Bourn v. US

• Decision Date: 28 December 1989
• Docket Number: No. 87-723.,87-723.
• Citation: 567 A.2d 1312
• Parties: Christopher BOURN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

567 A.2d 1312

Christopher BOURN, Appellant, v. UNITED STATES, Appellee.

No. 87-723.

District of Columbia Court of Appeals.

Argued October 17, 1989.

Decided December 28, 1989.

William Dansie, appointed by this court, for appellant.

Per A. Ramfjord, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell, Asst. U.S. Atty., at the time the brief was filed, and John R. Fisher, Asst. U.S. Atty., were on the brief, for appellee.

Before ROGERS, Chief Judge, TERRY, Associate Judge, and KERN, Senior Judge.

ROGERS, Chief Judge:

Appellant, Christopher Bourn, appeals from his conviction by a jury of possession with intent to distribute phencyclidine (PCP) and cannabis (marijuana), and possession of marijuana, D.C.Code § 33-541(a)(1) & (d) (1985 Supp.). Among his claims of error are (1) the use of his testimony at a suppression hearing to impeach him at trial; (2) the failure to strike the testimony of witnesses who allegedly violated the rule on witnesses; (3) the lack of adequate instructions of unanimity; and (4) the imposition of a separate sentence for possession of marijuana which is a lesser included offense of possession with intent to distribute marijuana. We hold that the trial court did not err in allowing appellant to be impeached at trial with his testimony on cross-examination at the suppression hearing. We find no abuse of discretion by the trial court in declining to strike witnesses' testimony and no plain instructional error regarding unanimity. However, we agree that appellant's conviction for possession of marijuana must be vacated. Accordingly, we affirm the judgment except to remand to the trial court with instructions to vacate the conviction for possession of marijuana.

I

On December 27, 1985, at approximately 4:00 p.m., while on non-uniformed patrol in an unmarked police cruiser in the 1300 block of C Street, S.E., an area known for PCP and marijuana trafficking, four police officers spotted a man, later identified as appellant, standing in an open breezeway next to an unidentified woman. Appellant was holding a plastic bag containing a number of small tinfoil envelopes similar to those customarily used to package PCP for sale, and passing something to the woman. Suspecting that a drug transaction was taking place, the officers got out of the car. As they approached, appellant ran out of the breezeway, shoving one officer aside as he ran. Another officer tackled him, and, with assistance, subdued appellant who attempted to swallow the plastic bag as he lay struggling in the street.

The plastic bag contained ten tinfoils, and three manila envelopes were found in appellant's jacket pocket. A search of the breezeway produced three additional tinfoils. The manila envelopes were later determined to contain marijuana and the contents of the tinfoils tested positive for PCP-laced marijuana.

An expert testified that the events were consistent with the distribution of drugs.

II

Appellant contends that the trial judge committed reversible error in permitting the prosecutor over defense objection to impeach him at trial with his suppression hearing testimony. He maintains that his cross-examination testimony at the suppression hearing was improper because it exceeded the scope of his direct examination, and that the error was compounded when it was used in a highly prejudicial way to impeach him at trial. We disagree.

First, appellant's cross-examination at the suppression hearing about whether he had seen or sold PCP or marijuana did not exceed the scope of the direct testimony. See United States v. Williams, 754 F.2d 672, 676 (6th Cir. 1985); United States v. Gomez-Diaz, 712 F.2d 949, 951-52 (5th Cir.), cert. denied, 464 U.S. 1051, 104 S.Ct. 731, 79 L.Ed.2d 191 (1984). Appellant testified on direct examination that he had been in the area for 20 years and was familiar with what went on in the area and denied ever selling or possessing narcotics at any time, including the day of his arrest. On cross-examination, he claimed that he could not recall having ever seen tinfoils of PCP or marijuana in the area and denied knowing what a tin of marijuana and PCP looked like.¹ These denials went directly to the issue at the suppression hearing of whether the police had probable cause to arrest him, and the prosecutor could properly try to show that the denials were false. Williams, supra, 754 F.2d at 676.

