Allen v. US, 91-CF-1491.

• Decision Date: 31 October 1994
• Docket Number: No. 91-CF-1491.,91-CF-1491.
• Citation: 649 A.2d 548
• Parties: Sean Vincent ALLEN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

649 A.2d 548

Sean Vincent ALLEN, Appellant, v. UNITED STATES, Appellee.

No. 91-CF-1491.

District of Columbia Court of Appeals.

Argued April 6, 1994.

Decided October 31, 1994.

Gregory Burr Macaulay, Washington, DC, for appellant.

G. Michael Lennon, Asst. U.S. Atty., with whom Eric H. Holder, Jr., U.S. Atty., and John R. Fisher, Roy W. McLeese, III, and Corbin A. Weiss, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before WAGNER, Chief Judge,^* SULLIVAN, Associate Judge, and MACK, Senior Judge.

SULLIVAN, Associate Judge:

After a jury trial, appellant, Sean Allen (Allen), was convicted of one count of unauthorized use of a motor vehicle (UUV), D.C.Code § 22-3815 (1989), one count of possession of an unregistered firearm, id. § 6-2311 (1994 Supp.), and one count of possession of ammunition, id. § 6-2361 (1989). On appeal, appellant argues that the trial court abused its discretion by (1) denying appellant's motion for a mistrial because of the government's belated disclosure of the complete oral statement made by appellant to the arresting officers; (2) not imposing sanctions on the government for its failure to preserve the key to the automobile and the yellow inventory control tag on which the key was attached; and (3) denying appellant's motion for a mistrial because of alleged inflammatory and prejudicial rhetoric used by the prosecutor in opening, closing, and rebuttal arguments. Appellant also contends that the trial judge committed reversible error by communicating ex parte to the jury in response to a jury note. We affirm.

I.

On April 27, 1991, at approximately 3:30 a.m., Sergeant Gary Glenn of the Metropolitan Police Department was parked in his marked cruiser on Q Street, Southwest, just west of Half Street. He saw appellant driving south on Half Street in a 1987 Acura Legend. When appellant reached the stop sign at Q Street, he applied his brakes "a little late, sliding on loose gravel and just into the intersection." He then made a right turn onto Q Street and drove past Sergeant Glenn's cruiser. As appellant drove past him, Sergeant Glenn noticed that there was a Maryland licence plate on the rear of the car, but no tag on the front. For that reason, Sergeant Glenn turned his cruiser around and began to follow the Acura. He ran the license plate number of the car through the police computer system, was advised by his dispatcher that the Maryland license plate had been reported stolen, and called for backup units to assist him in stopping the car.

Sergeant Glenn and other officers stopped appellant and his passenger¹ on Suitland Parkway, near Stanton Road. The officers ordered the appellant and his passenger out of the car. Sergeant Glenn checked inside the car and observed a single key in the ignition and the stock of a handgun protruding from under the driver's seat. Officer Joseph Gingrich also observed the butt of a firearm underneath the driver's seat.

Appellant was then arrested and taken to the First District police station. Officer David Hobbs "put the vehicle on the property book" and filled out the property report. The key was then attached to a property tag, and the tag stapled to the property form, pending return of the vehicle to the owner. Officer Gingrich, after advising appellant of his Miranda² rights, asked appellant where he had gotten the car. Appellant told Officer Gingrich that, shortly before leaving for the East Side Club³ that evening, he had been walking down the street, and a female "crack head"⁴ had given him the keys to the car for five dollars. Officer Gingrich made it known that he did not believe appellant, and appellant then told the officer he had nothing else to say.

A representative for Templeton Oldsmobile came to the First District police station after being notified that the Acura Legend had been recovered. Both the key and the car were released to him. The dealer sold the car, with the key, approximately three days later.

In addition to the police officers involved in this case, Roger Gehring, the used car manager at Templeton Oldsmobile at the time the car was stolen, testified at trial about how the dealership kept the keys to the cars on the lot. He testified that the keys were kept on a board inside a closet, and that there was a yellow tag attached to each ring.

Appellant did not testify at trial. The substance of the testimony of all four of his witnesses was that appellant had his own 1984 BMW, and therefore did not need to be involved with a stolen car.

II.

