Smith v. United States

traditionally upon person by the trial court’s broad discretion and summons “be served delivering copy personally”); to him sentencing, in matters of see note § (requiring disciplin- in D.C.Code 11-2503 given to wide latitude should be the trial ary proceedings charges that the service of determining court in whether the in murder upon personal- “shall be served the member question statutory provision. falls within this ly.”). The use section 22-2404 of the term Indeed, that, argue Rider does not even if “notify” rather than “serve” further indicates given reading expansive the statute is more that the section was not intended to establish advocates, par- than the narrow view he this procedures encompass such formal as to ticular murder could not be characterized as requirement personal It unusual service. totality “EHAC.” Given the of the circum- legislature would be odd indeed for the stances of this offense as set forth above impose requirement such a when ethical detail, upsetting some we see no basis for place significant rules limitations on direct finding. trial court’s prosecutor repre- contacts and a between

sented defendant. See D.C. Rules of Profes- 4.2 sional Conduct and comment 8. C. We remand this case to the trial court with Appellant contends that he was not second-degree directions to vacate the mur- properly put on notice that the 1, supra. der conviction. See note In all seeking be sentence of life without respects, the convictions are 22-2404(a) parole. pro Section prosecution notify vides that “[t]he shall Affirmed. writing days defendant in prior least 30 trial that it intends to seek a sentence of life

imprisonment parole provided without as

§ 22-2404.1.” Such notice was filed with the Superior Court and mailed as well as faxed January to defendant’s counsel on 1994.18 Appellant claims this was insufficient argues requires personal that the statute upon

service the defendant. SMITH, Appellant, Darius is, course, It the standard rule both litigation and criminal civil once counsel STATES, Appellee. UNITED brought has been into the service is to party'but upon be made not rather No. 94-CF-569. party’s attorney, agent as the Appeals. District Columbia Court party.19 to think that We see reason Council, statute, enacting this intended Argued 1995. Oct. procedure that a different be followed for Decided Dec. particular phase litigation proceed- of a ing. legislature Where the intends that liti-

gation-related personally, it service made See, provide. e.g.,

knows how to so D.C.Code (requiring § an arrest warrant' notice, Honor, Ill.App.3d 165 Ill.Dec. 584 N.E.2d "I’m aware of that Your and I’ve Dist.1991). (1 my discussed client.” it with Russell, Stephen 18. The notice was served on 49(b); Super. Super. CtCrim. Ct. Civ. R. R. Esq., appellant’s who withdrew as counsel on 5(b). provisions by apply only their terms These April replaced day by next and was to service the rules themselves or Threatt, Esq. Appellant’s Glennon new counsel court order. acknowledged during colloquy before trial that (D.C.Code §§

armed 22-2401 and -3202 (1996)), possession pistol during of a a crime (D.C.Code dangerous of violence or offense 22-3204(b) (1996)), § carrying pistol (D.C.Code 22-3204(a) § without license (1996)). trial, Following Smith was acquitted degree charge, of the first murder but found of the lesser offense of degree second murder while armed and both weapons argues offenses. He that the trial in instructing erred in a man- ner which shifted the burden of and provided meaningful guidance ap- plication of the standard of reasonable doubt. He also contends that the trial court in permitting govern- erred ment to introduce into evidence the agreements of two of its witnesses because allowing the documents had the effect of to vouch for and bolster the credibility of these witnesses. We hold that whole, the court’s taken as a correctly conveyed burden under the reasonable doubt standard and did not shift or lessen that burden of also We conclude the admission plea agreement, including require- testify truthfully, ments for the witness to was not error.

I. The Crime

Quillen Long testified that he was a close Greenlee, victim, Hardy, Richard friend of the Public Defender Ser- Dontilous who vice, was shot and with whom and killed on November James Klein David Reiser, passenger burgundy in a Service, Maxima Public Defender were on the Hardy passenger in while was a the Honda brief, appellant. Long driving. According Long, Shaltis, Leanne Assistant United States Hardy visiting Hardy’s girl- he and had been Holder, Jr., Attorney, with whom Erie H. friend, Ray, Valawnda at her home before Fisher, Attorney, R. John shooting. they He testified that as drove McLeese, III, Roy W. and Ronald L. Wa- away Ray’s stopped from Ms. house and for a lutes, Attorneys, Assistant United States sign street, stop at the end of the he noticed brief, appellee. were men, standing two black one outside of a

burgundy Maxima who stared “real hard” vehicle, Long’s into and the other seated in WAGNER, C.J., Before and SCHWELB Shortly the driver’s seat of the car. thereaf- FARRELL, Judges. Associate ter, Long driving that same ear be- noticed driving hind his vehicle. After two more WAGNER, Judge: Chief blocks, pulled right the Maxima into the lane Smith, Appellant, car, Long’s passenger Darius was indicted for next to and the premeditated degree gun Long’s first murder while Maxima fired shots into vehicle. shot, direction. Smith Hardy but and drove off the same

