Harris v. United States

430 A.2d 536, 1981 D.C. App. LEXIS 280

• Court: District of Columbia Court of Appeals
• Decided: May 12, 1981
• Docket: 79-653, 79-734
• Status: Published

Opinions

HARRIS, Associate Judge:

Appellants were charged by information with the possession of narcotics in violation of D.C.Code 1973, § 33-402. They were convicted by a jury. They challenge their convictions principally upon the grounds of (1) alleged prosecutorial misconduct, and (2) the trial court’s giving of two missing witness instructions. We affirm.

I

The government’s evidence established that on July 18, 1978, Detective Larry Thomas, a plainclothes officer of the Drug Enforcement Unit, Metropolitan Police Department, was driving north on 12th Street in his personal car. He carried a packet of currency the serial numbers of which he had recorded previously. While in his car, Thomas was approached by a man whom he later identified as appellant Cosby, who asked if Thomas “wanted anything.” They effected the sale of a single Dilaudid pill, agreeing (following some haggling) to a price of $32. After the price was set, appellant Cosby walked over to appellant Harris, who was standing about 20 feet away. The two men entered a garage. Appellant Cosby emerged from the garage first and handed Thomas the Dilaudid pill. Appellant Harris stepped back out of the garage and stood on the sidewalk. Thomas paid appellant Cosby $32 in marked bills. Thomas saw appellant Cosby then give the money to appellant Harris.

After completing the deal, Thomas drove to a prearranged location to meet with other members of his unit. He provided them with a description of appellants and with an account of what had transpired. Within minutes the other detectives located appellants and placed them under arrest. The police seized $30 from appellant Harris which later was determined to be the same money with which Thomas had purchased the Dilaudid tablet.¹ Thomas then drove past the scene of the arrests and confirmed the identity of the two men as the same ones with whom he had just dealt.²

At trial, both appellants denied any involvement in a drug transaction. Appellant Cosby testified that Thomas had a grudge against him because of several earlier encounters. Appellant Cosby further stated that he was in the neighborhood on the day he was arrested in order to talk to a “reverend” about painting a church and that the clergyman was standing with him when the arrest occurred.

Appellant Harris testified that he was in the area because he was waiting for his brother, “Cornbread” Harris, to return with a tow truck. He indicated that a friend of his had asked him to watch over the garage. In explaining his possession of the marked currency, appellant Harris recalled that someone he did not know had handed him $50 about ten minutes before he was arrested, telling him to deliver the money to his brother.

After the close of the evidence, the prosecutor and defense counsel presented their final arguments. The prosecutor made several comments in his closing argument which prompted objections from appellants’ counsel. Drawing upon expert testimony which had been presented on the technique of selling drugs known as “juggling,” by which the holder of the drugs remains aloof from the solicitor of the sale,³ the prosecutor characterized appellant Harris’ involvement as follows:

And who pays him [appellant Cosby], the holder. The man who doesn’t come out and meet the people. The man who tries to stay in the background. Got to be close enough by to pass the pill along, but tries to stay away, stays kind of out of [the] chain, kind of the way the Mafia works, ladies and gentlemen. Where nobody can get to the real godfather.

On cross-examination, appellant Cosby’s credibility was impeached by testimony as to his previous convictions for petit larceny, attempted burglary, and receiving stolen property.⁴ During his rebuttal, the prosecutor reminded the jury of those convictions:

As the Judge will instruct you, those convictions for petit larceny, the receiving of stolen property are not introduced to tell you that Mr. Cosby’s a drug user. We don’t have to do that, he told you that. They’re introduced, evidence that he’s a thief, is introduced to tell you that he’s not the kind of man you should believe when he gets up on the witness stand. That’s why the testimony is introduced.

Appellants’ counsel objected to these statements and moved for a mistrial. The trial court denied the motion, but permitted all counsel to make further arguments.

In addition to its general instructions, the trial court gave the jury a missing witness instruction as to the clergyman with whom appellant Cosby allegedly had been and as to appellant Harris’ brother.⁵ Appellants’ counsel argued against and objected, to the giving of the missing witness instructions.⁶ The jury returned guilty verdicts against both appellants.