Appellant contends that a mistrial should have been granted because the government failed to disclose before trial the entirety of an oral statement made by appellant to the arresting officers. Super.Ct.Crim.R. 16(a)(1)(A) provides in relevant part that:

upon request of a defendant the prosecutor shall disclose to the defendant and make available for inspection, copying, or photographing: ... the substance of any... relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defendant to be a government agent if the government intends to use that statement at trial.

In construing Rule 16, this court has held that "`substance' in this context connotes disclosure `in enough detail to minimize the undesirable effects of surprise at trial and otherwise contribute to the fair and efficient administration of criminal justice.'" Smith v. United States, 491 A.2d 1144, 1147 (D.C.1985) (citation omitted). The government's response to a defendant's inquiries regarding the substance of the statement must be accurate and unambiguous. Id. Here, appellant contests the admission of the statement made by Officer Gingrich at trial and contends that he was denied a fair trial because the full extent of the statement was not disclosed to appellant during pretrial discovery.

After his arrest, appellant made a statement to Officer Gingrich while he was in the cellblock. Officer Gingrich testified to the substance of appellant's oral statement during a preliminary suppression hearing. According to the officer,

the defendant stated that shortly before he had left to go to the east side that evening, he was on foot walking down a street in Maryland and he had a conversation with a female who he referred to as a crack head and the female gave him the keys to the vehicle in exchange for $5.

(Emphasis added.) At the end of the suppression hearing, the trial court ruled that the government could use appellant's statement. The court also ruled that "there are no other statements that the government can use from the defendant in its case in chief, that is the statement."

At appellant's trial, Officer Gingrich testified that appellant told him that the car had come from a female crack head that appellant encountered in Maryland "shortly before he left that evening for the East Side Club." (Emphasis added.) Appellant's trial counsel made no objection to the officer's testimony. The following morning, however, appellant's counsel moved for a mistrial, asserting that the government had not disclosed previously a portion of the oral statement during pretrial discovery in violation of Super.Ct.Crim.R. 16—that portion of the statement in which appellant allegedly stated that his destination was the East Side Club instead of the "east side." The trial judge found appellant's counsel's argument to have some merit and therefore instructed the jury as follows:

On yesterday you heard testimony from Officer Gingrich ... that following that advisement of rights that the defendant elected to make a statement and that a portion of that statement that he made began with "shortly before leaving for the East Side Club" and then you will recall yourselves the remainder of that testimony.

And the Court today has determined for legal reasons that you are to disregard so much of the statement that the witness reported was made to him by Sean Allen... as begins with the phrase "shortly before leaving for the East Side Club." The remainder of that statement is in evidence for your consideration when you deliberate this case.

However, I direct the court reporter to strike from the record of this trial so much of that testimony that included the phrase attributed to Sean Allen that begins "shortly before leaving for the East Side Club." That is no longer evidence in this trial. You are to disregard it.

Thus, in response to the government's failure to disclose the entirety of appellant's oral statement, the trial judge, in the exercise of his discretion, sanctioned the government by striking the reference to the East Side Club. According to appellant, this sanction was inadequate.

It is well established in this jurisdiction that the trial court has authority, pursuant to Rule 16(d)(2), to fashion an appropriate sanction for failure to comply with Rule 16(a)(1)(A). Williams v. United States, 641 A.2d 479, 484 (D.C.1994); Davis v. United States, 623 A.2d 601, 605 (D.C.1993); see also Cotton v. United States, 388 A.2d 865, 869 (D.C.1978).

The court may order the party who has violated Rule 16 to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other orders as it deems just under the circumstances.

Super.Ct.Crim.R. 16(d)(2). The trial judge enjoys a broad range of possible sanctions, with the sole limitation being that the sanction be "just under the circumstances." Davis, supra, 623 A.2d at 605.

In exercising its discretion, the trial court must consider the reason for the non-disclosure, the impact of nondisclosure, and the impact of the proposed sanction on the administration of justice. Yoon v. United States, 594 A.2d 1056, 1061 (D.C.1991) (quoting Wiggins v. United States, 521 A.2d 1146, 1148 (D.C.1987)). The record does not reflect any specific reason for the nondisclosure of the complete statement to appellant prior to September 9th;...