Montgomery v. United States

517 A.2d 313, 1986 D.C. App. LEXIS 474
CourtDistrict of Columbia Court of Appeals
DecidedNovember 13, 1986
Docket85-34
StatusPublished
Cited by7 cases

This text of 517 A.2d 313 (Montgomery 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
Montgomery v. United States, 517 A.2d 313, 1986 D.C. App. LEXIS 474 (D.C. 1986).

Opinion

FERREN, Associate Judge:

A jury convicted appellant of possession of heroin. D.C.Code § 33-541(d) (1986 Supp.). He challenges his conviction on two grounds. First, appellant contends the trial court committed plain error in permitting the government to give a detailed outline of its case against him to the jury panel before selection of the jury. Second, he argues that the trial court erred in admitting into evidence the Daily Vehicle Inspection and Activity Report (form PD 775) under the business records exception to the hearsay rule. Finding no error, we affirm.

I.

At the outset we note that, because appellant failed to object to the government’s presentation of an overview of the case to the jury panel, we may reverse only for plain error. Allen v. United States, 495 A.2d 1145, 1153 (D.C.1985) (en banc); Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc). Furthermore, appellant concedes that the trial court did not err, as a matter of law, in allowing the government to provide the jury panel with an overview of the case. He contends, however, that the prosecutor gave an overly detailed, onesided, and thus unfair description of the case to be tried — a description implicitly having the court’s imprimatur. Consequently, he argues, the trial court had an obligation to interrupt the government’s description, either to give a curative instruction or to dismiss the jury panel. We are unpersuaded.

After explaining to the jury panel the purpose of voir dire, the trial court introduced appellant, his attorney, and the prosecutor. The court informed the panel that the prosecutor would “now give you a brief overview of the case, to ascertain whether any of you know something of this case....” The prosecutor then stated:

The defendant in this case, Clyde Montgomery, has been charged with possession of heroin. The offense is alleged to have occurred on October 30th, 1983 at approximately 11:50 in the morning. The Defendant was found — was being transported to the seventh district, when — and before being transported, the officers observed the Defendant in the back of the car while he was being — he was placed in the rear of the scout car in order to be transported, and he was fumbling around and wiggling in the car.
*315 After he had been transported to the district, at a later date — at a later period of time, several hours later after he had been taken out of the car and taken into the station to he processed, narcotics were recovered right in the spot where the Defendant had been seated in the police car. That is very briefly — and the powder was later analyzed by DEA 7 as being heroin.

It is well settled that the trial court has broad discretion in conducting voir dire. Johnson v. United States, 470 A.2d 756, 758 (D.C.1983); McCowan v. United States, 458 A.2d 1191, 1195 (D.C.1983); Tuckson v. United States, 364 A.2d 138, 141 (D.C.1976) (per curiam); Davis v. United States, 315 A.2d 157, 160 (D.C.1974). While these cases specifically address the actual voir dire, there is no persuasive reason not to apply their analysis to the presentation of the outline of the case before the questioning of prospective jurors. The trial court’s discretion is, of course, “subject to the essential demands of fairness.” Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931).

When the trial court permits the prosecutor to present a brief overview of the case to the jury panel, the purpose of that statement is not to argue the case or to persuade the jury to favor a particular side. See State v. Manley, 54 N.J. 259, 275, 255 A.2d 193, 202 (1969); ABA, STANDARDS FOR Criminal Justice § 3-5.3 (2d ed. 1980) (prosecutor “should not intentionally use the voir dire to ... argue the prosecution’s case to the jury”). Rather, the purpose is simply to inform the panel of the nature of the case and to ascertain whether any member of the panel is personally familiar with it. On the other hand, for the parties to be able to ascertain whether any member of the jury panel knows of the case, it is necessary to present a factual outline, not merely to state the nature of the case {e.g., drug possession).

While the prosecutor’s remarks arguably went beyond what was necessary to ascertain whether any member of the jury panel was aware of the facts of the case, we cannot say that these remarks undermined the “essential demands of fairness.” Aldridge, 283 U.S. at 310, 51 S.Ct. at 471. We do note, however, that in three respects the prosecutor’s remarks were unnecessarily detailed and thus were more appropriate to an opening statement. First, the prosecutor should not have described the defendant’s alleged “fumbling around and wiggling” in the rear seat of the police squad car. It also was inappropriate to state that the alleged narcotics were “recovered right in the spot” where the appellant had been sitting. Finally, we can discern no legitimate reason for the prosecutor to have informed the jury panel, at this stage of the proceeding, not only that the government alleged the substance found in the squad car was heroin, but also that DEA officials had confirmed it was heroin.

However, in light of the wide discretion afforded the trial court in conducting voir dire and of appellant’s failure to lodge an objection, we cannot say that appellant has shown plain error. Immediately before the prosecutor’s statement, the court had informed the jury panel that the statement’s purpose was to discover whether any of them knew about the case to be tried. The prosecutor then began her summary of the case with the important qualification that the offense was “alleged” to have occurred. Furthermore, although she did not repeat this phrase, neither did she completely assume the role of an advocate. Perhaps most important, as appellant concedes, the defense did not present any evidence that contradicted the prosecutor's summary of the case. Appellant does not contend that the reason he failed to put on contradictory evidence was that he feared the prosecutor’s initial summary was so prejudicial that the jury would not have believed any evidence appellant put forward. Under these circumstances, it is virtually inconceivable that the prosecutor’s initial, brief description of the case against appellant convinced the jurors of his guilt.

*316 II.

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517 A.2d 313, 1986 D.C. App. LEXIS 474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-united-states-dc-1986.