Long being to avoid ducked driving Spriggs Long he saw Lamont Hardy’s request, drove stated that was hit. At high speed” “at a about five the Maxima Long him viewed two different line- home. later, not in the car. identify ten minutes but Leo was ups, either of but he unable again visit night. Leo came over to him the men were the Maxima that who Spriggs’ later. testified that both father Spriggs Leo testified that he been him that afternoon. his sons had with According had been “best friends.” home He that Lamont had remained at said Spriggs, and Smith were outside Smith’s he watching game, while Leo with him football house, neighborhood inwas the same went somewhere Smith. home, passen- Ray’s as Ms. when he saw car, girlfriend, recognized Ray, tes- ger in he as Valawnda the victim’s a white whom Hardy her on the boyfriend, “staring tified that had visited Ray’s give Ms. them said, you get death. She testified glare.” “Do want to afternoon before his Smith victim, driving telephoned in the Spriggs Spriggs him?” followed the that Leo had her passenger impression he past his Maxima with Smith seat. that she had the and up According Spriggs, pulled romantically to as he next to in her. interested car, got into the white Smith back seat Error II. Claim Instructional and back fired two shots from the window past Spriggs attempting pull while to They The Trial Instruction

white car. A. Court’s returned Smith’s house washing resumed his where Smith own car. argues ground Smith reversal that, Allison, objection, gave the trial court Michael who had known Smith for over his years, Spriggs a few doubt which diminish- testified that he knew instruction and “hung proof and Smith to be and had out” ed burden friends of convinc- before. that on to the defense the burden them Allison testified shifted day ing of a of his shooting, Spriggs he saw driving Spriggs’ a rea- burgundy He that there is Maxima. innocence. contends Smith, in the understood passenger who was seat of the sonable likelihood Maxima, could nodded to and the in the mean that conviction Allison others instructions alley sped by. car A less a reason- as the few seconds be based on than later, government gun- few minutes Allison able doubt. The contends heard adequately de- shots. He testified that he was sure had the trial court’s instruction he did Spriggs seen and Smith in the car from fined reasonable doubt and not shift which the shots were fired. trial, preference expressed At his

