Artis v. United States

• Decision Date: 13 February 1986
• Docket Number: No. 83-538.,83-538.
• Citation: 505 A.2d 52
• Parties: James A. ARTIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

505 A.2d 52

James A. ARTIS, Appellant, v. UNITED STATES, Appellee.

No. 83-538.

District of Columbia Court of Appeals.

Argued February 6, 1985.

Decided February 13, 1986.

Ellen Burkhardt, Law Student Counsel, with whom Steven H. Goldblatt, Supervising Attorney, Washington, D.C., Susan L.

Siegal, Appellate Law Fellow, and Raul Salinas, Law Student Counsel, was on briefs, for appellant.

Wendy Bebie, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on brief, for appellee.

Before NEBEKER, MACK and BEL-SON, Associate Judges.

BELSON, Associate Judge:

A jury found appellant guilty of three counts of burglary in the second degree, D.C.Code § 22-1801(b) (1981), one count of grand larceny, id., 22-2201, repealed and superseded by District of Columbia Theft and White Collar Crimes Act of 1982, D.C.Law 4-164, §§ 111, 602(y), 29 D.C.R. 3976, 3978, 3995, and two counts of petit larceny, id., at 22-2202, repealed and superseded by D.C.Law 4-164, §§ 111, 602(z), 29 D.C.R. 3976, 3978, 3995. He assigns as error trial court rulings (1) curtailing bias cross-examination of a government witness; (2) admitting evidence of other crimes; and (3) polling the jury and ordering resumption of deliberations after a juror dissented from a verdict.¹ We affirm.

I

The offenses of which appellant was convicted were committed at a video arcade and an adjoining warehouse at 1226 South Capitol Street, S.E. The complainant, Sylvester Watson, owned both the arcade and the warehouse, and employed appellant as manager of the former. On the nights of September 17, 19 and 20, 1981, appellant induced and directed an eleven-year-old juvenile, D.N., to climb through a hole in the wall in the arcade into the adjoining warehouse office and to take money. D.N. then delivered the proceeds of the theft to appellant. D.N. also purloined from the warehouse a tape recorder and some tapes, which he retained for himself. After completing the last of the three episodes of thievery, D.N. showed the recorder to his nephew, Lawrence "Putney" Brown and recounted to Brown how he had obtained it.

Several days later D.N. returned with the tape recorder to the arcade. There he was seen by Watson's nephew, who notified Watson. Watson questioned D.N. about his possession of the tape recorder and threatened to call the police and press charges against him. D.N. then told Watson that "Artis told me to do it." Watson called the police and upon their arrival D.N. demonstrated how he had climbed through the arcade wall at appellant's bidding.

II

Appellant contends that the trial court violated his Sixth Amendment right of confrontation by refusing to allow cross-examination of government witness D.N. to demonstrate D.N.'s bias when he initially implicated appellant in the warehouse burglaries. Appellant sought to show that D.N. had juvenile charges pending on September 20, 1981, when D.N. told his nephew, Lawrence Brown, of appellant's involvement in the burglaries, and on October 2, 1981, when he made incriminating statements about appellant to Watson and to the police. The record reveals that in August 1981, D.N. had entered pleas of guilty to juvenile charges of breaking and entering a vending machine in one case and of robbery in another case. It was not until November 1981, that D.N. was sentenced in connection with these cases, which means that the charges were pending final disposition in September and October 1981, when D.N. implicated appellant in the warehouse burglaries. Appellant maintains, as he did at trial, that the pendency of disposition of the juvenile charges furnished D.N. with good cause to curry favor with the government in the hope of obtaining a lenient sentence and that the trial court committed reversible error by disallowing appellant from cross-examining D.N. about this potential source of bias.

The confrontation clause of the Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution to effective cross-examination of government witnesses, particularly with respect to the witnesses' bias, prejudice or motivation in testifying for the government.² Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974); Sherer v. United States, 470 A.2d 732, 736 (D.C. 1983); McNeil v. United States, 465 A.2d 807, 811 (D.C. 1983); Springer v. United States, 388 A.2d 846, 854-55 (D.C. 1978). An accused's right to cross-examine adverse witnesses is not, however, without limits. Beynum v. United States, 480 A.2d 698, 706 (D.C. 1984); Reed v. United States, 452 A.2d 1173, 1176 (D.C. 1982), cert. denied, 464 U.S. 839, 104 S.Ct. 132, 78 L.Ed.2d 127 (1983). We have said that

Where the trial court limits a specific inquiry into an admittedly material subject relevant to a witness' bias or motive for testifying, but generally permits extensive cross-examination on the issue, this court will not reverse if the error in excluding the relevant inquiry was harmless beyond a reasonable doubt.

