*1
21
tence
the United States
felony
of the
case).
Superior
Pursuant
District
Court,
Court,
as
procedures
opposed
try a
of
is.
[],
Sess.
& Ad.News
559;
232, reprinted
H.R.Rep.No.1303,
562,
576.6
[1970]
Neither can we
91st
D.C.Code
Cong.,
Leg-
2d
a
intent on
of the
part
discern manifest
23-111, the
filed a second
government
§
Congress
prior felony
a
serve dou
house-
reciting appellant’s 1964
information
duty
penal
situation.7 When a
ble
conviction,
subject
first
of the
breaking
capable
is
statute
of two or more reasonable
information,
stating that he had been
constructions
of
directs
lenity”
the “rule
on this
robbery
of
in 1970. It was
convicted
among
our attention to the least harsh
the court
treated
basis
States,
81,
them. Bell v. United
of three felonies
having been convicted
83-84,
620,
(1955);
L.Ed.
75 S.Ct.
99
905
him serve a term of seven
sentenced
A.2d
Young, D.C.App.,
United States v.
376
years
consecutively
to run
from
twenty-five
809,
Stokes,
812 n.2 (1977); United States v.
being
any other sentences
served.5
615,
D.C.App.,
(1976);
619
Hicks v.
A.2d
the of
Section 22-3204 defines
Columbia, D.C.App.,
District of
234 A.2d
pistol
a license
carrying
fense of
a
801,
(1967),
804 n.14
and cases cited therein.
is no
a misdemeanor offense when there
applicable
find the rule
the facts
We
felony
prior conviction
as a
appropriate
proceed
that in the
this case
hold
same
prior
is an appropriate
when there
offense
ing,
single prior felony
a
not
conviction
22-
a conviction under §
conviction —either
a
under
be used
convert
conviction
any felony
or
conviction. See Ste
felony
22-3204 into a
offense and to serve
§
States,
n.1,
supra
v. United
at 250
phens
felony
prior
as one of
two
convictions
F.2d at 833 n.1. Cf. Smith United
sentencing
enhanced
under
22-104a.8
for
§
28, 33,
denied,
D.C.App.,
A.2d
cert.
Affirmed in
reversed
part,
part,
1114,
846,
become indictable repeated that of
fact convictions of exposed accused to a maximum
fense 1973,
three-year sentence under D.C.Code 22-104.) before whether The issue us is § O’CONNOR, Benjamin Appellant, P. single prior Congress permit intended to duty felony conviction to do double —to 22-3204 into a transform violation § STATES, Appellee. UNITED felony offense and to serve as one No. 11116. required impose a prior two felonies life under maximum sentence 22-104a Appeals. District Columbia Court of § in the same the same violation of 22-3204 § Argued Sept. 1978. legislative history proceeding. Decided Feb. 1979. 22-104a, is mute on the enacted § Cong., 2d H.R.Rep.No.907, 91st issue. See
Sess. 65-66, 228; reprinted in [1970] 408, 461, Legis. & Ad.News
D.C.Code us, Although readily the issue is not a violation 22-3204 before no § 5. Such sentence for apparent prevent permissible constitutional reason if it falls within the ambit is Congress directing single prior felo- 22-104a(a). § duty ny conviction could serve double under 22-3204 and 22-104a. § § so was last amended 6. Section 22-3204 any legislative history speaking to that one, holding we 8. Our is a most narrow legislative activity prior or discussion will character leave undisturbed the of a 22-3204 § interplay Congress’ intent as to the illuminate which, appropriate prior conviction provisions. two of these conviction, felony pur- for all conviction poses. *2 murder; port his the trial conviction instructing that if it court erred in beyond found a reasonable doubt intended, pre- after deliberation meditation, person to kill another *3 decedent, killed the it accident shot and guilty appellant could find of murder charged; trial court abused its discre- tion, er- thereby and committed reversible ror, by continue trial after refusing to ready had defense counsel announced put and three but was unable on witnesses produce they his other witnesses because present; were not and the court’s sentenc- ing for other the offenses than murder was in error. affirm the convictions. We light The viewed in a most fa- evidence appel- vorable government was that lant borrowed a maroon-colored auto from Jackson, friend, explaining Eric that he anticipated if he cer- trouble encountered a person money; tain owed him who some that was seen a later maroon car few hours pursuing heard another car shots were fired; decedent, being at that time the who nearby newspaper delivery was in a riding wounded; truck, fatally police was a officer stopped driving because was having car pursuing described as been the fired; fatal vehicle the time the shot was