Johnson v. United States, 356 A.2d 639

Johnson v. United States

356 A.2d 639

D.C.

1976

Check Treatment

*1 this not permitted court is to make Hamilton, D.C.Mun.App., A.2d findings or to for judgment substitute its (1960). 679-80 that Of trial court. Patterson Pat- v. impossible Consequently, n to me seems terson, D.C.App., 188 A.2d make, responsibly, judgment whether (1963).6 basis in evidence there was not, therefore, appellant was- conclusion that I disturb at this trial court’s ground of but to a on the time the the trial court judgment not entitled divorce voluntary desertion, desertion, or directions constructive would remand the record with certify in a sep supple- and this court make aration.5 appropriate findings mental record written majority says The record without of fact and conclusions of For law. all support appellee’s misconduct I re- foregoing vigorously reasons but spectfully dissent. [appellant] forced the wife to terminate relationship. marital charges ... to file [And] having

. . with the intent of [appellee] perma-

husband arrested and

nently living restrained from with her. JOHNSON, Appellant, E. Linwood appel- allegations There were no such complaint nor was there lant’s v. certainly trial

trial to that effect and STATES, Appellee. UNITED majority finding. court made no such The No. 8683. previously says appellee “(who also that physically [appellee] had abused the wife Appeals. Court of District of Columbia occasions) on several was arrested after Argued Nov. 1975. her having threatened children shotgun.” record shows with loaded April 29, Decided 1976. thаt these statements were controverted Rehearing en Banc Granted appellee judge and that the trial refused to July 1976. any finding. make points up What all of is the clear showing

record relation- that the marital

ship interrupted any act direct ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the court order which ap-

required appellee to avoid contact

pellant problems” for year on “marital one

commencing February 1972. As the observed,

trial evidence was

sharp conflict as the circumstances provoked the order.

It is not the of this function “to reweigh

reconsider evidence” escape physi 5. It does not discharge attention of its review function always cal abuse is not jury, deemed a sufficient case tried without a this court marriage, рarticularly reason to terminate review both as to the facts and the law but when judgment may children are involved. except Roberson v. not be set aside Roberson, supra Chap appears See also errors of law unless pie D.C.App., Chappie, judgment plainly wrong A.2d 815 or without evi (1964). support dence to it. D.C.Code 16- § Achorn, D.C.Mun.App., 904. See Achorn v. 168 A.2d 399

KELLY, Judge: Associate Appellant, Johnson, Linwood E. and two codefendants were сonvicted of the armed robbery1 pastry deliveryman of a following appeal, trial. On claims Johnson that the trial in failing, erred sponte, immediately instruct the admissibility prior the limited of a incon- impeach sistent statement used to one of the codefendants who testified in his be- plain error, half. Finding we reverse the conviction and remand the case for a new trial.

Briefly, government’s case consisted of evidence that two men robbed the deliv- eryman gunpoint of a money sum of and pies. two An unidentified witness took down plate the license number of the vehi- cle in which the robbers left the scene and the car stopped by was police shortly passenger backseat, thereafter. A in the Harry Allen, codefendant fled the scene apprehended. was chased and Appel- lant, driver, and a passenger frontseat were ordered from the A car. sеarch of up car coat, turned a gray by worn one of the robbers, pies. and Money two found in gray appellant’s coat and on person; a gun and a wallet were recovered place near the fleeing passenger where the deliveryman arrested. The was unable to identify appellant participant as a in the robbery. Following the denial of a for a motion Birkel, Walter Washington, G. C., ap- D. Harry judgment acquittаl, codefendant pointed by court, with whom Mac As- appel- gave exculpatory Allen bill, Jr., Washington, C., appointed D. also throughout lant’s behalf. He stated that court, brief, appel- on the robbery aftermath and its immediate

