Coombs v. United States, 11804.

• Decision Date: 02 April 1979
• Docket Number: No. 11804.,11804.
• Citation: 399 A.2d 1313
• Parties: Frederick D. COOMBS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

399 A.2d 1313

Frederick D. COOMBS, Appellant, v. UNITED STATES, Appellee.

No. 11804.

District of Columbia Court of Appeals.

Argued December 6, 1977.

Decided April 2, 1979.

John G. Gill, Jr., Rockville, Md., with whom Thomas J. Sippel, Rockville, Md., was on the brief, for appellant.

William J. Cassidy, Jr., Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Roger M. Adelman, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEWMAN, Chief Judge and MACK and FERREN, Associate Judges.

MACK, Associate Judge:

Following a jury trial, appellant was found guilty of robbery and kidnapping in violation of D.C.Code 1973, §§ 22-2901 and -2101. On appeal, he assigns as error 1) the "missing witness" instruction given to the jury by the trial court, 2) the admission of evidence of other crimes relating to the rape and robbery of another victim, and 3) the admission of rebuttal evidence concerning appellant's claimed military service. Because we have concluded that the giving of the missing witness instruction resulted in prejudicial error requiring reversal, we do not reach the other assignments of error.¹

I.

This case arose from the rape and robbery of a prostitute, Valerie Wilson, in the early morning hours of July 23, 1975. The government's witnesses, including the victim and an accomplice, one John Graham,² offered evidence that Graham, according to a prearranged plan to "trick a prostitute," picked up Ms. Wilson in his car at approximately 1:00 a. m. at 14th and N Streets, N.W. — ostensibly for a business date. He drove to a parking lot at Vermont Avenue and N Streets, N.W. where appellant, with a gun, appeared to rob both Graham and Ms. Wilson. Appellant then ordered Graham to drive to the seven hundred block of I Street where he proceeded, while fully clothed, to rape Ms. Wilson. After searching her pocketbook and finding her identification card, appellant told her to leave thirty dollars in a phone booth next to the Greyhound terminal or he would come back and harm her. Shortly after releasing the victim, Graham and appellant met and Graham received his share of the proceeds of the robbery.

The government also sought and received approval of the court to introduce evidence as to the robbery and rape of another prostitute, Justine Stephenson — events which had formed the basis in the original indictment, for counts dismissed for want of prosecution when Ms. Stephenson had twice failed to appear for trial. These other crimes, introduced as evidence pursuant to Drew v. United States, 118 U.S.App.D.C 11, 331 F.2d 85 (1964),³ were committed on the afternoon of July 22, 1975 after Ms. Stephenson was approached by appellant at 1:00 p. m. in the vicinity of 14th Street and Logan Circle.⁴ This victim entered appellant's car and they proceeded to a parking lot where appellant pulled a gun and robbed her. Thereafter appellant drove out of the parking lot and proceeded to 0 Street when Graham appeared and asked him for a ride to D.C. General Hospital. All three drove to Fort Dupont Park where appellant ordered Ms. Stephenson at gunpoint out of the car and raped her, meanwhile remaining fully clothed. Graham, according to his role, appeared to offer help to Ms. Stephenson. Appellant then told Ms. Stephenson, whose identification had been taken, that he would kill her if she did not leave fifty dollars a day in a phone booth at 8th and C Streets, S.E. by pasting it to the back of the yellow pages.

Appellant presented an alibi defense. He offered testimony that he picked up one Claudelia Harris at 5:30 p. m. on July 22, 1975 at 18th and K Streets N.E. and took her to 1483 Newton Street, N.W., where the two were living. He stayed with her all night until he took her to school the next morning, on July 23 at approximately 8:00 a. m.

On cross-examination of appellant, the government questioned him as follows:

Q. Mr. Coombs, I would like to direct your attention to July 22nd, 1975, about 1:00 o'clock in the afternoon. Do you know where you were at that time?

A. Yes sir.

Q. Where were you?

A. I was at the Texaco gas station.

Q. I can't hear you.

A. I was at the Texaco gas station with the owner of the gas station, Robert Everhart.

* * * * * *

Q. Where were you at quarter of 2:00?

* * * * * *

A. There — I stayed there until about 5:30.

Q. What did you do at 5:30?

A. I went and picked up Claudelia Harris.

* * * * * *

Q. Where is Robert Everhart now? Do you know?

A. He sold the gas station. But he is working in another one in the same area. I don't know.

Q. Have you seen him recently?

A. No I haven't seen him. He sold the gas station. He had a heart attack.

Q. You think that you would find him if you had to?

A. Yes, sir. [Nodding]

At the close of the evidence, the trial judge informed counsel of the instructions he proposed to give the jury.⁵ Over appellant's objection, the judge charged the jury that since appellant had not brought Everhart to testify, the jury could infer that Everhart's testimony would be adverse to appellant.⁶ In addition, the prosecutor in his summation to the jury commented on the missing witness.⁷

II.

