Bowler v. United States, 82-1701.

• Decision Date: 16 July 1984
• Docket Number: No. 82-1701.,82-1701.
• Citation: Bowler v. United States, 480 A.2d 678 (D.C. 1984)
• Parties: Joseph D. BOWLER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

480 A.2d 678

Joseph D. BOWLER, Appellant, v. UNITED STATES, Appellee.

No. 82-1701.

District of Columbia Court of Appeals.

Argued March 6, 1984.

Decided July 16, 1984.

Gregory C. Glynn, Washington, D.C., appointed by this court, for appellant.

John M. Facciola, Asst. U.S. Atty., Washington, D.C., with whom Stanley H. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Michael W. Farrell, Thomas J. Tourish, Jr., and Robert F. O'Neill, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, MACK, Associate Judge, and GALLAGHER, Associate Judge, Retired.

MACK, Associate Judge:

On November 9, 1982, appellant Joseph D. Bowler, was found guilty after a jury trial of murder in the second degree in violation of D.C. Code §§ 22-2403, -3202 (1981) and acquitted of two counts of assault in violation of D.C. Code § 22-504 (1981).¹ Appellant was sentenced on December 20, 1982 to a term of imprisonment from fifteen to forty-five years. Appellant contends that several instances of prosecutorial misconduct prejudiced and coerced the jury into finding the malice necessary to support a verdict of second-degree murder. Specifically, he argues that the prosecutor (1) commented on his failure to testify, (2) obtained testimony from his common law spouse in contravention of the statutory marital privilege, and (3) made improper closing and rebuttal arguments.² We agree. The cumulative impact of the prosecutor's conduct was sufficiently prejudicial as to have denied appellant a fair trial. Accordingly, we reverse. But, given the particular nature of the misconduct on these facts and the overwhelming strength of the government's evidence as to certain aspects of the case, we hold that the misconduct contaminated only the jury's deliberations on the finding of malice requisite for the verdict of murder in the second degree. The jury was charged on the lesser-included offense of manslaughter. Hence, our disposition is to remand the case with instructions either to permit the government to elect to retry appellant on the charge of second-degree murder or to enter a judgment on the charge of manslaughter with appropriate resentencing to follow.

On February 21, 1982, Claude Jackson died from a single gunshot wound to the neck. Jackson was shot in the hallway on the first floor of the house at 1133 Park Street, Northeast. He lived on the first floor with his fiance Pamela Joyner. Appellant lived in the same house but on the second floor. He and Pamela were cousins (their mothers were sisters) and she had moved into the house to help care for appellant's ill mother before she died on January 21, 1982. Evidence established that appellant and Jackson were alone in the house at the time of the shooting and that appellant had been drinking. Though mortally wounded, Jackson went across the street to 1134 Park Street, Northeast, where he collapsed at the door of Pamela's mother, Betty Joyner. Betty Joyner testified that Jackson told her appellant shot him.³ She further testified that she went to appellant's house to find out whether Pamela was safe and that at the house appellant told her Jackson was talking about his mother and stated, "I didn't shoot him out there. I stabbed him." Joyner stated that appellant's words were slurry and that he was staggering. The police were summoned and placed appellant under arrest. Upon arriving at the police station, appellant inquired of an officer where he was and why he was locked up. The officer replied that he had shot a man on Park Street, at which point appellant blurted out: "Well, you'd have shot him too if he tried to touch you, wouldn't you."⁴ After being read his Miranda rights, appellant gave a statement to one of the police officers which the officer wrote down and related to the jury. According to the officer, appellant told him, "`the guy [Jackson] said something about my mother who just died; the other guy had the gun' and then I asked him where the gun is now and he said, `I don't know man.'" Jackson died shortly after the shooting.

No gun was recovered by the police during their search of the premises,⁵ and no bullet was found in the hallway.⁶ But, during a conversation appellant had with his stepfather, Lawrence Shin, who visited him in jail, appellant asked him to go to the house to retrieve a gun from behind a chest of drawers in his room. That gun, recovered by Betty Joyner's son, was subsequently turned over to the police. It was a .22 caliber revolver with one expended and one misfired round. Because no bullet was found and the autopsy did not reveal the size of the bullet which passed through decedent's neck, only circumstantial evidence tied this gun to the shooting. Also, given the particular type of gun, no practical test could be performed to determine if appellant's fingerprints were on it. The autopsy did reveal that there were no bruises on decedent's body. In addition, the absence of gunpowder marks on either decedent's body or clothing indicated he was shot from a distance of at least two feet. Finally, evidence derived from a review of the scene of the crime indicated that there were no signs of a struggle inside the house.

