be addict cases, arguments prior murder inappropriate government of two in two which her violating the terms of responses” can for was the lesser. “Invited incarcerated incident at At the time of the effectively discouraged by prompt probation. ac- be case, boy- with her cor- in this she lived in the form of issue tion from bench Daniels, Larry and, brother when friend Ronnie rective instructions to the Jerry examination, absolutely Daniels. no evidence that On direct there’s evening she testified that on the fact this turns out to be the witness—if incident, she answered the front door to that the witness —there’s evidence Jerry Harry” “Dirty find Daniels and [Ir- anyway or intimidated was threatened standing further, there. She testified ick] ques- said she had The or that she been. cross-examination, that she observed evidence, only tions of counsel are not (another Tommy Daniels Daniel brother liv- says And what the witness under oath. house) (given in the ing bury gun testimony under it is. her oath is what by Jerry) garage. him behind the Defense certainly willing give I’d such counsel, however, had a wit- been told ... instruction identity ness—whose refused counsel to di- (Tr. 1201-02). prosecutor immediately vulge, record, although appar- from the offer, accept the trial declined to court’s ently Dorsey was his client—that told him that: reasoning gun never anyone bury she saw put jurors know how much stock We all merely opened the door the two men. for degree, in these instructions. It varies result, person Dorsey As told this My only can concern—I repeatedly by Your Honor. harassed her calling jail her going. out of her cell the D.C. see where this trial is I’m on trial and threatened her for imprisonment myself. appreciate don’t it. years. Delgado five noted when relat- (Tr. 1202). Having rejected IV the court’s ing Dorsey these events to the witness had instruction, appar- offer of a curative years not been clear as to five whether the reasons,” ently was done “tactical accessory be for her would role as an after closing preferring argument use as a fact, event, perjury both. “corrective,” thereafter allegedly threatening after her the week request made no instructional this about prior testifying, prosecutor allegedly matter. gave her the weekend “to think” about her juncture this It was at testimony. Dorsey then called witness transgressed teachings predic-

and communicated in her detail Young, supra, U.S. 105 S.Ct. 1038. Finally, Delgado suggested ament. proper judge, course for the trial person prosecu- also told him indicates, Dorsey’s give was to coop- Young tor have indicated that the instruc- might day give forthwith; give eration result in her release the to proposed tion he following hearing her probation on the vio- final jury, it anew in his instructions to the lations, hearing which scheduled proper impose closing and to limitations on days three occur after the date she was to by all argument counsel. While such limits testify in this case. permitted properly prosecu- would have the argue tor the lack of evidence to contra- To the extent the form that harm in Dorsey’s dict denial that she was threat- parading jury likely innuendo is before the ened, proper prohib- such limits would have asking despite occur question argument witness, type by ited in fact response made negative from the Kleindienst, I prompt jury which discuss in detail proper give course is to more A(l), in com- instruction. in this case trial Section The trial court Twice infra. judge give failing Simply offered to instruction. such an mitted error to do so. (Tr. 1179, 1201). respect IV to his having With put, wrongful there been con- second offer to do stated: so trial Delgado, by by duct trial court erred permitting Kleindienst And what the is entitled to to tell the Government an says is instruction that effect there was.7 extent, any, manifestly To what improper. such consideration was trial by 1038; have been influenced what characterized Young, supra, 470 See U.S. 105 S.Ct. the "tactical (D.C. reasons" for the States, Johnson v. United 398 A.2d 354 actions is not clear from If this this record. 1979). court, by was in fact the trial factor considered

45 1983). (Tillers McCormick rev. I 15 majority likewise sanctions what § by evidentiary issue improper conduct titles find to be other Evidence judge by by error Fire: Inadmissable Ev- “Fighting Fire with correctly ruled holding that the trial court (3d ed. Opening the Door.” idence as § “opened the door” to certain that Irick had 1984). majority’s discussion by prosecutor. actions refer merely the door” adds “opened term government to permitting court’s term at created obfuscation repeatedly introduce evidence that Irick’s legitimate rationale expense of the Harry,” having “Dirty nickname was after admissability. curative doctrine of nick- originally the use of that forbidden starting place of appropriate An name. admissibility Lamp analysis of curative testifying jury, it Prior to before (D.C. A.2d 428 kins v. United by Dorsey knew Irick came out 1986). qua said “the non of There we sine Dirty Harry nickname and had so identified admissibility ‘the introduction curative [is] police. instruct- him to the The trial court by a incompetent or irrelevant evidence Dorsey government to use ed and the ’” A.2d at party Lampkins, supra, 515 ... Dirty Harry, given its associ- the nickname (Duane) v. (quoting Dyson United the movie of that name which ation with (D.C.1982)). It is helped mag- the .44 Clint Eastwood make met that this first condition is only where spite num infamous. of that admoni- admissibility arises at tion, Dirty any Har- of curative Dorsey used the nickname issue in her ry several times to describe Irick all. jury. On the

