COLLINS v. U.S., 89-169

• Decision Date: 09 August 1991
• Docket Number: No. 89-169,89-169
• Citation: 596 A.2d 489
• Parties: Eric M. COLLINS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

596 A.2d 489

Eric M. COLLINS, Appellant, v. UNITED STATES, Appellee.

No. 89-169.

District of Columbia Court of Appeals.

Argued October 9, 1990.

Decided August 9, 1991.

Appeal from the Superior Court, District of Columbia, Colleen Kollar-Kotelly.

Geraldine H. Owens, appointed by this court, for appellant.

Cathleen M. Corken, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Elizabeth Trosman, Asst. U.S. Attys., were on the brief, for appellee.

Before FERREN, STEADMAN and SCHWELB, Associate Judges.

FERREN, Associate Judge:

A jury convicted appellant of possessing cocaine. D.C.Code § 33-541(d) (1988). He now appeals, contending the trial court erred by (1) refusing to allow two witnesses to testify on appellant's behalf; (2) restricting his cross-examination of the arresting officer for alleged bias; and (3) allowing the prosecutor to misstate the law of actual and constructive possession in his closing argument. Appellant also contends that if none of these errors alone is enough for reversal, taken together they resulted in an unfair trial. Because we believe the trial court abused its discretion by applying an erroneous rule of relevance in refusing to allow one of the proffered defense witnesses to testify, we remand the case for a proper exercise of discretion.

I.

The police received a call from Monsen McConnell complaining of an armed man in her apartment. When Officers Savage and Taylor arrived at McConnell's apartment, she met them at the door and told them that appellant was in the back room with a gun. The officers entered the apartment and told appellant to come to the front room. Some time later,¹ appellant came out of the back room with his hands raised. The officers testified that they instructed appellant to put his hands on a kitchen table, which they previously observed had only books, and perhaps a satchel, on it. Officer Taylor frisked appellant while Officer Savage, standing on appellant's left, watched. Officer Savage observed a small packet containing white rocks fall from appellant's right side to the floor. While Officer Savage did not see the object fall from appellant's jacket pocket, he assumed that it had come from the pocket because there was no other place from which the object could have fallen² and appellant'sjacket pockets were turned inside-out. Officer Savage retrieved the package and arrested appellant for possession of cocaine.

II.

Appellant contends the trial court erred in refusing to allow two witnesses to testify on his behalf. According to appellant's counsel, the first witness, Monsen McConnell, the tenant of the apartment where appellant was arrested, would have testified that there were no drugs on the table the day appellant was arrested. Appellant wished then to impeach McConnell by eliciting that she had routinely placed drugs on the table and that she had used cocaine frequently around the time appellant was arrested. The trial court questioned McConnell away from the jury. The court concluded that McConnell had a valid Fifth Amendment right to refuse to respond to the proffered questions and that, in any event, appellant could not impeach his own witness absent surprise.

Appellant claims the trial court erred on two grounds. First, he says, the court should have allowed him to question McConnell before the jury even if she asserted a Fifth Amendment privilege. Appellant contends that if the jury heard McConnell assert the privilege, his counsel could argue more convincingly, in closing, that her refusal to answer indicated that the cocaine was McConnell's.

Appellant's argument — as he readily admits — is foreclosed by the caselaw in this jurisdiction absent en banc review. See Bowles v. United States, 142 U.S.App.D.C. 26, 32, 439 F.2d 536, 542 (1970) (en banc) ("a witness should not be put on the stand for the purpose of having him [or her] exercise his [or her] privilege before the jury"), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971); see Davis v. United States, 482 A.2d 783, 785 (D.C. 1984). We decline appellant's invitation to urge the full court to reconsider the Bowles rule, for we believe it is sound.

Appellant next asserts that the trial court could have narrowed McConnell's testimony and cross-examination in a way that permitted questioning her about unprivileged matters. According to appellant, he then could have used McConnell's unprivileged testimony to support his version of the events surrounding appellant's arrest — in particular, (1) as to the amount of time appellant stayed in the back room after the officers arrived (a fact bearing on his opportunity to dispose of the drugs), see supra note 1, and (2) as to whether children were in the room with appellant. The trial court refused to allow McConnell to testify, ruling that narrowing the scope of cross-examination would be unfair to the government.

