Comford v. U.S., No. 04-CF-123.

• Decision Date: 15 May 2008
• Docket Number: No. 04-CF-123.
• Citation: 947 A.2d 1181
• Parties: Rahveed COMFORD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

947 A.2d 1181

Rahveed COMFORD, Appellant, v. UNITED STATES, Appellee.

No. 04-CF-123.

District of Columbia Court of Appeals.

Argued May 18, 2006.

Decided May 15, 2008.

Alice Wang, Public Defender Service, with whom James Klein and Jenifer Leaman, Public Defender Service, were on the brief for appellant.

Ann K.H. Simon, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney at the time the briefs were filed, Roy W. McLeese III, and Timothy G. Lynch, Assistant United States Attorneys, were on the brief, for appellee.

Before GLICKMAN and KRAMER, Associate Judges, and BELSON, Senior Judge.

GLICKMAN, Associate Judge:

Appellant Rahveed Comford was convicted after a jury trial of carrying a pistol without a license, possession of an unregistered firearm, and unlawful possession of ammunition. He claims the trial judge erred by allowing the government to introduce evidence of his purported admission that he possessed the weapon. We hold that appellant failed to preserve his objection to this evidence, and that its introduction was not plain error.

I.

On the evening of March 21, 2003, Sharif Holt borrowed his mother's car and picked up appellant and a second passenger, Gregory Stratford, to go to a party in Southeast Washington. At approximately 1:30 the following morning, a Metropolitan Police Officer stopped the car for running a stop sign and not having its headlights on. The officer called for police backup after appellant, who was sitting alone in the back seat, opened the rear door and began to throw up. All three occupants of the vehicle appeared to be intoxicated. Upon seeing an open bottle of vodka, the police arrested them for underage possession of alcohol.

In a search of the car incident to the arrests, the police found a handgun underneath appellant's sweatshirt on the backseat. There were seven bullets in the weapon. When an officer picked up the sweatshirt, an eighth, matching bullet fell out of it to the ground. According to one of the arresting officers who testified at trial, Holt became "extremely upset, crying on the scene," after the gun was discovered, while Stratford (the front passenger seat) was "nonchalant." Appellant, who remained "noncooperative with any information,"¹ was the only person charged with possessing the firearm and ammunition.

Before the government called Holt to the stand at trial, defense counsel raised a "preliminary matter" regarding his testimony. Counsel explained that Holt's grand jury testimony, which the prosecutor had just turned over to the defense, indicated appellant had made statements to Holt that, arguably, should have been disclosed earlier under Criminal Rule 16.² The prosecutor denied the existence of any "custodial statements" by appellant. Rather, the prosecutor proffered, "Sharif Holt, the driver of the car, asked Mr. Comford how the gun got in his car, several times, and Mr. Comford refused to answer." Thus, the prosecutor concluded, appellant made no statement at all. Defense counsel disagreed and represented that Holt told the grand jury appellant "dodged the question," implying "something was said and we don't know what." No further information was provided to the trial judge during this colloquy regarding the circumstances under which Holt questioned appellant about the gun or how appellant responded.

Defense counsel suggested the government be sanctioned for not fulfilling its discovery obligations under Criminal Rule 16. In addition, counsel asked for an in limine ruling precluding the government from eliciting any testimony about appellant's failure to answer Holt as evidence of consciousness of guilt. Citing Federal Rule of Evidence 403, counsel asserted without explanation that such testimony would be irrelevant and "highly" prejudicial.

The trial judge commented that Holt's question was not a statement "submitted for the truth of the matter asserted," and appellant's ensuing silence was merely his conduct — it was "just what happened." Further, the judge stated, appellant's silence was "relevant" and "probative in the context of the case," and appellant had identified no specific danger of unfair prejudice. Consequently, the judge rejected appellant's requests for discovery sanctions and exclusion of Holt's anticipated testimony pursuant to Rule 403.

