Robinson v. United States

FERREN, ROGERS, Before TERRY and Judges. Associate TERRY, Judge: Associate Appellant was convicted of distribution possession of dilaudid1 and of dilaudid.2 appeal challenges only On the distribu- Appellant tion conviction. contends that restrict, refusing trial court erred in advance, government’s cross-exami- witness, nation of a defense and that the abridged to a fair trial arrogating prosecutorial function it- self, interfering with defense counsel’s ex- witnesses, manifesting amination of and hostility to the defense. We find no revers- ible error and affirm the conviction. I evening On the of December Moroney, Robert an undercover officer, narcotics went to the area of 12th Streets, and N ap- N.W. There he was proached by Larry Hodge, if he who asked Moroney. could “serve” After a brief con- versation, agreed the two men aon sale of Together they dilaudid. walked to the cor- Streets, Hodge ner of 11th and N where Moroney Hodge told to wait. crossed the spoke appel- street and to another man — appeared Hodge some- lant —who to hand Hodge thing. and then came street, Hodge gave back across pill Moroney wrapped a dilaudid in alu- point appellant minum At this foil. Moroney, standing feet from about two directly lamp, almost under a street Moroney clearly. could see him As Moro- ney preparing Hodge pay for the pill, appellant Hodge Moroney warned police looked like the and that he should Kent, D.C., Washington, ap- Nevertheless, M. Elizabeth not sell to him. the sale was pointed court, appellant. completed, this A min- Moroney left. few 33-541(a)(l) (1985 33-541(d) (1985 Supp.). Supp.). § D.C.Code 2. D.C.Code § later, drugs broadcast a had sold Moroney

utes December men, Hodge respectively, description of the but both of two them said Moroney by other drove was not the arrested officers. other man in- past the scene of the and identified volved in sales.5 Both men arrest were im- peached by prior drug him. Another a man officer detained convictions. The drugs, thought manager of a tourist home be the holder of the that testified girl Moroney appellant informed the his by reg- drove and and friend had been by guests officer radió that was not the istered his from this man establishment holder, through he was December released. December 10. later, appellant found days jury guilty

Two on Officer December of distri- area to on Moroney pos- returned to the same bution of dilaudid December 7 and buy. He dilaudid on make another undercover was session of December 9. It ac- officer, charge of accompanied by quitted this time another him the on distribution Cunning- Pugliese. Allen Vincent When December services, approached his

ham and offered II Pugliese Cunningham he and Mo- told that roney buy would like to some dilaudid. trial, day of coun- On the second defense Cunningham walked across the street and an in limine court to make sel asked the approached appellant, Moroney im- whom restricting government’s cross- mediately recognized man he as the had witness, proposed of a examination defense Moroney seen on December turned Koonce, appellant’s girl friend. Linda away so appellant recognize that would proffered that Koonce testi- Counsel Cunningham him. and then returned hand- fy staying appellant had been with that she Pugliese packet containing ed a foil two home on December at the tourist 7 and pills; gave dilaudid in turn officers Hodge they still their room when were Cunningham in bills serial num- $60 whose Moroney. sold dilaudid Officer Further- pre-recorded. Pugliese had bers and more, absolutely she was not sure since Moroney left time, the area and de- broadcast she about the would also describe scriptions men, of both wearing and soon thereafter clothing appellant was that eve- appellant Cunningham placed and un- ning, Moroney’s were was different from which Moroney Pugliese clothing by der arrest.3 made a description and worn ride-by suspects. Hodge’s identification of Mo- both confederate.

roney also appellant identified court. anticipated that on cross-exami- Counsel Pugliese, however, was not asked make government would ask how nation identification, an in-court and admitted what was Koonce remembered on cross-examination that he had not been response ap- wearing. Her would be that identify appellant able to in court at an jail been released from De- pellant had hearing. earlier charge subsequent- cember 6 on was

Appellant’s changed and had not ly dropped defense misidentifica- clothes was Hodge Cunningham, overnight. his former Defense counsel feared tion. co-defendants,4 testimony testimony prejudicial would be admitted in their such arrested, Cunningham charges against Hodge Cunningham he had in his 4. The 3.When by plea bargains. before trial possession had been resolved whose serial four one-dollar bills among numbers were those recorded drugs on Hodge that he said had received the arrested, Moroney. When "Big Butt 7 from a man known as December arresting something put officers in his saw him Cunningham Ronnie.” said that he and another They spit mouth. out found made him (apparently Big Butt Ronnie man named Ronnie) containing packet it was an aluminum foil Pugliese approached Moroney and had pills. pills dilaudid two These the basis were and that had both crossed December conviction, possession does which to obtain the two the street dilaudid tablets not contest. man, appellant. who was not from another prohibit government asked the court to judge,6 per- discretion of the trial who asking from that would elicit probative mit it if its greater value is than such an answer from the witness. The prejudicial effect. See Brown v. United court refused to rule until the Unit- actually begun its cross-examination. Williamson, ed States expressed It the tentative view that (5th Cir.1973). In proba- this instance the had “a to ventilate these substantial, value tive since Koonce’s issues,” agreed but it any question- to bar ability to appel- remember the details of ing why appellant jail, about inwas how important lant’s alibi was an part of the long there, he had been or whether he had hand, case. On the other prejudicial jail been in on other occasions. The court cross-examination, effect of the with the also said that defense counsel could show stipulations suggested restrictions and charges against that the appellant had ulti- court, would not great. have been Ac- dismissed, mately been suggested and cordingly, we find no abuse of discretion.7 the might stipulate even counsel, however, that. rejected Defense Ill suggestion, the eventually she decided not to call Koonce at all. Appellant asserts that twelve instances alleged of by misconduct the trial court The trial prop court’s was prejudiced right to a fair trial. We relevant, er. If evidence is otherwise the claims, need not consider most of these fact suggest tend to other since the acts of complains which activity by criminal the defendant does not place took out of jury’s presence necessarily inadmissible, make it Bracey v. See, could not have affected its verdict. States, 23, 27-28, United 79 e.g., McCord, United States v. 166 U.S. 142 F.2d denied, cert. 322 U.S. 1, 15, 334, App.D.C. (1974) (en 509 F.2d (1944), although admissibility may banc), 930, 95 S.Ct. in respects See, some be limited. e.g., 1656, (1975). 44 L.Ed. 87 Nor does the States, Drew v. United 118 U.S.App.D.C. support argument record 11, that the atmo 15-16, (1964). 89-90 In sphere irreparably of the trial was tainted this case the had a actions,8 by the court’s or test that defense memory witness’ by asking her why she counsel was “thrown off balance”9 remembered what wearing presentation Indeed, of her case. December 7. defense See United counsel, appeal, States v. who is also counsel on (1970); 432 F.2d acknowledged argument at oral Hood v. that she States, United 125 U.S.App.D.C. by was not unnerved or distracted the trial (1966). 365 F.2d short, appel In decision to court’s conduct. most of allow such cross-examination is left judicial overreaching to the lant’s claims of are any 6. No claim is by (1984). made here of failure We decline to do so. Not were the discretion, court here, exercise its which would facts in Luce different from the facts tried, itself have been an abuse of discretion. Luce See was decided after this case was so States, Johnson v. United grapple 398 A.2d that we would 363-364 have to with difficult (D.C.1979). gave questions retroactivity. The court extended of We see considera- no need to matters, tion to the trouble ourselves with issues raised such since we defense counsel. In can decide the case on the extending pages merits without refer- discussion over four of tran- ence to Luce. script, explored pos- both the court and counsel problem. Any suggestion sible solutions to the States, Compare Petway United prejudged that the court had States, issue would not (D.C.1978); Williams v. United support States, find in the record. Peckham v. United 210 F.2d 693 government urges 7. The us to base our decision principle States, announced in Luce v. United 9. Womack v. United 350 A.2d States, (D.C.1976). 83 L.Ed.2d Marzano, discussion. unfounded do merit were, however, (2d Cir.1945), quoted There two incidents which in Shannon v. disturbing. (D.C. find we 311 A.2d 1973). Nevertheless, light of the record First, appellant contends that the whole, aas we see no reason reverse the arrogated prosecutorial court conviction on account of this incident. See strategy suggesting function itself Greenhow v. United prosecutor. and tactics to the in one (D.C.1985).11 During stance this contention merit. has Second, Cunning his cross-examination Allen that the contends ham, prosecutor permissible court exceeded asked about certain bounds when it asked, Cunningham immediately statements counsel had made when defense completed guilty plea. her question entered his After the cross-examination of Pugliese, ended, leading questions a series of ing prosecu court asked the effectively Pugliese. which impeaching tor rehabilitated whether he the witness Appellant argues that the error com with a inconsistent statement or refused, pounded when the asking whether he was the witness to presence permit of the jury, defense adopt as truth. statement counsel to any conduct further cross-exami further Cunningham After discussion re nation. The stand, combination the court’s sumed the asked questions barring own and its further questions. him several more questions by defense counsel us troubles To the sought extent that the court to decide, however, greatly. need We not clarify testimony, the appellant witness’ whether these actions in combination con See, e.g., complaint. has no basis for error, did, they stituted because if error the States, v. Khaalis unquestionably harmless. denied, (D.C.1979), 444 U.S. Pugliese’s testimony to the related (1980); S.Ct. L.Ed.2d 781 charge. December 9 distribution Since the States, supra Womack United note charge, jury acquitted appellant of he further, at 383. The court went possibly prejudiced by could not have however, suggested prosecutor to the the what court did. a tactical course which he had cons not was improper. Affirmed. idered.10 This trial The court “must take on the role of a FERREN, Judge, dissenting: Associate partisan.... Prosecution and judgment in separate are two the of respectfully functions adminis I from Part II the dissent justice; they merge.” of opinion. appel- tration must not I court’s would reverse said, 10. After the you prosecutor "I have no have ftsh a little to or cut bait. I am questions," further the called surprised. counsel the bench. entire as The bench conference was Okay. MR. SELLINGER: follows: prosecutor The then returned to counsel table transcript THE You COURT: used the from questions and asked the witness a series of plea guilty you the if never asked him along suggested by the lines the court. testimony, leaving that was truthful very in a me prior course, is, state of confused whether that is a permissible It for the court to adopts inconsistent or now them statement suggest may proceed properly how counsel During you as truthful. [sic ] the have made, objection sponte or to an has been act sua you going make a choice about are what prejudicial in order error. to avoid See Wom do. supra ack v. United note A.2d at prosecutor]: MR. SELLINGER Other- [the 382-383, therein; cited and cases ABA Standards I am wise restrained? 6-1.1(a), Commentary § Criminal Justice Tactically you THE COURT: think I would (2d 1980). 6.7 the ed. What trial court did judge ask him if he things told truth and here, however, was to offer tactical unsolicited truthful, transcript he read were prosecutor to an advice able who did not need trial, they testimony then become at this it- statements, are not inconsistent case, by reference to for distribution of dilaudid dismissal of the lant’s conviction charges appellant for which and remand for a new trial. had been jailed.1 I. principal issue is whether II. government properly have elicited could merits, addressing Before we are against appellant, “other crimes” evidence obliged whether, by failing to resolve protections softened the trial court’s defense, testify ap call Koonce to for the ruling Defense would have afforded. pellant challenge waived proffered appellant’s counsel alibi wit- ruling. See Luce v. United trial court’s ness, Koonce, girlfriend Linda 105 S.Ct. testify wearing differ- (1984) 83 L.Ed.2d (by testifying clothing night ent the crime from trial, “preserve defendant did not for re clothing Moroney. described Officer of improper impeachment view the claim reasonably anticipated that Counsel conviction,” with a since on basis of Koonce,

