Lyons v. United States

Nevertheless, pany. appointment un- change, not

der these circumstances did degree, slightest his duties and his

responsibility as an of the Metro- officer force,

politan we Police and consider have

this arrest been made virtue authority, agent not as the ought company, they not to responsible. be held added). (emphasis

Id. at 398

There material is no difference between the case at bar. We therefore

Wells and Wells,

hold, following Hayes’ that Officer pursuant of Bauldock made

arrest authority Metropolitan as a Police offi-

cer, agent employee. Davco’s be liable for an act

Davco cannot held required officer was statute

which the regulation10 perform Metropoli- duty. even off

tan Police officer while evidence,

It that the even when follows Bauldock, favorably

viewed most support

insufficient as a matter of law judg- verdict his favor. The in favor of Davco must

ment n.o.v. be

Affirmed. LYONS, Appellant,

Lewis STATES, Appellee.

UNITED

No. 89-CF-1145. of Appeals.

District of Columbia Court

Argued March 1992. March

Decided (1988). (1988); § 6A DCMR 200.4 §

10. D.C.Code (2) allowed, under the exception spontaneous utterance to the rule, hearsay of a offi- government eyewit- recounted a cer who lengthy ness’s statement officer. Appellant alleges three instances of misconduct, arguing prosecutorial that the government improperly impeached him silence, pre-arrest his post-arrest his with silence, and a inconsistent statement failed to disclose to the trial. While we address defense before appellant’s improper claims of im- three appellant peachment agree and with on two them, the prejudice we need not assess re- improprieties from these because we on appellant’s verse convictions the first grounds two remand for new trial.1 and I. and killed on