II

The prosecutor’s analogy to the Mafia in his closing argument might better have been left unsaid. However, such a comment does not necessarily rise to the level of prejudice mandating reversal. Sel-lars v. United States, D.C.App., 401 A.2d 974, 978 (1979); Evans v. United States, D.C.App., 392 A.2d 1015, 1026 (1978); United States v. Jenkins, 140 U.S.App.D.C. 392, 436 F.2d 140 (1970); Taylor v. United States, 134 U.S.App.D.C. 188, 413 F.2d 1095 (1969). Under our standard of review,

[a]n appellant is entitled to a new trial based upon prosecutorial misconduct only if, after balancing the gravity of the prosecutorial misconduct against the weight of the evidence against appellant, we are unable to say that the conduct did not substantially sway the judgment of the jury.

Sellars v. United States, supra, 401 A.2d at 978; see Miles v. United States, D.C.App., 374 A.2d 278, 284 n.9 (1977). The decisive factors in assessing the impact of questionable prosecutorial remarks “are the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error.” Gaither v. United States, 134 U.S.App.D.C. 154, 172, 413 F.2d 1061, 1079 (1969) (footnotes omitted). Our inquiry focuses on the strength of the government’s case in determining the amount of prejudice caused by a potentially inflammatory remark. United States v. Jones, 157 U.S.App.D.C. 158, 165-66, 482 F.2d 747, 754-55 (1973). Here the government had a strong case against appellants for possession of a narcotic — an undercover policeman’s eyewitness testimony as to the drug sale, the Dilaudid tablet which was received from appellants, and the marked money used for the drug buy which was recovered from appellant Harris at the time of his arrest. Detective Marcum had supplied expert testimony as to local drug dealers’ penchant for working in covert teams. It was upon that testimony that the prosecutor based his Mafia comparison, which in any event was tangential to the direct evidence in the case. The trial judge instructed the jury that statements and arguments of counsel were not evidence. Given the strength of the government’s case, and viewing the Mafia reference in the context of the entire argument, we are satisfied that the prosecutor’s remark did not affect the verdict.

For similar reasons we find that the prosecutor’s “thief” remark did not amount to misconduct warranting reversal. Such prosecutorial remarks, which serve “only to blur the already murky distinction which the jury must draw between the use of evidence of prior crimes as a reflection of credibility and the use of such evidence as a denotation of criminal character,” Evans v. United States, supra, 391 A.2d at 1026, are to be avoided. We have condemned like comments in the past without requiring reversal. Maxwell v. United States, D.C.App., 297 A.2d 771, 773 (1972), cert. denied, 412 U.S. 921, 93 S.Ct. 2740, 37 L.Ed.2d 147 (1973) (prosecutor’s characterization of defendant as “[bjurglar, thief, robber,” although improper, did not necessitate reversal); see Evans v. United States, supra, 392 A.2d at 1026 (reference to defendants as “a gang of felons,” even though improper and offensive, did not compel reversal); Smith v. United States, D.C.App., 315 A.2d 163, 166, cert. denied, 419 U.S. 896, 95 S.Ct. 174, 42 L.Ed.2d 139 (1974) (referring to defendants as “killers,” “warriors,” “gangsters” did not rise to level of substantial prejudice); United States v. Jones, supra, 157 U.S.App.D.C. at 164, 482 F.2d at 753 (use of term “executioner” to characterize defendant, while not condoned, did not warrant reversal). In light of appellant Cosby’s own testimony as to his convictions, the prosecutor’s statement (in connection with the “thief” remark) to the effect that appellant Cosby’s prior convictions reflected solely on his credibility, and the trial judge’s cautionary instruction to the jury on not drawing any inference of guilt against the defendant from his prior convictions, we conclude that any possible error stemming from the comment was harmless.⁷