police while questioned on the Washington, D.C., Farquhar, spot, passengers Thomas W. one observed to was by appellant. cousin, enter a appointed appellant’s this house in which lived; O’Connor, Donna when she admitted Kramer, Atty., Asst. U.S. Noel Anketell afterward, police they soon discovered D.C., Washington, whom with Earl J. Sil- pistol acknowledged she which had bert, Atty., A. Terry, U.S. and John Asst. hide; given to tests subsequent her D.C., were Atty., Washington, on the U.S. showed that the bullet removed from brief, appellee. body gun deceased’s came this expended that contained gun both KELLY, FERREN, KERN and Before ammunition; gun, shells live and this Judges. Associate police lawful registered its owner, Jackson, had been stolen from KERN, Judge: Oscar Associate place him some months earlier when his six jury Appellant was convicted burglarized. business degree while armed1 murder in first offenses, viz., in his Appellant testified own carrying lesser and several gun night that he obtained that receiving stolen had license pistol appeal intervening a result in a urges dispute He on between property.2 disarming two one them who sup- others and adduced was insufficient evidence 22-3204, 22-2401, -2205. §§ -3202. 2. D.C.Code §§ 1. D.C.Code gun. He further testified law crime had drawn murder but a created by statute car persons pointed other restricted to three narrow classes of killings, at him and he had none which shotgun typical fired includes a transferred picked up He intent situation. protect Appellant himself. two shooting intent, contends therefore that after the and be- transferred friends incident assuming it part of District of gave Columbia being stopped. fore The (cid:127) law, second-degree applies only instruction to the self-defense. 1973, 22-2403, contained in D.C.Code be- § provision cause that was intended to codify law common murder. INTENT TRANSFERRED Finally, appellant claims the first-de- assignment of alleged gree first error murder conviction should be over- judge’s concerns the trial decision allow ground turned the evidence *4 government proceed the to against appel at adduced trial was insufficient permit charge theory juror lant on the murder on a of premeditation reasonable infer and doctrine, deliberation, specific transferred intent.3 This which much less a intent to murder, provides According from common law kill anyone. appellant, derives the purposely attempts that when a evidence failed to show spe- defendant that cifically person by to kill one mistake or acci intended kill the driver and/or another, of passengers dent kills the the other car or felonious intent of carried out shooting premeditation the the defendant will be transferred from the and delib- actual, being absent, eration. Those intended victim to the elements unintended his argument goes, guilty he cannot be first- victim. 40 C.J.S. Homicide 19 at of 865-66. § degree murder under the Appellant arguments makes doctrine of trans- three con killing ferred intent for the of the unin- tending that of the doctrine transferred victim, tended the decedent. intent was improperly invoked in this case. First, appellant that asserts since As to the claim that transferred in when the first District of Columbia Code tent part is not the of of criminal law the adopted, jurisdiction was no in.this Columbia, of compelled District we are adopted Appellant points
has the doctrine. all, disagree. beyond dispute First of it is criticism of the by the doctrine several that the of doctrine transferred intent legal argues, therefore, commentators and well entrenched in law. common Gladden that a doctrine so avoided and so criticized State, 390-92, v. Md. 330 A.2d the should be invoked to detriment of (1974). 180-81 early As as the doc appellant. Reg trine was set forth as follows in Saunders, 2 Plowd. 75 Eng.Rep. 706
Appellant’s
argument
second
is that even
(1576),
Gladden,
quoted
supra:
accepts
if this court
transferred intent as a
law,
part of the District’s criminal
he could
“And
it is every
therefore
man’s business
at
be
of
only
second-degree
most
convicted
to foresee what
wrong
mischief
murder on
theory.
gravamen
happen
this
of
from that which he does with an
argument
ill-intention,
is that transferred intent is a
it
no
and
shall be
excuse for
creature of
say
common law and therefore
him to
he
intended to kill anoth-
killed,
er,
applied
person
(c)
should
to common law mur-
and not the
For if a
murder,
First-degree
by
der.