Second, to decide whether the use of appellant's suppression hearing testimony to impeach him at trial was highly prejudicial because appellant alleges it urged guilt by association, we first must decide the question reserved by the Supreme Court in United States v. Salvucci, 448 U.S. 83, 94, 100 S.Ct. at 2547, 2554, 65 L.Ed.2d 619 (1980). Then Justice Rehnquist, speaking for the Court, framed the issue of whether a defendant's testimony from a suppression hearing can be used to impeach him at a later trial as a question of extending the "Simmons privilege". Id. at 94, 100 S.Ct. 2554 (referring to Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). In Simmons the prosecutor introduced a suitcase containing incriminating items recovered from the house of the mother of one co-defendant. To establish his standing to suppress the evidence, the defendant testified at a pre-trial suppression hearing that, although he could not identify the suitcase with certainty, it was similar to one he had owned and that he was the owner of clothing found inside the suitcase. 390 U.S. at 380-81, 88 S.Ct. at 969-70. At trial, the prosecutor used this testimony to prove guilt. Id. at 389, 88 S.Ct. at 973. The Court viewed as "intolerable" the dilemma where a defendant is "obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination," and held that when a defendant testified in support of a motion to suppress on Fourth Amendment grounds, his testimony may not be admitted against him at trial on the issue of guilt. Id. at 394, 88 S.Ct. at 976.

Clearly, the possibility that a defendant's prior testimony may be admitted at trial, for whatever purpose, is likely to have some deterrent effect on a defendant who contemplates asserting a Fourth Amendment right. However, the Supreme Court has repeatedly held that an impermissible burdening of rights is not shown by a mere finding that a choice imposed upon the defendant may have a "discouraging effect on the defendant's assertion of his trial rights." Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S.Ct. 1977, 1985, 36 L.Ed.2d 714 (1973) (prospect of a higher sentence on retrial does not impermissibly discourage defendant's assertion of right to appeal). Rather, a balancing of interests is required in light of the purpose of the Simmons rule between the benefits to society at large and the detriment to the individual defendant. See United States v. Havens, 446 U.S. 620, 626-28, 100 S.Ct. 1912, 1916-17, 64 L.Ed.2d 559 (1980);²Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971); Corbitt v. New Jersey, 439 U.S. 212, 218-22 & nn. 8 & 9, 99 S.Ct. 492, 497-99 & nn. 8 & 9, 58 L.Ed.2d 466 (1978). Thus, the question is whether admitting at trial a defendant's prior inconsistent testimony at a suppression hearing on the issue of credibility presents a burden on a defendant's rights that is analogous to the "intolerable" dilemma held impermissible in Simmons or is outweighed by the need for proper and effective cross-examination and truth-testing evidence at trial.³

Under the trial judge's ruling, appellant could assert his Fourth Amendment right only by assuming the risk that his testimony would later be used to impeach him at trial. Consequently, his burden is that which a defendant choosing to raise a Fourth Amendment claim bears in being obliged to testify consistently or face the consequences of impeachment at trial. The question becomes whether, by admitting prior testimony from a suppression hearing as impeachment evidence at trial, the resulting benefits to society, measured in terms of testing the trustworthiness of defendant's trial testimony, outweigh the discouraging effects on a defendant's assertion of his Fourth Amendment rights and his right to testify at trial.

The Supreme Court has determined in various contexts that the right to testify at trial cannot be construed to include the right to commit perjury. See Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) (counsel's threat to inform court and to seek to withdraw if client-defendant lied on witness stand did not violate sixth amendment right to effective assistance of counsel); Havens, supra, 446 U.S. at 628-29, 100 S.Ct. at 1917-18 (prosecutor may use illegally seized evidence to impeach defendant's perjurious trial testimony if reasonably related to defendant's direct testimony at trial); Harris, supra, 401 U.S. at 225, 91 S.Ct. at 645 (otherwise inadmissible evidence may be used as impeachment as long as that testimony was in response to questions "plainly within the scope of the defendant's direct examination"); cf. Witherspoon v. United States, 557 A.2d 587, 596, n. 6 (D.C. 1989) (Ferren, J., concurring). The Court's rationale is simply that the fact-finder's need to hear evidence of a defendant's untrustworthiness outweighs the protections and policy concerns underlying the Fourth Amendment's exclusionary sanctions. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); Harris, supra, 401 U.S. at 225, 91 S.Ct. at 645; Havens, supra, 446 U.S. at 628-29, 100 S.Ct. at 1916; Ibn-Tamas, supra note 3, 407 A.2d at 645-46. The Court has rejected "the notion that the defendant's constitutional shield against having illegally seized evidence used against him could be `perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior...