*1 SHELTON, Appellant, Arnell W. STATES, Appellee.
UNITED
No. 02-CF-1197. Appeals.
District of Columbia Court 3,Oct. 2007.*
Argued Nov.
Decided July
Amended * Following argument sponte parties oral supplemental the court sua ordered the to file briefs.
PER CURIAM: Shelton, Appellant, Arnell W. was found guilty by jury of assault with intent to armed,1 aggravated kill while assault while armed,2 possession two counts of of a fire- violence,3 during carrying arm a crime of license,4 pistol without a and malicious de- property.5 Appellant’s princi- struction pal judge claim is that the trial did not him to introduce evidence of the fact allow exculpa- had withheld tory complainant made statements trial,6 during his first evidence that not disclose until the eve of prosecutor-did Appellant the second trial. contends that evidence, argued with that he could have jury that in the own against appellant view the case was not as strong government purported as the it to however, government argues, be. The reject that we should that contention be- presented cause it was not to the trial judge and because it lacked substantial merit. decline to We decide whether claim was meritorious or whether it was because, properly preserved assuming, deciding, that the trial without erred Levick, K. Defender Ser- Sandra Public excluding argument, that evidence and vice, whom James Klein and Samia with error was there- such harmless. We Fam, Service, on the Public Defender were fore affirm. brief, appellant. for I. Facts A. Sprague,
Sharon Assistant United Attorney, Jeffrey with A. States whom government presented Taylor, Attorney States at the time United p.m. January that at around 11:00 on filed, Roy III the brief was W. McLeese Boyd Christopher drove to Melon Dixon, Assistant States Street, Southeast, Wanda to visit his mother. brief, Attorneys, appellee. house, were Boyd stopped in front of her where planned double-park,
he and saw his RUIZ, Judge, standing talking neigh- Before Associate mother outside KING, Judges. Suddenly, “foreign Senior bors. a blue make SCHWELB 22-401, (2001). (2001). § §§ 5. D.C.Code 22-303 D.C.Code -4502 22-404.01, (2001). §§ 2. D.C.Code -4502 6. The first held in March ended in a mistrial because was unable to 22-4504(b) (2001). § 3. D.C.Code Judge Weisberg reach a unanimous verdict. 22-4504(a) presided § over the first trial as well. D.C.Code person who had up along the left side of Toyota” raced front appellant “hanging passenger saw fired the shots from the Boyd’s car. Toyota, Toyota. Boyd again and he seat of the blue con- the window” of out *3 Boyd appellant’s identity a firmed when Detective “was struck bullet.”7 soon him of photo appellant. that he heard the shots and saw Francis showed a testified Boyd gun.”8 the “fire from the When He shooting. Andrew Durham saw the away, carry- the car that was tried to drive Boyd neigh- knew and from the appellant stay to next to him ing appellant continued borhood, but was close to either one of not Boyd he down the as traveled street. Boyd that he saw them. Durham testified eventually escaped by turning down an up guys ... to some “pull[ ] talk[ ] and alley. A couple front of his mother’s house.” of later, Boyd drove himself to Greater South- minutes a “small little Nissan or Honda, Hospital, passed Boyd east out. testi- ... a small four-door car with Boyd’s that he “in beside up fied was and out of conscious- tinted windows” drove hospital, gunshots ness” while at the and “didn’t car. Durham heard and saw really going Boyd being know what was on at the was shot as he sat in his Boyd time.” waking up past car. The shooter’s car then continued “remember[ed] [him],” car, police Boyd’s officer in front of but and Durham [was] saw shooter did not remember “lift having up “conscious con- his head and look out the win- (Officer versation” with the officer Durham recognized appellant Edward dow.” Woodward). Boyd was soon He appellant transferred shooter. then watched Washington Boyd to the Intensive at fire Care Unit additional shots at as the two Hospital emergency away. Center for treatment. cars drove cousin,” days
Two shooting, Boyd Boyd “play Myra after the was and his Fer- interviewed Detective guson, likely James V. Francis testified about the events that Washington Hospital precipitated shooting.10 April Center. Detective Boyd shot, Francis identity Boyd asked he knew the about ten months before was him, of person Boyd who shot Ferguson accepted which a ride home from unhesitatingly responded: “Arnell appellant, neigh- White whom she knew from the Boy Boyd car, me.” shot further stated that borhood. they ap- While were [i.e., he Bay” had known “Arnell pellant White tried to kiss and fondle her and to appellant] years, for more than five unzip pants, ripping her her underwear in 7.Boyd had been Appellant away seated in the driver’s seat of was about two feet car, Boyd his which when he fired the shots. had tinted windows that were up. rolled He testified that he had been look- 9. Durham testified that at first he could not ing backwards over his left shoulder when the see the shooter’s face because he was then carrying appellant approached. car Boyd looking through the tinted windows of both appellant's appellant saw face as reached out pull cars. Once the shooter’s car stared to passenger-side of the front window of the blue away, Durham had a better view and was able Toyota, holding together, fully his two arms to see the shooter’s "whole face” and his arm Boyd extended. stated that he was certain from the elbow down. Durham identified appellant Although Boyd shooter. appellant in