as defined
man
prepense
of malice
shoots an arrow
Code,
him,
Section 22-2401 of the
is not common
at
another with
intent to kill
and
Appellant
(one
he
also claims that
suffered undue
the denial of two motions to dismiss
after
prejudice
(1)
ruling
government’s opening
at trial because
the court’s
the
statement
and the
imposed
case-in-chief)
government’s
on transferred intent
undue limitations
other after the
was
erroneous,
questioning concerning
(4)
voir diie
and
the court’s instruction on
trial, (2)
presented
of self-defense to be
there
transferred
intent
contained
an erroneous
variance between
indictment
statement. We conclude these claims are with-
first-degree
proof
murder and the
out merit.
law,
Maryland
hence the
common
embraced
bore no malice is
person
to whom he
it,
in him
this shall be murder
of
intent. Gladden
concept
killed
transferred
the arrow he intended
State,
for when he shot
supra
Md. at
330 A.2d at
kill,
and inasmuch
he directed
of
180. We conclude that
the doctrine
one,
thereby
instrument
death
intent was contained at
transferred
another,
it shall be the same
has killed
Maryland’s
time of
cession of
critical
killed the
offense in him as if
body of
law for
District within the
criminal
at,
he aimed
for the end of
act
person
so was availa-
the District of Columbia and
it,
beginning
shall be construed
theory
its
government
ble
to use in
first,
part
and the last
shall taste of the
case. Accord-
prosecution
in the instant
had mal-
beginning
the act
ingly,
hold
the trial court did not
we
it,
consequently
im-
prepense
ice
allowing
government
adopt
err in
murder,
act,
end
viz.
ported
so the
prosecut-
doctrine of transferred intent
killing of another shall be in the same
ing appellant.
murder,
degree,
it shall be
and therefore
only.” 2 Plowd. at
and not homicide
reject
argument
We likewise
the.
474a,
Eng.Rep. at 708.
22-2401,
creates
since D.C.Code
§
time,
gained
has
first-degree
separate
the doctrine
Since
crime
acceptance
murder,
wide
in the United
States
distinct from common law
trans
today
position
it
represents
majority
applicable
intent is not
to this statu
ferred
A, Scott, Jr.,
country. W.
&
Lafave
torily-created
This
crime.
contention runs
*5
(1972).
at 252
It has
Criminal Law 35§
jurisdiction
to decisions in this
hold
counter
that
been noted
ing
opposite
interpreting
the
in
that statu
among
singular unanimity
States,
there
the
tory
Bishop
is
v.
71
provision.
United
that
to the effect
such
homi-
132, 135,
297,
decisions
F.2d
301
U.S.App.D.C.
107
the
partakes
quality
origi-
cide
of the
of
States,
(1939);
App.
Hamilton v. United
26
act,
of the
guilt
perpetra-
nal
so that the
382,
(1905).
D.C.
385
exactly
crime
it would
tor of the
is
what
Bishop
supra,
In
the
United
been,
upon
the
the blow fallen
of
the
Appeals
United
Court
States
bystander.
victim
intended
instead
gave
Circuit
this con-
District of Columbia
917,
Annot.,
(1922).
A.L.R.
918
18
22-2401:
struction
§
course,
remains,
question
of
whether
statute,
of
Under the District
Columbia
part
forms a
of the criminal
the doctrine
and with
purposely
homicide committed
jurisdiction
law of this
and we conclude
malice is
premeditated
deliberate and
1973, 49-301, pro
it
that
does. D.C.Code
§
degree.
A homicide
the first
law in
all consistent common
vides that
aforethought,
committed with malice
time
the
Maryland
force in
at the
of
cession
premeditation,
without deliberation
of
remains
force
of the District
Columbia
degree.
“Malice
is murder
the second
the
unless
part
the law of
District
as
of
expressly,
be
aforethought” may
shown
Linkins v.
by
modified
statute.
repealed or
the commission
may
“implied”
or
be
Foundation,
Episcopal Cathedral
Protestant
Although
of
distinction
the act itself.
351, 354, 187
360
F.2d
U.S.App.D.C.
87
severity
punishment
of
made in
adopted the com
(1951).
Maryland
In
murder,
degrees
of
the statute em-
it
then existed.