Lionel Harris was shot trial, appellant At admit- March 1988.' he ted had Harris but maintained he shot Appellant’s had him in self-defense. shot first trial ended in a mistrial because Stephen Singer, I. Defender Ser- Public reach a unanimous ver- jury was unable to Klein, vice, Page L. Ken- with whom James dict. Wallace, nedy, and Jo-Ann Public Defend- Harris On the afternoon March Service, appellant. er were on the brief friend, Jones, and Kent drove out Kushner, Philip Atty., U.S. with S. Asst. Point, they each drank three Hains where Jay Stephens, Atty., whom B. U.S. and cognac. pint Then and had a half beers III, Fisher, Roy and John R. W. McLeese they parking Peoples lot of drove to the Schertler, Attys., on David Asst. U.S. were Georgetown, parked, and Drug in walked brief, appellee. eating and down Avenue. After Wisconsin call, by a phone the two walked placing ROGERS, Judge, Chief and Before Jones saw Carlette record store which WAGNER, Associate FERREN and jun- Watkins, recognized from whom Jones Judges. Jones’s testi- high According ior school. FERREN, mony, entered Judge: and Harris Associate said, store, approached and Watkins appellant degree first A convicted “Hi, Watkins did you doing?” When how armed, 22- murder while D.C.Code §§ if she her remem- respond, Jones asked (1989 Supp.), -3202 & 1991 assault him, replied she did not. and she bered armed, intent kill while id. at standing appellant, Jones testified that 22-501, -3202, dangerous assault with §§ him away, gave “a mean three four feet 22-502, carrying and weapon, id. at § look,” suggested to Jones point at which license, pistol without a id. at 22-3204. they They walked back leave. Harris the trial court erred Appellant contends drugstore lot. parking (1) permitted the when it Jones, he and Harris positive According to him about his urine cross-examine urinating, appel- standing in the lot days five after were PCP administered test for likely arise they are sues which are based all of claims im- We address evidentiary again during proper because the is- retrial. Lyons Appellant walked the lot and testified his own de- lant Watkins into fense, claiming had shot Appellant that he Harris passed them. As walked over he, car, said, it, Appellant self-defense. said that Wat- “Don’t do his Watkins do don’t kins, Whitey gone into the record car, pulled At the appellant it.” out some- buy so that Whitey tape. store could As long thing into and silver he stuffed Whitey waiting at the were pants. After sat down Watkins counter, Whitey informed appellant front car, appellant Har- approached Jones and bothering men that two were Watkins ris, said, her, just “I and Jones know I was the rear of the store. When speaking Appellant to her and that’s all.” Watkins, walked over to she told him that her,” “No, responded, no don’t know following and Harris had been her Jones fired a fifteen to shot Jones from By that time Jones and Harris around. twenty away. Ap- feet The bullet missed. leaving the store. After a min- were few ran pellant over to the driver’s side of utes, Lyons Whitey saw the counter car, sitting, Harris’s Harris and where was his he purchasing tape, so and Watkins began hitting Harris in the the face with car, decided to head for their which was At gun. point that Jones ran out of the lot parked Drug parking in the Peoples lot. get help bumped man later to but into a According to friend, appellant, Jones and Harris appellant’s identified as Ivan Jones him as they harassed and Watkins made (“Whitey”). Whitey Kent tried Jones said way their to the car. After Watkins had grab him punched and him in the side of car, gotten into the Jones and Harris con- the head. Kent Jones returned to When Appellant them. then tinued swear at later, parking lot a few he minutes argument An approached two. devel- lying bleeding found Harris and on a near- oped, appellant and Harris came toward by sidewalk. claimed he Jones that neither gun. Appellant a was knock with able to gun night nor Harris had a that that he and gun ground. to the He and Harris gun. had never seen Harris with a it, first, and, got appellant for as went Whitey The also called him, appellant Harris came fired toward that, leaving witness. He testified after shot, which hit Harris. After Harris one store, the record he had “like heard a noise ground, appellant ran to his fell to back a firecracker.” As he the lot he walked to car and fired a at another car that he shot bumped (Jones) into a man was run- who coming Appellant was at him. believed ning. Whitey When reached he saw the lot way By jumped out car. appellant fighting. Whitey and Harris lot; Whitey he time had returned up, appellant pushed tried to break it him appellant Appellant his car. helped back to car, away, Whitey continued home, and, realizing after he still had drove appellant Appel- soon followed thereafter. gun, gun he down a sewer. threw not lant did tell him or Watkins had what defense, Watkins, for the testi- Carlette happened, days appellant but a few later gun appel- seen a fied that she had not Whitey “disrespected Harris had that appellant had day car that and that lant’s girlfriend.” [his] night. her a she gun shown When Jonathan for the Maxson testified the record store and en- appellant left sitting government. He said that he was lot, parking Jones and Harris tered the drugstore car in parking in his lot when “wriggl[ed] penis- at her and their smiled gunshot. he heard a Two men ran in front kept walking to appellant es.” She car, of his one of whom—later identified Harris repeatedly car as Jones and their Appellant appellant gun. pointed un- appellant her a “bitch.” After called —had Maxson, Watkins, car gun who accelerated his the car she be- locked door appellant fight him. jumped enough to hit When out he was mad start lieved way, police- approached drove off find a He car and Maxson them. left the in his police only keys man. on the his When arrived and Harris with Jones scene, sidewalk, argued, Watkins lying was on the hand. As three men Harris loudly enough so that on the radio dead. turned car was why asked he not tell hear The did could not them. she friends, not see or Whitey, could the car facing the wall so Watkins Watkins returned after had anything. immediately When he hear later, (as few minutes acted in he Whitey car with self-defense had testified her direct) to tell what quiet they and refused happened.” asked “what happened. Appellant replied was “scared to death.” highlighted closing then later, heard from days after he Several explain argument appellant’s failure to looking were parents happened, reflecting a his friends what had him, po- appellant turned himself in proffered inconsistency with his later self- days five day after his arrest and lice. One govern trial. The defense shooting, appellant’s urine tested argues ment that such positive for PCP. our proper under line of “omission” beginning with Hill United cases II. curiam), (D.C.1979)(per appellant’s first three com- We address denied, 100 S.Ct. 444 U.S. cert. plaints Ini- prosecutorial misconduct. (1980). disagree. We Al 62 L.Ed.2d 770 tially, we conclude that com- give prosecu though appropriate it is plaint prosecutor that commented on the inquire testifying into de leeway to a tor his in violation of post-Miranda2, silence surrounding in of mind fendant’s state 610, 619, Ohio, v. 426 96 S.Ct. Doyle U.S. has claimed the defendant cident which 2245, (1976) no 49 L.Ed.2d 91 has case, that, self-defense, in this we conclude complaints of merit.3 His other two mis- govern allowing in the the trial court erred conduct, prosecutor’s im- however—the ment, impeach appellant objection, to over peachment pre- with his both his ver to tell friends his failure prior arrest silence and inconsistent state- immediately after the shoot sion of events government failed disclose to ment the them that he had ing explain and merit. trial —have the defense before in self-defense. acted defendant, claiming self-de- Hill the A. fense, had that he heard testified at trial had come cross-examination, gunshots that the decedent prosecu and On the carrying pistol. running him immediately toward objection tor—over that Hill, In his statement repeatedly 404 A.2d at 531. in each overruled instance— any- Arizona, you your said said never U.S. 86 S.Ct. own admission 2. Miranda v. defense, (1966). you went to a thing 16 L.Ed.2d 694 that self about lineup lineup you out and walked argues prosecutor Appellant com- people had your lawyer you that two told post-Miranda on his silence the fol- mented lineup the man with you in identified lowing exchange during cross-examination: right? gun shooting; isn’t at the lineup, Q: after And isn’t it true that question was Although prosecutor's first 23rd, you a week after talked to March police, appeared if was phrased poorly so that it you anything about never said self- questioning appellant about his silence at defense— right lineup time of the when Objection. Counsel]: [Defense attached, prosecutor already counsel had Objection Go ahead. over- Court]: [Trial timely counsel’s after defense corrected himself ruled. (although overruled objections the court had you had Q:' Isn’t one week after been it true (the question complete) objections). third The police you never said station where merely prosecutor meant makes clear that the anything de- those detectives about self already empha- been emphasize had what he fense— Honor, appel- throughout this is not a sizing Your his cross-examination: Counsel]: [Defense invoking question. is a restate- police This statement tell failure to lant’s —before ment. rights acted self- he had Miranda —that overruled, objection The Mr. [Trial Court]: prosecu- We discern no harm defense. Horton. slip tongue. tor’s Q: week after had Isn’t it true that one detectives, you by when with the been there Thus, receiving his Miranda4 absent a threshold trial court however, finding inconsistency, of a material a defen warnings, he had failed to men- pretrial dant’s failure to a fact that exculpatory state tion these two facts. “may he or she later states at trial impeached prosecutor the defendant with probative have the value which would allow important his failure to mention such de- impeachment pur its admission at trial for voluntarily police, tails Martin, poses.” A.2d at 363. Once arrest, happened. soon after had what On the trial court finds a material omission appeal, he claimed that the to use it allows “unconstitutionally impeached his testimo- defendant, however, impeach by calling ny post-arrest attention to his may inconsistency then consider the Hill, (footnote silence.” 404 A.2d at 529 judging credibility. the defendant’s omitted). that, In some cases we have concluded Distinguishing Doyle, supra, though even the defendant had made a Hale, v. United States U.S. brief statement to a official (1975), S.Ct. 45 L.Ed.2d 99 this court (almost always police officer), govern court, that if the trial held the exercise showing ment failed to meet its burden determining of its discretion in admissibili that it would have been natural' for the evidence, ty finds that a provided defendant to have the officer with voluntary defendant’s pretrial statement provided all the details the defendant later “ ‘fails to mention a material circum See, e.g., trial. Walker United ” stance’ which the defendant mentions at States, 402 A.2d “ trial but which also ‘would have been Sampson v. prior natural to mention in the state (D.C.1979) curiam); Martin, (per ” ment,’ statement constitutes 363-64; A.2d at Beale v. United prior gov inconsistent statement which the 796, (D.C.1983), denied, 465 A.2d 805 cert. may impeach ernment use to the defendant 1030, 1293, 465 U.S. 104 S.Ct. 79 L.Ed.2d Hill, at trial. (quoting 404 A.2d at 531 E. (1984); 694 A.2d at see also Outlaw 604 835 at CleaRY, Evidence, § McCoRMICK on cases, upheld 879. In other we have (2d 1972)); ed. accord Martin v. United finding trial court’s of a material omission States, (D.C.1982); 452 A.2d see it have natural because would been for the States, Outlaw United 604 A.2d defendant to note in his or her statement to (D.C.1992). specifically, More Hill police a officer the details the defendant requires following three-part test for See, testimony. later in trial e.g., included admissibility prior of an omission as a in Hill, 532; 404 A.2d at Ford v. United consistent statement: States, 487 A.2d Dix ^[1] The pretrial statement to be admis- on v. 565 A.2d (D.C.1989). impeachment purposes sible for should