Smith on his behalf de- Smith testified own rea- shooting. According nied Redbook instruction on involvement the standard objection, Smith, washing ear doubt. Over Smith’s he was his when Leo sonable brother, jury on reasonable Spriggs Spriggs, Lamont Leo’s trial court instructed the using portions of the FEDERAL JU- up burgundy drove in the Maxima and doubt CENTER, stopped PATTERN CRIMINAL According to talk with him. to DICIAL (1988 ed.) (Feder- INSTRUCTIONS, Smith, by, Honda drove JURY when white instruction).1 pattern The court’s instruc- Spriggs al jumped into Maxima brothers DIS- government argues FOR THE 1. The that Smith's instruc- NAL JURY INSTRUCTIONS (4th 1993) (Red- ed. subject OF COLUMBIA challenge TRICT book). tional error review use the court stated that did not object After did not to the instruction on because he the standard Redbook impropriety basis of the of the definition of following objection tran- as the counsel stated Although objected excerpts script show. portion proposed most to a the instruction this, court, clearly objected any object deviation do Your Honor. he Counsel: I 2.09, thought your you would. I no. Court: Make record. from standard CRIMI- tion on printed evidence, in the eration of all you leaves so margin you opinion.2 firmly of this undecided that are not convinced (3) guilt; of the defendant’s “a doubt as out, points As Smith omitted from the would person cause a reasonable to hesitate jury, court’s instruction to the are the follow- pause graver important or more ing concepts familiar appear (4) life”; transactions not a whimsical defining standard Redbook instruction rea- (5) conjecture; doubt or one based (1) sonable doubt: a doubt based on reason not one which reaches “mathematical or sci- you reason; give and for which can certainty.”3 entific In addition to these which, omissions, after careful and candid consid- Smith contends that the instruc- 2. The instruction Loriano, follows: sumed to be innocent. your objection ment for court erred in doubt, tion for new trial on the the Redbook Instruction and I think—I do think (1993). reinstruction agree his Ct.Crim. R. 30. The trial court The trial court discerned from all that as it stated to defense counsel when it considered Court: I’m Court: All Counsel: I withdraw After the luncheon between the court and defense counsel about the Counsel: Court: Yes. I think it's Court: Yes. Counsel: Rather than the traditional? Counsel: I take it the court is Federal Counsel: I Every instruction] over to be eliminated. Faced with the But I am read and not— now. proposed whole I I ject requires that he is not other hand portion objection objection, instructions, preference object with the trial court that Smith guilty. and the most give pattern In that objection ^[*] prefer right. of this I them to going the Federal prefer going firmly understand] during and U.S.App.D.C. you instructing defense counsel error review. See United States v. government argued ^[*] that it be instruction. there was the guilty,” preserved." And so—(cid:127) proposed reject think there is a real given by the standard prospect find a real objection. to is the last give in a criminal case is recess, original deliberations, my request give ^[*] I’d ask the whole proper over This all of it. untimely I don't believe the law that [the ground given instruction and as a instruction that I ob- in further objection? ^[*] that the trial court 158, government’s argu- as well. the court read as presumption and I understand that. Smith filed a mo- following going simply expressed Court’s decision instruction. The instruction over for the last line disagreed. line, in its legal_ 996 F.2d 424 ^[*] on reasonable under that the trial “You wanted pattern jury to read the transpired, opposition discussing preserved "if on the possibility entirety. thing colloquy ^[*] Super. of in- pre- he’s We 3. The standard Redbook bodies these vinced that the defendant is know with absolute that he’s not consideration of the evidence comes be more the defendant's charged, you of the doubt and find him not cases the law does not yond a reasonable doubt. Proof doubt is told that it is with which the defendant is served as is more the burden of you element of the offense duty doubt, you prove The burden of yond a reasonable doubt trial. The law does not nocence remains with the defendant the trial unless and until he's jecture. in life. cause a he or she has an be so undecided that he or she cannot a cause a can impartial consideration of all the defendant's doubt based on There are In criminal cases the As I have said If The burden is on the whimsical Reasonable find the you to find him a reasonable doubt. Some of a reasonable doubt. give hand, you his innocence or to every possible likely proof powerful graver find the jurors a reason. juror, It is a doubt based on reason. The guilty beyond very must points, guilty, you government true than not true. guilt. only necessary must that leaves is not doubt, proving guilt. doubt, or more many few think there's a real in civil cases where after careful and candid and reason, than that. find the guilty. reads: it is not a fanciful find every It is such a doubt as would certainty. things person It is such a doubt as would nor never abiding doubt. times, as the name must government's proof the defendant require proof require him you firmly important has failed to a a doubt for which element of the offense beyond On the other produce any defendant a reasonable doubt. doubt based on con- in this world that we shifts beyond give guilty. I[t] you guilty charged, guilty. conviction of the If based on to establish hesitate or proven guilly prove And in criminal the defendant to must be him the benefit are throughout proven beyond you may a reasonable of the crime a reasonable convinced of transactions implies, evidence, firmly which em- doubt, throughout not that a fact possibility If, that over- prove any guilty you it is prove evidence. say hand, beyond pause guilty. guilt must were have your your con- you is a nor be- be- if Chap ing under distinguish tion failed to rea- the harmless error review man, 4, 386 24, supra standard of note U.S. at 87 S.Ct. at sonable from lower convincing” “clear and that the present evidence where the has not 828 is not language im- of innocence” proof reached verdict based Sullivan, properly shifted the burden of at 508 U.S. 279- defendant. 81, at 2082. The focus under 113 S.Ct. Chapman analysis guilty ver is “whether Requirements Instructional