The trial court erred in not permitting McConnell to testify on unprivileged material. The Fifth Amendment protects a citizen from testifying against herself, see Hoffman v. United States, 341 U.S. 479, 485-86, 71 S.Ct. 814, 817-18, 95 L.Ed. 1118 (1951), but when a witness asserts a Fifth Amendment privilege, she does not automatically disqualify herself from testifying. The trial court must determine whether the proposed testimony would tend to incriminate the witness and whether the risk of prosecution is "substantial and real." Jaggers v. United States, 482 A.2d 786, 793 (D.C. 1984); see Hoffman, 341 U.S. at 486, 71 S.Ct. at 818; Irby v. United States, 585 A.2d 759, 763 (D.C. 1991). Normally the court does so by voir dire of the witness away from the jury. See Davis, 482 A.2d at 785. A witness's privilege is narrower than a defendant's. Salim v. United States, 480 A.2d 710, 714 (D.C. 1984). It extends only to specific questions; it does not encompass a refusal to take the stand at all." Alston v. United States, 383 A.2d 307, 313 (D.C. 1978); see Hoffman, 341 U.S. at 486, 71 S.Ct. at 818; Wilson v. United States, 558 A.2d 1135, 1141 (D.C. 1989); Davis, 482 A.2d at 785; Salim, 480 A.2d at 714.

Based on this constitutional analysis, the trial court should have allowed McConnell to testify on the narrow, unprotected grounds requested: how long appellant remained in the back room before surrendering, and whether children were with him in the room at the time. The trialcourt could have effectively narrowed the scope of McConnell's testimony and cross-examination to these unprivileged matters. We conclude, however, that the exclusion of McConnell's testimony was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Davis, 482 A.2d at 786.³ First, on either version of the amount of time appellant spent in the back room, he had enough time to dispose of the drugs if he had chosen to do so. This is true because, according to appellant's own testimony, he knew the police were coming seven to ten minutes before they arrived.⁴ Thus, appellant had at least seven minutes and fifteen seconds, if not twelve to fifteen minutes to dispose of the drugs. See supra notes 1 and 4. Because not even appellant's own version of events helps his case, we can say beyond a reasonable doubt that the exclusion of McConnell's testimony, which at best would have only corroborated appellant's version, did not contribute to the verdict.

Second, whether or not there were children in the room with appellant was a fact too remote to have had any effect on the verdict: possession of cocaine. Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The fact of children on the premises had not been mentioned on the radio call to Officers Savage and Taylor; the police were not responding to a report of "gun on children." Nor is there any record basis for believing the officers otherwise knew children were with appellant before they arrived at McConnell's apartment.⁵ Nor, finally, was appellant charged with an offense involving children. The fact that Officer Taylor did not recall whether children were present, therefore, was not remarkable. In any event, Officer Savage did remember the children.The only dispute between appellant's and Savage's testimony was the timing of the children's exit from the back room.⁶ McConnell's testimony would have served the limited purpose of challenging one government witness's (Officer Taylor's) recollection of events not directly pertinent to the charged offense. We are confident that beyond a reasonable doubt the exclusion of McConnell's testimony did not contribute to the outcome.

III.

Appellant also contends the trial court erred in refusing to permit Maurice Lewis's testimony for the defense. In an effort to create an impression that McConnell, not appellant, was responsible for the cocaine, defense counsel proffered at trial that Lewis would testify that McConnell had a cocaine habit and that Lewis frequently had seen drugs on McConnell's table where appellant was frisked. Lewis, however, apparently could not testify that McConnell had left drugs on the table the day when appellant was arrested because Lewis had not been there that day. For this reason, the trial court ruled that Lewis's testimony was inadmissible.⁷ We review for abuse of discretion. See Shepard v. United States, 538 A.2d 1115, 1116 (D.C. 1988).

Due process and the Sixth Amendment right to compulsory process for obtaining witnesses entitled appellant to call witnesses on his own behalf. See Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973); King v. United States, 550 A.2d 348, 353 (D.C. 1988). Accordingly, if Lewis had been able to testify that McConnell had a drug habit, that she had frequently (or even occasionally) kept cocaine on the table, and that cocaine was there as recently, for example, as a few weeks before appellant was arrested, that testimony could have been relevant to appellant's defense that the cocaine which...