Beale v. United States

• Decision Date: 20 June 1983
• Docket Number: No. 81-614.,81-614.
• Citation: 465 A.2d 796
• Parties: Brandon G. BEALE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 796

465 A.2d 796

Brandon G. BEALE, Appellant, v. UNITED STATES, Appellee.

No. 81-614.

District of Columbia Court of Appeals.

Argued August 24, 1982.

Decided June 20, 1983.

COPYRIGHT MATERIAL OMITTED

James M. Fallon, Washington, D.C., appointed by this court, for appellant.

Sylvia Royce, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., at the time brief was filed, and David W. Stanley, Asst. U.S. Atty., Washington, D.C., were on brief, for appellee.

Before KERN, NEBEKER and MACK, Associate Judges.

KERN, Associate Judge:

After a jury trial, appellant was convicted of first-degree premeditated murder while armed in violation of D.C.Code §§ 22-2401,3202 (1981), and carrying a pistol without a license in violation of D.C. Code, § 22-3204 (1981). He was sentenced to concurrent terms of 20 years to life imprisonment for murder and one year imprisonment for carrying a pistol without a license.

On appeal, he raises a spectrum of issues and alleges several instances of improper prosecutorial conduct, erroneous trial court rulings on evidentiary matters and trial court error in refusing to consider probation as a sentencing alternative.¹ Although we do not find the trial proceedings to be without error, we affirm appellant's conviction because we are persuaded that any errors that were committed could not have substantially swayed the judgment of the jury.

At approximately 10:30 p.m. on the night of August 2, 1980, Donald Thompson was shot in the vicinity of 1412 Chapin Street, N.W. At a subsequent trial, the government presented the testimony of three witnesses (Peggy Ann Williams, George Roper and Michelle Mason) who stated that they saw appellant shoot Thompson. The defense called eight witnesses who testified either that they did not see appellant in the area at the time of the murder or that they saw the shooting but appellant was not the perpetrator. Appellant testified, as did his brother Raymond and girl friend Tanya, that he was at home during the crucial time. Appellant stated to the jury that after learning that he was wanted by the police, he turned himself in accompanied by counsel.

I

Appellant claims that the trial court erred during trial in permitting the prosecutor to impeach, variously, three defense witnesses by reference to police records or prior arrests and convictions.

First, the government called as a witness Detective Joseph E. Schwartz, who attempted to find appellant after he was identified as a suspect in the Thompson murder. Schwartz testified that when he appeared at an apartment in 1412 Chapin Street, N.W., he encountered several individuals who would not identify themselves, although he was able to later identify one of them, Raymond Beale, through "criminal records."² Defense counsel objected and moved for a mistrial. (Record at 372.)

The decision on whether a mistrial should be declared has always been committed to the sound discretion of the trial court. Middleton v. United States, 401 A.2d 109, 127 (D.C.1979); United States v. Anderson, 165 U.S.App.D.C. 390, 403, 509 F.2d 312, 325 (1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975). As such, on appeal, a decision should be reversed only in extreme situations threatening a miscarriage of justice. Middleton, supra.

Appellant contends that the words of Detective Schwartz "could only be taken to mean that he had either prior arrests or convictions" (Appellant's Brief at 8) and that the trial court failed to mitigate the error. Under the facts and circumstances of this case, we are not persuaded that the trial court abused its discretion.

The officer's reference to "criminal records" was a passing reference in the course of a lengthy trial which does not serve to directly rebut appellant's alibi defense. Further, any prejudicial impact of Detective Schwartz's comment could have easily been cured by an immediate cautionary instruction to the jury which was refused by defense counsel despite the trial court's continuing reminders during the trial of the availability of such an option.³ We contrast the situation here with that in Lucas v. United States, 436 A.2d 1282 (D.C.1981), which appellant asserts is virtually the same as the present case. There, a prior inconsistent statement was used to impeach the defendant's brother which "if considered for the truth of its content [would have] rebutted [the defendant's] alibi defense [and] supported [his] statement to police which he had repudiated." Id. at 1285. This, coupled with the prosecutor's closing argument to the jury which the court found to be arguing the substantive truth of the prior inconsistent statement led the court to find that the defendant was denied his right to a fair tria1.⁴

Second, on direct examination, defense witness Robert Ellis was questioned by appellant's counsel as follows:

Q. You've been con — have you been convicted of some misdemeanors?

A. Yes, I have.

Q. What were they?

A. Selling liquor without a license, carrying a pistol without a license, and UNA.

Q. What is UNA?

A. Uniform Narcotic Act, one nickle bag of reefer.

Q. Is that marijuana?

A. Yes.

Q. Were those within the past ten years?

A. Yes it is. [Record at 570-71.]

On cross examination, the prosecutor brought up these three prior convictions and asked a total of four questions confirming the dates of these convictions.