purport the commission of the trial court of the omitted relied facts failure to have mentioned them amounts ^{[2] [3]} inconsistency. the court must consider whether such are upon to address the facts sufficiently showing inconsistency ... material that must alleged surrounding facts apprise offense. to be with one peachment purposes, person terial fact is “natural to mention” when criminal of “the facts omissions Moreover, alleged purports Under Hill and its cases and their surrounding the commission offense.” involving to in this court’s give complete admissibility Hill, alleged progeny, 404 A.2d at exception previous material account a ma im a Hill, (bracketed her pretrial A.2d at 531 the defendant had made his or numbers added). Wigmore, police statement to a officer.5 supra a conversation the 4. See note 2. material omission arose in probation defendant had with his officer. exception 5. The one is Walker v. United (D.C.1979), alleged where the Hill, speaker purports 404 A.2d at we relied tell all for which a discernible categories reason, of cases speculative lists several where it is say too it would courts have found that a defendant failed have been “natural” to state an omitted assert a fact “when would have been fact. assert it.” 3A WigmoRE, natural Evi- are good There reasons this limita- (Chadbourne rev. 1042 at 1056 § dence example, tion. For this case immediate- deleted). 1970) in- (emphasis Such cases ly shooting, neither Watkins nor clude those where defendants have made appellant Whitey shooting accused Har- in legal proceedings to assert “[o]missions ris; they simply asked “what naturally what would have been asserted them, happened.” He declined to tell nei- circumstances,” “[ojmissions under the or admitting denying ther nor the shooting. anything, speak or to such to assert obligation He no or other discernible or positiveness, formerly detail nar- say context, anything. reason to In this elsewhere, mat- rating, on the stand or therefore, where had neither ter now dealt with Id. at 1056-57 [at trial]. been accused of nor admitted the crime— (emphasis (footnotes citing in original) purporting give and he was not a com- omitted); cases J. Strong, see also plete happened, as account of what had in a at 114-15 § McCoRmick on Evidence police statement to the would not have —it (4th 1992) (“[I]f ed. the former statement “natural” for him to have been volunteered fails mention a material circumstance why shot victim. reason Indeed as to, presently testified it would have which general proposition, involving in contexts natural mention in the state- been friends, family, acquaintances, whether ment, sufficiently prior statement it would be “natural” for someone men- im- inconsistent” for the court to allow of a he or tion all details crime that she Wigmore sum, peachment.). stan- depend later trial would on a mentions at pretrial dard for material myriad intangible subjective, factors adopted in omission we Hill—and which we readily given that are not discernible consistently applied subsequent have many possible types personal relation- requires that the defendant must cases— have close, ships others not so close. alleged in what made omission —some may any why be of reasons There number complete have appears to been statement crime, appellant did tell his friends details surrounding typically of events friends, response about the questioning by offi- —even case, admittedly in For cer.6 such context which a whom he trusted.7 Absent inconsistency present govern- We case dent that omission note the between ment, successfully testimony permissi- objection, impeached at to and her trial make without signifi- jury appellant police dur- to allow the determine its with his failure to tell the ble ing interrogation appellant invoked his cance. —before rights gun he fired the Id. at 587. Miranda had —that impeachment Sampson the by In v. United on other self-defense. That was materi- hand, appellant rights principle. his al under the Hill If a sus- the waived Miranda omission simply give exculpatory a pect purports to a full and made brief statement statement about the during interrogation, denying participation in the crime he had relevant incident custodial police. squarely principles 407 A.2d at 579. We falls under the described the the situation that, appellant the concluded because had announced in Hill. general police a denial of involve- "made example, For the 6. Ford knowledge of crime but ment with and during hours failed to mention two concerning made his where- no statement [had] police questioning after her arrest that she had during which crime was abouts at committed," time just hours be- encountered murder victim government to establish "failed killed, been a detail she fore the victim had inconsistency a threshold between at trial. 487 A.2d 586. noted in her prior police at the station statement that, knew We reasoned because Id. later alibi defense trial.” suspect investigation, a was a in murder she did, cross-examining lay appellant to a having In founda- detective all that she told the prior questions silence at tion for the about it would have been natural to tell him here, appel- prosecutor day issue elicited from saw on the of his [the that she victim] Whitey and Watkins. suffi- lant that he trusted We conclude that there was murder. establishing pretrial a omis- example, may trying pro he been material have limiting Thus, impeachable in- by tect his friends their involve there was no sion. ment, wholly a motive unrelated to the appellant’s claim of consistency between Or, may credibility issue of his at trial. trial and his refusal immedi- self-defense at permit simply have been afraid. To shooting explain to his ately after the guilt from a sus to draw an inference The trial happened. friends what had hap tell pect’s failure to friends “what allowing prose- erred in court therefore pened” immediately after a would cutor, objection, impeach appellant over speculation, permit be to rank to the severe with the fact that he did not tell his friends accused, prejudice corre without shooting that he immediately after the had sponding probative value. See United shot Harris self-defense.9 Hale, 422 U.S. at 95 S.Ct. at States (“In most circumstances silence is so B. ambiguous probative it is of little appellant testified that he had Because force.”); Anderson, 447 Jenkins v. U.S. cf. self-defense, shot Harris admitted 231, 239, 2124, 2129, 65 L.Ed.2d S.Ct. present at the scene trial that he had been (1980) (In courts, “prior silence federal cross-examination, shooting. of the On si cannot be used where impeach appellant prosecutor attempted to probative lence is not of a defendant’s cred After with a inconsistent statement. ibility prejudice and where to the defendant result.”). objection, prosecutor defense counsel’s might appellant initially proffered that had contrast to the fact situations police Georgetown he had not on been government all the cases the cites in its shooting. night Defense counsel above, brief and the additional ones we cite responded government that the had never appellant in this case declined answer defense, disclosed that statement questions posed by his friends —not despite government’s obligation to do police officer or official—im despite Super.Ct.Crim.R. so under therefore, and, mediately after the incident appellant’s second the fact that this was any at this time did not make statement Although expressed the trial court trial. merely Appellant at all8 refused to re concern over whether general questions spond to his friends’ obligations under Rule failed to meet its happened”; he did not advan “what take making refrained from at that time it tage pretrial opportunity “go ruling objection. counsel’s clear on defense explain record” to to a officer happened. someone else what had Nor thereafter, again at- Soon why reason of record there discernible his al- tempted impeach appellant expected appellant would have been to vol police. Defense leged statement unteer information even to trusted friends again objected, but this time counsel in these circumstances. When objection. trial overruled the impeaching prosecutor again posed the conclude, accordingly, appel- that We objected and this question, defense counsel his friends fails to lant’s nonstatement to point At that requirement time moved for a mistrial. meet the foundation of Hill States, (D.C.) (en distinguish len v. United 603 A.2d 1219 circumstances this case 8. These — U.S.