Coleman v. United States

• Decision Date: 31 October 1977
• Docket Number: No. 10365.,10365.
• Parties: Earl COLEMAN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

379 A.2d 710

Earl COLEMAN, Appellant, v. UNITED STATES, Appellee.

No. 10365.

District of Columbia Court of Appeals.

Argued September 15, 1977.

Decided October 31, 1977.

William J. Genego, appointed by this court, with whom Stuart H. Gitlitz, Washington, D. C., appointed by this court, was on the brief, for appellant.

Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease, Lawrence H. Wechsler and Steven D. Gordon, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee which was submitted without oral argument.

Before NEWMAN, Chief Judge, and GALLAGHER and YEAGLEY, Associate Judges.

YEAGLEY, Associate Judge:

Appellant appeals from his conviction on three counts of first-degree premeditated murder (D.C.Code 1973, § 22-2401), three counts of first-degree felony murder (D.C. Code 1973, § 22-2401), attempt to commit robbery while armed (D.C.Code 1973, §§ 22-2902, -3202), first-degree burglary while armed (D.C.Code 1973, §§ 22-1801(a), -3202), carrying a pistol without a license (D.C.Code 1973, § 22-3204) and carrying a dangerous weapon (a shotgun) (D.C.Code 1973, § 22-3204). We find his assignments of error to be without merit and therefore affirm.

On the evening of October 24, 1974, a man and two women were murdered. The evidence introduced against appellant at his trial indicated that the man had been appellant's partner in a narcotics distribution operation and that appellant killed him and the two women after a falling out over a debt which appellant claimed the man owed him. Appellant presented as his defense the alibi that at the time the three murders were committed, he was home in bed. Several witnesses testified in support of appellant's alibi.

The first claim raised on appeal is that the trial court erred in ruling that appellant could not assert his Fifth Amendment privilege against self-incrimination as a bar to certain questions asked by the government on cross-examination. It is well settled that a defendant who takes the stand on his own behalf may not utilize his Fifth Amendment privilege in order to bar cross-examination reasonably related to the scope of direct examination. Branch v. United States, 84 U.S.App.D.C. 165, 171 F.2d 337 (1948); 8 Wigmore, Evidence § 2276(2) (McNaughton rev. 1961). Furthermore, the extent of cross-examination in any particular case is a matter within the discretion of the trial court and this discretion is extremely broad when the defendant asserts an alibi defense. United States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976).

In this case, defendant testified extensively on direct examination as to the narcotics operation in which he and his associates were involved. On cross-examination, the prosecutor suggested to appellant that the apartment where he met his associates on the night in question was the base of their narcotics operation. When appellant denied that this was the only base, the prosecutor asked him, "[w]here else did you have?" Appellant asserted his privilege against self-incrimination, and the trial judge ruled that he had waived his Fifth Amendment privilege with respect to the prosecutor's question by his direct testimony. The witness, however, stood firm, did not answer the question, and later, in the absence of the jury, was found in contempt of court. Consequently, we are not faced with a question of the erroneous admission of testimony.

Even if we assume that appellant ought to have been able to interpose his Fifth Amendment privilege, as he did, the conclusion is inescapable that the court's ruling and the lack of a subsequent cautionary instruction were harmless beyond a reasonable doubt under the standard enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Appellant had testified to his narcotics activities on direct examination, so the question posed no prejudice in that regard. Further, overwhelming evidence of his guilt was amassed at trial.

Appellant's next claim concerns a government exhibit, a photograph of the defendant with a .45 caliber pistol in his waistband which was taken five months before the alleged murders. The photograph was admitted, over defense objection, after a friend had identified it as a photograph she had taken of appellant and further identified the pistol shown in it as being the weapon she had thrown in the river the morning following the murders. Appellant argues that the photograph was not probative of any issue in the case and was therefore irrelevant. He bases this assertion on two factors, the remoteness in time of the photograph to the murders and the witness' failure to explain how she knew this was a picture of the gun she had thrown in the river. Appellant further argues that even if the photograph had some relevancy, it was prejudicial error to admit it in evidence because its prejudicial impact on the jury outweighed its probative value. We cannot agree.

A trial court has broad discretion in determining the admissibility of photographic evidence and its ruling should not be disturbed in the absence of an abuse of discretion. Pittman v. United States, D.C. App., 375 A.2d 16 (1977). We find that in this case the trial court did not abuse its discretion. The photograph showed that prior to the murders, appellant possessed a .45 caliber pistol, the type of gun used in...