420 A.2d 1214 | D.C. | 1980
Appellant challenges his conviction for robbery
As to the first contention, the record reflects that appellant and a confederate grabbed the complaining witness from behind, wrestled away his wallet and ran. Complainant pursued appellant down the street and around the corner, thereby attracting the attention of a police officer driving by in his cruiser with a canine partner. The policeman took chase, observing appellant throw down an object which turned out to be the wallet, and cornered appellant in an alley behind a parked vehicle. With the aid of the dog, appellant was flushed from his hiding place under the vehicle. Clearly, there was sufficient evidence to support the jury’s verdict.
As to the assertion of plain error occurring during the appellant’s cross-examination, he had testified that on the
On cross-examination, the prosecutor elicited an unequivocal assertion by appellant from the stand that he had the wallet in his possession because he had picked it up after the thief had dropped it. The following colloquy then occurred:
Q. You appeared in this court on March 2nd of this year, didn’t you?
A. Uh-huh.
Q. You were put under oath and at that time you testified about what happened in this incident?
A. Yes, sir.
Q. You were asked this question and gave this answer, weren’t you?
Question: “How did you get the wallet?”
Answer: “It was already out. I snatched it from this man, but the man that say I snatched it, that wasn’t the man. I snatched it from another man.” Didn’t you give that answer?
A. I gave that because my lawyer, he told my that it wasn’t no way I could beat it.
Q. You said that under oath and it wasn’t true?
A. I was just trying to get out the best way I can, ’cause I ain’t used to getting in no trouble.
Q. You were not telling the truth at the time?
A. It wasn’t nobody else to take it but me.
Q. You were intentionally telling what was not the truth because you were trying to get off, right?
A. Yes, sir. [Record at 84.]
There was no defense objection at that time. During the prosecutor’s closing argument, he commented:
Yes, he was certain that was what happened, absolutely certain. That’s the way it happened. Yet he acknowledged that on an earlier occasion, under oath, he testified to a completely different version of how he got that wallet, that he snatched it from somebody. When asked to explain himself, he said, “Well, yes, that wasn’t true,” somebody told him to say that. He was going to say it because he thought it would help him. [Record at 96.]
Defense counsel did not object then nor request any special instruction of the jury. (Record at 113.) Nevertheless, the trial court in its charge to the jury instructed:
Further, the testimony of a witness may be discredited or impeached by showing that that witness previously made statements which are not consistent with present testimony. Such prior statements are admitted in evidence solely to assist you on the matter of credibility, and you may not consider the prior statement as proving the truth of anything that is contained in that statement. [Record at 122.]
We are of the opinion that the prosecutor’s questioning set forth above was improper. Super.Ct.Cr.R. 11(e)(4) provides in pertinent part:
Evidence ... of statements made in connection with ... any ... pleas ... is not admissible in any ... criminal proceeding against the person who made the plea.3
However, we note the strength of the government’s case, the absence of a defense
Affirmed.
. D.C.Code 1973, § 22-2901.
. Appellant pleaded guilty in open court to the crime charged but then the trial court upon the basis of his conversations with the probation office vacated the plea and a trial was held, culminating in the judgment of conviction he now challenges on appeal.
. The government points to the “exception” proviso in the Rule that permits use of a “statement” in “a criminal proceeding for perjury or false statement” as justifying the prosecutor’s cross-examination here. However, this exception is clearly inapplicable to the instant prosecution.
We also reject appellee’s argument that, under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and its progeny, the statements complained of here were properly