The missing witness doctrine permits the trial court to instruct the jury that if a witness is "peculiarly available" to one of the parties and if the testimony of a particular witness would "elucidate the transaction" at issue, then the jury may infer that the testimony, if produced, would be unfavorable to the party who fails to produce the witness. Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893); Shelton v. United States, D.C. App., 388 A.2d 859, 863 (1978); Givens v. United States, D.C.App., 385 A.2d 24 (1978). The doctrine also requires that before either counsel may comment on the absence of a witness, he or she must seek and obtain an advance ruling from the judge on the permissibility of the missing witness inference. Givens v. United States, supra at 27, reiterating the rule of practice set forth in Gass v. United States, 135 U.S.App.D.C. 11, 19-20, 416 F.2d 767, 775-76 (1969).

The "peculiarly available" requirement of the missing witness rule does not permit an inference to arise from the failure of the defendant to call a witness unless there is a showing that the witness was not available to be subpoenaed by the government. Brown v. United States, 134 U.S. App.D.C. 269, 414 F.2d 1165 (1969). Although the District of Columbia Circuit Court refused to extend the doctrine of Brown to a case involving an alibi witness whose identity was learned for the first time at trial, United States v. Stevenson, 138 U.S.App.D.C. 10, 13-14, 424 F.2d 923, 926-27 (1970), the court in a subsequent decision saw no reason to pursue the issue in light of the District Court's Rule 87, promulgated after the Stevenson decision. See United States v. Young, 150 U.S.App. D.C. 98, 106 n. 12, 463 F.2d 934, 942 n. 12 (1972). Super.Ct.Cr.R. 12.1, which is similar to the District Court's Rule 87, requires the defendant, upon written demand of the prosecutor, to serve upon the prosecutor a written notice of his intention to offer a defense of alibi which "shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi." Absent some extenuating circumstances, if a prosecutor has been armed with the name and address of such a witness, the government, of course, would not be in a position to suggest that the witness was so peculiarly available to the defendant as to permit the invocation of the missing witness inference.

In this case, the prosecutor had the opportunity to seek the name and address of any alibi witnesses pursuant to our Super.Ct.Cr.R. 12.1.⁸ Absent a proffer, let alone a showing by the government as to why it should not have been expected to avail itself of that opportunity, we are unable to find in this case that the witness was available to appellant but not to the government. It was therefore error to give the missing witness instruction.⁹ See Brown v. United States, supra, 134 U.S. App.D.C. at 271-72, 414 F.2d at 1167-68; Wynn v. United States, 130 U.S.App.D.C. 60, 64-65 & n. 23, 397 F.2d 621, 625-26 & n. 23 (1967).

Moreover, it was error here to give the missing witness instruction for yet another reason. If the witness could have elucidated any transaction at all, he could have done so only with respect to the events surrounding the crimes committed against Ms. Stephenson — crimes with which appellant was not charged but which were admitted only for the limited purposes outlined in Drew v. United States, supra. It bears reminding that the Drew doctrine is an exception to the well-established principle of long-standing in our law "that, upon the trial of an accused person, evidence of another offense, wholly independent of the one charged, is inadmissible." United States v. Bussey, 139 U.S.App.D.C. 268, 270, 432 F.2d 1330, 1332 (1970) quoting from Bracey v. United States, 79 U.S.App.D.C. 23, 25, 142 F.2d 85, 87, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944). Thus in Harris v. United States, D.C.App., 366 A.2d 461, 463-64 (1976), we outlined the sensitive balancing process that is required before evidence-of-other-crimes may be admitted:

It is not enough that collateral transactions fit within one of the recognized [Drew] exceptions; there must be a further showing that the introduction of such evidence is necessary, and that its potential for prejudice and confusion is outweighed by its probative value. United States v. Gay, 133 U.S.App.D.C. 337, 339, 410 F.2d 1036, 1038 (1969), cert. denied, 400 U.S. 867, 91 S.Ct. 109, 27 L.Ed.2d 107 (1970). [Further citations omitted.]

We have extreme difficulty in concluding that the missing witness doctrine could be invoked under circumstances where the transaction to be...