England as
mon law of
of murder
it was
bodies the substance
389;
State,
Third, appellant there was evidence that witnesses, COUNSEL: I have three other weapon the carried with him .38 they are not here. —a caliber revolver —sometime after he had ex THE Well, sir, I finishing COURT: am Jackson, changed again showing cars with case, today. this jury preparation for a violent Well, COUNSEL: I your would ask Hon- jury the Finally, confrontation. could have or, to at give least me hour or so. aggressor concluded that was the No, No, No, THE COURT: sir. sir. sir. premeditation and and fired with delibera Honor, you COUNSEL: Your al- car, at striking killing tion the other low me to be heard the I issue? didn’t All this evidence forms a decedent. anticipate that, know, you I when count- sufficient basis a conclusion jury ed the witnesses last night, I counted 10 did with the requisite act witnesses, to 12 Government which to me premeditation and deliberation when he seemed it would be like either the most of resulting shot at the other car this homi or a full trial to day cover himself. In cide. might the event move more quickly I anticipated, brought than I II witnesses, down three had three witness- DENIAL OF CONTINUANCE testify today. es alert to hour, During the lunch I tried to con- Appellant contends an abuse discretion tact just other I witnesses. didn’t part requiring on the trial court’s reversal enough have time to contact them. to the trial after because it refused recess had ready defense counsel announced . thing THE COURT: . . [T]he that, say you three witnesses but then ac- I can to is presented surely that put ready; you nounced did not ask me to announced your You responsibility. I not have here, an- witnesses on call. would days ago. You ready in two So, And, luxury your witnesses. waiting I ready yesterday. in here nounced I to we even discuss witnesses who had leave won’t you gentlemen told here, going I to are not because am finish day, yesterday, four bench on case, today. But, all of the evidence this you many saw how witness- o’clock. So, I be point, happy will to got through, opening after state- we es lunch, you. everything after so hear ments and your responsibility. surely that is ask, your All I would if Hon- COUNSEL: issue, get speak Robinson or would allow to on that my best to Mr. me I shall do I here, attorney colloquy. who at the end of the would like or some other down McKinney absence, McKinney, put are on Mr. or talk Mr. but we can Mr. finishing the evidence in this case Little. all my will today, per- calendar because I have called Mr. is in Little give rushing. such I will mit Halfway House here in the District. I short recess. this Halfway morning. called the House I He left for work. When called at had presence jury, The out lunchtime, try they going were potential subsequently asked the him call him and send down. He knows witness, by with an McKinney, Mr. to stand can’t go. where to I reach him. That’s out attorney whom it had called all. the witness of his lounge advise lawyer’s Well, . . you THE COURT: . 357-58). rights (Record at constitutional hour waited until the eleventh to seek to the court the ad- attorney This detailed you of the Court. If knew assistance potential witness given vice he Halfway that Mr. Little was in the McKinney] would like Mr. that “he [Mr. House, you gone if that he knew present.” attorney] Robinson [his work, likely, anyone and more than as- (Record (Record 359.) replied Halfway signed to a House has an em- 359-60): ployment record that is known Well, Mr. Robinson is not THE COURT: manager, you, or who the Half- just has ad- present and defendant way House. This court could have issued said, two-thirty, than me as I less vised warrant or a summons a bench forthwith to call Mr. ago, hours that he wishes two Little, early today. for Mr. all McKinney have done as witness. you you going If knew that were to call do, get Mr. Robin- possibly that I can case, McKinney Mr. as witness find cannot wait until here. son *7 earlier, me you could have told much that Mr. I do not know what Mr. Robinson. him, going to call much earlier you were today. are I do obligations Robinson’s two-thirty. than city, I if is in the even know he not not I Monday saying if Mr. I am that could until see cannot wait Robinson, but, least, at I would Mr. found Mr. help be available to Robinson would opportunity, get if not to Mr. McKinney. have had Now, Robinson, get partner. his am of apprised the court counsel then Defense get either one of them. not able to one hour “approximately his estimate of been able to reach either one of haven’t testimony, at the maximum.” more of phone. them on 361-62.) colloquy (Record following at The 362-63): (Record at then occurred attorney The then decided defense McKinney Mr. in the ab- dis- call a witness already We THE COURT: Mr. attorney, Robinson sence of his own you have told that and I cussed 364), was un- (Record and conceded he witness- at your wait for have time to don’t he “no other wit- proceed able to since had pro- trial has You know es. (Record at the Courthouse” at an- nesses here days now. You ceeding for some 28 States,
365).
