*1 RAMBERT, Stephen Appellant, L. STATES, Appellee.
UNITED
No. 90-944. Appeals. Court of of Columbia Sept. 1991.
Submitted
Decided Feb. Borecki, court, appointed
Susan appellant. the brief Stephens, Atty., and John R. Jay B. U.S. Tourish, Jr., Fisher, and Freder- J. Thomas Yette, were on the Attys., Asst. ick W. appellee. brief for TERRY, SCHWELB Before FARRELL, Judges. Associate TERRY, Judge: of rob- appeal from his conviction appellant bery,1 contends refusing to its discretion court abused when, allowing the after grant a mistrial 1. D.C.Code 22-2901 § *2 police to its case to elicit testi- and two officers in who come previously from a unknown response Lusby’s to call. Since their
the court discovered that the neighborhood yielded search of the no availability about the results, agreed making to continue that witness were untrue. We find no inquiries in in the area an effort to find out accordingly abuse of discretion and affirm the name of the robber. the conviction. later, in early September, few weeks Officer Brown ascertained Rambert’s iden- tity through neighborhood sources. Brown Lusby, John a United Parcel Service photographs array was then shown an (UPS) driver, was while robbed positively identified Rambert as the attempting delivery. to make a On the running package man he had seen with the 81,1989, morning July Lusby went to an Lusby under his arm. later identified Place, S.E., Sayles with photograph Rambert as the robber from a package for someone at that address.2 lineup, positively of a and both men identi- home, finding Lusby no one at left a fied him at trial. delivery notice and returned to his truck Tuesday, May The case to went 29,1990, Day. the after Memorial truck, Lusby appel- Just as reached his government completed presentation in approached grabbed lant Rambert at rested, day, one and after the court ad- package, demanding Lusby turn it journed proceedings refused, next Lusby over. When tried Rambert However, morning. Wednesday morn- snatch it out of his hands. After a protracted ing, struggle, finally May prosecutor moved to re- seized package Place, Sayles open and ran into 2523 present case to tes- Lusby’s original Mason, next timony eyewitness door from Ronnell an Knowing destination. prosecutor to the crime had first whom the had a back door which the robber morning just May heard about on the escape, probably Lusby would decided that began. Recounting the trial before what fruitless; pursuit accordingly, would be prosecutor Brown had told said police. called the first that Officer Brown had learned Day Mason’s existence over the Memorial Brown, off-duty Metropolitan Leo an Po- 26-28), (May weekend but that Brown did nearby, lice officer who lived saw Rambert not tell him about Mason until before running down the from the rear exit beginning May of the trial on 29. Since package of 2523 Place with a tucked place these events had all taken immediate- fleeing under his arm “like he was trial,3 ly prosecutor before “had no idea Brown, twenty-year scene of a crime.” going that we to be him neighborhood, recognized were able resident of the morning [Mason], for the someone who in the area. and he came this Rambert as lived spoke Lusby Having outside and Mr. first time at 10:45.” made these package wrapped transparent plas- prosecutor 2. The 4.When the court asked the when he else, Brown, tic, (or prosecutor anyone including so that had interviewed Officer robber) replied: pairs of could see that it contained three yesterday sneakers. It was at least two weeks before [¿.e., May no later than at that 15]. Initially, prosecutor said he had first be- time Brown had not met this witness. Officer previous aware of Mason’s existence the come this wit- Brown told me that encountered 29). weekend, evening (May page On the next ness over the Memorial and I think, me, transcript, my himself and he corrected recollection serves he said [if] I’m not sure. said that Officer Brown “had told me he saw him know, thing yesterday morning (May youAs from what Officer Brown has came in the first neighborhood, appar- that he had seen this witness over the week- he lives 29] end_ talking evening, ently just stopped we recessed over last and started When Brown, [Mason], overnight, try him and that told I said to Officer ‘Please bring today.’” witnessed this incident. that witness and him in fact locate prosecutor before mentioned Mason representations, asked the told