Strong v. United States

§ Coop. 1983.12 See Word v. Tiber Island

Homes, Inc., 521, 523 n. 4 STRONG, Appellant, J. Keri 1985) (affirming judgment grounds on other court). upon by than those relied lower STATES, Appellee.

UNITED IV. No. 94-CF-672. Finally, agree also Appeals. we with Ifill District Columbia Court of that the trial court’s decision to her dismiss Argued May 1995. § complaint third based on her failure exhaust her administrative remedies was Sept. Decided we supra, erroneous. As discussed it is well-

settled that exhaustion administrative required prior filing

remedies is not Roache,

§ legal action. See However,

A.2d at 1284. as Ifill acknowl

edges in complaint, her third issues seeking declaratory

raised there in in-

junctive relief are continuation of the dis

pute initiated in her first suit. The issues in appellant’s

raised complaint third do not remotely “public

even raise matters of con they

cern” because focus the stressed princi

relations between Ifill her school

pal culminating proposed her two-day sus

pension for insubordination —a em routine grievance

ployee Accordingly, situation. analysis regarding

trial court’s Ifill’s claim relief, declaratory injunctive

for together Connick, application

with our control her complaint, uphold

third and require us to Word, supra,

dismissal. See

n. 4. foregoing,

In view of the the several orders appealed

of the trial court here are affirmed.

So ordered. aside, Judge Long monetary damages alleging As noted in her order for constitutional tort granting summary judgment to the defendants Congress provided meaningful because remedies complaint, Ifill’s second “[i]t is clear ... employees for federal civil been unfair- right bring monetary there is an action for ly disciplined making critical comments. damages alleged by for the sort of harm Mrs. workplace). about We need not consider wheth- Ifill,” alia, Lucas, (citing inter Bush v. 462 U.S. holding aer like that in would be made Bush (1983)) 103 S.Ct. 76 L.Ed.2d 648 regarding employees. District of Columbia (holding employee sue that federal civil cannot Attorney, were on United States

Assistant brief, appellee. for KING, Associate FERREN Before GALLAGHER, Judge. Senior Judges, and Judge Dissenting opinion Associate p. 199. FERREN at GALLAGHER, Judge: Senior “missing witness” This case involves jury by identity to the whose was revealed eyewitness complainant and who was activity, but whom to the criminal The trial prosecution called at trial. never request for a appellant’s court denied trial hold that the witness instruction. We ruling the instruc- not err in its court did as the government. I. with a for assault

Appellant was indicted brick, (knife, stone, weapon dangerous foot) § 22-502 shod violation D.C.Code (1989 destruction Repl.), and malicious frame, (door, proper- and lock property door (1995 ty) § 22^403 of D.C.Code violation 24, 1994, jury found Supp.). March On dangerous guilty of assault with foot) (shod and malicious destruction weapon contends that property. Appellant denying appellant’s re- court erred in trial quest missing witness instruction. for a primar- trial evidence at government’s testimony by complainant. ily consisted of 23, 1993, went June she testified that on She buy alley her house to some behind named person She met crack cocaine. from her lived around the corner a “friend.” Wes- she described as and whom complainant the end ley directed buy standing, to alley, appellant was where recognized ap- drugs. complainant Service, Zork, Lesley with Public Defender few months before pellant an incident a from Reiser, Public Klein and David whom James phone, him to use her allowed when brief, Service, ap- on the were Defender house, her to leave the when he refused pellant. shotgun appellant with a husband threatened That same house. Bukas, get him to leave the Nancy B. Assistant United States complainant’s Holder, Jr., day appellant returned Attorney, Eric H. with whom Fisher, let him enter. she would not Attorney, R. home and and John United States Wesley approached appellant Now, Oh, him and told Court: 2.41. this is buy wanted to some Appeals certainly witness. The Court of drugs. mentioned the earlier inci- loves that one. What’s the Government’s complainant’s dent where husband threat- position on it? kill shotgun. ened to him with Com- opposed Government: The Government is plainant buy drugs ap- decided not to from giving to 2.41 in this case. pellant. According complainant, she All right. peculiar Court: What makes it to away turned walk pulled and out within power [sic] the of the United States and knife came toward her. As she backed produce? to away, fell she down and threw a ten dollar Honor, Defense: Your we’ve never heard appellant,