In response
question,
487,
to the court’s
D.C.App., 244 A.2d
490 (1968).
attorney
advised that his next witness Although
are
there
no ironclad rules for
(Record
366),
Little
at
would be Mr.
who
determining when the
of a
denial
continu
person appellant
picked
was the other
had
ance is so arbitrary
deny
process,
due
after up
shooting
but
his arrest
before
Ungar Sarafite,
v.
supra,
III is remanded for are affirmed but the case carrying the convictions for resentencing on SENTENCING receiving license and sto- pistol without a a assignment of The third and final property. len the enhanced we consider concerns error by the trial court for ordered. imposed So sentences and receiving property stolen convictions concurring in FERREN, Judge, Associate a license. With pistol without carrying dissenting part: part and receiving sto conviction for respect to the ap the trial court sentenced property, len I III of the court’s concur in Parts months eighteen fifty-four pellant II. I would but dissent from Part opinion 22-104a. The maximum on Section based denying the trial court erred in hold that receiving sto sentence for a conviction for request for a continuance. defense property involved is property len where the case; first-degree appel- This is a year. less than is one Sec valued at $100 At imprisonment. faced life lant O’Connor sentencing judge permits 22-104a tion trial, testimony presented the defense he deems nec to increase sentence to what identified five more of three witnesses and including imprisonment, essary, life At 4:30 temporarily who were unavailable. in the convicted (A) is objection the court over p. Friday, m. on a defendant] [i]f [the (B) felony District of Columbia of a failure rested the defense case because felony, was of such the commission before witnesses. The produce remaining . least two felonies of at convicted the court did so record demonstrates adequate defense counsel an giving without for only applies This section to a conviction Moreover, heard. be concedes, and, felony government as the knowing that court denied the continuance was convicted of a appellant misdemeanor (1) prison system responsi- the court or receiving proper- for stolen when convicted produce subpoe- for the failure to one ble Therefore, ty. particular this conviction Lorton, imprisoned naed defense witness So, resentencing. must be remanded for event, carried had to be too, imposed by the sentence closing argu- Monday morning over to pistol without a license cannot carrying a ments, instructions, deliberation, today Hen- light stand in of our decision (3) according prof- to defense counsel’s 399 A.2d D.C.App., son v. United fer, testimony of all five witnesses 13, 1979). (Nos. & Feb. no more than an hour. require There, proceed- we held that “in the same should been more agree may not felony conviction ing, single prior witnesses to diligent bringing conviction under used to convert a court, weighed, I but when all the facts are [carrying pistol 22-3204 § ruling violated believe that the trial court’s and to serve as felony into a offense license] rights. appellant’s prior felony convictions one of the two the case to the I would therefore remand sentencing under 22-104a.” § enhanced court, proffer in order for (at 27-28) that the Here, the record reflects the absent defense what filed before informations been, for the trial witnesses would ap- conviction cited a 1965 government conclusions, findings and re- court to issue intent to commit pellant for assault to whether that viewable prior felony permitting robbery as both the outcome, affected the testimony might have an unli- charged carrying the offense warranting a new trial. under felony as a to be treated pistol censed prior felonies and as one of two 22-3204 § punishment pursuant enhanced permitting Friday, approximately p.m. 2:30 must At This conviction 22-104a(a)(l)(B).
to § *9 trial, day third May resentencing. be remanded for also “Well, defense came to an halt unexpected after not they are here. You announced ready three of its witnesses ready had testified. There and we are them and we witnesses, to be other shall proceed.” asked, were five defense but The then courtroom, your one in the “Who is next was James witness?” Defense original (who counsel identified “Aaron Little” McKinney, an codefendant whose had been in case the car with and McKinney had been severed. McKin- ney arrest) immediately stand, however, Harrington, the time of “Mr. not take the (where the owner bar” a skirmish attorney present because his not —a had between precaution occurred necessary anticipated anoth- because just er James, before the shooting). “Paul Fifth problems. Amendment Defense police officer,” Chañe, “Joseph subpoenaed he is counsel had three of his other not brought here. up He was not four Unfortunately, witnesses.1 one of Lorton, is in yesterday. custody He Vir- witnesses, these who a “comeup” was on ginia.” Neither Chañe nor James had been order from present Lorton —and had been testimony. identified in earlier