direct examination before party the action of a introduc Where occasion, first the trial court sustained sat ing incompetent or irrelevant evidence objection permit Irick’s but declined to condition, then the trial isfies this first approach counsel to the bench. After Dor- con must confront at least two other court reference, sey’s ad- second such she was (Duane) Dy siderations. As we said govern- monished the court and both son, opened, in fact supra, if the door is yet doing ment so. did so counsel for She necessary to opened “only to the extent again, whereupon trial court denied might prejudice unfair remove motion for On defense counsel’s mistrial. original ensued from the otherwise have cross-examination, Dorsey if Irick asked (quoting evidence.” 450 A.2d at Win person she knew the identified as Irick 71-72, ston, U.S.App.D.C. at supra, 145 “Reds”; the nickname she stated that she 1240-41; Lampkins accord 447 F.2d at did not. States, supra; Middleton v. Unit redirect, Mr. Kleindienst used Dor- On (D.C.1979); ed sey’s grand jury testimony interrogate U.S.App. 91 v. United Crawford questions her further. He read to her 976, (1952). 234, 237, 198 F.2d 979 D.C. gave to those asked of her answers she to admit the by the trial court The decision grand jury, in questions which before one; discretionary testimony is a curative “Dirty Harry” eight reference is made to discretion, the trial exercise of that Dirty the term times. It is use of against weigh prejudice undue must court examination, the use of Harry on redirect supra, 515 Lampkins, probativeness. See by previously had interdicted which been Middleton, A.2d at judge 432; supra, 401 judge, the trial and A.2d at the trial which say properly admitted my colleagues 127-28; 322 Curry v. United “opened since Irick the door.” (D.C.1974); 268, supra, 1 Wigmore, 270 J. Johnson, 398 supra, generally 15. See § door” is “opened The shibboleth Leventhal, Judge As Harold A.2d 354. curative properly known as the doctrine of Court speaking for the United States admissibility. v. See United States Win- of Columbia Cir Appeals for the District 67, ston, U.S.App.D.C. 71, 447 145 F.2d cuit, (1971); said: 1240 1 J. has Wigmore, Evidence 46 dence; given he should not judge [Judge

The trial William B. be a license sort, Bryant] put expressively prejudice omit- of a different to create [citation him, prejudice caused unrelated to ted]: merely a better chance of ‘opening the door’ so that has This business about winning. admissibility, is a overused issue and it carries much Curative oversimplification. Opening short, with it an designed improve to the accura- thing. the door one But what comes factfinding designed cy of and is through Every- the door is another. simply permit party to avoid the thing through cannot come the door. opportunity by giving harm done him an testimony certainly This witness’ improve winning by his chances of anything not in rebuttal increasing possibility of erroneous to. defendant testified adjudication respect factual to some agree reasoning We the trial with the other matter. judge. As noted in United States v. (foot- supra, Wigmore, 1 at 749-50 J. § McLain, 213, 216, U.S.App.D.C. 440 omitted). note (1971): “The F.2d doctrine forcefully states the same Weinstein dangerously admissibility curative is one point: prone to ex- to overuse.” Permission concept “opening the This door” or plore in rebuttal with not ad- widely error” has been used to “invited direct, ground on missible on the justify ignoring rules of evidence. Often doors, party opened other has rests extremely prejudicial it results “upon removing necessity preju- consuming inquiries. Attorneys time dice in the interest of fairness.” Craw- matter, object fail to as a tactical v. U.S.App.D.C.