lant. appellant incapacitated by the ef- had been fect of narcotics and oblivious withdrawal Gertner, Atty., Michael H. Asst. U. S. robbery to the fact that had occurred. Silbert, Atty., whom Earl U. S. J. He his conceded оwn direct involvement Terry, A. Stuart M. and Gerson John John ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the crime. Clark, O’B. Jr., Attys., U. S. were on Asst. brief, appellee. impeached by Allen was the testi witness, mony government’s rebuttal KELLY, Before YEAGLEY Collins, MACK, Bobby Officer who testified Judges. Associate 22-2901, States, D.C.App., §§ D.C.Code 22-3202. A 346 A.2d 504 question jurisdiction, (1975), filing threshold of this court’s has been eliminated of a apparent premature supplemental transcript sentencing raised because of an no appeal proceedings. tice of under our decision West v. shortly appellant after the arrest of impeached instant case it a defense wit- codefendants, made a state his Allen had It is ness. said that the denying him his in ment to own active one’s own witness as a implicating volvement might convey impression statement participant robbery. Neither coun additional being substantive evidence is of- *3 requested jury immediately sel that the be fered, while of a hostilе wit- purpose not, instructed on the limited for which that, therefore, ness the re- hearsay prior evidence of a inconsistent quirement an of immediate instruction is statement could be admitted2 no limit justified only in the former instance. ing instruction given at that time.3 in This distinction was deemed irrelevant explained Jones where the court that un- Generally, party fails to where a derlying requirement the of an immediate an instruction on limited admissi policy restriсting instruction was the the evidence, trial bility of the failure of the jury’s exposure hearsay to evidence. Jones instruction, judge an sua give to States, 40, supra v. United at 385 at F.2d sponte, appeal. will not be considered on Leonard, also See United States v. States, D.C.App., Dixon 287 A.2d U.S.App.D.C. 36, 161 F.2d (1974). 926, cert. Regardless being of whose witness is im- (1972). have 32 L.Ed.2d 813 We peached, ju- it is unrealistic to assume that recognized, however, potential that the hearing testimony prior rors of a inconsist- jury prior great confusion is so where in ent statement that state- would consider consistent are for a statements admitted ment as anything but substantive evidence purpose justify require limited as to they unless were instructed otherwise.4 of an cautionary ment immediate instruc The Id. at 99. dissent tion. contends further that our holding in States, Dixon v. supra, United In Lofty v. United D.C. bars application plain our error rule App., A.2d 99 (1971), a trial judge’s in In this case. Dixon we held that when failure, sponte, sua immediately instruct impeached defendant is by evidence of a jury on the limited admissibility of a prior conviction pursuant to D.C.Code prior inconsistent statement was held to be 305, the trial judge’s failure to § 14— plain error requiring Super. reversal. See give an instruction, immediate cautionary Ct., 52(b). Cr.R. ra We conclude that sponte, sua is not spe- It error. tionale underlying that decision controls cifically recognized Dixon, however, the result in this case. that a presented different situation is The dissent would distinguish when, as in Lofty case, a witness is im- ground that government there the peached by prior evidence of a inconsistent impeaching its witness, whereas in the statement. The court stated: hearsay, prior 2. As Allen’s inconsistent state- not reveal evidence of affirmative waiver. properly ment could not have been considered States, suрra See Jones v. truth stated. Jones F.2d at 299. U.S.App.D.C. F.2d 296 apparent guilty 4.It is from the verdict of It could have been considered jury that chose to disbelieve Allen’s ex- proving simply that the statement had been culpatory testimony probable and it that made since the mere fact that a witness has making this choice the credited his contradictory is relevant made statements prior inconsistent statement as substantive credibility. Id. at an evaluаtion of transpired, particularly evidence of what had F.2d at 300. prosecutor, closing argument, since the in his emphasized prior jury, In his final inconsistent statement the trial way in a included a on the indicated that it could be so instruction (Supplemental admissibility prior II, viewed. limited inconsistent Record Tr. 51-3.) not, specifical- evidence, however, Considered as substantive statements which did ly question. Allen’s statement effee-' refer to the While tively aрpellant’s may, course, right controverted an sole defense accused waive the nonparticipation cautionary instruction, in the crime. here does record testimony was admitted. impeaching consideration, when we believe