court as the shooter. portion” admitted that he drank a “small Street, vodka brother, en route to Melon he was confi- Ferguson stated that she and her dent "tipsy” that he was not intoxicated Ferguson, family” or Derrick were "like impaired and that the drink had Boyd. years his abili- She was sixteen old at the time of ty perceive identity shooting. of the shooter. not, [Boyd’s] Boyd cousins.” did continued one appellant process. When however, him to state that had also Ferguson told assault after groin, got out of the one who shot him. Officer Wood- hit him in the been stop, she Boyd car, Ferguson “appeared home. did ward further testified that and walked scared, unsure pain, about this incident to be in kind of anyone not tell whole about going happen during was “embarrassed to him” she what was anyone “really want [didn’t] situation” and interview. about it.”
to know an alibi defense Appellant presented later, learned of couple wife, A of weeks testimony of his Sharia through the *4 appellant assault when Shelton, sexual appellant’s appellant who said that had been eventual- party. Boyd it at a talked about daugh- her and their seven-month-old with brother, Derrick, about ly Ferguson’s told watching Sunday night TV on that ter —a and upset Derrick was de- the incident. “family day” at their home—when the Fer- appellant. Derrick cided to look for shooting place. prosecutor took The standing out- guson appellant soon found sought Ms. cross-examined Shelton and Street and confronted side on Newcomb biased, her as because she had impeach him, Boyd. by his and accompanied sister prosecutor refused to tell the in the first fighting. started appellant Derrick and trial about the alibi after he had called her building, at then ran inside a Appellant information that could exonerate Ferguson began point which Derrick her husband. out of car windows
“busting [appellant’s] prosecutor argued closing The that Myra Fergu- Boyd his car.” Neither nor “revenge” wanted appellant damage appellant’s car. helped son him to “Christopher Boyd caused Woodward, who had Officer Edward publicly and humiliated.” The shamed the scene been one of the first officers on theory that appellant was January shooting, testified after “set[ting] Boyd instigator, viewed as at trial. Officer appellant on behalf of events,” into motion chain of that led th[e] Boyd interviewed Woodward had also appellant to beat and Ferguson Derrick Hospital approximately Greater Southeast public. his car in bash shooting. During 45 minutes after the II. Violation interview, Boyd did not tell the officer during appellant’s nor recognized who shot Neither before that he had seen or trial, supra, see note was defense him. could not remem- first Officer Woodward words, Boyd if he I don’t counsel informed that had failed to Boyd’s ber “exact said identify I ... as the shooter when he appellant or I didn’t see or all’s saw was know at the questioned hospital, me from a from a dark- was someone shoot at brought up had colored car.” Officer Woodward also Officer Woodward Boyd had with several [appel- asked “if he had a beef with “beef’ Indeed, According months earlier. this information earlier in the summer.”11 lant] Woodward, that was not disclosed until the eve of the Boyd responded to Officer per- and that it second Assistant United States dispute there had been a (“AUSA”) Dixon, Attorney who sexual advance on Wanda tained to “an unwanted through have obtained such information con- It unclear how Officer Woodward knew fight Ferguson developed through Metropolitan between Derrick about the Po- tacts argument, appellant. At oral community policing. Department's lice might represented the court that the officer (Ex Kline, parte Andrew bench conference with the replaced AUSA Dixon, attorney, Government Ms. which prosecutor represented who United indiscernible.)[13] the first trial. Defense during States court.) the trial court of the counsel informed (Open disclosure, that it argued was Bra- late get The Court: I said I don’t When violation,12 requested dy thing, what I meant giv- was [that] Upon being apprised be dismissed. case en the obligations under situation, provided the trial court Brady Maryland, I don’t see how a “a chance ... parties with to find out prosecutor who states witness [possible]” about “where this as much says I don’t know who shot me or I from, information when it came to [came] didn’t see who shot me or all I saw was Office, Attorney’s why States car, a dark going who’s later to come disclosed earlier.” wasn’t say into court and Amell Shelton shot me, it, him, I saw not turn saw should following day, judge ques- the trial that over because the doesn’t the prosecutor: tioned *5 think it’s true. I The Court: But still don’t understand Yes, Honor, Prosecutor: Your I’m why get did not [defense counsel] [this saying not my position that’s at all. before we went to trial information] mean, Well, The Court: I I don’t see time. first any prosecutor how po- could take that Honor, Prosecutor: Your it was [the ... any sition. I don’t see how prosecutor’s] position former anywhere tor state in the coun- exculpatory. information was not try, say could I don’t have to turn you The Do explain Court: want to his that over I why because think I know he (indiscernible)? rationale said that. The Court: wouldn’t have taken me [I]t My Prosecutor: understanding is that figure seconds to out that that’s five prosecutor’s] position former [the was something that the was entitled defense thought based on the that there awas to know. reason for the witness to in that respond added.) (Emphasis
way.