prosecutor cross-ex- would ask trial court’s limine ruling conjec it was amination, ap- how she remembered what tural whether court would have allowed the pellant wearing. further an- Counsel DiMatteo, impeachment); ticipated reply that Koonce would she re- curiam), (11th Cir.) (per membered because had been re- — rt. —, ce jail leased day from the before and had not (1985)(applies 88 L.Ed.2d 143 Luce’s changed overnight. his clothes ac- Counsel rationale to foreclose review of in limine cordingly sought a trial court ruling allowing im extrinsic evidence to limine prohibit from ask- peach testify). defense witness who did not ing Koonce how she remembered the cloth- ing. question Counsel reasoned that this Whatever our answer to that probative place today, lacked value for the I would be if the trial took am but, evidence, by eliciting other crimes satisfied has not waived his highly prejudicial ruling would be right challenge to the defense. to this case. States, Drew v. United doubt, U.S.App.D.C. ruling the trial court’s Without 85, (1964). 331 F.2d 89-90 Al- to the wit caused defense counsel withhold moreover, though clear, neither pros- the trial court nor It how the trial ness. proffered ecutor doubted Koonce’s ruled if counsel had re- court would have sponse, prosecu and the request. court denied counsel’s called Koonce as a witness cross-examine; appel As consequence, begun a counsel made a tactical tor had judgment not would have testify, stay to have Koonce at the D.C. Jail rea- lant’s soning out, restrictions. experience on the basis of with some counsel’s come albeit conjec Thus, that concerns were not devastating appellant’s other crimes evidence is Luce, Compare innocuous, even if 105 S.Ct. at 463.2 explicably as in this tural. 609(a). Bussey, Fed.R.Evid. 1. In United States v. under convictions however, case, (1970), present but for the trial 432 F.2d the court appellant’s recognized ruling, is no doubt that there the considerable unfairness of ad- court’s testified, and, given have mitting "alleged would evidence a defendant’s alibi witness crime any ruling, if doubt that the there is little judg- which had not been reduced to a final have come out on evidence would other crimes ment.” Furthermore, Luce dealt cross-examination. States, admissibility 2. Luce of a conviction v. United with 460, 462, (1984), legitimate im- pertained unquestionably have had 83 L.Ed.2d 443 to a would value, conjectural ruling, peachment the other trial court for whereas in this case it was unclear testified, id., illegitimately would have been whether the defendant would have crimes evidence testified, Thus, id., strong- prejudicial. had a much or how the defendant or, have ruling consequence, questioning the trial court’s as a how court would er reason for the trial have exercised or exclude than Luce did. its discretion to admit Moreover, deed, precedent jurisdiction this would have added to Koonce’s cred permitted ibility by a appellant’s demonstrating the time a concrete basis for her recall. nontestifying challenge ap But the defendant to answer also would severely peal allegedly prejudiced have ruling appellant by trial court im plying he had a Johns testify. propensity. criminal caused defendant not to The States, obvious net v. result would United 467-68 have been to dam A.2d age appellant Lipscomb, with other crimes evidence United States v. government which the 332-33, in U.S.App.D.C. 312, 702 F.2d had no only therefore, troduce. The fair ruling, By analogy, 1069-70 these would have been prosecu to disallow the permit appeal cases also would of a cross-examination, tor’s since it ruling that a defend demonstrably caused would have had legitimate no Thus, probative val Luce key ant not to call a witness. “ government, illegitimate ue for the only if applicable represents a ‘clear —even 3— ” by prejudicing value the defense. See v. United Brodis past,’ break with the United v. States States, (D.C. 1335, 1336, 268, 272, 1330, 1334 (revers (1970) Johnson, 1983) (citing ible permit government’s error court to (1982) (quoting Desist v. U.S. rebuttal witnesses to undermine United U.S. S.Ct. by placing appellant alibi elsewhere but (1969)). 22 L.Ed.2d 248 Accord testify also committing I would hold that Luce ingly, applies pro there); crime Brown v. United all, if cf. spectively, and thus does not bar (D.C.1978)(error 730-31 the appeal limine this plain error when detective’s references Compare other crimes issue. to “photographs” and “custody” “con Givens, States v. (9th 767 F.2d 577-79 — vey[ed] jury impression” Cir.), —, S.Ct. record”). “had a criminal (1985) with United 88 L.Ed.2d 304 Dunbar, States (3d cited majority cases under- Cir.1985) DiMatteo, 759 F.2d at 832-3 importance score the of a sound trial 3.4 ruling premised on other the rule that presumed prejudicial crimes is evidence