bill at hoping he would take the person yesterday. don’t until We money and leave her alone. Appellant get a last name. The com- Government’s stopped pick to up money, the but then con- plaining says that this is friend approach to tinued her. of her’s who lives around the corner from complainant trying return to thing her who the witnessed whole and she home, appellant caught up punch- but to her days ago. him saw two head, ing her the face knocking and her to Okay. puts Court: I think don’t that the ground. the He then kicked her repeatedly peculiarity power [sic] within the the and her large Ap- hit with rocks or bricks. produce, United States to I however. But pellant finally up demanded that she stand give do going will this: I’m not the to and remove her clothes. When she removed signals instruction. The from Court of the blouse, appellant her away looked for mo- Appeals are as saying tantamount to far as ment and ran home. She I’m concerned in- that ran into her house and bolted the locks on struction is a letter in District of dead began door. chased her and you Columbia. And I else don’t know how kick the door. Appellant kicked the door off interpret rulings. can those And I’m talk- frame, but she able keep him out about the most recent ones on finally person until he left. The named Wes- witness. ley standing nearby during the incident. According to complainant, Wesley “saw It’s kind of like a few other areas thing.” the whole testified She that lip particu- where give law we service to a neighborhood, lived in the that she saw him legal proposition, lar but tear it then we periodically, day last seen him “the apart many ways in so that as I’m as far yesterday.” before just might concerned we as well not have legal proposition because there’s no Appellant’s impeached counsel the com- room for it. plainant’s testimony ways in numerous af- fecting credibility. her Other tes- witnesses you my permission But also need aspects incident, other tified to but no argument you I make and will accord one else witnessed the assaults. One permission. you you So can make — witness testified that told him that giving can make the and I am just he had “smashed this bitch around the you permission you make need to corner,” because “she had this man white argument. pull gun try him and to kill him.” Defense: Including the inference. Appellant’s impeached credibility counsel Including Court: the inference. prior of this witness with a conviction words, Defense: In I’ll other make the charge. pending Appellant’s case limit- argument that— presentation impeachment ed to the evi- dence. I I give you Court: don’t think can authority to use the Let me inference. Appellant requested a missing in- Including think about that. the inference? struction because the did not produce Wesley response, just at trial. saying Defense: So I can the Court following trial court made inquiry: say he’s not here. (2) sought, No, against the inference is you say than that. whom can more