-, denied, by dissenting colleague. banc), our 112 S.Ct. from the cases cited cert. Dixon, supra, and Hunter v. United (1992), In both States, involved 120 L.Ed.2d 916 denied,-U.S. (D.C.), 606 A.2d 139 cert. appellant’s preserve upon failure to evi based (1992), -, S.Ct. 121 L.Ed.2d 444 support to his claim dence or obtain witnesses error this court found no reversible divisions of and, thus, germane to the is not to self-defense closing government suggested, ar in where in this case. issues gument, the defendants had omitted rele that given pretrial to vant material from statements disposition in Parts III.— of this case 9. Given our words, police. In other both cases involved V., below, question whether we not reach the do given from accounts to law material omissions enough prejudicial to warrant the error officers, opposed to mere si enforcement reversal. we here. Al- lence before friends such as have 16(d)(2)specifical Super.Ct.Crim.R. preliminarily that the the trial court ruled discretion, ly grants among trial court prosecutor go that line of could not into things, prohibit prosecutor other to gov- questioning prove until he could using from a defendant’s statements as a previously ernment had disclosed the 16(a)(1)(A) complying for not sanction to inconsistent statement the defense. 16. This any part other of Rule was the day, prosecutor admitted The next appropriate chosen the trial sanction had not disclosed the that prosecutor unquestionably The act court. statement, though he alleged even now oral attempting appel in to use improperly ed testify that officer who would impeach him without lant’s statement initially being in appellant had denied assuring first that someone from the U.S. Georgetown night. that This time the trial previously Attorney’s office had disclosed court ruled: It was even it defense counsel. worse Clearly is correct. I think the defense prosecutor attempt impeach for the been turned the statement should have trial appellant with the statement two, That’s number one. Number so. over. had ruled he could not do court disadvantageous clearly just is not but it reverse and remand for Because we extremely prejudicial that is an out- grounds, new trial on other see Parts III.— George- being in right denial of even V., below, we need not decide whether de- to what the guess town. I can’t prosecutor’s misconduct resulted sub strategy they have been if fense would See, prejudice requiring stantial reversal. had known about statement. . States, e.g., Mitchell denied, (D.C.), U.S. 183 n. 5 cert. ruling, After the court’s (1990) 112 L.Ed.2d 532 S.Ct. “stay from” promised away that he would prejudice” stan (setting forth “substantial questions impeach appellant’s intended reviewing prosecutorial claims of dard appel- ground on the trial objected at tri misconduct defendant being George- initially lant had denied al). Furthermore, leave it to the trial we however, Despite promise, town. gov whether to allow the court to decide impeach appellant prosecutor attempted in a ernment to use the statement third same state- yet one more time with the trial, noncompli given government’s ment, whereupon the trial court sustained unexplained 16 and the ance with Rule objection yet again. appearance of the statement some initial disclose, government must prose trial and time first between re request the defense upon defense —as dur cross-examination cutor’s any quested in this case—the substance issue, deciding trial. In ing the second response defendant oral statement has discretion the trial court considerable by any person the defen interrogation 16(d)(2) just do “as it deems under Rule government agent. Rosser dant knows is pre circumstances” order to under the (D.C. A.2d v. United integrity the criminal adver serve the 16(a)(1)(A). After 1977); Super.Ct.Crim.R. 1147; Smith, 491 A.2d at sary process. See made, request such Cotton oral defendant’s duty has a disclose (D.C.1978) (listing guiding trial factors enough “in detail minimize statement determining proper sanc discretion surprise at trial effects of the undesirable tion, degree government bad including contribute to fair and otherwise negligence). faith or justice.” of criminal efficient administration States, 444 A.2d Thomas v. United III. accord Smith 953 A. (D.C.1985). 1147 theory self-defense part “Otherwise, integrity As criminal Janofsky, expert trial, Jeffrey Smith, Dr. preserved.” process be cannot that Harris’s psychiatry, testified forensic A.2d at 1147. however, prosecutor, Harris had the fol- toxicology report showed that The asked and alcohol in his lowing questions: PCP bloodstream series of Janofsky Dr. stated that time of his death. Well, Q: Lyons, you gun; Mr. fired the blood, it was because PCP was Harris’s you? didn’t time, al- affecting Harris’s at that brain Well, trigger, my A: hand was on the» though impossible to tell what the yes it was. that exact effect was. The doctor did note Q: you purposefully trig- And fired the people under the influence of PCP exhibit ger? effects, range wide the most common No, purposefully A: I didn’t fire the agitation being or even violent and extreme trigger. threatening behavior. He also testified all, Q: Lyons, you First of Mr. tested that, drug general, significant has a positive on March for PCP person’s judgment. effect on a In contrast uncertain) (though to the immediate effects objected. point At that defense counsel PCP, positive aby indicated blood test for objection The trial court sustained Janofsky Dr. testified on cross-examination questions to ask the say” that it is “fair to someone whose urine properly agreed upon pros- order. The positive tests for PCP could have used appellant: ecutor then asked drug anywhere up to two weeks before Q: Lyons, you Mr. were under the influ- test. 12, 1988, March ence of PCP on The requested permission to shot; day young man was weren’t PCP, question appellant about his use of you? arguing positive days test five No, I A: wasn’t. incident, coupled after the with Dr. Janof- Q: you positive But did test for PCP sky’s testimony that in the PCP remains 17,1988 days later on five March weeks, up provided urine for to two a suffi- you brought were arrested and into evidentiary cient foundation. The defense court; you? didn’t objected proffered appellant Yes, A: sir. deny would he had used PCP before or on Q: you prior, Lyons, used Mr. Had PCP that, therefore, day shooting of the night of that in a jury there was no basis to allow the period prior night two-week appellant infer that was under the influ- shooting? day. ence on the critical No, A: I didn’t. I had used it about a Although agreeing with the defense day happened. or two after this certainly prejudicial impact “that there is Q: saying you So are used PCP presenting from or this evi- shooting? after the jury,” dence to the the trial court deter- mined that there was a sufficient founda- Yes, well, I I I had used A: did. also— probative tion and that the value of such maybe for the last dur- to use about testimony outweighed prejudice, its be- ’87, ’87, I ing early used it but I.had cause one of the main issues in the case stopped. appellant was whether or Harris “was the court, however, aggressor.” The limited B. scope prosecutor’s questioning government’s questioning of a questions and told him to ask his illegal drug defendant about his or her use (1) following appellant order: under “highly inflamma front of the the influence of at the time of the PCP tory allegation,” v. (2) ... United States positive offense? did test 79, 83, Fowler, U.S.App.D.C. F.2d days Only if appellant for PCP five later? (1972), un may “generate which question answered “no” to second jury, prejudice” from the Unit prosecutor attempt impeach warranted could Sampol, U.S.App.D.C. extrinsic evidence of the ed States (1980), F.2d because of drug test. 44 likely aggres- Harris to been the odium of as have