B. actually dict sure [the] rendered Sullivan, ly unattributable to the error.” trial, proof beyond criminal reason 2081. Where 113 S.Ct. at U.S. requirement process. is a able doubt of due has reached a verdict Nebraska, 1, 5, 114 Victor v. S.Ct. standard, upon the based (1994); Cage v. 127 L.Ed.2d 583 has been no within the “there verdict Louisiana, 111 S.Ct. U.S. meaning of the Amendment” Sixth (1990) (citing Winship, re L.Ed.2d 339 analysis. apply harmless error 1068, 1072-73, U.S. 90 S.Ct. (other omitted). (1970)) citation L.Ed.2d States This court the United subject While most constitutional errors are Appeals Court of for the District Columbia analysis, Supreme to a harmless error approved Circuit have the instruction on rea Court has made clear that an instruction doubt contained in the Redbook sonable constitutionally which is deficient describ provides for the a definition term. ing is not Butler, v. 334; supra, Foreman analysis amenable to harmless error will (D.C. A.2d Louisiana, require reversal. Sullivan 1993); Moore United U.S.App. 275, 278-81, 113 2078, 2081-82, 124 (1965). 203, 204, 97, At (1993) (citation omitted);4 D.C. 345 F.2d 98 see 182 L.Ed.2d also Butler v. United 331, tempts improve upon the definition all too 646 A.2d (D.C.1994). goal clarity often fail to the Supreme As the achieve Court Sullivan, See But explained premise underly- challenges.5 in in result constitutional doubt, beyond hypothesize guilty all or to a a verdict that was mathematical certain- cause certainty. ty or a scientific Its burden is to in fact matter how ines- never rendered—no guilt beyond findings capable support establish a verdict Jury guaran- might jury For The District Of be—would violate the Criminal Instructions (4th ed.1993). Columbia, No. 2.09 tee .... been no verdict Since ... there has within Sullivan, Supreme explained why Amendment, 4. Court meaning en of the Sixth constitutionally a deficient reasonable doubt in premise Chapman simply review is ab tire differently must than struction be reviewed being guilty- verdict of sent. There subject may constitutional errors which be to a question beyond-a-reasonable-doubt, analysis Chapman harmless error under v. Cali guilty-beyond-a- verdict whether same 824, 18, 24, 828, fornia, 87 386 U.S. S.Ct. 17 rendered is would have been reasonable-doubt (1967) (reversal required 705 where L.Ed.2d not meaningless_ appel utterly most an The "beyond it is shown a reasonable doubt that the is a would late court can conclude complained error of did not contribute to the. surely petitioner guilty a have found verdict.”). jury’s actual reasonable doubt—not finding guilty beyond a jury-trial guarantee, Consistent with the surely been absent the not have different reviewing question [Chapman ] instructs the enough. error. That is not constitutional is not effect the consti- consider what Sullivan, 279-80, at S.Ct. 2081- 508 U.S. at 113 might generally expected error be tutional omitted). (citations upon jury, rather have reasonable but what guilty in effect it had verdict the case Supreme words, Court has held that Constitu- inquiry, hand.... in other is at prohibit whether, require not or trial courts from tion does not in a trial that occurred without term, error, proof beyond defining a reasonable surely guilty verdict would have 5, Victor, rendered, supra, 511 U.S. at S.Ct. doubt. been but whether the verdict given, surely is actually when definition rendered in this trial was unat- so, convey properly the be as a whole must to the error. That will be- instruction tributable ler, (citing pause” language appears 646 A.2d at 336 Holland v. or in United which 137-38, 5, supra 75 S.Ct. at note 348 Redbook included a instruction and 140; Taylor, supra U.S. at note 302 possibility” formulation overstates the 1558) (cita U.S.App.D.C. at 997 F.2d at acquittal level of and im- omitted); tion United see also States Gib properly shifts the burden of With (1st Cir.) son, denied, cert. respect pause” language, to the or “hesitate 80 L.Ed.2d 557 instruction, appears in the Redbook we (1984). of impermissibly Given the risk less have held that its from the omission reason- ening confusing or of constitutionally able doubt is not instruction jury on an issue central determination deficient where the instruction otherwise ad- innocence, guilt urged, this court has equately conveys concept strongest way, the trial court not Butler, jury. doubt to the See deviate from the standard Redbook instruc 335, 337; A.2d at also see United States v. Butler, Butler, tion. 337.6 (9th Cir.1992) Velasquez, 980 F.2d this court determined (Omission language to act” of the “hesitate purposes analysis in the future we error.); necessarily not reversible shall consider trial court deviations from Barrera-Gonzales, States v. instruction, [the Redbook] over defense ob- (10th Cir.1992) (Instructions which have jection, improper indeed, presump- — “strayed from the to act’ formula ‘hesitate tively erroneous.... long upheld.”). have been as the So instruc- tion, context, reasonably likely read in not Therefore, begin analysis our this to be conviction premise case with understood to allow on less mind. In deter- mining doubt, trial court’s whether deviation than a reasonable mere- from sufficiently the standard instruction is ly omitting phrase approved Red- from reversal, prejudicial require we consider require book instruction will reversal. context, whether the viewed in Butler, Proctor, 646 A.2d at 337. But see creates ‘“a likelihood that supra (reversing note where deletion of applied challenged language was combined substitution way" violates Constitution.” Es “conviction”). of “belief” for “convinced” McGuire, 62, 72, telle v. S.Ct. Therefore, we construe instruction as a (quoting 116 L.Ed.2d sufficiency reviewing whole for the omis- Boyde 370, 380, California, v. 494 U.S. 110 sion. 1190, (1990)) 1198, L.Ed.2d 108 316 (footnote omitted). light In of these stan In trial court this case the instructed dards, We examine the claimed deficiencies in jury beyond “[p]roof the that reasonable by the instruction Smith. asserted you proof firmly doubt is that leaves con guilt.” vinced of the defendant’s The D.C.