III. thus inadmissible unless it serves “sub- Drew, I stantial, legitimate turn the merits. purpose.” The witness’ ex- pected 15-16, answer helped would not have 331 F.2d at 89-90. alibi; appellant’s discredit in- For such a establish supra id., (Adams, see But note 2. But see 767 victions. J., F.2d at 76-78 Furthermore, dissenting). the defendant in Givens, 574, 4. United States v. 767 F.2d 577-79 testify for the Dunbar was not certain to but cert, — (9th Cir.), denied, —, U.S. 106 S.Ct. merely ruling; said adverse counsel trial court's 321, (1985), 88 L.Ed.2d 304 that held Luce "considering" him to as a she was whether call apply retroactively should not where the defend- Id., at witness. 767 F.2d reasonably prece- relied on ant Ninth Circuit DiMatteo, Finally, 759 F.2d United States v. permitting appeal ruling dent of an in limine 831, (11th Cir.) curiam), (per cert. de 832-33 that convictions were admissible under —nied, —, 172, U.S. L.Ed.2d 304 106 S.Ct. 88 Fed.R.Evid. 609. The record showed that the (1985), retroactively merely applied with Luce defendant would have testified but the ad- opinion analysis. in the same out An earlier ruling. verse It also contained the defendant’s however, case, was no made clear that there proffered testimony, which was sufficient precedent the in Circuit on which the Eleventh ruling. the show basis for the trial court's appeal an ad relied to defendant could have contrast, Dunbar, In 767 F.2d ruling to call verse in limine when he declined 72, (3d Cir.1985), applied Luce retroac- impeachment extrinsic whose with witness tively because the defendant could reason- Unit that would have allowed. evidence rely ably precedent, on a weak Third Circuit in DiMatteo, 1361, (11th ed F.2d footnote, States suggesting unconditional review of Cir.1983). rulings admissibility in limine on con- 28, Bracey, U.S.App.D.C. defense.” at time-honored usually one of the purpose, (footnote omitted). 142 F.2d at 90 here) (irrelevant apply, must exceptions motive, identity, or such as evidence of Hood, example, U.S.App.D.C. in For Drew, U.S.App.D.C. scheme. common 18, 951, prosecutor prop- at 365 F.2d at 16, 90; Bracey at v. United at 331 F.2d erly elicited on cross-examination of an al- 26, 142 U.S.App.D.C. ibi witness had robbed that neighborhood, witness the same several Otherwise, 88 L.Ed. 1589 minutes before the crime at issue. The showing that government develop any there must be a clear is “free to facts out probative government testimony] value to the ... which make tend[ ] [the contrast, as an de unavailable alibi.” Id. weighs prejudicial impact U.S.App.D.C. 270, 272-73, in Bussey, at Brown, 730; Bussey, fense. 387 A.2d at 432 F.2d at the trial court 1334; U.S.App.D.C. at 432 F.2d at by permitting abused its discretion Williamson, 482 F.2d see United States v. government testimony to elicit from rebut- (5th Cir.1973). (who supplied tal witnesses refuted an alibi can Accordingly, unless the by appellant’s girlfriend) legitimate show a connection between only shortly was elsewhere before the time crimes, present two must charged of the offense but also com- “ scrupulous the case-in-chief care to ‘with mitting a crime there. The court noted ” any jury’ avoid intimation that a alleged the reference to the earlier engaged in another crime defendant had unnecessary crime was to rebut the alibi. “immediately before the one at issue.” U.S.App.D.C. at 432 F.2d at 1334. Bussey, U.S.App.D.C. at 432 F.2d added, however, The court situa- 1334; at Hood v. United might tion have been different if the (1966).5 App.D.C. properly limited the testi- presented direct, counsel, Once a defendant has his or mony then defense defense, however, cross-examination, government may her had “cast doubt on recollection,” perceive and then testimony a need to elicit on cross- rebuttal witnesses’ redirect, government, on had asked the likely examination or in rebuttal that is demonstrating particulars witnesses for inject evidence of the defendant’s other “they definitely remembered” where why government, crimes. In fairness appellant was. testimony occasionally such permit- be 432 F.2d at advantage, ted to avoid a defense rules, if the soundly trial court after a case, present the alibi witness’ In the