Court: eluci would have witness’ proposition can talk about that she You v. issue.” Lawson Things got him. out on the dated transaction knows United States, record, just ago, that she saw him a week met before coun requirements must be Both why isn’t he here. on a may a court instruct argue sel or Well, say, I Defense: can “We submit Harris witness. you that he’s not here because he wouldn’t (en banc). (D.C.1992) telling support say?” Not what has prerequisites of elucida Even when the two inference, just they can draw an them satisfied, availability peculiar are say argue. what we that that’s the in to refuse trial court has discretion yes. Court: think The answer that’s — States, 447 v. Thomas United struction. yes. permission you you have the So A.2d 58 Appeals Court of decision need under the you argue, to make the can met the Elucidation is when Weinsheimer, against with whatever Mr. it relevant, material, testimony noncumula is you argue against to it. need tive, ‘important part’ of the case of and “an Honor, Your can I also ar- Government: is against whom the inference party the testimony that gue that that —based on the availability is at 57. Peculiar drawn.” Id. somebody by [appellant] is known ability party physical to met if “the the as well? witness, there produce the locate and Yes. Court: relationship, legal in status or on such a by party as to make danger The I don’t to the facts as claimed Government: want expect called party to have get is— it natural to into Young, v. 150 United States witness.” why yes. is That’s Court: answer 98, 107, 463 F.2d 943 U.S.App.D.C. finding peculiarly not I’m that it’s within (1972). power pro- of have the Government to to duced this witness. Yes. The answer we noted in Thomas: As question yes. Okay. is But also aspects peculiar availabil- two of There are give 2.41. will not ity, both of which must be satisfied. closing, appellant’s argued In counsel physical most is availabil- first and obvious testify he wouldn’t “did not because brought to ity. If cannot be a witness corroborated, supported, confirmed have court, can drawn factual conclusion be no [complainant] say.” its what had to In rebut- produce gener- to him. from the failure tal, responded by arguing al, physically available a witness is not known to was someone located, can and within unless he be “just [complainant].” he like was known to if a power of Thus subpoena the court. reasonable ef- party made bona fide has II. without suc- produce to the witness forts cess, permit- will be adverse inference century ago More than a the Su ted. party it preme that “if has Court stated into ability to hail the witness produce But the power within his to wit availability enough. Practical court not whose would elucidate nesses ability party’s transaction, required. The it is also fact that he does do witness, or his reasons testimony, produce the presumption that the creates the so, stronger of than those doing must be Graves produced, if would be unfavorable.” States, 118, 121, seeking an inference in his favor. party S.Ct. v. U.S. United (1893) (citations Otherwise, just might as well 40, 41, an inference omit 87 L.Ed. 1021 ted). against party who favors be drawn court allow a Before a finding A missing witness inference. “the court instruction or “inference (1) availability justified peculiar may be where ques in determine that the witness must in bias suggest potential party circumstances tion is party, e.g., Georgia favor one he is where em- the corner from her Avenue around ployed by party. showing home.2 did make a prosecutor provide that the further would (citations at 57-58 appel information locate or that omitted). subpoe lant identify, had tried to locate and Nonetheless, na do so. and could not III. in Brown 388 A.2d 451 Application principles of these (D.C.1978), we stated that facts in this case reveals that trial agree While we with the trial court that err in refusing give missing did not many subpoena cir- use of would Here, witness instruction. was no there dis cumstances have been a viable means pute Wesley’s before the trial court that tes acquired which could have timony would have “elucidated the transac witness, nevertheless, testimony of the potential eyewitness tion.” He was a to a required defense should not have been crime whose anticipated would be subpoena acquire used the testi- relevant, noncumulative, material, might mony it the case where important part government’s be an identity discovered location case. See Hale v. United potential during only the course of (D.C.1976) 212, (stating 216 “[s]ince that the trial. assault, present was at Id., (citations omitted); at 388 A.2d 459 cf. testimony clearly her could have elucidated Thomas, (stating supra, 447 A.2d at 60 n. 4 transaction”). However, peculiar begun, “[o]nce trial had it was too availability requirement is met on the expect appellant produce late to to locate and facts in this case. (citation witness”) omitted); the missing Appellant Wesley physi- asserts Stevenson, U.S.App. United States v. 138 cally only to government available since (1970) (con- 10, 923, 13, 424 D.C. F.2d 926 only knowledge Wesley’s his of observation cluding government same when first learns during complainant’s occurred trial testi- trial). Therefore, of as- witness at mony. sumedly Wesley physically available appellant. to the rejected any have We rule which holds automatically that witnesses are rendered Harris, As we A.2d at stated 602 physically oppos- unavailable whenever the 160, aspects peculiar availability “[t]wo ing party learns of their existence met,” physical availability prac- must be many first time at trial. “In circum- availability. Thomas, supra, tical See also stances, may party readily by a secure (stating physical 447 A.2d at 57-58 that both subpoena testimony of a witness who met). practical availability must be party’s to that comes attention for the first Therefore, availability although physical States, during time trial.” Miles v. United technically prac- met we must now address (D.C.1984). 649, 483 A.2d n. 9 658 availability. tical States, 1010, Carr v. United 531 A.2d 1013 Wesley asserts that (D.C.1987). Wesley was within the court’s practically only government. to the available subpoena power. attempt No was made “Although physically the witness be appellant Wesley to secure as a witness. sides, if party available to both has a special witness, Appellant argues only relationship that he learned of wit with a Wesley during given practical trial and was no last ness becomes unavailable in a sense However, complainant’s opposing party name or address. because his expected lived on is to be revealed hostile.” Dent v. United fact, government argues 1. The that because 2. As a matter testified ques- it is was in out of mental institutions present direct that at the scene and tionable whether he could elucidate the transac- spoken concerning pro- had there We tion. do not address this since it posed complainant. drug sale to the was not raised before the trial court.