When Holt later took the stand, additional facts emerged regarding his inquiry of appellant. The relevant portion of the prosecutor's direct examination of Holt proceeded as follows:

Q. Do you know how that gun got in the car that night?

A. I do not have a clue.

Q. Did you ever have occasion to ask Mr. Comford how that gun got in the car?

A. After I was sitting on the curb in handcuffs, I did have occasion to ask him.

Q. Did you ask him any other times as well?

A. I asked him, but there wasn't any response.

* * *

Q. Did he answer your question?

A. No, sir.

Q. You said that Mr. Comford was hurling or throwing up. Just how intoxicated was he?

A. Well, he seemed pretty messed up to me.

* * *

Q. Was he able to answer questions?

A. To the cops?

Q. To the police officers.

A. I don't remember him answering any questions. I don't know if he was able to answer questions or not.

Q. Was he able to stand?

A. Not really, sir.

Q. How much alcohol had you seen him consume?

A. I don't know the amount of cups, but the bottle was almost gone between the three of us.

On cross-examination, Holt confirmed appellant had been vomiting and said he was lying supine on the pavement in handcuffs following his arrest.

Contrary to the earlier proffers, Holt did not say appellant "refused" to answer him or "dodged" his inquiry. If anything, Holt indicated appellant was so drunk his silence might not have been volitional. The other new information Holt revealed was that he and appellant were in police custody when Holt interrogated appellant about the gun. Despite these new facts, defense counsel did not renew his objection to Holt's testimony.

In his closing and rebuttal arguments, the prosecutor exhorted the jury to consider appellant's silence as compelling proof of his guilt:

Finally, the most crucial piece of evidence of all. His friend asked him where that gun — how that gun got there.... Now, what we know is that Mr. Holt asked him several times, how did this gun get there? This is not the police asking him this. This is a friend. This is — they're not best friends, but this is a person that picked him up, a person who drove him to the party and said, where did this gun come from? Where did this gun come from? Where did this gun come from?

Did Mr. Comford deny it? Did he say no, it's not my gun? I don't know how it got there? Did he say that gun was there the whole night? I've been back there that night. I've seen it, I just forgot to say to you. He didn't say anything. And by not saying anything, he spoke far louder than I could ever speak, far louder than any other testimony could ever speak. He spoke volumes when he couldn't answer his friend and his one question, his two questions, his three questions about where that gun came from.

"[T]hat," the prosecutor concluded, "is called consciousness of guilt. He wouldn't say anything to his friend about how that gun got there because he knew how that gun got there. He put it there himself under that sweatshirt."³

II.

Appellant claims the trial judge erred by admitting the evidence of his failure to respond to Holt's implicitly incriminating questions without a sufficient threshold showing that his silence could qualify as an admission of his guilt.⁴ "When a statement is made in the presence of a party containing assertions of fact which, if untrue, the party would under all the circumstances naturally be expected to deny, failure to speak has traditionally been received as an admission."⁵ The traditional rule has been incorporated in Federal Rule of Evidence 801(d)(2)(B), which defines an admission by a party-opponent to include "a statement of which the party has manifested an adoption or belief in its truth." This jurisdiction has adopted "the substance" of Rule 801(d)(2),⁶ though unlike the Federal rule, our cases continue to treat party-admissions as an exception to the rule against hearsay.⁷ Recognizing that "evidence of tacit or adoptive admissions is replete with possibilities of misunderstanding,"⁸ we have held proffered evidence of a criminal defendant's silent agreement with another person's inculpating statements to be admissible only if "a reasonable jury could properly conclude that the defendant unambiguously assented to them."⁹ In the present case, appellant contends, no reasonable jury could have found he unambiguously assented to the assertion, implicit in Holt's questions to him, that he had brought the gun into the car, because he was intoxicated and in police custody. Accordingly, appellant claims, the judge should have excluded the evidence of his silence as insufficient to permit a jury to find that he made a tacit or adoptive admission.¹⁰

The government argues that appellant has forfeited this hearsay claim, because he did not advance it at trial. There, appellant objected only that his silence was, in essence, more prejudicial than probative — a so-called Rule 403 claim.¹¹ Moreover, the government contends, appellant has abandoned the Rule 403 objection he did make at trial by not pursuing it in his opening brief on appeal. Thus, the threshold issue we must consider is whether appellant has preserved his hearsay and Rule 403 claims for our review. The issue principally turns on the specificity and timeliness of appellant's objections to Holt's testimony.

It is a bedrock procedural principle that "[o]bjections must be made with reasonable specificity; the [trial] judge must be fairly apprised as to the question on which he is being asked to rule."¹² Among its virtues, this principle promotes fairness to the opposing party, who may be able to meet the objection or substitute...