After careful nor counsel In this case neither the court high probability confu- for ac- perceived situation called “prior inconsistent statement” sion delib- the defect was Lofty tiоn whereas in required exceptional use cases which prosecu- oversight for the cautionary erate and sponte of an immediate an in- time that suggested tor had at the by the trial court is not instruction immediately. at 100. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍be Id. present “prior struction in the case convictions” impeachment. evidence used for applica broadening course of the [Id. 99.] tion of the plain error rule there has been finally Super.Ct.Cr.R. urged It tеndency forget “plain error” is omis precludes regarding us from exception. not the rule gener but the unrequested instruction as sion of an rule, al begin, with which we must is that *4 meaning Super.Ct.Cr. the error within objected trial errors must be to at the time very argument R. This was made 52(b).5 they they occur if are to be considered on McClain, in rejected v. States appeal. States, D.C.App., Adams v. United 213, (1971), 440 U.S.App.D.C. 142 F.2d 241 232, 302 A.2d 234-35 (1973); v. Wooten in of 'both the rules, where a discussion 308, States, C.App., 309 D. 285 A.2d court stated: (1971); States, 3n. Bunter v. United D. C.App., 839, 245 A.2d 841-42 defense failure of counsel re-

[T]he quest an instruction does auto- such not long Lofty Not in after our decision matically reaching court bar this from severely scope of that limited the de- given. if the instruction is not the error carefully examining cision after the plain 217, [Id. F.2d at at 440 245.] case, error rule. In that Dixon v. United States, 89, D.C.App., (1972), 97 287 A.2d Reversed. this court its decision was not held that YEAGLEY, Judge (dissent- Associate Lofty controlled in taken a statement ing) : McClain, 142 from United v. U.S. States 241, I prepared scope App.D.C. 213, 218, not to extend am the 440 F.2d 246 plain any the (1971), error further. Accord that thought ingly, I invok dissent. I our brought “whenever in evidence is which ing in Lofty the rule D. only purpose, is admissible for a limited C.App., (1971), A.2d 99 relied on 277 plain error, it is in the absence of mani- extremely ques majority, the was an close waiver, fest immediate to omit an cau- represented tion and its outer A limits. omitted; tionary instruction” [footnote strong argument can be made that we went emphasis original] in too far in nor this Lofty. Lofty Neither Dixon, of a for the unlike McClain case the denial basic element reason that involves impeach- Lofty, instant the of a fair trial. The case involves did involve witness, only rather the question ment of one’s the of whether instruction the defendant. Since given at the end the trial here, impeachment of Dixon, as in sponte been should also have sua part: pertinent states in Rule 30 ted U.S. following party assign any portion (1963), as error a state- No L.Ed.2d 462 where petitioner’s of the or omission therefrom unless failure ment objects the-jury precluded thereto before retires to review of this he instruction stating verdict, distinctly stated: issue under Rule Court consider objects grounds he matter to which and the Nor was on this score there affecting objection. charge, of his . . . in substаntial error dissent, despite Supreme rights, in As noted Court warrant reversal specifically application object. has not endorsed the Fed.Rules Crim. the failure to See Proc., 52(b). rule to instructional errors {Id. error . . . preserved appeal in not been that have 1386.] S.Ct. Lopez see But v. Uni- accord with Rule 30. it is im cally requests instruction), no involved, I is not prosecutor’s own witness would be portant that such a rule to note analogous Dixon is more suggest that gen practice found departure from the Dixon Lofty. this situation than An throughout States. erally the United precedents and deter- court examined both of the law of extensive examination cautionary in- mined that the immediate jurisdictions reveals and federal state to avoid con- Lofty in was useful struction rule, must re that, as a counsel part when fusion on which quest an instruction on evidence statement was introduced purpose special limited admitted for govern- surprise testimony of the rebut the (footnotes A.2d at 98 . . . . court in Dixon ment’s own witness. The [287 omitted; emphasis observed original).] situation which confronted I logic departing see no from what S., the court Coleman U. [Coleman appears reasoning to me to be the sound U.S.App.D.C. F.2d 343 Dixon I submit should control the 87 S. (1966), cert. here. result L.Ed.2d, (1967)], Jones Ct. jur- in this Dixon was not the first case S., U.S.App.D.C. 385 F. v. U. [Jones apply philosophy for it isdiction to justified an Lofty (1967)], 2d 296 many years ago held that: sponte by immediate instruction Except upon principles essential *5 of law jury un trial court because confusion concerning which it is duty the doubtedly counsel occurred where trial trial judge to jury instruct the whether surprise suddenly claimed at his own requested not, there is duty no in- to testimony, and then al witness’s struct in the request. absence of a And prior a lowed to introduce ... request the proper. must be It is not the . stаtement . . [inconsistent] [287 duty of a trial judge modify to recast or at A.2d 99.] an misleading erroneous or requested in- surprise was no There element of struction. [George States, v. United case, instant and I see no reason to con- U.S.App.D.C. 197,201, 559, 125 F.2d that the been con- jury clude could have so (1942) (citations omitted).] require fused as to an immediate caution- power The of this court to notice unob- ary instruction. jected to defects affecting substantiаl It is a a quite different situation when rights is discretionary and it has long been prosecutor caught by surprise1 and must held in jurisdiction this “‘[a]bsent impeach prior his own state- witness with showing clear prejudice, of we are not dis- appear jury ments for it well to the posed to alleged notice errors which are ” the earlier inconsistent statements raised appeal.’ for the first time on Hill being were admitted truth their for the of States, v. United 925, D.C.App., 280 A.2d part government’s content as case the See (1971). Adams in chief. supra at 234. It is specifically provided at Super.Ct.Cr.R. the end of regarding In Dixon the court went on to observe instructions that: that: por- considering may assign In as error propriety the party of a rule No therefrom require which would or omission immediate cau tion of the tionary before the sponte by objects instruction sua thereto the he unless verdict, stating dis- (unless trial specifi trial сounsel retires to consider Robinson, States, supra Proposal 2. See also P. A Limit- In Colemanv. United 1. for ing Duty approval Judge quoted the the Trial Instruct to with 371 F.2d empha Jury Diego place Sponte, Lofty, the Sua L.Rev. to some San the court seemed surprise the element sis on the fact opposite present quite the which Identical to Fed.R.Crim.P. the case here. objects purpose testimony he admitting ed the to which tinctly matter objеction. no even his the court found reversible error grounds of though failure deemed could have been logical quite damaging. I find no to be in to failure involving a not a case why not ob- reason the same result should instruc involving an erroneous struct, but tain here. ob to, Circuit Ninth objected not tion is to rule purpose of served In a case remarkably errors like the one at sponte notice bar to courts permit the where to cаlled a call codefendant to parties failed which witness who impeached authorize “but it does attention court’s ap- another statement implicating matters the consideration of pellant, but where assigned no not be instruction was states shall specifically rule limiting pur- the use of testimony Herzog v. United as error.” poses impeachment, Circuit, 1955), adhered Second (9th Cir. F.2d following the same supra, as in Curry, cert. 235 F.2d rehearing, “Appеllant 59 said: request made no 1 L.Ed.2d trial; instructions at the his failure original). (emphasis (1956) make such a bars him from raising applied literal the issue Fifth Circuit for the appeal.” first time on very similar reading Ballentine, of rule 30 to a case States v. 410 F.2d (2d impeachment 1969) a code- 377 involving (citations Cir. omitted). refused it was fendant and to hold sponte jury sua to instruct the