trial days the first hot two trial —had (for brought to court the third day reasons thereupon said, The court “Very well sir. record). not other apparent of The two did guess rest, I you guess have to and I you counsel, not appear because defense antici- rest, must you your have called all of wit- pating slowly paced apparently a more nesses. have They appeared.” Imme- had they informed them that would not be diately following thereafter colloquy Friday. needed on He had tried but failed place: took during to reach them the luncheon recess. Well, Farquhar: Honor, Mr. your I think Defense counsel asked the court for “an the Court could continue the matter Monday. hour until try McKinney’s or so” to to contact attorney and the other defense witnesses. The Farquhar, you Court: Mr. “no," The agreed court at first said then that, times, told me several and I have reminding “short recess” after you told the Court cannot continue ready” counsel that he “announced Monday. case until thereby responsibility had assumed for hav- Well, Mr. Farquhar: certainly, we can ing present. his witnesses The court of- start earlier. help fered best to McKinney’s to do its find said, The Court: As I have already I counsel, finishing that “we are added ruled, it. we cannot continue today.” all the in this case evidence objection Mr. I Farquhar: May have approximately Court reconvened at 4:30 the rule state why? the reasons p.m. Because the trial had been un- The may given Court: You not. I have McKinney’s attorney, able she to reach you you all the time need state why arranged lawyer for another to counsel you I am certainly going want it. during the The McKinney lawyer recess. let you on my ruling. make comments resumed, informed the when trial Farquhar: Well, Honor, Mr. your I McKinney although testify, wanted think I am entitled to state— lawyer own wished his there advise Court: You not comment on agreed him. counsel that McKin- Defense my ruling. don’t know attorney ney properly testify, could not be ordered to right who has the to comment on a rul- lawyer. absent his own ing. given you
At point, defense counsel informed argument heard. You have made that his five approximately court that witnesses would re- three times and every one quire, altogether, approximately you more time I have told not going am testimony. replied, you hour of The court wait witnesses. James, government
1. The fourth was Officer Paul who then had been for the dismissed.
31 hour; Honor, earlier, I Farquhar: approximately Mr. more than one and at Your law, p. m. the court ruled on the to I 4:30 when arguing was the Court. The not request, continuance knew court such was think there is law in this area—I time, continuance would not waste for in making requests of the Court. Friday testimony lieu of further on The Mr. if Farquhar, Court: there (and did) profitably jury could discuss court area, you argued law in the could have instructions with counsel. going you am to have the law. I not my ruling. I on what agree argu- comment on ruled two basic appellant’s with presented right. to All That’s them you up sequentially— me. ments and will take on, first, right presented alleged to denial of a to be you what I ruled what heard. Appeals. me. You are the Court of
Mr. Farquhar: I understand that.
A. The trial court
discretion
has broad
you
All
are not
right.
The Court:
So
on
for
ruling
in
a defendant’s motion
con-
going
my ruling.
Sarafite,
575,
comment on
Ungar
to
tinuance.
v.
376 U.S.
589,
841, 849,
you
921,
me.
presented
ruled on what
84 S.Ct.
11 L.Ed.2d
929
may
what
nesses.
anything further
The
Mr.
The
[*]
not,
you
Court:
Farquhar: May argue
Court:
because I
argued
[*]
No,
You
[*]
to me.
you
it relates to the wit-
may
[*]
not comment
already
not,
[*]
sir.
the law?
ruled on
[*]
You
on
to obtain
dimension. See
(1964). On
continuance
of discretion in
continuance to obtain defense
viction reversed for denial of a continuance
witness).2
lina,
528 F.2d
testimony
In
may
any
819,
other
id.;
reach an unconstitutional
ruling
event,
822
Shirley
of a critical defense
hand,
(4th
for
on
Cir.
the denial of a
proper
v. North
request
1975) (con-
witnesses,
exercise
Caro-
for
willing
court must be
to listen
coun-
II
request.
reasons
sel’s
See Johnson
A.2d
D.C.App.,
v. United
398
354 at
Appellant argues
the trial court
(1979).3
Supreme
365
As the
Court has
resting
abused its discretion in
the defense
stated:
case,
objection,
than
granting
over
rather
There are no mechanical tests for decid-
arguments
His
are
weekend continuance.
ing when
so
a denial
a continuance is
procedural and
He main-
both
substantive.
arbitrary
process.
as to violate due
The
tains, first,
process
was denied due
answer must be found in the circumstanc-
the court rested his
because
case
present
every case, particularly
es
in
heard
giving
counsel
to be
presented
the reasons
Second,
continuance.
request
request
[Ungar
at the time the
is denied.
merits,
as to
claims that the
Sarafite,
589,
supra,
v.
376 U.S.
84
its
the mur-
court abused
discretion
added).]