C. Claimed Instructional Deficiencies Circuit, Circuit, agreeing Ninth with the con “ “firmly cluded that phrases ‘[t]he con Smith that the contends instructions improperly in this essentially case omitted the “hesitate vinced” and “hesitate to act” are However, 1551, (1993). concept. v. United See Holland 1558 this court has tak- 138, 127, (1954). 75 S.Ct. 99 L.Ed. 150 position en the should be instructed concept Some courts view the of reasonable meaning beyond proof of reasonable Butler, supra, doubt to be self-evident. 646 A.2d Butler, 336, doubt. 646 A.2d 337. at Holland, 470, (citing Murphy at 336 v. 776 F.2d (4th Cir.1985), grounds, 475 on other vacated 475 (D.C. 6. See 685 A.2d Proctor United 735 1138, 1787, 90 106 S.Ct. L.Ed.2d 334 1996) (reversing convictions on basis of Butler (1986)). expressed The D.C. Circuit Foreman, supra, trial court where substituted opinion may greatest “that the wisdom lie with abiding deep-seated "abiding "an belief” for the Fourth and Seventh Circuit’s Circuit's in- conviction” and the "hesitate also deleted juries struction ing the task to leave to of deliberat- pause" sentence contained the Redbook in meaning doubt.” United 349, struction). U.S.App.D.C. Taylor, States v. 997 F.2d instructing on reasonable ways of conveying the same definition erred two of 5, govern way in a lowered Taylor, supra note doubt.’” reasonable unconstitutionally proof at at 1557 ment’s U.S.App.D.C. 1278); to the defense. shifted burden (quoting Velasquez, supra, 980 at F.2d at In Barrera-Gonzales, U.S.App.D.C. at 1557. supra, F.2d see also (instruction “firmly con challenging addition possibility” at 1271 with the “real appellants contended language, vinced” of language approved language similar language possibility” the “real guilt). “real of This court has encour- doubt” impermissibly instructions Federal “firmly aged use of the convinced” lan- proof of to the defense. shifted burden pattern jury guage as used the Federal F.2d U.S.App.D.C. at at Foreman, supra, at instruction. circuit concluded that the instruc The court “firmly lan- 795.7 use of convinced” tion, whole, taken not erroneous. as a of guage apprises high level U.S.App.D.C. at 997 F.2d at 1557. proof required for a criminal conviction argument rejecting In case and not in lessen the stan- does itself of possibility” language shifted the burden Williams, 20 dard States (1) the instruc- proof, the court observed that (5th Cir.1994); Velasquez, 980 F.3d tion did not indicate which side should be the “firmly Given use of F.2d showing possibility of inno- source real here, formulation absent some convinced” cence; and of the instruc- remainder deficiency in reversal any concern that tion eliminated not warranted. perceive required that defendant argues by equating possibility of In to show a his innocence. Id. doubt with “a real indicated, Taylor, no less the District Court innocence, govern- the trial shifted times, govern- than thirteen that was He ment’s burden to the defense. prove the defen- ment which was least, that, very language at the contends guilt beyond dant’s ambiguity appears to alter creates an Further, gave no other standard the court proof by focusing upon the burden of wheth- than a reasonable doubt. possibility er the has shown a real although circuit court also noted that some innocence, gov- rather than whether the pattern jury had criticized the Federal courts guilt proving ernment has met its burden instruction, “none had found its use revers- Although doubt. a reasonable omitted). (citations ible error.” Id. court, approved language chal- Barrera-Gonzales, the Tenth lenged approved here has been several rejected argument the real Circuit circuit the Federal courts. language govern misdescribed supra U.S.App.D.C. Taylor, note “firmly where the ment's burden F.2d at Circuit D.C. was also included convinced” formulation using Likewise, that a reasonable doubt Court held 952 F.2d at the instruction. modeled Williams, rejected instruction on Federal supra, the Fifth Circuit definition, used jury like the one language instruction simi- argument that the use of case, in this is not error where pattern jury reversible instruction lar to the Federal likelihood that the “there was no reasonable was reversible error. Williams, in a jury challenged District Court applied F.3d at 131. In jury On way Id. explained that violates the Constitution.” you as “leaves drug various distri- such appeal from conviction of guilt.” Id. possession charges, appellants firmly convinced defendant’s bution and of further Taylor the trial court It instructed contended Foreman, say inability that he or approved of doubt as an of one the substitution able abiding "firmly language has conviction of defendant's she an convinced” words Foreman, n. 5. guilt. at 795 & 795 A.2d which defines reason- the Redbook instruction [i]f, your sary based on concepts being “firmly consideration of all the of convinced” evidence, you firmly guilt are convinced that a possibility” of and a “real inno- charged, cence, of the crime did rights not affect substantial you If, however, guilty. must him you find disregarded. the accused. It should be think 'possibility there is a real that he is (citation omitted). Id. guilty, you not give must him the benefit of guilty. the doubt and find him Similarly, the First Circuit has held that given use instructions like the one in this Williams, supra, 20 F.3d at 127. The court preferable, while not does not consti- charge concluded on appeal that as a Gibson, tute reversible error. See supra, adequately whole instructed the on the accord, 874; 726 F.2d at required level of Id. As to the “real McBride, (2d Cir.1986); 786 F.2d formulation, possibility” the court stated: Hunt, (5th United States v. 794 F.2d 1095 We find infirmity portion this of the Cir.1986). charge either. read in When the context persuaded Each of these courts was whole, charge as a the instruction’s whole, charge, improp-

