Bowler v. United States

480 A.2d 678, 1984 D.C. App. LEXIS 571
CourtDistrict of Columbia Court of Appeals
DecidedJuly 16, 1984
Docket82-1701
StatusPublished
Cited by38 cases

This text of 480 A.2d 678 (Bowler 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
Bowler v. United States, 480 A.2d 678, 1984 D.C. App. LEXIS 571 (D.C. 1984).

Opinions

MACK, Associate Judge:

On November 9, 1982, appellant Joseph D. Bowler, was found guilty after a jury trial of murder in the second degree in violation of D.C. Code §§ 22-2403, -3202 (1981) and acquitted of two counts of assault in violation of D.C. Code § 22-504 (1981).1 Appellant was sentenced on De-[680]*680eember 20, 1982 to a terra of imprisonment from fifteen to forty-five years. Appellant contends that several instances of prosecu-torial misconduct prejudiced and coerced the jury into finding the malice necessary to support a verdict of second-degree murder. Specifically, he argues that the prosecutor (1) commented on his failure to testify, (2) obtained testimony from his common law spouse in contravention of the statutory marital privilege, and (3) made improper closing and rebuttal arguments.2 We agree. The cumulative impact of the prosecutor’s conduct was sufficiently prejudicial as to have denied appellant a fair trial. Accordingly, we reverse. But, given the particular nature of the misconduct on these facts and the overwhelming strength of the government’s evidence as to certain aspects of the case, we hold that the misconduct contaminated only the jury’s deliberations on the finding of malice requisite for the verdict of murder in the second degree. The jury was charged on the lesser-included offense of manslaughter. Hence, our disposition is to remand the case with instructions either to permit the government to elect to retry appellant on the charge of second-degree murder or to enter a judgment on the charge of manslaughter with appropriate resentencing to follow.

On February 21, 1982, Claude Jackson died from a single gunshot wound to the neck. Jackson was shot in the hallway on the first floor of the house at 1133 Park Street, Northeast. He lived on the first floor with his fiance Pamela Joyner. Appellant lived in the same house but on the second floor. He and Pamela were cousins (their mothers were sisters) and she had moved into the house to help care for appellant’s ill mother before she died on January 21, 1982. Evidence established that appellant and Jackson were alone in the house at the time of the shooting and that appellant had been drinking. Though mortally wounded, Jackson went across the street to 1134 Park Street, Northeast, where he collapsed at the door of Pamela’s mother, Betty Joyner. Betty Joyner testified that Jackson told her appellant shot him.3 She further testified that she went to appellant’s house to find out whether Pamela was safe and that at the house appellant told her Jackson was talking about his mother and stated, “I didn’t shoot him out there. I stabbed him.” Joyner stated that appellant’s words were slurry and that he was staggering. The police were summoned and placed appellant under arrest. Upon arriving at the police station, appellant inquired of an officer where he was and why he was locked up. The officer replied that he had shot a man on Park Street, at which point appellant blurted out: “Well, you’d have shot him too if he tried to touch you, wouldn’t you.”4 After being [681]*681read his Miranda rights, appellant gave a statement to one of the police officers which the officer wrote down and related to the jury. According to the officer, appellant told him, “ ‘the guy [Jackson] said something about my mother who just died; the other guy had the gun’ and then I asked him where the gun is now and he said, T don’t know man.’ ” Jackson died shortly after the shooting.

No gun was recovered by the police during their search of the premises,5 and no bullet was found in the hallway.6 But, during a conversation appellant had with his stepfather, Lawrence Shin, who visited him in jail, appellant asked him to go to the house to retrieve a gun from behind a chest of drawers in his room. That gun, recovered by Betty Joyner’s son, was subsequently turned over to the police. It was a .22 caliber revolver with one expended and one misfired round. Because no bullet was found and the autopsy did not reveal the size of the bullet which passed through decedent’s neck, only circumstantial evidence tied this gun to the shooting. Also, given the particular type of gun, no practical test could be performed to determine if appellant’s fingerprints were on it. The autopsy did reveal that there were no bruises on decedent’s body. In addition, the absence of gunpowder marks on either .decedent’s body or clothing indicated he was shot from a distance of at least two feet. Finally, evidence derived from a review of the scene of the crime indicated that there were no signs of a struggle inside the house.

In sum, the government’s case-in-chief on the homicide charge consisted primarily of the scientific and technical evidence described above together with testimony from witnesses who observed or spoke with appellant after the shooting. The theory of appellant’s trial defense to this charge was one of self-defense. Although appellant did not take the witness stand, his defense theory was predicated in part upon the testimony of two defense witnesses who testified that on two occasions, outside of the presence of appellant, Jackson made threats against him. In addition, appellant relied upon his own statements, both those already referred to and others,7 to indicate that Jackson attacked [682]*682him. The trial court, however, refused to instruct the jury on self-defense with respect to the homicide charge.8

(1) COMMENT ON THE FAILURE TO TESTIFY

Nearly twenty years ago in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Supreme Court held that comment by the prosecutor on the accused’s silence violates the fifth amendment. Id. at 615, 85 S.Ct. at 1233. Based upon the following statements made by the prosecutor during opening, closing, and rebuttal arguments, appellant asserts that the government offended this constitutional principle. The prosecutor’s opening statement included the following:

There are no witnesses that the government can produce in its case to that shooting, because, you see there were two people there that day, Mr. Bowler and Mr. Jackson.
And Mr. Jackson is dead now, so he can’t talk.

During closing argument, he stated:

On February 21st of this year, as you know, at about 4:40 in the afternoon, [683]*683Claude Jackson was killed. And, as you also now know, Claude Jackson because he’s dead can’t come before you and tell you what happened.
* * * * * *
We will never know exactly what happened inside that apartment — inside that house. But we do know the following: We do know one man left that house ... and died, and he left the house as he was exiting the front door.

And finally, during rebuttal argument, the prosecutor said:

Over and over again he [defense counsel] said no one can say what happened concerning the shooting. Well, he’s right. The government cannot bring the decedent in.

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Bluebook (online)
480 A.2d 678, 1984 D.C. App. LEXIS 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowler-v-united-states-dc-1984.