In sum, the government's case-in-chief on the homicide charge consisted primarily of the scientific and technical evidence described above together with testimony from witnesses who observed or spoke with appellant after the shooting. The theory of appellant's trial defense to this charge was one of self-defense. Although appellant did not take the witness stand, his defense theory was predicated in part upon the testimony of two defense witnesses who testified that on two occasions, outside of the presence of appellant, Jackson made threats against him. In addition, appellant relied upon his own statements, both those already referred to and others,⁷ to indicate that Jackson attacked him. The trial court, however, refused to instruct the jury on self-defense with respect to the homicide charge.⁸

(1) COMMENT ON THE FAILURE TO TESTIFY

Nearly twenty years ago in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Supreme Court held that comment by the prosecutor on the accused's silence violates the fifth amendment. Id. at 615, 85 S.Ct. at 1233. Based upon the following statements made by the prosecutor during opening, closing, and rebuttal arguments, appellant asserts that the government offended this constitutional principle. The prosecutor's opening statement included the following:

There are no witnesses that the government can produce in its case to that shooting, because, you see there were two people there that day, Mr. Bowler and Mr. Jackson.

And Mr. Jackson is dead now, so he can't talk.

During closing argument, he stated:

On February 21st of this year, as you know, at about 4:40 in the afternoon Claude Jackson was killed. And, as you also now know, Claude Jackson because he's dead can't come before you and tell you what happened.

* * * * * *

We will never know exactly what happened inside that apartment — inside that house. But we do know the following: We do know one man left that house . . . and died, and he left the house as he was exiting the front door.

And finally, during rebuttal argument, the prosecutor said:

Over and over again he [defense counsel] said no one can say what happened concerning the shooting. Well, he's right. The government cannot bring the decedent in. The decedent is dead, I can't bring that person in here to tell you what happened.

* * * * * *

And also as to murder two on December — excuse me, on February 21st, because although we do not have any witnesses to what exactly happened inside, we do have enough evidence to show us that the person, that the defendant when he killed the decedent shot twice. Not once.

No objection was raised in open court or at the bench to the prosecutor's language.

The standard by which we determine the propriety of these statements is whether "the prosecutor's language `was manifestly intended or was of such character that the jury would naturally and necessarily take it to be comment on failure to testify.'" (Donnell) Watts v. United States, 449 A.2d 308, 312 (D.C. 1982) (quoting Byrd v. United States, 364 A.2d 1215, 1218 (D.C. 1976)); see, e.g., Wright v. United States, 387 A.2d 582, 584-85 (D.C. 1978); Blango v. United States, 335 A.2d 230, 232 (D.C. 1975); Peoples v. United States, 329 A.2d 446, 450 (D.C. 1974). There is no allegation of bad faith or intentional misconduct on the part of the prosecutor so we may move directly to the second prong of the test. Accordingly, we will review the context in which the statements were made keeping in mind the underlying rationale of Watts, supra, and the precedent it relies on to determine whether the jury would naturally and necessarily have taken the statements to be comment on appellant's failure to testify.

Obviously the language employed in the opening statement could not have constituted a comment on the failure to testify, because it was unknown at that time whether appellant would take the witness stand. Indeed, the decision not to testify was apparently not resolved until after the defense's two witnesses testified.⁹ Nonetheless, the prosecutor's language set the tone for his later statements which all served to harp on the fact that because Jackson was dead, no one would ever know what happened. The prosecutor's statements, moreover, were disingenuous. True, as the opening statement maintained, the government could produce no witnesses to the shooting; but it was clear by the close of evidence that the jury would never have an eyewitness account as to what happened. Nonetheless, the glaring unspoken fact alluded to time and again was that there was someone who was present in the house, who survived, and who presumably knew and could relate to the jury what happened. And, we find that the prosecutor's statements naturally...