“real read as did not possibility” explains formulation erly proof shift the burden of a reasonable doubt confuse standard jury. require “proof does not While formula- overcomes every possible words, tion has doubt.” been criticized some federal merely courts, modifier “real” language indicates that has not resulted in re- jury is acquit not to a defendant if it can versal where the instructions taken as any possibility conceive of that the defen- adequately apprised whole dant guilty. is not This is because “abso- proof bears the burden of certainty lute is unattainable in matters guilt See, beyond a e.g., relating to human affairs.” Porter, 973; McBride, supra, F.2d at supra, 786 F.2d at 51-52. at 131. In analyzing jury instructions similar to In reviewing type this claim here, the contested instructions the Fourth error, question instructional is whether “ Circuit, urged courts not to instructions, the court’s ‘as a ... whole attempt a definition of reasonable doubt ab- correctly conve[y] concept the ” request sent from the because of the Victor, jury.’ doubt to the shifting, risk of confusion or burden never (quoting 114 S.Ct. at 1243 Holland upheld theless has an instruction similar to United supra, 348 U.S. at the one ease. See States v. 138). S.Ct. at proper focus is whether Porter, (4th Cir.1987) (cit there is a reasonable likelihood that the Love, ing United States v. applied in an the instruction unconstitutional (4th Cir.1985)). The Court stated that: Victor, manner. U.S. at S.Ct. at assessment, making 1243. In among Contrary appellant’s protests, (1) factors for consideration are: whether the

instruction did not shift the burden of law; court misstated the whether question possibility. of real adequately standard Instead it allocate the failed to burden. explained; whether the instruction instructions, however, compensated Other Butler, confusing. supra, for this omission.... The instructions at 337-38. properly taken as a whole described the

prosecution’s protection burden and the Here, Therefore,

the law the trial court did not affords the accused. misstate error, adequately conveyed the which introduced the the law and it unneces- the con that, a defen- government argues where jury.8 The The cept doubt to the testifying is brings out that the witness five dant jury at least trial instructed the court gov- plea agreement a with the pursuant to govern the that burden was times ernment, permitted prosecutor is to elicit the beyond a prove ment to the defendant during its agreement the contents doubt, as well as that the defen reasonable It also of the witness. direct examination prove innocence dant was agreement provisions of the that contends Therefore, any per produce we evidence. testimony from the witness requiring truthful that misunder ceive no vouching not to amount have not been held lodged. proof was stood where the burden of credibility placed be- when witness’ provided also definition The court workable government also chal- jury. The fore the of what prejudice. claim of lenges undue Smith’s means, employing previously approved agree with “firmly language. We convinced” specifically This has not addressed have held federal circuit courts which those may introduce evi- government whether the possibility5’ of “real that the inclusion concerning its dence on direct examination formulation, re at with the least context government plea agreement with the witness’ given of here and mainder agreement may introduced or whether cases, to the that those did not indicate circuits, entirety. majority in its See, government had a burden. lesser Circuit, held that the including the D.C. have Porter, Gibson, 973; e.g., at supra, 821 F.2d may on direct examina prosecutor introduce McBride, 874; supra, 786 supra, 726 F.2d in its agreement its entire tion witness’ F.2d at 51. caution the we Spriggs, 996 F.2d ty. United States v. lan use court that (D.C.Cir.1993) (citations omitted); Unit guage might pose problem if the remainder (10th Lord, F.2d ed States inadequate is the instruction assure Cir.1990). argument against introduc shifting In results. confusion burden tion, during the examination of the direct light misdescribing risk of the serious witness, agreement which re of the entire proof, again admonish the trial burden of we provide truthful testi- quires witness to approved language court to adhere mony government allows the Butler, this area. See 646 A.2d at 337-38. testimony before it is bolster the witness’ instruc this we conclude Borello, F.2d attacked. United States tions as whole did not misdescribe (2d Cir.1985); v. Ed proof or Cir.1980). create (2d wards, F.2d likelihood misunderstood precludes law in the Second Circuit The case Therefore, government’s burden proof.9 prior to a such evidence the introduction of Borello, we find no reversible error. credibility. challenge to witness’ agree such Recognizing 766 F.2d at bolstering ments the effect both have III. Admission Witness’ discrediting, the created an Circuit Second Agreements Plea exception government which allows the argues that the trial court erred concerning the wit introduce circumstances introduce, permitting testify over govern for the ness’ motivation objection, plea agreements with of its during two its examination of ment direct agreements keep He from infer contends that in order to witnesses. witness attempting to ring improperly vouched and bolstered which is key of the witness’ bias credibility witnesses hide evidence Id. at 57. having brought out the defense. prejudi- later and contained information prohibit intro- Although least two circuits any probative value. outweighing cial effect conclusion, reaching have consid- quoting in- the trial court’s 8. See note cites. which Smith ered the omissions all of structions. 1366 Roberts, 530, portions agreement