199 point m on this States, 165, 170 have lost sue in this court Special A.2d 404 Hale, E.g., Ray v. girlfriend, long of decisions here. relationships can include a series (D.C.1992); 216; States, in supra, 361 A.2d at 616 A.2d 333 United States, former, 142 Burgess Miles, v. United supra. supra; 204, 226, 198, 440 F.2d 232 U.S.App.D.C. engaging in a bit judge was While the trial (1970); v. employer-employee, an Milton colloquy, he then language in the of loose States, 394, 397, App.D.C. 110 United 71 requirements of this court’s apply went on (1940); relative, 556, v. Cooper or a F.2d 559 requests for a opinions to defense States, 528, United 532-34 instruction, stating “You have the 1980). However, occasionally employed Ap- 'you Court permission need under the paid government informer argument [to peals to make decision v. government. Richards available to the added.) The trial jury].” (Emphasis U.S.App.D.C. United finding that “it’s not made a crucial then denied, 655, 658, 275 F.2d cert. U.S. govern- power of the within (1960). 1253, 4 80 S.Ct. L.Ed.2d this witness.” This produced ment case, asserts that of this court’s application another constituted complainant making “friend” Harris, supra, 602 A.2d at E.g., decisions. only prosecu practically him 162-63; Lemon “ However, can have wide tion. ‘friend’ Miles, (D.C.1989); supra, 483 testify against range meanings. Friends A.2d at can other friends. That alone therefore, is that actually happened, What justify at colloquy, the trial previously related after the Carr, exploration.” without further su least of this judge proceeded apply the decisions Here, pra, complain So, see no about. we court he bantered disclosing as ant’s cannot be read remand, justification for as the dissent- real “friend,” Wesley as a close but rather urges. opinion acquain is best described as , neighbor tances and members of the same not its discretion trial court did abuse The true, testimony, hood. Her if taken as also pecu- Wesley concluded that when it Wesley acquaintance an reveals that liarly government. Nonethe- available relationship in appellant. special is no There less, appellant’s rule coun- trial court did situation, relative, girlfriend, as or this such missing argument sel could make a witness “potential in employee, that reveals a bias analysis, -finding jury. our Based on Thomas, party.” 447 favor one available, peculiarly that the witness friendship A.2d 58.3 There is close argu- allowing in this trial court erred potential suggesting “a bias in favor of one However, jury place. take ment to the party.” Wesley practically Id. appel- harmed helped rather than this error and, therefore, missing parties both event, any did not err In the trial court lant. available to the witness was missing instruction denying in government. is affirmed. the conviction and therefore expresses dissenting opinion the view So ordered. its the trial court did not exercise discre- ruling against in counsel’s the “defense FERREN, dissenting: Judge, Associate this missing proffer.” support of place, In the first respectfully I dissent. view, by the opinion points to the remark colloquy between court and missing as read the in colloquy trial majority, quoted the trial counsel in the is “a dead letter witness instruction Columbia,” its discretion whether court did not exercise presumably, one would District of missing surmise, give witness instruction. parties raising is- because unavailable, peculiar- Lawson the witness make 3. The asserts that 791, States, supra, 514 A.2d at Fifth v. United government ly because he could invoke the unavailable right against not make this Al- did self-incrimination. Amendment though, trial court. claim would a valid Fifth Amendment simply court automatically denied it as “a properly could not given have been whether dead letter in the District of Columbia ... carefully the court appellant’s considered re- like a few other areas of the law where we quest summarily rejected or My it. burden give lip service ... but ... there’s no room here, therefore, only is to show that the for it.” Ante Consequently, at 196. trial court required failed to exercise the court limited its exercise of discretion to the discretion —which as indicated above is the question whether defense counsel would be case—but also that the record leaves room permitted argue witness infer- for an exercise of discretion in favor of such ence—without an accompanying instruc- instruction, the issue to which I turn. now jury. tion —to the that, All parties. agree for the court to Contrary to the trial court’s perception, justify missing the ab- witness instruction is not a “dead sent witness must “peculiarly have been letter the District of Columbia.” Ante at party against available to the whom in- See, e.g., States, Harris v. United sought” position ference is to “eluci- 154, (D.C.1992) (en banc); Thomas date[ ] the transaction at issue.” Lawson v. States, (D.C. 52, v. United 447 A.2d 57-60 787, United 1982). 