(emphasis
S.Ct.
850
event,
had to
carried
der
Monday
closing arguments, jury
significance
taking
over
trial court’s
deliberation;
instructions,
carefully
time to listen
to counsel’s reasons
highlighted
only by
of all
the constitutional
court was aware that
issue,
supra;
see
note 2
require
gloss
Ungar,
would not
remaining
five
witnesses
defense);
present
presenting
the testi
witnesses
his own
Peo-
2. A
interest
defendant’s
473, 478,
mony
Foy,
“implicates
ple
N.Y.2d
346 N.Y.S.2d
witnesses
constitutional
32
249,
664,
values,
right
(1973) (same).
the Sixth Amendment
since
299 N.E.2d
667
right
compulsory process
plain
is ‘in
terms
”
v. Halde
a defense.’
United States
Shankle,
generally
See
Shankle v.
289 N.C.
man,
254, 306,
U.S.App.D.C.
F.2d
539
181
(1976) (before ruling
223
386
S.E.2d
denied,
(1976),
S.Ct.
cert.
431 U.S.
continuance,
on a motion for r.
omitted);
(footnote
L.Ed.2d
pro
required
hear
should be
the evidence
284, 302,
Mississippi,
see Chambers
con,
judicially,
rule
consider it
and then
(1973) (few rights
effort
to achieve an informed
Nor did the
judge,
before she ruled
(soon
More specifically,
4:30), give
when counsel and court
after
defense counsel a
found themselves at
on Friday
4:30
after-
realistic
to make
proffer
as to
witnesses,
noon
no more
defense
five
materiality
missing
witness-
requested
defense counsel
the first
es under the Ungar-Neufield criteria. At
—for
2:30,
Monday,
time —a continuance until
when the court had said that “we are
told
responded,
you
finishing
“I have
that
all the
today,”
evidence in the case
Court
continue
case until Mon-
finding McKinney’s
cannot
the focus was on
law-
said,
day
already
recess,
. .
yer during
.
.
As I
a short
not on what other
ruled,
(emphasis
say
cannot
it”
request
we
continue
witnesses would
on a
for a
added).
4:30,
asked if
could
When counsel
weekend continuance. Later at
when
objection
“have
to the rule and state the
asked counsel for the names of
replied,
missing
witnesses,
reasons
the court
“You
why,”
there was no
given
you
counsel,
all
you
briefly
not.
the time
indication that
respond-
need,
why
asked,
want
it.
I am
you
ing
question
to state
as literally
going
you
com-
certainly
foregoing
to let
make
his only opportunity to make an
my
added). Af-
ruling” (emphasis
Ungar-Neufield
Counsel,
ments on
proffer.
course,
ter
reading
transcript,
have concluded
knew that the court did not want fact,
judge’s
the trial
delay
4:30 announcement
case—in
court very
supra,
Supreme
Court stressed
Un-
complete
wanted to
all
much
record,
“[tjhere
as I
counsel
no mechanical
Friday.
gar, supra
But
read the
are
the court
anticipate
deciding
no reason
when
of a contin-
tests for
a denial
permit-
rest the defense case
arbitrary
proc-
violate due
uance is so
speak
significance of
ting
850;
him to
about the
ess,”
id. 376 U.S.
84 S.Ct.
witnesses.
his absent
the circum-
trial court must consider all
ruling.
my judgment,
In
stances before
precipitous-
that the trial court
I conclude
*12
appellant’s
responsibility
obvious
for
despite
what had
improperly
thus
ly
—turned
—and
the trial
failing
present,
to
witnesses
to find
joint
a
effort with counsel
been
perceived
court should have
other relevant
lawyer
summary denial
McKinney’s
into a
weighed
ap-
facts and
them
together
continuance, without af-
request
for
rul-
pellant’s questionable diligence before
opportunity
an
to be heard.
fording counsel
requested
on the
ing
continuance.
See
argue
to the
B. Now
merits. One
States, supra,
Johnson v. United
at 365.
apparently
defense counsel
that because
subpoenaed
they
witnesses
The following
some of
considerations stand out:
told
First,
appear
Friday, any proffer
Ungar-Neu-
on
even without a
need
formal
irrelevant,
the ad-
given
have been
proffer,
would
field
court had to be aware
to
last Neufield
government’s
mitted failure
meet
that some of
from
case
continuance;
e.,
a
i.