duction those of the States v. 618 F.2d 536 require (9th Cir.1980), denied, 942, which truthfulness until the witness’ cert. 101 U.S. credibility challenged, (1981)). at- 3088, the difficulties S.Ct. 69 L.Ed.2d 957 Howev making during to tendent such er, redactions plea agreement “introduction the entire opt have caused other courts to in favor permits fully jury possible the to consider the agreement. of introduction of the See entire conflicting underlying motivations wit- the Lord, (citing 907 F.2d at 1030 United States and, thus, testimony ness’ enables the Cir.1988), Cosentino, (2d 30, v. 844 F.2d 32-35 accurately assess more the witness’ credibili- denied, 923, rt. 488 U.S. 109 S.Ct. Townsend, ty.” United v. ce States (1988) 303, 102 L.Ed.2d and United (6th Cir.1986). 158, 162 Given this two-sided Cruz, 1464, (11th v. F.2d States agree- nature the issues raised such Cir.1986), denied, cert. 481 U.S. 107 ments, ultimately by which must be resolved (1987)). S.Ct. 95 L.Ed.2d 204 jury, agreements speci the admission the fying consequences perjury the are not adopted position The D.C. Circuit has the impermissible bolstering considered of the majority of the of the circuits which hold that testimony. witness’ v. may agreement be admitted its entire- (5th Edelman, Cir.1989) F.2d ty during the direct examination of the wit- Martino, (citing United F.2d States government. Spriggs, ness (5th denied, Cir.1981), cert. 996 F.2d at 324. The court reasoned that the (1982)). 949, 102 L.Ed.2d 474 provision agreement providing of the can prosecuted perjury witness be for for In this defense counsel mentioned testimony false referenced no new law opening statement to the that the testi- incentive which suggest to the witnesses, mony government’s Leo special that be credence should attached Allison, Spriggs and Michael could not be testimony. Moreover, the witness’ Id. they favor- relied because would receive observed, nothing court there was able treatment in their own criminal cases agreement which enhanced the testimony. exchange for Alli- During their ability to lying detect that the witness testimony, prosecutor son’s direct read suggested government special had provisions plea agreement of Allison’s (cit knowledge veracity.10 of the witness’ Id. charges government, explained Henderson, ing United States government lesser and that the would seek a (4th Cir.1983) denied, cert. if it sentence for him determined that he had (1984)). 104 S.Ct. 79 L.Ed.2d 238 provided in- substantial assistance in a ease volving person. prosecutor also another plea bargain Evidence of a can be both read, objection, provision over defense government. favorable and unfavorable to the peijury. which forbade In a bench confer- hand, may impeach one On the the witness’ preceded testimony, ence which defense credibility by showing the witness’ incentive objected generally inquiry counsel testimony providing gov- for favorable ground would be solely personal ernment for the own witness’ vouching witness, improperly for own and its Henderson, gain. supra, 717 F.2d at 137. specifically perjury provision. hand, When may On the other such evidence tend testified, Spriggs prosecutor Leo elicited suggest the witness information, concerning and similar information relevant truthful the disclo prosecutor through agreement government by asking with the sure of forces agreement. (citing acknowledge he the terms various terms as his Spriggs, inquired prosecutor during grand jury before which returned indictment; (3) hoped witness' direct examination the witness’ that he about to receive brought cooperation lighter cooperation. with the sentence as a of his result (1) agreement subject Although out F.2d terms included: at 323. the issue was review, error, prosecuted peijury plain that he error found no could false testimony; against clearly he at 324. had testified error. Id. Edelman, object, supra, 873 F.2d at 795. agreement. Defense counsel did not case. circumstances, we find no error Under such when the moved the com- but id. agreements at the of in their admission. See plete into evidence close objected defense to their admis- its time on argues for first Smith sion. Defense counsel cross-examined both of prejudicial nature two appeal the Spriggs agreement Allison and about i.e., provisions agreement, specific advantages its poly to take a willingness of the witnesses them. protec graph and the witness examination provisions. contends tion reasoning persuaded are We polygraph vouched for the witness’ provision majority circuits which have credibility protection and that the witness during examina held “that elicitation direct provision suggested that must a dan he agreement containing prom plea tion of claim gerous person. review Smith’s We testify truthfully ise to does not constitute States, plain error.11 See Harris v. United impermissible bolstering the witness’ cred (D.C.1992) (en banc) A.2d Townsend, ibility.” supra, 796 F.2d (error readily apparent and “so must be (citations omitted); Spriggs, supra, 996 F.2d prejudicial jeopardize the fairness and as Indeed, have held disclosure at 325. we reversal). integrity of the trial” warrant “including plea agreement, of witness persuaded the court’s failure are not We requirement testify therein that he truthful grounds to exclude the evidence on these improper prosecuto- ly, not constitute [does] plain provisions error. amounted vouching veracity.” rial [the witness’] pertaining polygraph commitment 1245, 1254 Ford v. 616 A.2d n. upon by prosecutor not commented were (D.C.1992) (citing Felder v. United witnesses, they one of or the were but (D.C.1991)). 