514 A.2d Appellant was proper entitled to a moreover, availability, Peculiar has two com- exercise of trial court discretion and did not ponents: “physical availability” “prac- receive it. accordingly This case should be Thomas, availability.” tical purpose, remanded for that 447 A.2d at ap because an pellate My colleagues acknowledge cannot judgment substitute its Wes- ley’s for an exercise of trial court would have discretion— elucidated the transaction, unless the trial court would have see but one ante at and that option as a Wright matter of law. See physically defense, v. was not available to the 919-20 see ante at 198. dispute, There is no more- 1986) (citations omitted); see over, also In re physically available to J.D.C., (D.C.1991) (“trial government. Thus, only question court abuses its discretion when it rests its whether was “practically available” to standards”) (ci legal conclusions on incorrect government. See 447 A.2d at omitted). below, tations As elaborated was, 58. If he witness instruction this record the court was not so limited. otherwise, given; could have been not.1 important It is to be clear: in the exercise majority The concludes as a matter of law discretion a trial give court need not sound Wesley that practically was not available to missing a witness pre- instruction even if the government “practically because he was met; requisites appellant for it are parties.” available to both Ante at 199. Ac- entitled to the instruction as a matter of law. cordingly, says majority, he was “not Thomas, See 447 A.2d at 58. The record government.” available to the here, however, does not as a matter of law Ante at premised 199. This conclusion is on (as preclude the instruction majority following language from Thomas: it). would have That is majority where the jumped why the track and a remand is re- party’s ability produce witness, The to quired. so, or [or his doing her] reasons for must GallagheR’s Judge It is clear from opinion stronger be than party those of the seek- majority that believes the instruction an inference his [or her] favor. dissent, response Judge 1. In to this physically gov- that Gallagher available to the did, fact, argues that the court exercise discre- ernment but Accordingly, not to the defense. give missing tion whether to witness instruc- this statement does not reflect an informed exer- eventually why Furthermore, tion when the court said: "That’s cise of discretion. because the finding I’m that it’s not discussing within the proposed defense counsel’s power produced of the jury argument, to have this jury not a in- court, however, struction, witness.” Ante at 197. The "peculiarly” finding did this available can- say premised not finding whether it had assuredly this on be said to relate to a wit- "physical” "practical” unavailability or analysis responsive appellant’s request thus ness to erred, clearly majority agrees since the for an instruction. off further consider- practical trial court then cut Id. This means there will be avail The com- Despite the of the instruction. ability only if ation the witness’s with she and Wes- plainant’s that own against party whom the inference would friends, despite ley the fact were “stronger” drawn is with the other be than Wesley’s physical complainant, given and, reason, party, for that the witness’s appel- availability, than better chance “expected testimony would be to be hostile” learning of trial what lant of in advance party Dent to who seeks the instruction. Wesley’s chose would be—but v. United trial court to him to the stand —the call 1979); at see replied: problem The here that the record does “Okay. [appellant’s proffer] I don’t think conclusion, majority’s as a support power of the puts peculiarity within the law, “practically matter go- I’m not produce- to United States parties.” to both Ante at 199. Ac give ing the instruction.” reading cording majority’s the com majority, in I do not understand how the testimony, Wesley an plainant’s “ac abrupt of the of the court’s termination view ‘friend’”) (not of com quaintance” a “close discussion, analysis, can reach a conclusive appellant alike. at plainant and Ante opportunity had an since the defense never reading This of the will not do. Com record proffer complete its and elicit discretion- repeatedly plainant least three times— —at ary ruling. majority much The infers too referred to as her “friend.” There is unsupported by trial court from the record “distant,” inferring meant no basis for judicial findings proper mind- that reflect a Moreover, “close,” rather than a friend. al prof- attitude that takes the defense set —an though friendship justify “alone cannot recognizing requested seriously, fer that the least without is alive and well. instruction explanation,” further Carr v. United majority imper- particular, draws 1010, 1014 (D.C.1987), is not relationship be- missible inference about friendship say particular cannot be appellant Wesley. govern- tween strong enough to serve as basis for it coun- judge ment asked the whether could “practical availability,” especially when the by appellant’s missing ter opposing party not a friend witness. telling jury “was known powerful Friendship relationship. can abe [appellant] as well.” The answered “[Fjurther id., explanation,” could show that yes response. counsel’s and cut off defense friendship enough pass indeed is most can be inferred from “practical availability” particularly in a test — record, however, Wesley’s by reference to case, this, proba such as where there is no pointing complain- allegedly out appellant Wesley tive evidence that were ap- drug alley as a dealer and ant in friends. behalf, proaching complainant’s however, court, no permitted The trial ex- appel- see is that knew ante ploration between the testimony does drug dealer. This lant was hand, Wesley, and on one let appellant, knew imply Wesley, on appellant and between and appellant were alone that and other. defense counsel asked When request government’s and friends. The instruction, missing told the witness she wrong, ad- reply plainly absent court’s were judge: appellant’s and Wes- ditional evidence about (if ley’s relationship any). record There no person [Wesley] never of this We’ve heard concluding Wesley prac- was as basis for don’t yesterday [during trial]. until We govern- tically as get government’s com- last name. ment. says plaining that this is friend from of hers lives around corner sum, not exercise thing and the trial court did