ford opened a line order to have the door 234, 237, (1952). 198 F.2d objectionable inquiries. equally their own prevent prejudice The doctrine is to ought prevent court to intercede to is not to be subverted into a rule for gamemanship this kind of when it can be injection prejudice. Introduction of foreseen. of the trial should not Control otherwise inadmissible evidence under dissipated theory on the two permitted “only shield this doctrine is wrongs neutralize each other unless the necessary to the extent to remove court is convinced that there is no other prejudice might unfair otherwise way protect parties practicable original have ensued from the evidence.” avoiding the dreadful waste of a while Allen, Ins. Co. 235 F.2d California mistrial. (5th Cir.1956). 103[02], at § Winston, supra, Weinstein’s Evidence U.S.App.D.C. (1988). 447 F.2d at 1240. Here, specifically had in- Wigmore point makes the as follows: Dorsey structed and counsel not to refer to general requirement There is a that evi- “Dirty Harry.” The Irick the nickname aegis dence submitted under the of cura- “ stating ‘Dirty Har- did so admissibility tive relate to the matter ry,’ jury, in the minds is associ- [sic] shown the inadmissible evidence sub- magnum.” spite ated with a .44 of this party. Generally mitted the other admonition, Irick Dorsey referred to requirement speaking, this is a sensible “Dirty Harry” examination three direct admissibility is since the aim of curative jury.8 in the presence times the of give party by the the introduc- harmed objections Irick’s and trial court sustained opportu- tion of evidence an inadmissible the witness. On cross-exami- nity to counter the inferences that admonished nation, Dorsey asked she be drawn from that inadmissible evi- whether whether, "Dirty Harry” majority repeated 8. The issue is not as the im- the use of the term prejudiced thereby. plies, Dorsey's references can be attributed to whether the defendant was (D.C. part prosecutor. v. United 497 A.2d bad faith on the of the Carter 1985), allowing by majority inapposite. cited the is issue is whether the trial erred in Although a government. the person by identified as Irick “slandered” knew the she intensity of the Dorsey she often belies the nickname “Reds.” stated cold record not; trial, of only did said the nickname she the words generated she at emotion Harry.” It by “Dirty knew him was exemplified the emotional prosecutor this my say Brethren that the trial reached in this case: pitch opened permit prosecutor the door beat-up old brief- they give me is a All “Dirty Har- properly to use the nickname legal pads. It’s not couple and a case examination, ry” Gatling gun redirect on coming in to impressive force that fashion, I eight on no less than occasions. But I three men. persecute these [sic] egregious examples can think of few more being a job thankless guess that’s the being admissibility doctrine curative you have prosecutor is sometimes prejudice against an misused to intellect slandered, being ac- stand the abuse opposing party qua the sine non when else because what cused of misconduct place, simply does not exist in the first drugs. gonna got do. We they are “merely party] so that has a better [a got guns. got a bullet that We We winning.” supra, 1 J. chance Wigmore, got killed an officer. We almost Assuming court at 750. that the trial § they do. Let’s money. what else can So issue, did in fact exercise discretion on this manipulating say that Mr. Kliendienst doubt, question a' not free from the exer- the truth. cise constituted an abuse thereof. And this is a case about character. Well Specific A. Instances of my I value character. Prosecutorial Misconduct rebuttal, (Tr. 749). prose- Ill Later in context, Viewed in it is clear to me that cutor addressed the substance of alone, together, taken as well as several counsel of charges and accused defense prosecutorial instances of misconduct oc- “manupulat[ing] the truth:” curred, prejudiced the outcome of 1) They following: manipu- this trial. include the know What else do we about counsel, integrity They attacks of defense truth in this courtroom. lators of including statements government and forth slandered back counsel, that he was slandered defense ping pong like a ball in the last five “manipu- references to defense counsel as weeks. lators of the truth” and assertions that (Tr. 751). Finally, Ill ac- witness; “sandbagged” defense counsel “sandbagging” counsel of cused defense 2) prosecutor’s repeated expressions Lewis, stating: “why didn’t Officer personal opinion regarding the character of them, you say ask did counsel] [defense witnesses, including bolstering this, They sandbagged Jimmy Lewis. No. government the sarcastic witnesses and 760). (Tr. Sandbagged him.” Ill him. dubbing of defendant Irick as a “truthtel- subsequent objections and The defendant’s ler”; 3) prosecutor’s prejudicial charac- were denied. motion mistrial occurring terization of the case as one in an pale comparison with the Attacks world, organized drug through and illicit prosecutor’s remarks in this case have been repeated “Dirty to Irick as Har- references improper found this court. Elsewhere enforcer,” ry,” and “the and his demonstra- stated, improper “it is ... for the cannon,” we have gun, “the tion with dubbed thoughts poor impute “dry which he cocked and fired” front of times, 4) prosecu- several defense counsel.” Hammill judgment to (D.C. argument tor’s of facts not evidence. v. United in turn: consider each 1985). Mathis due, part, reversed a conviction court integrity 1. Attacks on the trial, that defense counsel the comment counsel defense leading pack [just “was the ... like] night.” A.2d at pack the improper government It for the to client led was determined that the cumu- argue on that defense counsel 1347. The court rebuttal to sustain defense it failed at least denigration of trial when lative effect of this with a to strike the remarks along dubbing ap- objections and counsel alternative, instruction, or, Godfather,” in the curative pellant with the name “the as mistrial. grant the motions for credibility perhaps to vouching of well witnesses, government resulted in substan- opinion personal Expressions Id.; Sherer, supra, prejudice. tial see also prosecutor 470 A.2d at 742. person- gave jury prosecutor The The comments that defense counsel were many of the character al evaluation “manipulators of the truth” and that He trial. important witnesses government” “slandered the arose Dorsey's charac- for vouched Cassandra questioning Dorsey the defense’s about ter,10 history drug addiction and whose potential grounds for and cannot be bias sentencing called her truthfulness pending especially interpreted response, as a fair as the truthfulness of question, into as well since, held, judge ultimately Lewis, Jimmy whose Byron Wallace and permits law such cross-examination.9 inconsistent, and Dor- statements were majority’s response to these comments opined pro- most sey.11 prosecutor open misses the mark. Content to however, fusely, upon the character of Cur- doctrine, response floodgates of the fair Irick, potentially were tis statements which any analysis such without of the effect of Irick, Jerry Dan- prejudicial to as well as jury’s perception of de- comments on the iels, to secure convictions for order and, thus, prejudice to the fense counsel police against for the assault on a them defendant, majority concludes that the officer, prosecutor had show that “was, anything, prosecutor more sinned by happenstance and present Irick was not against sinning.” Curiously, the ma- than the mis- did not shoot Officer Lewis under jority says orig- what constituted the never cannot, however, taken that Lewis and Wallace were inal “sin.” Prosecutors belief times,12the through up hold men. No less than six permitted to convict defendants sarcastically referred to Irick as prosecutor The remarks an attack on their advocates. teller”; closing, he asked improper, and the trial court erred the “truth thought wrong cop majority to come comment that de- it was shoot 9. The dismisses the witness, here, "sandbagged” fense because take the stand and endure cross-ex- counsel in amination, objection question was made. I the assur- all and have kinds motives her, majority ance with which the concludes that an me. had that thrown at thrown at She objection registered "sandbag- decency. was not She rose above basic decent human Although agree objec- ging” remark. gotta You've have some admi- her condition. registered immediately tion was not after the Dorseys in this ration for the Cassandra made, my reading of the tran- comment script among squalor, push- world. Because hawkers, that defense counsel waited un- ers, indicates gunmen, somebody who thought finished his before til courage family had the lives in that same objection objecting, recorded on the guts, any promises, without to come in following page transcript of the trial and was cop say wrong to shoot a that’s it’s immediately practice This con- overruled. why I’m in here. judge’s preference stated formed with the Tr. Ill 575-76. spar- objections during argument be made Thus, attorney ingly. wrong penalize closing: advised the 11. The following preferred practice of the trial job to find the truth in this case. To Your e.g., court. See Hawthorne v. And the find who are the truth tellers. (D.C.1984)(despite 169-70 trial court's you that when sort Government submits then objec- contemporaneous make admonition to Byron through you’ll the evidence find that all tions, objections closing argu- after initial made truth, Jimmy Lewis told Wallace told the preserve prejudice ment sufficient to substantial Jerry Barnes who didn’t know the truth. That review). Kenny Ellerby cops the truth. That these told cops told the truth. As who didn’t know those closing, stated: 10. In Dorsey. did Cassandra Dorsey. in Ms. Poor Ms. And then comes Tr. Ill 585. stand, Dorsey.... an oath She took the took 560, 565, 569, 572, 577, said, Transcript yeah, III at her. 12. See I’m an addict. You saw decency she But she had the human because