the first May his case. Mason, he not even granted over the about The court “sug- counsel, nor had he ever objection of but said that *3 prosecutor] the defense a gested it would consider or intimated to [the any witness to the continuance Mason’s other there impact upon your defense....” himself. He said that robbery” other than of Mason’s knowl- he had become aware substantially the Mason then testified to robbery “maybe two months or edge of the Lusby. scenario recounted same really something ago," that he “never said that looked out his second-floor got with him” until into the conversation and saw “a dude and a UPS man window 25, “really sat Friday,” May “last truck,” parked struggling on a which was and that’s and talked when struggle in front of his house. When the rob- found out knew about [what ended, the “dude” ran having a not bery].” Brown did recall carrying Place with Mason on the date of conversation cross-examination, Mason robbery, Mason had testified. as spoken stated that he had to Officer Brown knowing that Mason had Brown admitted robbery hap- about the neighborhood for three or four lived in the fact, gone to Brown’s pened; Mason had years. to talk to him about it. building, Brown was outside in front of the hearing Brown’s and Mason told him that the man Brown found that had not running “just seen robbed a UPS truck.” existence Mason testified that he and Brown were found, however, May 29. The court also close, friends,” “not but we’re only failing in this Officer Brown’s knew his name knew where he diligent in he had not been case was that lived. Mason identified Rambert in court is “I think there investigation: don’t struggling the man he had seen as fail- has done other than anything that he UPS man. Having so pursue matter.” ure to found, for mis- denied the motion testimony directly con- the court Because Mason’s trial. flicted with the that Brown prosecutor,
had made to the
II
on the fact
sel moved
a mistrial “based
police had
plenty
that the
of time
prosecu
allowing
decision
They
this witness.
knew
case is a matter within
tion to
its
was,
they
represen-
knew where
trial court. Sel
sound discretion
put
comport
tation
us does
974, 978
401 A.2d
v.
lars
just heard.” The
that we have
re
(D.C.1979).
will be
Such
decision
only
noted
reason
trial court
showing of
only
appeal
on
versed
allowed
discretion,
Savage
abuse
represented that
that the
562,
(D.C.1947),and
Columbia,
570
54 A.2d
of Mason’s exist-
Brown had first learned
prejudiced.
has been
only
the defense
noting that
ence
before trial. After
Robinson,
U.S.App.
225
United States v.
truth,
“somebody
telling
either
isn’t
(1983).
448,
290,
F.2d
D.C.
Brown,”
the court excused
[Mason]
we must
factors which
three
There are
Brown to the
recalled Officer
jury and
reviewing
court's
a trial
consider in
now”)
right
(“I
in here
want Brown
stand
reopen the
knowledge of Mason.
testify
about his
sur
evidence caused
case: “whether
defendant,
the defen
prise to the
During
ensuing voir dire examina-
adequate opportunity to
given
tion,
he had never
dant was
Brown admitted that
[earlier],
over Memorial
[time]
for the first
he met
weekend,
So
I met with Officer Brown
particular
yet.
I think
met this
This
had not
proof,
gate
meet the
and whether the evidence
the effects of the error.” Bliss v.
was more
445 A.2d
detrimental to the defendant be
1982),
1117, 103
denied,
cert.
S.Ct.
cause
order which it was intro
(1983) (citations
in the trial court’s denial of defense coun judge granted prosecutor’s motion for a mistrial. Like the deci The trial sel’s strength repre- motion to reopen its sion to allow the proved which sentations Officer Brown case, deny a decision to a mistrial lied or sim- to be untrue. Whether Brown is committed to the sound discretion of the it,” ply this situation is less than “blew E.g., trial court. Lee v. readily edifying and should not be cases). (D.C.1989) (citing A.2d Judge agree Terry, tenanced. I how- only in “ex We will disturb that decision ever, judge that the trial did not abuse threatening miscarriage treme situations discretion, especially since Rambert could States, 465 justice.” Beale v. United did not requested have a continuance but (D.C.1983), A.2d opinion Accordingly, join in the do so. 104 S.Ct. 79 L.Ed.2d the court. factors which we There are three considering take into account
reverse: “the closeness by the
centrality of the issue affected [as error, miti- and the taken to
serted]