McNeil v. United States

465 A.2d 807, 1983 D.C. App. LEXIS 450
CourtDistrict of Columbia Court of Appeals
DecidedAugust 2, 1983
Docket81-175
StatusPublished
Cited by7 cases

This text of 465 A.2d 807 (McNeil 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
McNeil v. United States, 465 A.2d 807, 1983 D.C. App. LEXIS 450 (D.C. 1983).

Opinions

NEWMAN, Chief Judge:

Appellant alleges several instances of prosecutorial misconduct which he contends mandate reversal of his conviction. They are: the failure to correct the false testimony of a witness; the introduction of evidence of appellant’s other crimes before appellant took the stand; and comments in closing argument without evidentiary foundation. He further contends reversible error in the court’s curtailing cross-examination of Ms. Brown. We find that while there was error in each of these areas, the error was harmless. Thus, we affirm.

I.

Roberto Joseph, an employee of the Zodiac record shop in Northwest Washington, testified that on May 11, 1980, at approximately 7:45 p.m., a person he later identified as appellant’s codefendant, Jerome Cox, entered the store and, after briefly looking at some merchandise, walked out again. Cox re-entered the store a short time later and indicated to Joseph that he wished to purchase a radio. As Joseph started to assist him, Cox produced a gun and demanded the store’s receipts. Joseph complied, and Cox ran out of the store with the radio and approximately three hundred dollars in cash.

Detectives Ronald Carpenter and Jack Klepfel responded to the store shortly after the robbery. Carpenter testified that their investigation revealed that Cox had fled the scene in an automobile listed to Taundra Brown. Carpenter and Klepfel went to 304 Upshur Street, N.W., the address where Brown was listed as residing, and after a wait, observed the car for which they were looking pull into the block and park. The detectives advised Brown, who was driving the car, and appellant, the other occupant, that the car had been used in an armed robbery several hours before, and arrested them. The police recovered fifty-one dollars from a search of appellant’s person and seventy-five dollars from the glove compartment of Brown’s car. At the time of their arrest both Brown and appellant told the police that earlier that evening they had driven Cox to the Safeway on Columbia Road, N.W., across the street from the Zodiac record shop, but that they stayed in the car while Cox went inside the Safeway. Cox returned to the car carrying a box containing what appeared to be groceries, and they drove him to Southeast Washington. They denied knowing anything about the robbery.

Brown subsequently admitted her and appellant’s involvement in the robbery, pled guilty to attempted robbery, D.C.Code § 22-2902 (1981), and testified against appellant at trial. Brown testified that she, appellant, and Cox left appellant’s house in the afternoon of May 11, 1980, to get some money and drugs. They drove, in Brown’s car, through Rock Creek Park while deciding where they were going to get the money. Appellant, who was driving, suggested that they rob the Zodiac record shop, but [810]*810told Cox that Cox would have to do the robbery because the owner of the store knew appellant. Both Cox and appellant had handguns in their possession.

They drove by the record store and parked in the Safeway lot, after which Cox went inside the record store to check it out. A short time later Cox came back out, gave a prearranged signal, and went back inside. Cox came out again carrying a radio, and he and Brown, who had gotten out of the car to see what was taking Cox so long, climbed in the car. Appellant drove off. After splitting the money, appellant drove Cox to Southeast Washington; Appellant and Brown then drove to Brown’s house where they were arrested.

During cross-examination Brown falsely denied that she had been advised that the prosecutor would argue for her to remain at Second Genesis, a drug rehabilitation program, in exchange for her testimony against the appellant. The government made no attempt to correct this falsity. Appellant’s counsel sought and was denied leave of the court to approach the bench so he could request that a transcript of Brown’s plea be prepared. At the conclusion of the government’s case, appellant’s counsel again expressed to the court his concern that Brown had misstated the terms of her plea agreement and requested, without objection, that the reporter be permitted to read to the jury the terms of Brown’s plea bargain from her notes. The court, relying on its own recollection of the statements made at the plea proceeding, denied appellant’s request. Appellant was found guilty and sentenced on January 13, 1981, to 15^45 years.

II.

This case presents several instances of trial court error. While these errors were harmless in the context of this case, because they could not substantially sway the judgment of the jury, Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946), they should be illuminated. The first error was the prosecutor’s failure to correct Ms. Brown’s misstatement of her plea agreement. The duty of the prosecutor to correct false testimony has long been recognized by the Supreme Court:

As long ago as Mooney v. Holohan, 294 U.S. 103, 112 [55 S.Ct. 340, 342, 79 L.Ed. 791] (1935) [the Supreme] Court has made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with “rudimentary demands of justice” .... In Napue v. Illinois, 360 U.S. 264, 269 [79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217] (1959) we said “[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Thereafter, Brady v. Maryland, 373 U.S. 83, 87 [83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963)] held that suppression of material evidence justifies a new trial “irrespective of the good faith or bad faith of the prosecution.”

Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1971). In Giglio, the duty to correct false testimony was expressly applied to mischaracteriza-tions of plea bargains. Consequently, when Ms. Brown denied that the government had agreed not to oppose her request to remain in Second Genesis in return for her testimony, the prosecutor should have exposed this falsehood.

Giglio, supra, holds that reversal may be the appropriate sanction for a failure to disclose false testimony. However, “we do not . .. automatically require a new trial whenever a combing of the prosecutor’s files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict ... a finding of materiality ... is required.” Id. at 154, 92 S.Ct. at 766 (citations omitted). The suggested test is whether “the false testimony could ... in any reasonable likelihood have affected the judgment of the jury.” Id. Application of this test to the facts of this case demonstrates that the error was harmless.

[811]*811The jury was aware that Brown was a convicted criminal and a heroin addict. It knew that she had sworn to a false statement to the police and lied to her family, friends, and attorney. More importantly, her motive for testifying against appellant was exhaustingly explored.

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McNeil v. United States
465 A.2d 807 (District of Columbia Court of Appeals, 1983)

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Bluebook (online)
465 A.2d 807, 1983 D.C. App. LEXIS 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcneil-v-united-states-dc-1983.