her who witnessed whole discretion, required, denying appellant’s in days ago. as saw him two request for missing

there is no record concluding basis for Anthony BRUNO, Petitioner, the court would deny have had to the instruc- tion as a matter of law. Nor was the error DISTRICT OF COLUMBIA BOARD All agree

harmless. could have REVIEW, OF AND APPEALS elucidated the transaction since he witnessed Respondent. the entire credibility incident. In this con- test, a missing witness instruction from the No. 94-AA-748. powerful court is more than a wit- District of Appeals. Columbia Court of argument by ness defense especial- counsel— ly in a case such as this in jury, which the Argued Sept. showing skepticism, acquitted appellant of Sept. Decided (knife, more serious charges assault brick). stone,

To reiterate: a trial will not neces-

sarily abuse his or her denying discretion witness instruction even when the

prerequisites met, for it are see

A.2d at since danger there often is a

creating Thus, evidence out of non-evidence.

appellant’s request for this standard instruc- ultimately may not be honored on this

record; I make emphatic merits appellant’s My behalf. concern is that the summarily rejected nonfrivolous,

trial court meritorious, arguably request appel-

lant was entitled to seriously have considered thoughtfully. I do not believe court,

received his due from the trial

do not believe this on appeal should do court,

work that in the first instance is a trial court, appellate responsibility informed part by demeanor Wright, evidence. See

508 A.2d at 919-20.

I therefore would remand the case for a

proper exercise of explor- discretion further defense counsel’s proffer. rule,

If the court were to exercising after discretion,

proper that the instruction should given,

not have been the conviction should subject

stand appellant’s right affirmed

appeal. otherwise, If the court were to rule

an order should awarding be entered a new

trial.

Case Details

Case Name: Strong v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Sep 14, 1995

Citation: 665 A.2d 194

Docket Number: 94-CF-672

Court Abbreviation: D.C.