being
The reason
that the witness
pain.
was in
He
just
had
been taken to
The trial
judge
“strongly
disin-
(and
hospital.
He was on a gurney,
grant
eventually
staff
clined” to
rejected)
him,
Honor,
attending to
etc. Your
the motion to dismiss the
a “puni-
case as
may
if I
also approach the bench ex tive sanction for the failure to turn over”
parte,
statement,
I have
I
something
Boyd’s exculpatory
else
can tell
but offered
the Court.
to continue
trial
date if defense counsel
Brady Maryland,
parte
373 U.S.
13. The
ex
bench conference between the
Brady,
when Officer Woodward vagueness redirect, the substance of government stressed at the Officer Woodward sure of the when was ward and told myself Prosecutor: Defense Counsel: When Defense Counsel: made: Court: Who’s hospital, defense counsel tried of what the officer the first time my investigator Objection. us what in cross-examination Boyd’s statements about the late disclo- the us and— Officer you interviewed him statement ambiguities knew? you you spoke to recalled. On Woodward, what came for [14] *6 you (Emphasis want The Court: No. The Court: Correct. it and ment Defense Counsel: there’s no other sanction The much time as Defense Counsel: get for Defense (Close Court: never told us until two you bench [late] added.) Counsel: go, said disclosure-and— conference.) Your Remedy you won’t you needed to Playing were So the court’s Honor, Well, where I did hear for that was as ready, you’re going to this? dirty. the Govern- prepare days ago. that’s ruling it, knew? Analysis III. Objection, Prosecutor: relevance. A. Admission Conduct objection.
The I’ll Court: sustain Well, Detective, Appellant argues I appeal Defense on Counsel: Woodward, say prevented mean it’s fair to the trial de judge improperly Officer you day, questioning to me the other correct? fense counsel from Officer spoke to the bring Woodward further order Officer Woodward: Yes. eleventh- jury’s government’s attention Objection. Prosecutor: disclosure, hour on the eve of the second minute, I will ask The Court: Wait a that when Officer Woodward you point. to come to the bench at this Boyd had hospital, interviewed (Bench conference.) not as the shooter. appellant identified going The I think I’m to cut this Court: nondisclosure, argues, appellant From this off, Rodriques, you’re going one Miss jury gov could have inferred that the you’re going. I think What are where trial) (during ernment the first was con you up to? that the exculpatory cerned evidence seri going I’m to remind Defense Counsel: ously undermined its case. This was not him about what he told us. just permissible infer reasonable ence, contends, any problem appellant powerful The I have but a Court: don’t one, commented, that, because, implication with ... but the as the trial court anybody proper. government is not there was no that the he’s never told Boyd. day trial was set to Defense counsel then interviewed Offi- 14. The before the second start, prosecutor informed defense coun- cer Woodward. sel about Officer Woodward’s interview with 222 it to We do not reverse convictions order obligation to reveal the de-
had an
gov-
first trial. That the
fense before the
punish
see
States v.
prosecutors,
United
clearly
breached its
ob-
ernment so
499, 506-7,
Hasting,
103
461 U.S.
S.Ct.
to disclose the information reflects
ligation
1974,
(1983),
remedy
States v.
507 U.S.
113 S.Ct.
in,
to come
and defense counsel had ar-
(1993)).