“hostility general based on the use,” way, government hoped Kearney, v. In this to United States sor. narcotics 170, 328, 332, appellant’s theory 420 F.2d of self-de- U.S.App.D.C. 136 neutralize (1969). part of in on the medical 174 Because evidence a defen fense based evidence in his drug prejudicial, use is so such evi that Harris had PCP bloodstream at dant’s specifically prosecutor put for cir the time of death. As only dence is admissible closing argument: purposes. Under no circum in his cumscribed may drug of a stances evidence defendant’s So, gentlemen, what we have ladies a general use attack on be introduced arena is a wash. There in the PCP is Leonard, credibility. v. See United States conclude nothing you can from that 955, 52, 36, 494 F.2d 971 U.S.App.D.C. 161 really anything that tells evidence (1974), v. approval with in Durant cited behavior, Lionel or I sub- about Harris’ 1318, (D.C. States, 551 A.2d 1326 United you anything mit that tells about Mr. 1988). Lyons’ night. on that behavior drug of a defendant’s use government point

Evidence Both and the government has es guidance. Durant, is admissible when the to us Durant to that it is relevant the defen proffered report tablished indi- government lab perception of events dant’s recollection or cating unspecified the detection of an Durant, the crime. surrounding See in on of PCP the defendant’s urine amount rationale, offense, along A.2d at 1326-27. Under evi- day with after however, may government cross-exam defendant had acted dence that the drug his or her regarding ine a defendant immediately after the in- “bizarre” manner 1321, only it first an eviden- use establishes at 1327. The trial cident. 551 A.2d tiary defendant was government foundation that judge cross-ex- allowed incident.” drugs “at the time of the using of “for the defendant on use PCP amine States, 419 A.2d Rogers ability v. United testing of remem- purpose Durant, at 1326- charged 551 A.2d surrounding see ber the events 28; States, 315 A.2d Smith with intent to Id. offense rob].” [assault cf. (D.C.) (trial did not err ascertaining 1321. In the correct eviden- at testimony regarding ef excluding expert tiary principle apply, this court reasoned party drug ability that, because although permissible fect of on see it would be attempting introduce failed government to offer extrinsic evidence under influence witness had been establish drug impeach test to a defendant’s of denied, day question), cert. drug of of being under the influence denial of offense, L.Ed.2d 139 U.S. S.Ct. gov- drugs the time at (1974).10 a sufficient must first establish ernment that the defendant evidentiary foundation argues that its cross- government drugs the influence of fact under concerning his examination (citing time. id. at 1326 the relevant See impeach drug admissible both to test was 981). reversed Rogers, 419 A.2d We perception of appellant’s recollection and Durant, concluding that prove appellant’s behavior events and to reports lab proffer of government’s he killed at the time and state of mind quantity of indicating unspecified Harris, i.e., PCP at show that he was on urine and no PCP PCP in of the incident and that was the time [defendant’s] prior sale of PCP-laced dence of defendant’s use involvement of defendant’s Evidence marijuana because illegal drugs may to show intent distribute if the be admissible linking previous criminal there was no evidence that such evidence first establishes charged intent was not directly and because behavior or act crime linked to a defendant’s issue). generally id. 418-24 See a contested relevant to an element state of mind (discussing other crimes evidence limited use of charged, “other crimes” ex- or meets an crime exception prior drug under intent sale ception under Drew See, Drew). (1964). appellant nor the Neither U.S.App.D.C. 331 F.2d argued applicability of Drew e.g., briefed or Thompson v. United (D.C.1988) (reversible this case. error to admit evi- 45 inadequate, prosecutor’s to allow the was view under Durant his bloodstream proffer and questioning appellant positive unrebutted about his [defendant’s] of use on the date of the drug disagree. his denial The under test. We test offense, to establish that government is whether the has [defendant] Durant at the under the influence of PCP was proffered evidentiary founda- a sufficient time of the offense. See United States “in tion that the defendant was fact under Leonard, U.S.App.D.C. 494 drugs the relevant the influence of (1974). Hence, the evi- F.2d Durant, Dr. time.” 551 A.2d at 1326. of his PCP use some undeter- dence posi- and the Janofsky’s general statement ques- mined time to the events in shooting days tive urine test five after the probative impaired per- tion was “in appellant not tend to show that was do memory provide and did not ception drugs” fact under the influence of evidentiary foundation for a sufficient jury only The could shot and killed Harris. use extrinsic evidence. speculate appellant ingested whether before, before, Id. eight days day the PCP one incident, days after the and would or three government argues The that Durant speculate to further as to the effect have because, in from this case Du- different might ingested have had—if be- PCP rant, strictly impeachment of the issue was appellant’s fore the behavior memory perception the defendant’s —on evidence, at the relevant time.11 with extrinsic while here the positive prosecutor never introduced the sum, logic government’s urine test. We find the persuaded are that the evidence ad- we unpersuasive. prejudice The the trial —as gen- government [expert’s duced recognized in that the court this ease—was stays eral statement PCP illegal jury appellant’s found out about up appellant’s two urine weeks might therefore drawn drug use and have days positive urine test for PCP several impermissible inference that provided too slim a after the incident] person probably who commit- “bad” [appel- support a conclusion that reed lying the crime or was about it. ted Cf. influence of was under the PCP lant] Thompson events, of those or had con- the time (D.C.1988) danger of (explaining at such time as it would have sumed PCP may prej- crimes” evidence is that it “other infer that jury for the been reasonable defendant). jury against That the udice affecting [appellant’s] the PCP was be- jury learned of PCP use ability perceive and recall havior or through testimony his own on cross-exami- events. through extrinsic evi- nation rather than Durant, (emphasis add- A.2d at 1328 meaning is a distinction without dence allowing ed). erred in The trial court this case. question about argues drug test. test, drug along Janofsky’s with Dr. urine tests that someone whose IV. drug positive for PCP could have used test, argues next that the trial Appellant anywhere up to two weeks before the testimony of when it allowed the evidentiary a sufficient foundation erred provide ruling speculation (upholding trial court's that otherwise with the defense 11. This contrasts testify expert unqualified PCP in his blood- re- qualified evidence that Harris had coupled the time of death Dr. expert stream at garding PCP’s effects on witness because Janofsky’s expert testimony that PCP in the drug knowledge particular of witness’s had no use). behavior, although affects in un- bloodstream predictable ways. jury properly can consider A instructed established a That evidence this case neither evidence. We note that in such that Harris “in fact was sufficient foundation suggested requested instruction on side drugs at the relevant under