error not important It is strong has a to one who though no even instruction on carefully defense to have the case later in the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was included properly tried. But error rule in- instructions, Easterly, 444 States v. vites a attorney shrewd has a who weak *6 Blake (5th 1971). 1236 Cir. Also see F.2d strategy defense to that conclude his best ley v. United (5th 235 Cir. 249 F.2d is-to remain silent make let 1957). way thereby his hoping to “sow error prior inconsist grant case If In another where record”. are to the courts allowed frequently of the accused was labeling ent statement relief it error instruction, limiting еxpect help in without a we cannot defense counsel to evidence having requested, been Second trial courts none to avoid error which is essen- Evi Wigmore, quoted strong system. from 1 tial adversary judicial Circuit to (3d to 1940) 13 at 301 ed. recognize dence time has come that to there § that the opinion is beyond better must be a line effect which we will not “[t]he exception must ask opponent the evidence make an to the rule that for of supposed instruction; otherwise, may unobjected he be an to be error will not noticed pro necessary for his appeal; excep- it as on to have waived resort to the otherwise added, de expand endlessly The court then tion will continue tection.” to “[t]he hopes in may feeding not remain silent fense itself. A in one decision close fall into reversible is being authority district court will case used to аs extend have possible exception could justifiable error error where another but less cured, be, by passed upon just if need situation as we been are asked to extend it States objection.” properly timed arguable here because of the similarity Cir.), (2d cert. supra. ap- F.2d 912 Curry, Lofty, thing v. with for It is one L. pellate courts to the trial reverse when omitted) (em (footnote misdirection, 100 (1966) guilty Ed.2d court has been but no instruc original). Apparеntly in phasis quite delayed another to do so for direc- limit- to the any kind was as tion of tion. erro- instructions were if some of the in the course significant that I find it exceptions were neous, taken pros- when the in the instant case