“that due
criterion for
the defense witnesses
to be mate-
appeared
their at-
diligence has
used to obtain
them,
least two of
McKinney
rial. At
App.
the trial
Id. 73
tendance for
as set.”
Little,
appellant
had been with
when he
argu-
118 F.2d
This
D.C. at
at 380.
incident,
shortly
was arrested
after the
conclusive,
for
has force
is not
ment
had been
scene of an
Harrington
at the
responsible
was not alone
for the
material,
arguably
preliminary
(the
event
By fail-
appear.
of all witnesses to
failure
bar). Second,
skirmish at the
it was clear
witness
ing
comeup
to effect
order for
4:30,
everyone,
to
once court reconvened at
Chañe,
prison systems
the court and
must
that the case would have to
continued to
be
lack of dili-
responsibility
for
share
Monday morning
closing argument,
for
in-
present
Because Chañe had been
gence.
jury,
structions to the
and submission of the
an
days
pursuant
two
to such
for
Third, counsel
the court
case.
had advised
response
(issued
appellant’s
to
sub-
order
witnesses’
take no
that the
would
expect
to
poena), the defense had no reason
Fourth,
hour.
more than one
cannot
day
absence
third
Chane’s
first-degree
When
—and
murder.
faulted for it.
be
added
pris-
these facts are
to the court and
systems’ responsibility
for the failure
point,
question
But even more
(Chañe)
appear,
witness
one defense
diligence
not determina-
appellant’s
of time
find error. The additional amount
satisfy
failure to
tive. Even
admitted
complete
case on
required
the defense
pre-
Neufield criterion does
the fifth
Monday morning
impose a minimal
and appellate
the trial
courts from
clude
system
prose-
the court
burden on
and the
facts,
Neufield
considering other
for the
(which had
its case-in-
completed
cution
providing
helpful guide-
criteria —while
object),
compared
chief and did not
they
do
criteria. Nor
are not
defendant,
(as
facing
imprison-
life
showing required
burden on
the “minimum”
reflect
ment,
years
who is denied the
majority
argued).4
has
Over
Neufield,
complete
United
case. See
the circuit court’s decision
after
majority’s
requirements
Contrary
as fac
restate the
here
[Neufield]
statement
standard,
bearing
question
Neufield
set
tors
on the ultimate
criteria
the minimum
Neufield
‘reasonably necessary
poses:
Appeals
the District
is a continuance
Court of
United States
”
just
recently
determination
the cause.’
United
has stated
Circuit
of Columbia
Haldeman, supra
U.S.App.D.C.
required
States v.
a continuance will
“sometimes
n.126,
(citation
specific
omit
proffer
nature
4:00 on a p. m. of trial. resting 4:30, the defense case at over
objection, continuing while case until
Monday morning closing argument for instructions,
jury judge the trial in effect notice, penalizing appellant, during for a failure obtain witnesses TRILON PLAZA et COMPANY earlier, period, two-hour of a because al., Appellants, loss of court time after 4:30. do not v. impose believe the court such penalty CORPORATION, ALLSTATE LEASING process. consistent due Appellee. C. Because we do not know what No. 12672. proffer supra Ungar, defense under Neufield, been, supra would have we cannot District of Appeals. Columbia Court of ruling tell the trial court’s was —or whether Johnson, was not —harmless error. See su- Dec. Submitted 1978. op. Thus, we pra, slip at 20-22. cannot Decided Feb. 1979. properly reverse the conviction and remand appropriate for a new trial. The most re- prof-
lief would to remand a defense findings trial
fer and court and conclusions Ungar
based on and Neufield.
court should then reach a conclusion as to testimony, proffered, might
whether outcome, thereby
have affected the war-
ranting new trial —the kind of test uti- evaluating impact requested
lized suppressed Brady Jencks Act materi- Agurs,
al.
United
See
States
U.S.
(Bra-
(1976)
dy); Goldberg v. United U.S. L.Ed.2d
(Jencks); Maryland, Brady out, request continuance, ruled it turned no burden at all would have on the As imposed, testimony, arguably lieu and is been for in of further therefore irrelevant to review discretion, court and counsel discussed instructions the court’s exercise this evi- Friday Monday, suggests strong possibility after 4:30 on instead of dence thereby freeing ruling time that could have used knew at the time of the testimony Monday morning. Friday profitably. Al- balance could be used though this the trial discussion occurred after