49 express personal conflicting permit without elaboration on the evi- To counsel to dence, why Irick hadn’t “told the truth” afford in the ... would belief history,13 baldly about his work assert- to wit- privilege him a not even accorded ed lying.14 several times that Irick was subject oath and to cross nesses under Worse, it creates the false examination. majority correctly states that credibility reliability issue of of coun- “key inquiry attorney is whether peculiarly unfortunate if one sel. This is commenting evidence, on the which he [or advantage of them has the of official do, may expressing personal opin- or she] backing. ion, which Supra, is taboo.” at 35-36. (Duane) majority, Unlike cases cited how- Dyson, supra, 450 A.2d at 440 ever, States, only this case not (quoting Harris v. United 131 U.S. gave explicit opinion 105, 107, 656, as to the character App.D.C. 402 658 F.2d witnesses, of all major also Young, supra, 470 (1968)); but see also at U.S. 1047-48; Mathis, precisely outlined 18-19, who did and who did not su 105 S.Ct. at tell the truth. Such pra, comments cross Expressions 513 A.2d at 1348. drawing permissible line between inferenc- personal opinion particularly damaging are es from the expressing per- when, evidence and here, credibility of a witness Logan See opinions. sonal Powell, United supra, is crucial to the verdict. States, 485, 408; (Phillip) Dyson, supra, Ar- (D.C.1985); 489 A.2d 490 455 A.2d at States, nold v. United 467 A.2d 138 A.2d at 130. Similarly, counsel not assert that a repeatedly This court has witness has lied on the witness stand. condemned ex- Jones, supra, pressions personal (citing opinion 512 A.2d at 257 about a wit- cases); (Phillip) Dyson, supra, credibility: ness’ 418 A.2d at 130. In other cases comments It is for the to decide whether a prosecutor that a defense witnesses’ testi witness is truthful an attorney may “concocted,” unbelievable, mony inject personal opin- evaluations and Powell, supra, 455 A.2d at 408 “false” or veracity. ions as to a witness’ (George) Miller v. “outright perjury” States, Jones v. United 512 A.2d States, (D.C.1982) United (D.C.1986) (quoting (Phillip) Dyson v. for reversal. See ground have constituted (D.C. 418 A.2d McCowan, supra, also 458 A.2d at 1198 1980)); Chapman accord v. United (improper imply for untruth (D.C.1985); 493 A.2d McCowan closing argument). fulness defendant v. United (D.C. 1983); Powell, supra, majority 455 A.2d at 408. Al notes that “[reasonable lowing expression personal opinions people may appropriate- differ about the credibility places about of a prosecutor’s apparent witness ness of the sarcasm jury questions to Irick as a “truthteller.” Su- before the in referring counsel’s credi pra, bility and jury’s disagree. interferes with the deter at Even credibility fully potential mination of the im- of witnesses: court was aware of the 14. For Tr. Ill 584. Ask why he didn’t tell us the truth about vember, Why your client didn't tell tell us the truth about where today whether his that on the stand. Why Specifically, living. [Irick’s counsel] did Mr. Irick not tell example: or in working September, Northern (Tr. why December, Ill or who cares. And you Virginia us the truth about your 560). stated: you the truth about client didn’t work even or in No- where Roofing. And do badges, believe that. when he Mr. down. Do even Who is you all those does Mr. Irick have to take the stand and tell (Tr. Ill 572). Irick, peep ^[******] telling 569). you radios, says would one you believe Mr. Irick things No. Didn’t these word and believe that. guns, truth in this case? you that weren’t true. two mind walkie-talkies didn’t police say, police happen putting youDo the truthteller officers had And want to officer, (Tr. way. why gun Ill 50

propriety repeatedly referring repeatedly Specif- the term thereafter. to Irick as use Dorsey, a “truthteller”: ically, on redirect examination of “Dirty prosecutor referred to Irick as Appeals day say Court of some Harry” eight point, the trial times. At this sarcastically referring to a witness judge found that counsel for Irick had argu- as a truthteller same kind of “opened the door” when defense counsel ably improper argument calling a wit- liar, Dorsey had asked a whether she knew thought ness which I never was person she identified as Irick the nick- improper Appeals until the Court of said upshot ruling name “Reds.” The this Appeals so. don’t think the Court proper prosecu- was to hold was yet has said that and I don’t think that portion Dorsey’s grand jury a tor to read argument any way improper. inwas “Dirty testimony that referred to Irick as majority, concerned about the “life Harry” eight Finally, during times. cross “capture and zest” needed to and retain the Irick, prosecutor pick examination of attention,” jury’s that “the concludes Con- up gun, which he later de- unloaded require prosecutor’s stitution does not “cannon,” as a it in the scribed waved air not, boring.” Supra, Perhaps at 34. “dry fired” it four or five times before my but permissible concern rests not with jury. juror appeared to have a One theatrics, permissible but rather with com- visible reaction to this demonstration. Tr. prosecutor ments reiterate the —I Ill objected 302-03. The defense immedi- “expressions words of this per- court: conduct, ately to the but the opinion improper sonal are and offend the motion for mistrial was denied. dignity of the They court. should not be McCowan, tolerated.” supra, 458 A.2d at improper Other courts have found lan guage and conduct that was much less egregious quantity, quality, if not than Improper characterization See, present was in this case. facts e.g., Evans v. 392 A.2d United 1015, (reference (D.C.1978) 1026 to defense Throughout case, prosecutor this en- felons”); gang witnesses as a Maxwell portray par- deavored to the defendants as (D.C. 773 297 ticipants illegal organization. in an drug 1972) (reference “burglar, to defendant as permissible Such a trial tactic was inappropriate), thief and robber” was cert. extent that the evidence and sup- denied, 37 U.S. S.Ct. ported this impropriety inference. The (1973); L.Ed.2d 147 United States v. Shel arose, however, highly prejudicial with the ton, 54, 56-57, U.S.App.D.C. 628 F.2d and inflammatory language prose- (1980) (improper 56-57 for a cutor invoked to describe Curtis Irick. paint picture “by innuendo” that the opening statements, closing “seedy defendants were and sinister char prosecutor labelled Curtis Irick as “the en- through carefully presen acters” crafted prejudicial impact forcer.” The of the term tation of the facts which showed that the heightened government’s when the ex- principle defendant and of his one witness pert witness used that term to describe the drug es were members of the underworld illegal drug role of an “enforcer” in an skulduggery.”); involved all sorts of ring. objected Defense counsel to this lan- Jenkins, U.S.App. United States v. mistrial, guage and moved for a but the 392, 397, (1970) (defen 436 F.2d motion was denied and no curative instruc- hoodlum”). “teenage dant called given. tion was examination, Dorsey case, repeated On direct referred In this heard ref- nickname, “Dirty Harry.” “Dirty Harry” to Irick to the terms erences enforcer,” along The trial “the warned the with the use of the “cannon,” coupled the witness to from the use of that term with inflammatory refrain Despite ruling, very term. the trial court’s theatrics with the same both “cannon” the witness and the continued to the midst of cross-examination of the al- (D.C. not, leged inquiry as United “enforcer.” suggests, 1984), improper the fact since majority argument whether Jerry an ‘enforcer’ could reason- that “Irick was no Daniels there was evidence ably the Rath- inferred from evidence.” be implied that Lewis and Wallace he knew er, inquiry prejudicial is the appropriate the Jones, supra, police officers. See jury. have on effect this term would the A.2d at 257. concerning “Dirty is true the same Second, argued in the also Harry” reference. As even the trial “[r]unning with closing that Irick was “ ‘Dirty Harry,’ in of recognized, the minds partner. knew as Detective Who business jury, magni- the associated with a .44 you, Irick was out Brown told that Curtis um.” that’s to have a purpose there for one and highly prejudicial These tactics were and protect pistol to Tr. Daniels].” [Irick waving I find should not be tolerated. the this comment was Support III 574. for pulling trigger of the in front completely lacking in the record since the If, especially prejudicial. jury to be stricken such specifically had prosecutor argued, jury truly need- testimony by Detective Brown. See Lewis operation ed of the firearm in to see 541 A.2d 146-47 (as testimony evaluate Irick’s to order to (D.C.1988) (plain error for to not), surely panicked whether he then argue facts and misstate not evidence expert firearms who had testimony). already qualified called was much better to Analysis Prejudice B. Substantial conduct this sort demonstration than the requires rever Prosecutorial misconduct prosecutor. “if the to the level of

sal error rises sub Arguing Hawthorne, supra, not in prejudice.” evidence stantial 4- facts (citing 476 A.2d at 170 Dent v. United A critical issue in this trial was whether States, 404 A.2d Byron Irick knew that Curtis Wallace and evaluating factors to consider when Twice, Jimmy police Lewis were officers. gravity “the degree prejudice include: prosecutor argued facts not in evidence misconduct, relationship of the direct [its] First, that went to this critical issue. specific guilt, to the issue the effect of government adopted closing, perso- court, by the trial corrective instructions Jerry implied na Jerry Daniels and government’s any, strength and the Daniels knew that Wallace and Lewis were (D.C. Hammill, case.” police officers: 1985); Powell, A.2d at supra, 455 letting [Jerry Daniels him is] [Curtis objec preserved Where defendant has Curtis, know now’s the time Irick] appeal, prejudice” tions for “substantial get ’em off me. I don’t go want to to determines “with fair found when a court jail. get up. I don’t want to locked I assurance, hap all that pondering after go jail dope. selling don’t want then, got guns pened stripping their I’m the erroneous ac They ain’t out without caught whole, be going judgment not the cross from the tion fire. me. get You them off substantially by the error.” swayed Id. omitted). (citation the defendant Where (Tr. added)). (emphasis Ill 570 actuali- objected, not record is reviewed for has ty, Jerry Wallace testified that Officer Hammill, supra, 498 A.2d plain error. stated: Daniels (citing Watts v. United I [by Jerry the statements recall Daniels] banc)). (D.C.1976)(en them, Boo, Butch, Boo.” were “Get something get like that. “Don’t let them Review of of the misconduct all them. Don’t take me. Shoot let them my in mind that question case leaves kept saying it over over. me.” He jury’s “substantially swayed” judg- IV, Tr. implica- majority’s Contrary ment. to the most, tions, although not all of conduct potential impropriety

Aside from objected defense person, complained of was adopting the first see Hawthorne v. appeal, cocaine.17 On intent to distribute objected counsel.15 Those comments subject the stricter standard of evi- argues that insufficient Larry would Daniels The misconduct plain error review.16 aiding dence existed for conviction egregious in nature and re- this case was had no Larry Daniels abetting, because ma- in extent. Defense counsel was peated Jerry Daniels or with either contact with Irick, critical ligned. whose narcotics, before, the of- during or after “truthteller,” defense, was labelled a Furthermore, even if Lar- agree. fense. enforcer,” “Dirty Harry,” and “the who had a produced cocaine or ry Daniels had “cannon,” supposededly carried a cocaine, constitute this would still stash of waved, dry cocked and fired aiding' convict for insufficient evidence to jury. The or times in front of the four five by Jerry Dan- abetting possession and Daniels knew argued Jerry iels. him; a fact protect there to that Irick was Furthermore, prose- “the evidence. majority gives shrift to the short isolated, mo- cutor’s was not an conduct actions, surrounding Larry Daniels’ facts occurring in mentary the heat aberration so, necessarily since Daniels’ involve- and States, 357 A.2d trial,” Villacres v. United limited, if he was in this case was ment (D.C.1976), repeated it was oft indicate, The record does involved at all. Consequently, it throughout this trial. however, evening January that on the incidences highly inappropriate to evaluate a and Wallace entered Officers Lewis Rather, isolation, majority. does through in the fence and playground a hole effect” of we must look to the “cumulative eight people standing near five to observed case, prosecutorial misconduct in this play- green door of a school next to unequivocally I believe shows “Halves, yelled, ground. Officer Wallace preju- such conduct resulted substantial halves,” halves, Lar- anybody got to which Mathis, supra, 1349; See dice. 513 A.2d at away feet re- ry Daniels who stood five Powell, supra, 455 A.2d at 411. Since Jer- sponded affirmatively. Wallace asked fair ry deprived Daniels and Irick were of a replied, Larry Daniels the cost and about trial, mandates that Constitution money.” Larry Dan- me the Give $50.00. given a one. new and showing of the narcotics iels made no Larry Sufficiency II. actually not believe that he Wallace did evidence— appeal Daniels’ Wallace then possessed cocaine. past Larry Daniels and observed looked Larry aiding Daniels convicted of standing two to three another man with abetting Jerry possession and Daniels’ with 83-90); following improper the term "cannon” objected V use of counsel to the 15.Defense gun waving cocking comments: that defense counsel "slandered” and in front and 749); government (objection overruled at Tr. Ill jury (objection overruled and motion for mis- "manipulators 302-03); defense counsel were testimony by Ill trial denied at Tr. request ap- (objection overruled and truth” expert implied have that Daniels would 752); proach the bench denied at Tr. Ill gun (objection sus- whether Irick held a known "sandbagged” (objec- defense counsel a witness given Tr. IV instruction tained and curative supra Ill see also at n. tion overruled at Tr. 1976-80). 9); impermissibly government vouched (objection Jimmy Lewis for the character objection to comments about 16. There was no 749); references to at Tr. Ill sarcastic overruled credibility Dorsey vouching as was (motion for mistrial de- Irick as a "truthteller" argu- objection instances of there no to the two 605); Ill that Irick fabricated nied at Tr. testimony Lewis, supra, ing But see facts not in evidence. (motion at Tr. Ill for mistrial denied (plain A.2d at 146 error for (mo- 779); improper use of the word "enforcer” argue facts not in evidence and misstate testi- 751-52, mistrial denied at Tr. IV tion for mony). given); improper use of curative instruction (one Harry” objection Tr. "Dirty sustained term conspiracy Larry acquitted Daniels was 1143, 1266; at Tr. motion for mistrial denied cocaine, two counts of assault on distribute 1295-98, given); reading no curative instruction officer, police of assault with intent two counts eight grand jury ref- into record carrying pistol and with- to kill while armed “Dirty Harry” (objection erences to Irick as out a»license. for mistrial denied at Tr. overruled motion participated way in some associated with people, approximately 25 to 30 feet other undertaking and that Daniels, criminal away. in the Wallace then stated to as- “well, shoot, man, through her actions intended going the man his or I am Wesley v. United might try sure its success. See already dope. who You has (D.C.1988) my money.” left to steal Both officers (quoting v. United Larry Settles approach persons Daniels to R.A.B., (D.C.1987)); supra, In re that, the door. Officer Wallace admitted omitted). (citations 399 A.2d at 83 money, gave [Larry “If I him Daniels] possible there it’s he could have went over us fails to show The record before got [referring people par- association and necessary element of green have took or either he could door] Jerry ticipation Larry Daniels between my money and went somewhere else. So aiding Larry Daniels of Daniels to convict Iwhy that’s didn’t arrest him.” abetting. only evidence of associ- Larry presented ation on this record specifically Officer Wallace stated that presence playground, on the Daniels’ Larry any he did not observe Daniels have expert testimony relating to the role of Jerry contact with Daniels.18 After walk- legal- drug operation, “runner” in a and the school, ing group towards the near brotherly ly repugnant concept guilt by any officers did not have further contact association. Larry anyone with Daniels or see else have Later, Larry contact him. Daniels Generally, presence at the scene “[m]ere by was observed two other officers who more, crime, without is insufficient They were called to scene. observed in prove involvement the crime.” Set jumping him over a fence the school- tles, 357; 522 A.2d at see v. supra, Creek yard, putting jacket, on a and then “walk- 688, (D.C. States, A.2d 689 United 324 ing stopped, kind of fast.” he When did 1974). When, however, the has defendant attempt police. not to evade the through af participated in the crime some act, design encourages, or if firmative aiding The essential elements of and facilitates or stimulates commission 1) abetting are that an offense commit crime, may the defendant be convicted someone; 2) partici ted that the accused (Willie) aiding abetting. Miller v. commission; 3) pated in its that States, 862, (D.C. 479 A.2d 865 United guilty knowledge. accused did so with 1984); States, 135 U.S. Bailey v. United States, v. 499 A.2d West United 865 95, 98-99, App.D.C. 416 F.2d 1113-14 (D.C.1985); States, Byrd see also v. United (1969). 1215, 1219(D.C.1976); 364 A.2d Murchison (D.C. presents v. 486 A.2d no evidence that Lar- United This ease 1984); R.A.B., (D.C. any in con- ry participated In re Daniels or had Daniels, 1979); Blango Jerry A.2d No v. United tact whatsoever with (D.C.1975). Regarding Larry that Daniels accom- the ele evidence existed participation panied Jerry playground, ment in Daniels to the the commission of offense, Daniels, Jerry this court has stated further that he talked to or aiding eye signalled in contact or each order for a conviction of made stand, indi- abetting proof any way. merely must other in The facts there be yond Larry in a a reasonable doubt that the accused cate that Daniels stood alone “Yeah, man, asking, [Larry say go did on 18. DEFENSE COUNSEL: I am ... Daniels] you night, personal got ex- my what observed that there and see brother. He’s over later, you up perience, not what think is turned stuff.” time, point play- but at that on the [while No, say he didn’t that. OFFICER WALLACE: ground] you any man did see contact with that go Did he on over DEFENSE COUNSEL: [i.e., Larry Daniels and the man ob- between "Look, really say, there and I don’t have dealing drugs by green served to be school does, working good him." stuff. He and I’m for added). (emphasis door]? No, sir, say he didn’t OFFICER WALLACE: Oh, OFFICER WALLACE: no. 1580-81) added). (T. (emphasis that either. you you DEFENSE COUNSEL: When said going get over there to stuff from the other drugs schoolyard they falsely claim to have a stash of along eight with at least five to location, money up take the persons present play- in another who were also Thus, ground. disappear with it. ap- front and then When undercover officers trying Daniels, Larry simply proached Larry responded Daniels have been Wallace, possibility that request by asking their to rob Officer for cocaine for money, acknowledged. The alternative ar- nothing but he did else to indicate Wallace actually drugs, gument assuming Larry that he Daniels was supply would — drugs supplier going request indicate to fulfill the for who the would be. Offi- —re- contact of give Larry quires pure speculation cer Wallace did not Daniels since no money, pos- place taken nor did he believe that Daniels sort was shown to have drugs. Larry sessed left Dan- between him and the others. Absence of officers Daniels,-who apprehend Jerry linking Jerry iels to the accused to Dan- evidence standing away, apparently by hypotheses. 25-30 feet en- iels cannot be surmounted Quarles gaged drug transaction with two to Finally, Larry

three others. Daniels left playground shootings, alone after the Further, support can find no did people schoolyard. the other in the proposition expert testimony describ- ing potential crime operandi the modus government argues, based on the scenarios, without further evidence to expert Brown, testimony of Detective prove engaged that the defendant fact Larry negotiating pur- Daniels’ actions about, the events testified would constitute price chase was consistent with a “runner” proof aiding sufficient convict negotiates price —someone who for a Quarles, abetting. contrary, To the su- purchaser, purchaser and obtains for the pra, reversed a this court drug either the has the or someone who abetting aiding pick- conviction for and drug Jerry this case Daniels. Brown —in pocket despite expert testimony sup- also, however, testified if someone ne- ported the events testified to at trial. gotiates drug purchase money, for unless person among contact can be observed Quarles, pushed appellant In be- impossible person it is to tell whether the they tween a and a wife husband when working anyone with or with whom the aboard, boarding appel- a bus. Once person working: lant, standing couple, near the who was husband, DEFENSE COUNSEL: Detective forcibly pushed the bent over and Brown, your experience, high in these while at the same moment an unknown neighborhoods, high drug crime ar- these gentleman pushed against the husband eas, people hang there are—lots of immediately rear. husband around; your experience? has that gone. been it was felt for his wallet and noticed conviction, reversing court stat- Generally, yes. BROWN: ed, any was no com- “[t]here you DEFENSE COUNSEL: And unless appellant pur- munication between and the make certain observations contact ported any thief at time before or after the other, I you between one or the mean theft, they together nor were ever seen or really can’t tell whether not are way.” any before or connected in other Id. another; right? involved with is that The court concluded that: BROWN: That is correct. conjecture, particular- and while surmise added). Here, (T. (emphasis II. 37-38 Offi- ly light expert testimony as to specifically cer Wallace stated that he ob- pickpockets operandi modus Larry served no contact between Daniels working pairs, may suspect lead one Jerry supra, note 16. Daniels. See acting that the two men have been Rather, merely eight observed five to concert, suspicion, strong suspi- even milling play- people around a darkened probative is no substitute for evi- cion building ground near a school from which guilt. dence of Larry away. Daniels stood 25 to 30 feet (footnote omitted). Id. and citation per- Officer Brown also stated often did, Thus, Larry really sons who act as Daniels without evidence of contact Daniels, Rather, selling drugs. Larry Jerry between Daniels and have intention Larry Daniels any evidence to show expert’s with the a runner consistent nothing than theory, are left with more we Dan- Larry Jerry

the fact Daniels

iels are brothers. “guilt by majority warns: associa- very dangerous principle

tion is a ...

fraught peril” devoid of mean- —words ing legal applied. system Our has guilt

consistently eschewed the notion of in the context articulable association

suspicion propinquity arrest where presume

could con- not form basis conduct;19 not surprisingly,

certed criminal

I exception have found no for association

based on blood.20

III. Conclusion Larry

I case would reverse this as to

Daniels, finding insufficient evidence

aiding abetting. would reverse

remand this case for a new trial based

prosecutorial substantially misconduct that

prejudiced Jerry this trial for Daniels and

Curtis Irick.

PROFESSIONAL ANSWERING INC.,

SERVICE, Appellant, AND

CHESAPEAKE POTOMAC CO., Appellee.

TELEPHONE

No. 87-1210. of Appeals.

District of Columbia Court

Argued Nov. 1988.

Reargued May 1989.

Decided Oct. 1989. Irick, spilled (D.C. cally Jerry directed at Daniels Smith v. 1989) (en banc). Larry as to Dan- over and affected the verdict iels. Further, prosecutorial I am satisfied that the specifi- discussed earlier misconduct which was

Case Details

Case Name: Irick v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Oct 5, 1989

Citation: 565 A.2d 26

Docket Number: 87-134, 87-429 and 87-592

Court Abbreviation: D.C.