the trial trial. require a new such as to [Burns interrupted the examination ecutor U.S. Al- for defendant complainant by counsel (1927).] 650,653, L.Ed. 1077 the ditch S.Ct. “digging he was len to observe codefendants], deeper other two for [the States, 170 U.S. Humes In if neither these counsel have (1898), 602, 42 L.Ed. 211-12, 18 S.Ct. on, I have going don’t objections to what’s failure for assigned error where for counsel any objections”, instructions, the give certain the court indicating he responded as follows Johnson was well said: Supreme Court a de- necessity aware of remaining silent lawyer sometimes fense omis- regard as error the cannot We objection an objecting even where and not give instructions sion of said: required. He be might seem to Isaacs v. U. which were not asked. S., 487, 491, Sup.Ct. U.S. [40 Well, Your ARMSTRONG: MR. "It said: 229], Mr. Brown L.Ed. Justice I am Johnson, of Mr. Honor, on behalf is that the court ground no reversal prosecu- problem that [the aware instructions, they where give omitted to just has mentioned. tor] It requested were not defendant. gave no erro- sufficient the court have to defendants these Counsel omitted; neous instructions.” [Citations as to whether tactical decisions make emphasis added.] object at profile or a low not to maintain decisions, many every point. I made appears It that so far there has been no in decisions I have made other specific guidance Supreme from the Court my trial, if regardless of course of applying those two federal rules my failure to cross-exam- client disliked view of the clear language it incorporated is some There earlier. ine witness] [thе might expect one it to adhere to saying prosecutor] in what truth [the opinion in Humes. examination, the respect to further pro- take, as Mr. Koenick course This is not to contend that appellate an judg- to make have But I would ceeds. court should fail recognize plain error along. goI ments as or that it should affirm judgment where it is is identical clear 52(b) Super.Ct.Cr.R. essential element of a fair *7 promulgated trial absent, numbered fеderal as advice to same unable Court, I am but basic Supreme elements of the offense or by that Court standard endorsement any direct reasonable find doubt. over- rule to merely error These are not desirable but essen- of the use be made objections tial to a requiring fair trial. But here rule 30 the defect is ride pre- be is to not of that if error nature. It is simply jury instructions one of the many however, that know, giving court only instruction once when served. We that: said it should Supreme Court have been given ago twice. Absent a years showing clear of a miscarriage justice, Exceptions specifi- to a must be we quick should not be to relieve one of a cally op- give made in order conviction because of so-called error portunity then and there to correct er- perceived where trial counsel no error at omissions, any. Pennsylvan- rors and if the time and guilt the evidence of was con- Minds, ia R. Co. v. 368, 375, R. 250 U.S. vincing. and cases L.Ed. When errors occur at trial is not cited; Allis v. United right adversely clear that a substantial Even 117, 122, 91. 39 L.Ed. S.Ct. affected failure of counsel and act, appellant’s might

court to contention

better be reviewed on the standard of there assistance of

whether was ineffective However, equat- this is not be

counsel.4 strategy tac-

ed with unsuccessful trial inexperienced

tics. here was not Counsel problem ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍making alert to the progressed.

tactical decisions as the trial policy adopted by

I follow the

Supreme and the Circuit as Court Second Burns, Humes, Curry,

reflected

Ballentine, appellant’s supra, and hold that instruction at trial

failure to for the raising

bars him the issue from

first time appeal. Appellant, MOHLER,

Richard Lee HOUSTON, Appellee.

Malcolm W.

No. 9876. Appeals.

District of Columbia Court of

Submitted March April 20,

Decided *8 McGean, Upper Marlboro,

D. Carroll Md., appellant. Limiting Duty Proposal Judge Jury Sponte, the Trial

4.A Instruct Sua supra at 352.