1770,
According
could have B. Vouching did not tell the Boyd understandable that story time. Officer Wood- whole Appellant contends trial hour Boyd less than an ward interviewed improperly permitted govern court after he had sustained several serious bul- ment to use what he characterizes as “self- Woodward, Boyd let wounds.15 To Officer vouching” govern statements about scared, kind of appeared pain, “to be good investigating ment’s faith in to going happen of what was unsure crime. The statements that appellant that he did not re- Boyd him.” testified “self-vouching” characterizes as were Officer member what he told Woodward during the posed prosecutor’s cross-exami drugged “dizzy, probably because he was Shelton, appellant’s nation of Sharia wife. drugs very ... ... wasn’t had lot of question, example, prosecu In one going what was on at the conscious of tor Shelton whether the asked Mrs. AUSA fully re- moment.” But when prosecuted who the first trial had asked surgery, after he was gained consciousness “any her if she had information that would Detective Francis that then able to tell husband; help your right?”17 isn’t that Boyd’s appellant was the shooter. Due to objected Defense counsel physical mental state at the vulnerable eliciting hearsay. as The trial court disa him, time Officer Woodward interviewed greed, saying definitely not be “[fit’s jury appears simply to have dismissed asserted, ing admitted for truth it’s relatively initial failure unimportant his coming ... in ... bias.” Defense Durham, show Moreover, identify appellant. counsel then asked for “an instruction that neighbor- who knew being come in as the truth.” significantly impeached, hood and was not this is *8 fact, Boyd prosecutor] [the testified that he "couldn't move Prosecutor: first [his] arm,” “lung collapsed, you thing wanted he] and that his told that the last he to [and get wrong person jail; had to a transfusion.” He later blood do was to have the hospital that he "had nerve right? learned at the isn’t that damage” because bullet bounced "[t]he [had] Shelton: He told me that but I Mrs. didn't spine....” him, off [his] especially believe and don’t believe him since I out that it now found my the extent we take into account that 16. To information that he withheld from hung jury in we lawyer there was a the first have husband’s that could dis- Boyd’s brought doubt about cannot attribute it to him and had him back missed shooter, appellant the as years ago, identification of as home almost two like 15 jury did not ago. was not informed months identify appellant the shooter when he was you Prosecutor: Did — n hospital. interviewed at the first gentlemen, The Court: Ladies and disre- answer, gard respon- that last it wasn’t point asked: sive. 17. At another request, saying the defense should be able to The trial court denied introduce anything yet.” if it’s true it in upon “I haven’t heard evidence and comment clos- ing. the state- Appellant’s argument in- in the cross-examination implicit
ments “self-vouching” is made
terrogation were
I.
appeal.
time on
therefore
for the first
We
explained,
As Shelton I
the foundation
plain
claim for
error. We hold
review this
evidentiary
for the
relevance of an infer-
trial
did not have an obli-
of
ence
“weakness of the case” flows from
prosecutor’s questions
gation to strike
closely analogous premise
accept
we
give limiting
to
instruction
sponte,
sua
or
question:
party
without
when a
has evi-
restricting
jury,
their use
as the
dence that is relevant to the matter before
sought
questions merely
establish
not
present
factfinder
does
at
previously
the witness had
de-
bias—that
trial
destroys
keep
or
it so as to
it from
relay allegedly exculpatory
infor-
clined
factfinder,
opponent
there is a
even when
government,
mation to the
she
reasonable inference that
the evidence
so.
was invited
do
recognize
would undermine its case. We
reasons,
foregoing
af
For
we
apply
this inference in civil trials
firm appellant’s
agree
convictions. We
government
private
as well as
(and
government
with
con
litigants.
apply
See id. at 370.
it in
We
cedes) that because the two convictions of
criminal
missing
trials
the form of
evi-
firearm
possession
during
of a
a crime of
missing
dence and
witness instructions.
the “single
violence arose from
violent act”
applied
See id. Other courts have
shooting Boyd,
one count must
vacat
reasoning
same
in permitting an inference
States,
ed. See Nixon v. United
730 A.2d
adverse to the
in criminal tri-
(D.C.1999),
cert. denied 528 U.S.
