Beale v. United States

465 A.2d 796, 1983 D.C. App. LEXIS 411
CourtDistrict of Columbia Court of Appeals
DecidedJune 20, 1983
Docket81-614
StatusPublished
Cited by85 cases

This text of 465 A.2d 796 (Beale v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beale v. United States, 465 A.2d 796, 1983 D.C. App. LEXIS 411 (D.C. 1983).

Opinions

KERN, Associate Judge:

After a jury trial, appellant was convicted of first-degree premeditated murder while armed in violation of D.C.Code §§ 22-2401, 3202 (1981), and carrying a pistol without a license in violation of D.C. Code, § 22-3204 (1981). He was sentenced to concurrent terms of 20 years to life imprisonment for murder and one year imprisonment for carrying a pistol without a license.

On appeal, he raises a spectrum of issues and alleges several instances of improper prosecutorial conduct, erroneous trial court rulings on evidentiary matters and trial court error in refusing to consider probation as a sentencing alternative.1 Although we do not find the trial proceedings to be without error, we affirm appellant’s conviction because we are persuaded that any errors that were committed could not have substantially swayed the judgment of the jury.

[799]*799At approximately 10:30 p.m. on the night of August 2, 1980, Donald Thompson was shot in the vicinity of 1412 Chapin Street, N.W. At a subsequent trial, the government presented the testimony of three witnesses (Peggy Ann Williams, George Roper and Michelle Mason) who stated that they saw appellant shoot Thompson. The defense called eight witnesses who testified either that they did not see appellant in the area at the time of the murder or that they saw the shooting but appellant was not the perpetrator. Appellant testified, as did his brother Raymond and girl friend Tanya, that he was at home during the crucial time. Appellant stated to the jury that after learning that he was wanted by the police, he turned himself in accompanied by counsel.

I

Appellant claims that the trial court erred during trial in permitting the prosecutor to impeach, variously, three defense witnesses by reference to police records or prior arrests and convictions.

First, the government called as a witness Detective Joseph E. Schwartz, who attempted to find appellant after he was identified as a suspect in the Thompson murder. Schwartz testified that when he appeared at an apartment in 1412 Chapin Street, N.W., he encountered several individuals who would not identify themselves, although he was able to later identify one of them, Raymond Beale, through “criminal records.”2 Defense counsel objected and moved for a mistrial. (Record at 372.)

The decision on whether a mistrial should be declared has always been committed to the sound discretion of the trial court. Middleton v. United States, 401 A.2d 109, 127 (D.C.1979); United States v. Anderson, 165 U.S.App.D.C. 390, 403, 509 F.2d 312, 325 (1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975). As such, on appeal, a decision should be reversed only in extreme situations threatening a miscarriage of justice. Middleton, supra.

Appellant contends that the words of Detective Schwartz “could only be taken to mean that he had either prior arrests or convictions” (Appellant’s Brief at 8) and that the trial court failed to mitigate the error. Under the facts and circumstances of this case, we are not persuaded that the trial court abused its discretion.

The officer’s reference to “criminal records” was a passing reference in the course of a lengthy trial which does not serve to directly rebut appellant’s alibi defense. Further, any prejudicial impact of Detective Schwartz’s comment could have easily been cured by an immediate cautionary instruction to the jury which was refused by defense counsel despite the trial court’s continuing reminders during the trial of the availability of such an option.3 We contrast the situation here with that in Lucas v. United States, 436 A.2d 1282 (D.C.1981), which appellant asserts is virtually the same as the present case. There, a prior inconsistent statement was used to impeach the defendant’s brother which “if considered for the truth of its content [would have] rebutted [the defendant’s] alibi defense [and] supported [his] statement to police which he had repudiated.” Id. at 1285. This, coupled with the prosecutor’s closing argument to the jury which the court found to be arguing the substantive truth of the prior inconsistent statement, [800]*800led the court to find that the defendant was denied his right to a fair trial.4

Second, on direct examination, defense witness Robert Ellis was questioned by appellant’s counsel as follows:

Q. You’ve been con — have you been convicted of some misdemeanors?
A. Yes, I have.
Q. What were they?
A. Selling liquor without a license, carrying a pistol without a license, and UNA.
Q. What is UNA?
A. Uniform Narcotic Act, one nickle bag of reefer.
Q. Is that marijuana?
A. Yes.
Q. Were those within the past ten years?
A. Yes it is. [Record at 570-71.]

On cross examination, the prosecutor brought up these three prior convictions and asked a total of four questions confirming the dates of these convictions.

In Kitt v. United States, 379 A.2d 973, 975 (D.C.1977), this court held that the trial court must permit either side to bring out the criminal convictions of its own witnesses on direct examination in order to “draw the sting from the inevitable impeachment on cross-examination.” Such a rule was designed to allow the defense to defuse the effect of a prior conviction by having the witness “tell it on himself.” Appellant’s assertion is that a prosecutor is foreclosed from introducing prior convictions after the defense has conducted an effective Kitt inquiry; but, contrary to appellant’s assertion, Kitt recognizes a right by the prosecutor to probe on cross-examination. We said that “irrespective of which side introduces such evidence, the government remains free to argue its significance as to the witness’ credibility.” 379 A.2d at 975 n. 2. In sum, the purpose of a Kitt inquiry is to defuse, not foreclose, the prosecution’s impeachment.5 As such, the prosecution’s cross-examination of Robert Ellis was proper and the trial court did not err in overruling appellant’s objection.6

Finally, appellant also claims that the trial court erred in not striking a reference made by Detective Schwartz on redirect examination that an announced defense witness was “wanted by the police.” On cross-examination of Detective Schwartz, defense counsel sought to develop a defense theory that the police never fully investigated the case by asking the detective whether he had interviewed a certain list of individuals. In response to this series of questions, Schwartz responded that he had not been able to interview a person named Curtis Coleman on that list who was a fugitive. (Record at 392-93.)

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Bluebook (online)
465 A.2d 796, 1983 D.C. App. LEXIS 411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beale-v-united-states-dc-1983.