proffer, that “the other crimes evidence reference, [is] anticipated on cross-examina- ‘necessary’ and therefore de- admissible tion, day jail appellant’s previous —a spite inflammatory content.” way no wholly collateral matter —in 432 F.2d at 1335. theo- to defeat the defensive have “tend[ed] Thus, cross-examination or “evi- rebuttal raised the defense.” ry or rebut an issue incidentally dence which the com- 142 F.2d at Bracey, reveals omitted). Appellant’s previous (footnote mission of a crime other than the one 90 altogether irrelevant to his jail named in re- day the indictment ... be defense, help except to es- if ceived it tends to defensive misidentification defeat the tablish, impeach, credibili- his witness’ theory or rebut an issue raised (Such (D.C.1985). permis- joinder also general is proposition major excep- 5. This 235 sible, has a course, of each tion that is when the evidence irrelevant here: two criminal charges may properly joined separate be trial when trial of at in a would be admissible crime offenses, easily Cox, separate are other, triable as even applying Drew criteria. though bearing evidence of one has no 235.) at E.g., other. Cox v. Hood, ty. Compare short, prosecu- 365 F.2d at 951. In question anticipated

tor’s would not even probative, “necessary,”

have been let alone government,

for thus should have limine, given “inflam- barred in

matory proffered content” of the witness’ Bussey,

answer.

432 F.2d at 1335.6

Accordingly, I conclude—based exclu-

sively majority— on the cases cited denying appel-

that the trial court erred in prosecutor’s

lant’s motion to exclude the

anticipated question. Because the error witness,

caused key to withhold a magnitude requiring rever-

sal—a clear abuse of discretion. Johnson

v. United

(D.C.1979).

In re William REBACK and Charles C.

Parsons, Members of Bar of Appeals.

District of Columbia Court of

No. 83-1289. Appeals.

District of Columbia Court of

Argued En Sept. Banc 1985. July

Decided If, wearing. progressed, as the remembered” what clearly F.2d at could have demonstrated a need to elicit record, Koonce, But, anticipated has answer to discredit then on this "necessary.” why not shown could have asked the court permission pin why "definitely Id. down Koonce

Case Details

Case Name: Robinson v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Jul 30, 1986

Citation: 513 A.2d 218

Docket Number: 84-852

Court Abbreviation: D.C.