specifically
respect
suppres-
als
with
120 S.Ct.
225 an a matter of sanction for a violation validity the of recognized has Court government the request inference rather than understood as a adverse “slovenly” police Kyles work. arising from government’s evidence of the introduce n. 115 446 Whitley, 514 U.S. independent nondisclosure because of its (1995) (noting 131 L.Ed.2d evidentiary Addressing relevance. that will en- police work that “conscientious misconception lay analytical at the core of slovenly force and work probative hance By deleting analysis I. from Shelton it”). A similar inference is will diminish opinion, addressing the amended without government the fails to permissible when government’s peti- in the arguments exculpatory evidence that was disclose rehearing, tion for the court leaves required prosecutor to disclose: in I believe legal issue doubt. Because evidence would weak- thought the withheld relevant explanation that a clear Therefore, a case. en the by court legal principles appellate is application of well-estab- straightforward appropriate and would be useful to the that evidence principles dictates lished bar, analysis bench and I include the from intentionally withheld I as an to this concur- Appendix Shelton generally evidence is relevant. See In I following respond rence. sections Jones, A Doubt: The Cynthia E. Reason to in the for re- arguments petition Evidence and the Suppression of Inference hearing. Criminology Innocence, L. & 100 J.Crim. of II. clear, I continue to believe that To be should not be re- Shelton’s convictions whether, recap, To the issue as a is versed, in expressed for the reasons Shel- law, a inference can matter reasonable I, incorporates the division in ton which be drawn from the withhold- in I therefore opinion. full the amended gov- ing evidence that the judgment in the court’s to affirm. concur thought ernment the evidence weakened reason, view, my shy away That is no case, For that to be the its case. deciding principal legal question cannot be government’s failure to disclose ap- an presented appeal. Although in the merely negligent; purposeful accidental or question pellate court need not decide of a known obli- withholding the face dispose appeal, it can otherwise I, gation required. to disclose is Shelton may appropriate court do so an case. (noting A.2d at 372 & n. 19 that non- appropriate is when is it and that “knowing” disclosure must be exercise that discretion. I believe this is suffice). will not negligent nondisclosure question presented such a case. The petition rehearing, govern- its purely previ- one of law. That it has not inference, argues ment that to support ously by addressed this court is no been must have been in “bad nondisclosure reason to abstain where resolution of faith,” supported but that assertion is not legal easily issue flows from established the cases and the does not principles yet appears of relevance and faith for define what would constitute bad At the issue to be well understood. purpose.2 the court as this erroneously construed However, not to communicate it.” 2. The takes issue with Shelton I's decided understanding “knowing,” argues of the word is not the common use *10 'knowingly' “knowing” important obligations and prosecutor in the when "acted sense rights consequences See he aware of the information and with are stake. was surely investigation faith suffice to internal and administrative Although bad will an adverse inference permit violating government policy sanction for necessary permit it is not to government, discipline for ethical violations. In in- the consciousness-of-weakness-of-ease short, importance of the light argue wished to in this ference the defense exculpatory obligation disclose faith is at one extreme end of a case. Bad consequences and the serious that can fol- continuum that describes misconduct. It obligation, it low from breach of that is a indisputable prosecu- that the closer reasonably prosecutor a inferrable that faith, stronger action is to bad tor’s intentionally exculpatory who withholds power- had a prosecutor inference that the without reason evidence does not do so exculpatory ful motive to evi- withhold but, rather, likely to im- does so order prosecutor’s nondisclo- dence. Whether prove prosecu- the chances for successful faith, however, as bad sure is characterized tion. significant prosecu- fact is whether the rehearing that even petition asserts evi- purposely exculpatory tor withheld if a “consciousness of weakness of the dence he knew should be disclosed to the legally permissible, case” inference were defense because that is what forms the particular the facts of this case did not evidentiary basis which the factfinder warrant such an inference because the tri- prosecutor can draw an inference that the al court finding made no individualized thought case would (the prosecutor that the in the first trial if the weakened evidence were dis- one who did not the exculpatory disclose context, particularly closed.3 In this it is evidence) or, intentionally had acted as the significant prosecutor knew that it, government would have faith. bad obligation he an exculpato- to disclose hollow, argument That rings ry evidence because it adds to inten- had been the alternative and, tionality of the nondisclosure conse- division, position before the it would have quently, to the force inference that requested remand of the record so that must have had a reason necessary the court could make the find- related to the prosecution failing to Moreover, ings. It did not. the record disclose. The inference strong is a one any before the court support does not because so much is at stake: failure to fact-finding further required was or that exculpatory delay disclose evidence could misinterpreted import Shelton I result in a mistrial imperil any appeal. conviction on At a trial court’s statements. The trial personal level, a prosecutor would be an risking could not have been more adamant in re- (9th ed.2009) nondisclosure, personal Dictionary tor’s such as animus Black’s Law ("knowing, adj., Having showing counsel, 1. or aware- against opposing misplaced aor (a understanding; ness or well-informed prosecutorial competitive- sense of zeal and counsel) knowing right waiver of the ness, light that sheds less Deliberate; (a knowing attempt conscious govern- consciousness the weakness of the fraud).”). event, any commit lest there be ment's case. Where there are alternative rea- any misunderstanding, Shelton I’s use of inferences, sonable it is for the factfinder to "knowing” pros- connotes the notion that the decide which one believe. The trial court ecutor knew he had evidence he discretion, however, retains to evaluate supposed to disclose and chose not to do equally whether the existence of a number of so. plausible inferences makes one of them so significant probative weak as to lack value. argued might It could be that bad faith indicate a different reason for the
227
Brady’s
requirement
aware of
well-known
explanation
jeeting
(some
parte
exculpatory
bench
evidence.