III

Both appellants challenge the trial court’s giving of missing witness instructions pertaining to the “reverend” and to “Cornbread” Harris. The instruction is permissible where “an inference of unfavorable testimony from an absent witness is a natural and reasonable one.” Burgess v. United States, 142 U.S.App.D.C. 198, 206, 440 F.2d 226, 234 (1970); see 2 Wigmore, Evidence § 286 (Chadbourn rev. 1979). Consistent with the theory underlying the adverse inference, two conditions must be satisfied before a trial judge may instruct the jury on a missing witness: (1) the witness’ testimony must be likely to elucidate the transaction at issue, and (2) the witness must be peculiarly available to the party who failed to call him. Dent v. United States, D.C.App., 404 A.2d 165, 169-70 (1979); Conyers v. United States, D.C.App., 309 A.2d 309, 312-13 (1973), quoting from United States v. Young, 150 U.S.App.D.C. 98, 103-04, 463 F.2d 934, 939-40 (1972); Wynn v. United States, 130 U.S.App.D.C. 60, 64, 397 F.2d 621, 625 (1967). Whether these two prerequisites have been met is a factual determination for the trial judge. Dent v. United States, supra, 404 A.2d at 171; Shelton v. United States, D.C.App., 388 A.2d 859, 863 (1978). Thus the trial court has considerable discretion in ascertaining the appropriateness of a missing witness instruction. Dent v. United States, supra; Shelton v. United States, supra; (Kenneth) Smith v. United States, D.C. App., 343 A.2d 40, 44 (1975), quoting from United States v. Craven, 147 U.S.App.D.C. 383, 386, 458 F.2d 802, 805 (1972).

Appellant Cosby maintains that the trial court committed reversible error by giving the missing witness instruction as to the unnamed “reverend” with whom he allegedly was conversing at the time of his arrest.⁸ In his brief, Cosby specifically “concedes that the reverend would have been able to elucidate the transaction, for purposes of the missing witness instruction.” Cosby contends only that the reverend was not peculiarly available to him. We disagree.

Cosby points to his testimony regarding his unsuccessful efforts to locate the reverend as evidence of his powerlessness to produce the alleged minister at trial. On the stand Cosby indicated that he did not know the reverend’s name even though he had an appointment with him. He testified that he knew the location (but not the name) of the reverend’s church, the reverend’s phone number, and the identity (but not the license plate number) of the reverend’s car. In describing his efforts to track down the reverend, Cosby said he had “been past [the church],” although he never knocked on the door. Additionally, he had “[b]een trying to call [the reverend],” but the “[p]hone rang busy ... [a]ll the time.”

If there is evidence in the record that the party has made a bona fide effort to find the witness, the missing witness instruction should not be given. Shelton v. United States, supra, 388 A.2d at 865; Nowlin v. United States, D.C.App., 382 A.2d 9, 13 (1978); United States v. Dixon, 152 U.S.App.D.C. 200, 202 n.4, 469 F.2d 940, 942 n.4 (1972). The trial judge is required to make an “informed decision” on an absent witness’ availability. Stewart v. United States, 135 U.S.App.D.C. 274, 278, 418 F.2d 1110, 1114 (1969). In making the determination that the absent witness was available to Cosby, the court had before it Cosby’s testimony about the supposed reverend. Neither the judge nor the jury was bound to accept the testimony at face value, especially where, as here, “[a] reading of the transcript is convincing of the inherent improbability of appellant’s position.” United States v. Craven, supra, 147 U.S.App.D.C. at 386, 458 F.2d at 805. We find the evidence sufficient to support the giving of the instruction. See Nowlin v. United States, supra, 382 A.2d at 13; United States v. Scott, 150 U.S.App.D.C. 323, 325-26, 464 F.2d 832, 834-35 (1972).

Appellant Harris contends that the giving of the missing witness instruction as to his brother “Cornbread” constituted reversible error because Cornbread could not have elucidated the transaction.⁹ Harris testified that he was at the scene of his arrest in part to wait for his brother and to answer the telephone at the garage at his brother’s request. Harris referred to Cornbread in accounting for his own presence in the neighborhood and to justify his possession of the marked police currency.

While it is true that Cornbread’s testimony could not have shed light on appellant Harris’ alleged drug possession, the offense with which Harris was charged, he could have provided testimony on an issue in the case — Harris’ presence in the neighborhood. Compare Finnegan v. United States, D.C.App., 399 A.2d 570 (1979), with Haynes v. United States, D.C.App., 318 A.2d 901 (1974). “A missing witness need not be an eyewitness to the alleged offense in order to be able to elucidate the transaction.” Finnegan v. United States, supra, at 572. The missing witness instruction describes the witness as one who would offer material testimony on an issue in the case. See note 5, supra; Finnegan v. United States, supra, at 573. Cornbread fits that description.¹⁰ Cornbread allegedly could have corroborated appellant Harris’ account of his innocent presence in the area, a place where undercover policemen journeyed specifically to make narcotics purchases which was a known “regular beat” for Dilaudid. Because no other witness testified in support of Harris’ alibi defense, Cornbread would have supplied superior, non-cumulative testimony. See Cooper v. United States, D.C.App., 415 A.2d 528, 534 (1980) (missing witness instruction erroneously given where witness’ testimony, because cumulative, could not elucidate an issue in the case.) The trial judge did not err in concluding that Cornbread’s testimony could have elucidated the transaction; we find no error in the missing witness instruction’s having been given as to him.¹¹

Finding no reversible error, we sustain appellants’ convictions.