974, 979 We stated lengthy agreements, many provisions of the in which were but two items evidence difficulty with we have considerable Rosa, trial. See United States proposition supposed “vouching” that such (3d Cir.1989) (low profile and swayed substantially impar- would have an polygraph of a commit marginal significance question tial where the witness had govern prejudicial error where ment already prosecutor been introduced strong); case is ment’s presence sworn in the of the had (4th Cir.1987) Herrera, 833, 835 to tell the truth. (references polygraph plea agreement error); Porter, supra, 821 F.2d at harmless (citation omitted). opinion Ford (references agreement plea to witness’ point portions what does not state at polygraph harmless commitment agreement jury. were mentioned to the used to doubt where not bolster However, that makes no difference witnesses). addition, credibility of crucial Here, this case. counsel outcome of defense either witness there was no evidence that issue raised the of the two witnesses’ motiva- Herrera, polygraph took a test. See ever opening tions not to tell the truth in state- F.2d at 835. Under the circumstances previewed challenge that ment. This find no error admission testimony we made to their based would be this evidence. plea agreements. Prior to admission entirety, agreements in their defense argu Similarly, reject Smith’s cross-examined the witnesses con- counsel thereby making pro of the witness cerning agreements, that the admission the ment provisions agreements was un- agreements an issue tection nature of testimony ap- general quiring was sufficient reject truthful We Smith’s claim that the ob- specific objections he plea agreements prise now jection the court of the to the admission of the specific objection only to the term re- raises. and the prejudicial duly view, apparently by amounted error. shared two or more courts, provision appellate federal highlighted. This not should was More- explanation receive no over, concept. of that Giv- the defense cross-examined ex- Allison plays en the “vital role” which in our tensively about the reason his failure to procedure, Cage scheme of criminal v. Loui voluntarily, come forward and Allison ex- siana, 39-40, plained happens neigh- what in people (quoting L.Ed.2d 339 In re Win help police. borhood who Such evidence ship, 90 S.Ct. is not Carpenter inadmissible. See v. United (1970)),juries 25 L.Ed.2d 368 should not “be States, (wit- (D.C.1993) 635 A.2d left without some elaboration what reason testimony happens gen- ness’ about what in States, able doubt means.” Butler United v. eral relevant and snitches admissible to (D.C.1994). 646 A.2d in The issue explain going police). fear of present only appear case arises from the protection provision need a witness (“real ance of two possibility”) words in the explained to by some extent Allison’s testi- pattern judge federal instruction mony Therefore, in regard. not are gave and I provides believe a model persuaded provision that such as one adopt for this court to and mandate in future many terms in the agreement, which Proctor, 741-42, (separate cases. 685 A.2d at trial, not highlighted during the FARRELL). remarks of Judge Associate plain error. Since the con- circumstances Appellant argues that could cerning happens what generally to snitches be taken to mean “serious” already possibility “substantial” respect were in order evidence with —on Allison, “substantial civil evidence” administra- prejudice we see no undue tive context —which is than more Spriggs’ agreement introduction of contain- requires. explains But the court con- ing Accordingly, the same term. we find no vincingly whole, why, taken as a the instruc- plain error. realistically here do tions not allow of that reasons, foregoing For the the judgment however, possibility. purposes, For future appealed hereby from arguable ambiguity these words can easily remedied the addition of a few Affirmed. words, i.e., “a real as from distinct imaginary an or fanciful one.” With SCHWELB, Judge, concurring: Associate supplementation, minor the federal expressed I my adhere to the views strong improvement instruction remains dissenting opinion in v. Proctor United explanation over Redbook States, (D.C.1996), respect doubt. regard unnecessary I as language what States, (D.C. Butler United A.2d

1994) and Foreman v. United (D.C.1993). respects, A.2d In all I join opinion of the court. Leslielyn HARDESTY, Appellant,

FARRELL, concurring. Judge, Associate court, join opinion I and have DRAPER, al., Appellees. Debbie et only concerning a few observations the rea- No. 91-SP-216. given sonable-doubt this case. departure here from in- the Redbook of Appeals. District Columbia Court is, course, why struction further reason Argued Sept. the court en banc should revisit the issue Decided Jan. necessary

what instruction is on reasonable doubt. See Proctor v. (D.C.1996)

A.2d at 740-42 (separate remarks FARRELL). Judge Associate I am

Case Details

Case Name: Smith v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Dec 30, 1996

Citation: 687 A.2d 1356

Docket Number: 94-CF-569

Court Abbreviation: D.C.