proffered
in an ex
to disclose
See
of
—
conference)
Bell,
U.S. -,
1769,
in the first
prosecutor
that the
129
Cone v.
S.Ct.
(2009)
mistakenly—
honestly
1783,
(noting
trial
had
The thrust of the for disclosure will have been made the deny logic is not to the of the weakness- prosecution same team presents of-the-case inference where warranted jury; case to the might or the disclosure facts, argue but to that it should not all, not be made at as when the defense government. be drawn against But becomes aware from some other source why special should there be a rule it when government that the exculpatory has evi- the government is that hides the ball? dence.
Analogizing
government
to an individ-
defendant,
ual
petition
rehearing
for
III.
that,
argues
even if a
intention-
objection
The final
petition
ally
government’s
violates the
disclosure
rehearing is that Shelton I trenched on the
obligation, and a consciousness-of-the-
trial court’s prerogative
weigh
the evi-
weakness-of-the-case inference would be
probative
dence’s
against potential
value
respect
reasonable with
to that prosecutor,
prejudice. Specifically,
argument
is
it is not fair
prosecutor’s
to ascribe the
that in concluding that the trial court com-
misfeasance to the
and draw
“legal
mitted
error” in precluding defense
an
against
government’s
inference
counsel from introducing evidence of the
According
petition,
case.
prose-
intentional nondisclosure
cutor
“merely
lawyer
party,
is
for a
evidence,
the court “effec-
any inferences to be drawn from a law-
tively
judge]
concluded]
[the trial
yer’s actions
a party’s
about
state of mind
obliged as a matter of law to find the
are
more attenuated.” The
evidence relevant
substantially
and not
argument
unsupported
is
by case authori-
prejudicial
more
than
ty,
probative.” But
regularly impute
and courts
parties
Shelton I
thing
did no such
consequences of their
because the
lawyers’ actions.
Moreover,
trial court
did not exclude the
analogy to an individual
inapposite
weighing
probative
based on
its
because the
is not
value
a person
and it can
only through
potential prejudice.
act
The trial
agents.
In the realm
court
engage
of the affirmative
did not
in that discretionary
obligation
preserve
exercise because it
apprehend
disclose excul-
did not
patory
defense,
evidence to the
the re-
relevance of the evidence that the defense
sponsibility
introduce,
to discharge
asked to
permitted
consid-
APPENDIX
the lens of a
ering
only through
It is well established
sanction.
(Because Judge Ruiz dissents from the
*13
the
because
failure to exercise discretion
opinion
to amend the
and adheres
decision
that
it has to
recognize
not
court does
full,
original opinion
to the
the section of
call,
an
discretionary
a
is itself
abuse
make
that
Shelton I
has been deleted
the
States,
of discretion.
Johnson
United
opinion
amended
is
here as
incorporated
(D.C.1979).
It
the
A.2d
concurrence.)
appendix
an
to her
to
and deal
apprehend
trial court’s failure
States,
Skelton v.
983 A.2d
evidentiary
point
with that fundamental
(D.C.2009)
368-72
“legal
error” in
relevance
constituted
handling
request
the court’s
of the defense
A.