the influence of usage by either Harris or of PCP the evidence 1326; Durant, Coates v. A.2d at time.” cf. appellant. (D.C.1989) however, exception requirements Roy Brown under the three admission Officer known, under ex- of an out-of-court statement this hearsay alternatively, as the rule hearsay ception the rule: utterance, utterance, spontaneous excited spontaneous Using or exclamation. three (1) startling the occurrence of event a his months pages of own notes he wrote a state which causes of nervous excite- Jones, had with Officer spoken after he declarant, physical ment or shock in a statement Brown recounted 685 words (2) a declaration made within a reason- he made to him ably period testified Kent Jones had short of time after occur- the so assure that the just shooting.12 the rence as to declarant upon possi- not the event did reflect and spontaneous a ut What constitutes premeditate] state- bly fabricate a [or particular depends circumstances, on the facts of ment, terance (3) in and which States, Price v. suggest each case. totality spontaneity their and are, (D.C.1988). sincerity of the remark. A.2d 1225-26 There no, question saying subject response prosecutor’s to the 12. the or overheard her don’t, don’t, they by you please you up where had left off And as walked "Would start no. car, you regarding what Kent Jones told about that nature the statements that continued. following night," gave point they Officer Brown the narra- that when arrived at the sub- At tive, interrupted only by prosecutor: car, twice the ject’s driver’s and he entered the side something shiny Okay, from somewhere in sir. me him and the removed He told that just area and were a down the front of the driver’s side decedent inside record store floor recognized pants. put area of At and Jones rec- it the waistband the street he —Mr. no, girl shouting ognized acquaintance. point, young lady he heard the as that back, don’t, high point, that the Apparently, they junior don’t. At were school come nature, through something subject the together, and he walked down southbound began again approached the car where Mr. approached and small talk with lot and her Now, hello, me, her, things were. Mr. you and decedent don't remember like Jones guy speak- he saw with the he that while he was Jones told me from what that and told me her, taking something person, out under the front ing was from with there another car, was and said he subject apparently he he scared he who was later realized seat away. kept lady standing get right young the car He with the was didn’t was subject subject when gave eyes on the and at some distance and what he de- store first, dirty approached he he was Jones said as looks. Mr. said, scribed him Well, away standing, some- about 12 feet lasted a short time he conversation yelled, vicinity guy you apparently and the where and subject, decedent seen her, her, girl you and he he don’t know and Mr. Jones and walked don’t know something which up girl pulled out his waistband asked he knew the to Mr. Jones and if gun yeah, shortly was a and the recognized her thereafter he said I from he found and subject said took a shot him. school he went to and Mr. Jones So, Now, decedent, just down get they he me that he’d dove let's went out here. Apparently they alongside car. front sidewalk and were on the floor on out to the was, subject, it at an standing subject distance he was the door when the outside angle other side towards gave and he was on the and to Mr. Jones what he came out ducked dirty up car and Mr. Jones and down the driver of the called looks and walked played looking he dead for few him. down and he said of the store at go the front So, subject point, he said the point, they at that decided to back to the seconds. At that They driver was the decedent parking get over to the who lot to in the car and leave. went yet. wasn’t shut He up parking they he said his door and as were and walked lot car, subject might leg and the alterca- one out preparing to and the have had enter the ' striking subject through began was girl the lot tion where also walked northbound got point, he scared said at that he decedent. He Mr. Jones said that overheard several he a shot girl they by. that’s when heard things by walked and he ran and said as me, question: say related he started and when he Did he whom [Prosecutor’s uncontrollably again, sobbing crying girl speaking?] was subject to the it was said to me fact girl speaking she was as he was stated was fault, me that he quotation my have been I have it should I can’t recall exact with. going to my going go He was try somewhere. my I can was notes. I can best school, somebody. go going was to be memory. remember, quote, I was The exact don’t Please do from what comment: [Prosecutor's people did. He testify your memory.] that other didn’t do the shit can from my okay state- by memory about where and that’s can recall The best I walking by, they her ment he had heard ended there. were omitted); (quotations impetus “were made under the of re- Id. at 1226 accord Alston v. United flection.” Id. Nicholson cases In contrast to cited above (D.C.1977). If examined, in this case and others we have met, any requirements of these three is not just repeat did not discrete Officer Brown does not have out-of-court statement or sentences uttered the declar- words reliability sufficient for admission as an Instead, in ant. the officer related his own exception hearsay to the rule. The ulti- gave information him words all the Jones therefore, question, mate is the whether during officer’s of Jones the interview trial,13 statement, reported at “a was doing, In about the incident. so Officer spontaneous exciting reaction the event” relying pages on three of his own Brown— “the of rather than result reflective gave blow-by-blow a detailed chro notes— nological thought.” E. Cleary, McCormick on Evi- of narrative Jones’s account 1984), (3d 297 at 856 ed. cited dence, § the moment Harris events from Jones and Price, approval in 545 A.2d at through entered record store the Jones’s provides example Nicholson a classic shooting. Although reaction the we after an the out-of-court statement that meets question good do not the officer’s motives requirements spontaneity. Someone accurately in trying to reconstruct as stabbing the victim of a had asked what him, possible statement the offi Jones’s happened. dy- Her last statement before testimony cer’s is in fact his own account ing repeated at trial —consisted of —as lengthy him during of what Jones which, according gov- three words to the police interview. ernment, “Irene, identified her assailant: use of spontaneous Such an elastic the Irene, Irene.” 368 A.2d at 564. As anoth- exception would the rule utterance swallow example, er In James v. United against anytime out-of-court statements (D.C.1990), A.2d 636 remanded upset police an to a interview witness for the trial court evidentiary to revisit its startling Although exception event. ruling as to whether the four declarant’s repeat police allows the discrete state- statement, Ben,” shot at word “Keith was by permit eyewitness, ments an it does not light spontaneous of the ear- declarant’s is, police to state on stand what statements. at lier Id. 645-46. effect, independent of the de- account Price, In declarant was defen- testimony clarant’s at trial. who, girlfriend, shortly dant’s We that the 685-word conclude officer’s defendant, had victim been shot report of his interview with was Jones spoke with the on victim’s brother the tele- “re- repeating the in-court a declarant’s