McNeil, 465 A.2d at 811 (citation omitted); see Goldman v. United States, 473 A.2d 852, 857 (D.C. 1984); Tabron v. United States, 444 A.2d 942, 944 (D.C. 1982); Springer, 388 A.2d at 856.

Examination of the record in this case reveals that the trial court curtailed an appropriate line of cross-examination respecting D.N.'s liberty interest bias at the time he initially implicated appellant. This was error. The record also discloses, however, that the trial court permitted considerable cross-examination of D.N. that provided the jury sufficient information from which to infer such bias. Defense counsel elicited from D.N. that on January 21, 1982, he had entered a plea of guilty to robbery and agreed to testify for the government at appellant's trial in exchange for which the government agreed (a) to drop some other charges D.N. had picked up subsequent to the warehouse burglaries,³ and (b) not to charge D.N. in connection with his participation in the warehouse burglaries. The jury also learned that, when he testified at trial against appellant, D.N. was on probation for simple assault for which he had been arrested one year subsequent to the warehouse burglaries and that his probation was to be reviewed approximately one month later. The cross-examination of D.N. which the trial court permitted effectively highlighted his motives to curry favor with the government to escape prosecution for the warehouse burglaries and for subsequent offenses, and to avoid possible revocation of his probation. Accordingly, the test of constitutional harmless error applies. See Springer, 388 A.2d at 856 (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).

Curtailment of constitutionally-protected cross-examination constitutes harmless error where it is "clear beyond a reasonable doubt `(1) that the defendant would have been convicted without the witness' testimony, or (2) that the restricted line of inquiry would not have weakened the impact of the witness' testimony.'" Springer, 388 A.2d at 856 (citation omitted); accord Goldman, 473 A.2d at 857; McNeil, 465 A.2d at 812; Tabron, 444 A.2d at 944. We apply the first element of the test when we cannot determine what facts defense counsel would have elicited upon cross-examination, and the second element when the excluded testimony is available for our review. Goldman, 473 A.2d at 857; Tabron, 444 A2d at 944.

Although the trial court did not transmit under seal to this court, prescribed by Lewis v. United States, 393 A.2d 109, 119 (D.C. 1978) (Lewis I) and Lewis v. United States, 408 A.2d 303, 312 (D.C. 1979) (Lewis II), the juvenile records in the two cases about which the trial court prohibited defense counsel from cross-examining D.N., we have obtained the records and take judicial notice of them. See Ludington v. Bogdanoff, 256 A.2d 921, 922 n. 2 (D.C. 1969). Hence we apply the second element of the Springer harmless error test. As we have recounted already, cross-examination of D.N. demonstrated to the jury that he had several strong incentives to cooperate with the government and to shift blame to appellant. We are satisfied beyond any reasonable doubt that disclosure of, and cross-examination about, D.N.'s juvenile charges pending final disposition at the time he implicated appellant in the warehouse burglaries, would not have weakened the impact of his testimony. See Tabron, 444 A.2d at 944-45. Consequently, the trial court's error in curtailing such cross-examination was harmless and does not warrant reversal.

III

Appellant next contends that the trial court erred by admitting evidence of his purported prior illegal activity. Testimony was adduced at trial that on June 10, 1981, appellant asked four juveniles to help him retrieve from the apartment of his niece a stereo he told them he had lent her. Appellant and the four boys drove to his niece's apartment that afternoon and knocked on the front door. When no one answered, appellant, without his niece's permission, instructed the youths to go around the back, reach in through a hole in the screen, unlock the door, enter and bring out the stereo. They complied, removing one stereo speaker. But when they observed that appellant had driven his car away from the front of the building, they returned the speaker to the apartment and walked back down the street. The police apprehended the boys moments later.

Evidence of criminal acts, independent of the ones charged, generally is inadmissible, Bigelow v. United States, 498 A.2d 210, 212 (D.C. 1985), unless introduced for some "substantial legitimate purpose," Gates v. United States, 481 A.2d 120, 123 (D.C. 1984) (quoting Drew v. United States, 118 U.S.App.D.C. 11, 16, 331 F.2d 85, 90 (1964)), such as identity, Gates, 481 A.2d at 123-24; Brooks v. United States, 448 A.2d 253, 257 (D.C. 1982), so long as identity is a genuine and material issue in the case, the evidence is...