Affirmed.

1 . The discrepancy between the $32 purchase price and the $30 recovered from appellant Harris never was explained.

2 .At trial, the government proffered and the court admitted into evidence a heat-sealed envelope containing the Dilaudid tablet which Thomas said appellant Cosby had sold to him. The document attached to the exhibit was marked only with the name of appellant Harris, who objected to the exhibit’s receipt as evidence. He contends that the trial court’s admission into evidence of the exhibit constitutes reversible error because of its low probative value and its highly prejudicial effect. We find no error in the exhibit’s introduction. The tablet certainly was probative of the offense of possession. Thomas explained at trial the common police practice of listing on an exhibit only one defendant’s name in a case involving codefendants because of the limited space provided on the police forms. This testimony, coupled with the extensive and detailed testimony about both appellants’ involvement in the offense, persuades us that the trial court’s admission of the exhibit as marked was not an abuse of its discretion or so inherently prejudicial as to constitute reversible error. See (Michael) Smith v. United States, D.C.App., 389 A.2d 1356, 1359-60, cert. denied, 439 U.S. 1048, 99 S.Ct. 726, 58 L.Ed.2d 707 (1978).

3 . This method of conducting business seeks to separate the possession of the drug from the intent to sell it, as well as to reduce the likelihood of the solicitor’s being robbed.

4 . Cosby testified that he had three convictions for petit larceny and that he had pleaded guilty once to attempted burglary and twice to receiving stolen property.

5 . The court instructed the jury as follows:

If you find that a witness who could have given material testimony on an issue in this case was peculiarly within the power of one party to produce [but] was not produced by that party and his absence has not been sufficiently accounted for or explained, then you may, if you deem it appropriate, infer that the testimony of the witness would have been unfavorable to the party which failed to produce him.

However, no such inference should be drawn by you with regard to a witness who was equally within the power of either party to produce or whose testimony would have been merely cumulative or immaterial.

6 . The trial court also gave an aiding and abetting instruction as to appellant Harris, stating:

You may find the defendant guilty of the crime charged in the information, that is, possession of a narcotic drug, without finding that he personally committed each of the acts constituting the offense, or that he was personally present at the commission of the offense.

Any person who advises, incites or connives at an offense, or aids or abets the principal offender, is therefore punishable as a principal, that is, he is as guilty of the offense as if he had personally committed each of the acts constituting the offense.

A person aids and abets another in the commission of a crime if he knowingly associates himself in some way with the criminal venture, with the intent to commit the crime, participates in it as something he wishes to bring about, and seeks by some action of his to make it succeed.

Some conduct by the defendant of an affirmative character in furtherance of a common criminal design or purpose is necessary. Mere physical presence of a defendant at the time and place of the commission of an offense is not by itself sufficient to establish his guilt. However, mere presence would be enough if it is intended to and does aid the primary actor.

* * * * * *

It is not necessary that any specific time or mode of committing the offense shall have been advised or commanded, or that it shall have been committed in the particular way instigated or agreed upon. Nor is it necessary that there shall have [been] any direct communication between the actual perpetrator and the defendant.

Now the Court further instructs you that in order for you to find that Mr. Harris aided and abetted Mr. Cosby in his possession — remember, we’re not talking about any sale— we’re talking about possession, the Court further instructs you that in order to find that Mr. Harris aided and abetted Mr. Cosby in his possession of a narcotic drug, that is, the dilaudid pill, you must find beyond a reasonable doubt both of the following: That Mr. Cosby had possession of the dilaudid pill at the time in question, and that Mr. Harris passed possession of the dilaudid pill to Mr. Cosby, or caused it to be passed to Mr. Cosby, at some time prior to the incident in question.