phone. response questioning, to his mark,” Price, constitut- girlfriend kept repeating, defendant’s “I exciting ing “spontaneous reaction to the going didn’t know was to do that” and event.” E. Cleary, gave name Evi- of the defendant as the McCormick totality of the 297 at 856. The dence, § shooter. 545 A.2d 1221. In Young including chronological (D.C. circumstances— narrative form in-court of Officer Brown’s 1978), to police the decedent had stated report lengthy statement Jones’s officers on the scene of his stabbing spontaneity. a lack of See “Big him had Junior” stabbed and —show Nicholson, therefore 368 A.2d at 564. We your gun asked an officer “Give me and decision to him” conclude that the trial court’s go get bandage I’ll and to “Just me through declaration Officer go I can kill him.” This court admit Jones’s up so clearly erroneous. that the Brown’s concluded declarant’s statements Furthermore, applied said on trial court in this case the three Kent Jones had direct. 13. The reported requirements Brown Kent Officer had informed court that before “spontaneous" word utterance. Defense 685 counsel, ten to to the officer had been Jones's statement however, the court had warned length. fifteen minutes merely repetition be would of what utterance under the influence of PCP when V. this crime occurred? Having found the trial court erred got So what is evidence of both evidentiary making discretionary two people [appellant and the hav- deceased] above, rulings, Parts III. IV. we see ing systems at time PCP their ask two now whether the errors combined very close to when this occurred. And magnitude to require are “of reversal.” you know tell you what? That doesn’t States, 398 A.2d Johnson v. United anything.... (italics omitted). (D.C.1979) do In so So, gentlemen, ladies what we ing, “weigh severity we error[s] have in PCP arena is a wash. importance of the against determina proceeding the whole tion[s] Because the did not estab- possibility prejudice as a result.” Id. lish that PCP was in fact in had “a 367. We conclude that the errors system the of it shooting, at time the was possibly impact upon the out substantial Thus, not to the entitled that “wash.” trial come,” 366, requiring reversal. id. government court’s error allowed the to important unfair means an First, neutralize allowing the trial court’s error part appellant’s theory: his of self-defense question appellant about the sup- aggressor, claim that Harris was the positive placed for him his urine test PCP report showing ported by toxicology the hand, one if in a no-win situation. On the that Harris had PCP in his bloodstream at test, drug the he had denied trial Janofsky’s expert the time of death and Dr. government to im- would have allowed the testimony explaining that evidence. See peach veracity report. his On with the lab Moreover, supra note 9. error hand, court’s he other because admitted he had jury expert’s allowed misuse the PCP, govern- heard used both testimony about effects of PCP as- accusatory question appellant’s ment’s behavior, sessing own without illegal he own admission that had used probative appellant was un- evidence that drugs time shot and killed close he der the influence of at the time of the observed, PCP Harris. As the trial court “there shooting. prejudicial when the certainly impact” is government questions a defendant about Second, as a result of the trial court’s jury. drug or her use in front of the