Admission
Conduct
government
the
present
to
evidence that
exculpatory evi-
intentionally withheld
Appellant argues
appeal
on
that the trial
and,
nondisclosure,
dence,
on that
based
judge improperly prevented defense coun-
jury to
an inference adverse
urge the
draw
questioning
sel from
Officer Woodward
to the
case.
bring
jury’s
in order to
to the
further
attention the
eleventh-hour
reasons,
I dissent
foregoing
For
disclosure,
on the eve of the second
for
grant
petition
from the decision to
that when Officer
first inter-
Woodward
and amend Shelton I. I file this
rehearing
hospital, Boyd
viewed
at the
had not
in a
purpose
concurrence with the
identified
as the shooter. From
future trial where the defense makes a
nondisclosure, appellant argues,
this
request,
recognized
similar
it will be
as an
jury
govern-
could have inferred that the
the exercise of
requires
issue that
discre-
trial)
ment (during the first
was concerned
principles
tion
the basis of
of the law of
on
seriously
that the
evidence
un-
evidence, not
sanction. That dis-
Brady
just
dermined its case. This was not
a
deciding
cretion entails
whether the facts
inference,
permissible
ap-
reasonable and
would warrant
the inference the defense
contends,
one,
pellant
powerful
but a
be-
argue
jury,
and
seeks to
whether
commented,
cause,
the trial court
there
value
the inference
probative
is sub-
was no
that the
stantially outweighed by
potential
for
presenting
obligation
the relevant evi- an
to reveal it to the defense
prejudice
given
govern-
in a
case.5
before the first trial. That the
dence
note,
petition
rehearing
they "substantially outweigh”
probative
On a final
for
points
particular
if
in a
case.
to "ramifications” that could result
force of the inference
considerations, however,
permitted
present
These
not invali-
the defense is
to
do
inference,
government purposely
withheld ex-
date
the weakness-of-the-case
may reasonably
culpatory evidence from the defense. But
where one
be drawn from the
evidence,
beyond
they
none of these ramifications is
nor are
to be invoked as
Rather,
scope
authority
ability
mantra
relevant
of the trial court’s
to exclude
evidence.
carefully
light
manage.
prejudice
they are
to consider and
The
to be
assessed
properly
potential
right
present
could
be considered is the
defendant’s
to
a defense. Court-
confusion,
unnecessary delay
guidelines
prejudice
tailored
to minimize
is
for
trial-within-a-trial,
outright
complication
preferable
probative
of a
and the
exclusion of
potential
prejudice
gov-
possibility
in the trial will
evidence. The
testily
eyes
jury,
howev-
upon
called
about the reason for
ernment’s case
er,
evidence,
prejudice;
precisely
disclosing exculpatory
possibly
is not undue
evidentiary
necessitating
change
government's
point
permitted
that the defense is
in the
Kyles,
make.
ernment’s
based on
sel would
argued
defense
have
that because the
counsel let the trial court know
(albeit
government
correctly
in a
the court
not-
way)
short-hand
that the evi-
—as
clearly
obligation
dence was relevant
ed—so
breached its
tor’s failure
exculpatory
to disclose
disclose
evidence until the eve
evi-
government
dence showed that the
knew
second
it must have been
against appellant
its case
exposi-
was weak. because it was conscious that a full
inference, however,
That proposed
tion to the
would reveal that its case
fully
never
explained
against
to the trial judge.
appellant was weak and needed to
Nor did defense counsel correct the
protected
vigorous
record
be
from a
defense
when the trial judge
Boyd’s
commented
on
that'there
based
initial statement
to Offi-
would be “no other sanction” for what the
cer
hospital
Woodward at the
when he
judge perceived to be a clear
identify
person
case where
could not
who shot
Brady
disclosure,
required
when there had
him.6 Appellant argues that the basis for
clear,
6. To
appellant’s argument
is not that
have been allowed
should
sanction
argument
admission
government,
of the evidence and
but as substantive
“dirty”
it has resorted to
tactics
already recognized
tion when
proposition
this
by withholding exculpatory evidence it was
the law.
Indeed,
in the civil
required
disclose.
419, 115
Whitley,
v.
514 U.S.
Kyles
In
context,
accepted
argument.
we have
(1995),
though
destroy testimony.
praesu-
his cause.
or
Omnia
constituting
alleged facts
spoliatorem.8
muntur contra
Wigmore, Evidence
II J.
(quoting
Id.
would then have had
enough
reason
for
(Chadbourn ed.1979)).
§
at 133
concluding
that the
con
opinions
to several
Appellant cites
appel
scious that his case
we
persua-
which
deem
jurisdictions,
other
lacking
they
lants was
merit and that
Remington,
States v.
sive.
United
unjustly
were innocent men
accused.
(2d Cir.1951),
instance,
for
F.2d 246
Graham,
States v.