Appellant Harris’ counsel objected to the instruction and maintains on appeal that the instruction permitted the jury to find appellant Harris guilty of possession even if it found that he acted without the necessary guilty knowledge. We reject this contention. The trial court’s instruction clearly characterized an aider and abettor as one who “knowingly associates himself in some way with the criminal venture.” (Emphasis supplied.) Moreover, in its general instructions to the jury on intent, the trial court explained the requisite guilty knowledge associated with the charge:

You may find that the defendant knowingly and intentionally possessed the narcotic drug if he did so consciously, voluntarily and purposely, and not because of mistake, inadvertence or accident.

Having received these instructions, the jury was fully apprised of the necessity of finding that appellant Harris acted with guilty knowledge before it could return a guilty verdict against him.

7 . Appellants also objected to the prosecutor’s statement to the jury at the start of his rebuttal: “Ladies and gentlemen, you had a lot of smoke blown at you this afternoon.” Appellants contend that this remark amounts to impermissible comment on appellants’ counsel’s honesty and to prosecutorial misconduct necessitating reversal. However, we find this assertion meritless. The statement was but a passing reference, quite minor in the context of the prosecutor’s entire rebuttal. We are confident that the “smoke” remark had no lasting effect and “did not substantially sway the judgment of the jury.” Sellars v. United States, supra, 401 A.2d at 978.

Finally, appellants objected to the prosecutor’s mischaracterization of a portion of appellant Harris’ attorney’s opening statement. In his rebuttal, the prosecutor said:

And what did [Harris’ counsel] tell you she expected to prove? She expected to prove that, yes, Harris got money and that Cosby gave it to him, for Combread. That Cosby gave Harris money for Combread.

However, what counsel actually had said was that some unknown person had given Harris the money.

He [appellant Harris] will testify he received some money from a man on the street for his brother .... The person from whom he received the money happened to be one of those people that he doesn’t know the name of, but that doesn’t mean he doesn’t know the person.

To rectify the situation, the court told the jury that it recalled that the prosecutor had mischaracterized the opening statement and then permitted counsel to elaborate further on the matter. Given the curative steps taken by the court, we find that the prosecutor’s remarks, even assuming arguendo that they injected error, were not so prejudicial as to require reversal. Sellars v. United States, supra; see King v. United States, 125 U.S.App.D.C. 318, 330, 372 F.2d 383, 395 (1967); Corley v. United States, 124 U.S.App.D.C. 351, 354, 365 F.2d 884, 887 (1966); cf. Bradley v. United States, 136 U.S.App.D.C. 339, 345, 420 F.2d 181, 187 (1969) (supplementary argument would have been appropriate).

8 . Cosby’s testimony reflects inconsistencies as to where the reverend was located in relation to him. While described as “standing behind him [appellant Cosby],” “standing in the yard of the church” with Cosby “standing on the sidewalk,” the reverend apparently was positioned on the opposite side of a fence from appellant; nonetheless, Cosby testified that he knew the time of his arrest because he was able to see the reverend’s watch.

9 .Harris does not contest his ability to produce Cornbread. He does argue that Cornbread’s testimony about the marked police currency would have tended to incriminate him; if Cornbread were to have claimed the privilege against self-incrimination when called to testify, he would not have been considered available to either party. Anderson v. United States, D.C.App., 352 A.2d 392, 394 n.3 (1976); Carver v. United States, D.C.App., 312 A.2d 773, 775 (1973); see Bowles v. United States, 142 U.S.App.D.C. 26, 32, 439 F.2d 536, 542 (1970) (en banc), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971). However, the privilege does not apply to Cornbread. Appellant Harris testified that some unknown man handed him the marked currency, saying it was for Cornbread. According to his story, the money, although intended to end up in Cornbread’s possession, neither came from nor found its way to Cornbread. Consequently, Combread’s testimony concerning the money was not subject to a Fifth Amendment claim of privilege, and he was available as a witness.

10 . The trial court specifically found that Cornbread “would have elucidated a matter in issue and would have been important, and therefore, material.”

11 . The record before us demonstrates that the trial judge was both deliberate and selective in his evaluation of requests for the missing witness instruction. He denied three additional government proposals that the instruction be given as to the other individuals who allegedly were involved with appellants on the day of the • arrest.