his permitting in- error testimony report- troduce Officer Brown’s ruling opened

The court’s the door happened ing Kent Jones’s account of what step prosecutor go for the one further spontaneous exception under the utterance jurors that closing argument by telling the rule, hearsay prosecutor was up appel- it them to whether decide highlight able to officer’s the influence PCP lant had been under of closing argument: shooting: of the time Equally important as what Ivan Lyons, You also know that Lewis later, [Whitey] Jones said to Kent days or five corroborate he was arrested four Now, Roy Brown. Ladies and system, Jones is Officer he had too. PCP gentlemen, Brown tes- get you heard Officer course, Lyons on Mr. was able him tify to what Kent in his he that Jones told testify that did use stand and half occurred, night cruiser that same within that he used this crime before most, hour, But, when the an hour crime occurred. I sub- it after the occurred, what Kent Jones you something you that is mit him Kent had come back Jones decide. his close friend to the scene and seen you you If can decide whether decide— dying, bleeding on the sidewalk. you Lyons telling is the truth or not Mr. that, gentlemen, that used Ladies and corrobo- and if it before about up you that event, you get Kent Jones because tells do think he would rates you up here on the witness you what he told the witness stand and tell on (1980); Francis, 723 Tucker v. L.Ed.2d exactly what he told stand Cir.1984); 1504, (11th State v. F.2d on the scene.... right there 595, 613-14, Brown, 118 N.J. Commonwealth, (1990); Skipper v. important corrob- provide Doesn’t 870, 875-76, 80 S.E.2d 195 Va. Kent Jones? Doesn’t oration Kil (1954); v. see also United States he has told you that what tell Cir.), 1263, 1265(4th bourne, cert. 559 F.2d you the truth? telling witness stand denied, 434 U.S. 98 S.Ct. effectively used Offi- Thus, (1977); Hoo v. L.Ed.2d 152 United States of what account cer Brown’s 685-word Cir.1976). (6th Un sier, 542 F.2d state- him as a consistent Jones told principle, generally recognized der credibility and to bolster Jones’s ment both “an assertion evidence is considered such testimony. corroborate Jones’s fact” and is of the of the non-existence pros- portions above-quoted theAs inconsistency. as an regarded prima facie reveal, closing argument evidence ecutor’s at 404 Va. at 80 S.E.2d Skipper, 195 for POP appellant’s positive urine test 1042 at 733 (citing WlGMORE on § Evidence testimony about what Brown’s and Officer (3d ed.)). court has sanctioned This fundamental had said were Kent Jones probative evidence as admissibility of such Be- government’s case. components of the credibility, alia. Es inter on the issue to the heart of cause that evidence went States, 253 A.2d ter credibility contest between Ester, (D.C.1969). appellant claimed In only testi- witnesses who and Jones —the witnessed, par rather than he at trial that struggle happened in the fied as to what in, that he was an assault and ticipated criti- appellant and Biarris—it was between the assailant when only running after therefore jury’s cal to the decision. We perpetra as the mistakenly identified “jeop- that the trial court’s errors conclude trial court’s deci upheld We tor. Id. proceeding as a the fairness of the ardized question allowing sion Johnson, A.2d at 366. Ac- whole.” 398 fail argue later about Ester’s and to Ester for a cordingly, we reverse and remand prior to tell the ure to wait and new trial. only the assault. that he witnessed arrest Id. remanded. Reversed and admissibility requirement for A threshold WAGNER, Judge, concurring Associate silence, complete as it is with case of dissenting part: part admissibility governing the precedents our the court omissions,1

I in the decision of concur it can be is whether of material convictions for reversing appellant’s person similarly inferred that reasonable through in Parts III. V. reasons set forth forward natural- have come situated would However, Brown, respectfully I opinion. response. ly with a statement In opinion. my opinion, II.A. of the from Part A.2d at 895. supra, dissent 573 view, in the af- an accused’s non-custo- answered my question the use of must be Here, there was is not restricted in this case. silence as evidence firmative dial appellant’s position purports to one in every from what reason for a material omission expla- exculpatory, self-defense happened. of an complete account what to offer abe night companions may silence nation to his Rather, complete an accused’s happened. him what them asked he or one of as evidence where admitted also be car fol- just returned Appellant cir- fact under other to assert a she fails pur- gun which shooting with lowing have been natu- it would cumstances where shoot- not have before Anderson, portedly he did 447 v. to do so. Jenkins ral girlfriend appellant’s 2129, then that 2124, ing. It was 231, 238-39, 65 100 S.Ct. U.S. 525, (D.C.1979) (per States, 580, States, 404 A.2d v. United 1. See Ford 1085, denied, 796, curiam), 100 S.Ct. States, 444 U.S. cert. 465 A.2d Beale 1042, (1980); Sampson v. United denied, (D.C.1983), 62 L.Ed.2d U.S. cert. 804-05 (D.C.1979). (1984); 407 A.2d Hill v. L.Ed.2d 694 S.Ct. appellant, in the years of six first asked friend,

presence of what FARINA, another trusted Kelly Sullivan, Peter D. G. Moreover, appellant’s of Fullerton, happened. both Juluke, R. Ann G. Louis Hat upon companions material witnesses Hill, were Peterson, Douglas Appel tie A. A. expected rely be whom would lants, support his version of events circumstances,

night. Under the it would America, Appellee. UNITED STATES have been natural for share 88-CM-1476, 88-CM-1450, Nos. girl- when his 88- self-defense claim with them CM-1477, 88-CM-1478, 88-CM- happened. friend asked what Whatever 1544, 88-CM-1545. appellant might have had for not reason admissibility does doing so not affect the Appeals. Court of District Columbia course, is at evidence. Of accused Argued Nov. 1992. trial. liberty explanations to offer such Decided March supra, Skipper, 195 Va. at 80 S.E.2d 404; see also Allen v. United (D.C.1992)(en 1223 & n. 6 banc).2 appropriately It is then left to plausibility to determine the claim

subsequently disclosed self-defense immediately light conduct any

after the evidence offered it. at 1222-23.3 explanation of See id. reasons, view, my all foregoing

For the requirements admissibility were

met, from inferences to be drawn appropriate consid-

that evidence were for by jury.

eration Allen, sought jury prosecutor if determination. at 2. to show that better left to for Id. self-defense, 1223 & n. 6. killed the victim logical him to certain have been for do would done, including “telling supra. holdings things See Other he had not note approach. support this about in similar contexts also [the victim’s] sister and brother-in-law e.g., majority agreed v. A.2d Hunter United death." 603 A.2d at 1222. The See “the Dixon United with the trial court (D.C.1989). asking jury n. 15 For the reasons to draw reasonable inferences above, majority disagree [appellant’s] ac- I with the conduct at a time when stated from words,” principles spoke no from these cases are in- than and found the applicable simply distilled tions louder appel- argument. at here because issue error cross examination (when reasonably respect quite it can be in- Allen is com- lant's silence Id. at 1223. In that speak), parable ferred that one would rather than to the case before the court. Other Further, my pre-ar- from statement. of cross-examination about Allen’s omission lines view, conduct, including preserve no not to be failure there is reason rest evidence, permitted properly to assess otherwise admissi- were also issue. Id. 1222-23. pretrial simply majority op- silence because Allen ble evidence concluded that had the by explanations questioning portunity followed friend to offer silence his failure officer, incident, way particular right rather enforcement than law act in trial, suggest majority in an effort distin- of self-defense seems in view his claim guish plausibility explanations cases. these that the such were

Case Details

Case Name: Lyons v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Mar 16, 1993

Citation: 622 A.2d 34

Docket Number: 89-CF-1145

Court Abbreviation: D.C.