102 F.2d
“[ejvidence
of efforts to
court held
(2d Cir.1939).
testimony
or evidence in
suppress
Similarly, in
v. Boyd,
United States
spoliation
form like the
of documents is
Seventh
held
Circuit
that:
of the weakness of the
affirmative defense
gravity
prosecutors’
[t]he
miscon-
prosecution’s case.” Id. at 251.7 Two ear-
... may support
duct
... an inference
ly
predating
Remington opinion,
cases
prosecutors
resorted to improp-
from Massachusetts and another from
one
er
they
justifiably
tactics because
were
Appeals
the Court of
Second Cir-
fearful that without such
tactics
de-
cuit,
attorney
held that “if the district
might
acquitted.
If the
unfairly suppress
should
evidence he
fendants
prosecutors did not think their
air-
case
subject
thereby
would
the case of the com-
*16
(and
tight
they
so
tried to bolster it
monwealth to the same adverse inferences
improperly),
is
this
some indication that
by
as would result from similar conduct
it
airtight.
was indeed not
any
party
other
to a cause.” Common-
(7th Cir.1995)
239,
55 F.3d
241-12
152,
(empha-
Enwright,
wealth v.
259 Mass.
156
added) (citations omitted).9
sis
65,
N.E.
67
The Second Circuit
more emphatic:
was even
The Tennessee Court of
Ap-
Criminal
If the
have
persuaded
could
been
to peals has stated:
government’s represen
believe that the
On the
alleged spoliation
issue of the
in charge
prosecution
tatives
of the
had
scene,
diagram
State’s
previously
appellants
tried to convict
record shows that sometime after one of
McKay by
Graham and
in part
means
at
eyewitnesses
begun testifying
had
at
testimony
least of the
of Moore which
case,
the original trial of this
a mistrial
fabricated,
they knew was
they,
which
was ordered on the defendant’s motion.
indeed, had
in fabricating,
aided
and
retrial,
preparation
In
for the
prose-
trying
were still
to do so even after
cutor erased certain
put
marks
on the
recanted,
Moore had
the basis would
diagram by
eyewitness
indicating
have been laid for the same presumption
people
the location of various
who were
inside the
at
arises
house
the time. The defen-
Remington,
distinguished
7.
Boyd,
the court
prosecution
knowingly
be-
9.In
had
probative
tween the
value to the defense of
perjured testimony
used
and failed to disclose
evidence,
suppress
efforts to
and
disci-
unlawful,
scandalous,
the "stream of
indeed
plinary
might
sanction that
result from the
Attorney’s
favors from the staff at the U.S.
Remington,
misconduct.
Williams S.W.2d added) (Tenn.Crim.App.1976) (emphasis WASHINGTON, Before: Chief (citation omitted). * ** RUIZ, GLICKMAN, Judge; analysis are in the persuaded We FISHER, BLACKBURNE-RIGSBY, conclude that cases we have discussed and THOMPSON, OBERLY, Associate argue defense counsel had basis law to *** REID, Judges; Judge Associate ex- nondisclosure of * * Retired; KING, SCHWELB and culpatory information was akin to an ad- Judges. Senior conduct that mission (and was conscious that its case was weak ORDER weak) and that appellant
that was fact allowed to present should have been PER CURIAM evidence. reasonableness appellee’s petition On consideration of strength necessarily of the inference de- banc, rehearing rehearing or en pend gravity on the extent or of the mis- *17 thereto, it opposition is have, we see conduct. On record we with the trial court’s disagree no reason * by ORDERED merits division that the evidence have assessment should petition rehearing granted, is disclosed, been as the the opinion (reported of the court at 983 A.2d recognized. second trial See note su- 363) vacated, opinion, is and the amended stated, As the trial pra. court is difficult which omits the discussion of “admission any prosecutor anywhere to “see how conduct”, appended and which is to this country,” state in the could think oth- order, majority A is substituted therefor. Thus, preclude erwise. the defense of the division concludes as follows: presenting govern- evidence of the proof Whether ment’s deliberate nondisclosure to the appellant’s violation at trial legal error. should have been received evidence as conduct”, i.e.,
an “admission as evidence consciousness its weak, case was difficult * *** Judge Judge Judge Ruiz dissents and adheres to Reid was an Associate Associate original opinion of the court. She has argument. Her court at time of status opinion. filed a concurrence to the amended Retired, changed Judge, April on Associate **Judge Fisher is recused from this case.