In Kitt v. United States, 379 A.2d 973, 975 (D.C.1977), this court held that the trial court must permit either side to bring out the criminal convictions of its own witnesses on direct examination in order to "draw the sting from the inevitable impeachment on cross-examination." Such a rule was designed to allow the defense to defuse the effect of a prior conviction by having the witness "tell it on himself." Appellant's assertion is that a prosecutor is foreclosed from introducing prior convictions after the defense has conducted an effective Kitt inquiry; but, contrary to appellant's assertion, Kitt recognizes a right by the prosecutor to probe on cross-examination. We said that "irrespective of which side introduces such evidence, the government remains free to argue its significance as to the witness' credibility." 379 A.2d at 975 n. 2. In sum, the purpose of a Kitt inquiry is to defuse, not foreclose, the prosecution's impeachment.⁵ As such, the prosecution's cross-examination of Robert Ellis was proper and the trial court did not err in overruling appellant's objection.⁶

Finally, appellant also claims that the trial court erred in not striking a reference made by Detective Schwartz on redirect examination that an announced defense witness was "wanted by the police." On cross-examination of Detective Schwartz, defense counsel sought to develop a defense theory that the police never fully investigated the case by asking the detective whether he had interviewed a certain list of individuals. In response to this series of questions, Schwartz responded that he had not been able to interview a person named Curtis Coleman on that list who was a fugitive. (Record at 392-93.)

The "scope of redirect examination rest[s] within the sound judicial discretion of the trial court and will not be reversed unless there is a clear showing of abuse of discretion." In re D.S.A., 283 A.2d 829, 831 (D.C. 1971); cf. FED.R.Evm. 611(a). Since appellant initiated the questioning concerning Curtis Coleman on cross-examination, the trial court did not abuse its discretion in allowing the prosecutor as part of his redirect examination to obtain the reason why the detective did not interview Curtis Coleman.

II

Appellant raises several additional arguments concerning alleged improper impeachment of witnesses by the government at trial. First, appellant claims that the trial court erred by permitting the prosecutor to impeach a defense witness with a prior inconsistent statement without laying a proper foundation. The record reflects that defense counsel did not raise this precise objection below, and thus this claim must be judged under the plain error standard.⁷ Under that standard, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial. Watts v. United States, 362 A.2d 706, 709 (D.C.1976).

During its case in chief, the government called Michelle Mason who testified that on the night of the shooting, she saw appellant step out from a hallway at 1412 Chapin Street, N.W., and shoot the victim Donald Thompson. (Record at 235-39.) Defense counsel called Vernell Mason, the ten-yearold niece of Michelle Mason, to the stand. She testified that there was no man in the hallway and that appellant was not seen that night. (Record at 519-24.) On crossexamination, the government questioned Vernell as follows:

Q. Did your mother or anyone ever tell you that it would be better for you if you claim not to know anything about what happened that night?

A. Nobody talked to me about that.

Q. Nobody ever talked to you about that?

A. No. (Record at 529-30.)

On rebuttal, the government recalled Michelle Mason, who testified as to a conversation held prior to trial with Vernell. Then, according to the rebuttal testimony, Vernell said that her mother had told her to say nothing to the police and, if asked by them to state what happened, to tell them "she didn't see anything." (Record at 949, 951.) The court overruled defense counsel's objection on hearsay grounds since the prosecutor offered such testimony for the impeachment of Vernell's testimony that her mother had never told her to claim ignorance of the incident. (Record at 949-50.)

Appellant argues that in order to properly impeach a witness through the use of a prior inconsistent statement, counsel must first lay a foundation by directing the attention of the witness to the time, place and circumstances of the prior statement and by asking the witness whether she made it;...