Coreas v. U.S., 87-1166.

Decision Date24 October 1989
Docket NumberNo. 87-1166.,87-1166.
Citation565 A.2d 594
PartiesFlorencio COREAS, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Daniel E. Ellenbogen, Kensington, Md., for appellant.

Thomas J. Tourish, Jr., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty. at the time the brief was filed, and Elizabeth Trosman, Washington, D.C., and Patricia A. Broderick Asst. U.S. Attys., were on the brief for appellee.

Before MACK1, NEWMAN and SCHWELB, Associate Judges.

NEWMAN, Associate Judge:

Appellant was convicted of voluntary manslaughter while armed and of carrying a pistol without a license. On appeal, he urges three grounds for reversal. Specifically, he argues: 1) that the trial court erred in failing to reinstruct on self-defense, despite its reinstruction on second degree murder and voluntary manslaughter; 2) that the prosecutor engaged in various acts of misconduct including "sandbagging," mischaracterizing the evidence, arguing facts not in evidence, impermissibly commenting on Coreas' credibility including that Coreas set up two of his defense witnesses, arguing adverse inferences from Coreas' exercise of his sixth amendment right to confront witness, urging the jury to "send a message" with its verdict and appealing to the passions and sympathy of the jury; and 3) that insufficient evidence existed to sustain the conviction. We address the first two arguments2 and reverse on the second. We hold that the cumulative effect of the prosecutorial misconduct rises to the level of plain error.

I.

On the afternoon of March 30, 1982, Apoliano ("Polo") Perez, an immigrant to this country from El Salvador, was fatally wounded when he entered his apartment building upon returning from work with Gustavo Dell' Acqua, who had paid Perez $10.00 to help him clean an apartment. Perez, who was carrying a mop and bucket, stopped briefly at a store before returning home, while Dell' Acqua continued on. Soon after Dell' Acqua returned to his apartment, he heard the sound of gunfire and went out into the lobby to investigate. He saw no one in the lobby but when he looked over the staircase leading down to the basement he saw Perez's body lying at the foot of the steps. Perez's head and shoulders rested on the basement floor, while his torso and legs ascended the stairs. The bag which Dell' Acqua had seen Perez carrying when they returned from work was still under his left arm. He also observed Perez's mop and pail sitting near the top of the stairs; he saw no gun. Dell' Acqua testified that he had seen Perez in the apartment building the previous day walking down the stairs to visit friends in a basement apartment.

The homicide detective who was called to the crime scene testified that he found no defensive wounds on Perez's body. The detective examined the contents of the bag still tucked under Perez's arm and found a pair of shoes, two broken light bulbs, a dead bolt lock and a box of nails. He also observed a knife with a long blade tucked in to Perez's unbelted waistband, with the blade portion of the knife sticking up. Despite his apparent fall, the knife had neither torn Perez's shirt nor cut him.

Another officer who sketched and photographed the crime scene recovered two twenty-two caliber bullets, one from the first step leading down to the basement and the other in the lobby, near the steps to the basement.

The following day, Dr. Douglas S. Dixon, then Deputy Medical Examiner in the District of Columbia, performed an autopsy on Perez's body. Dixon was no longer at the Medical Examiner's Office at the time of the trial so Dr. Carol Lynn McMahon, also a Deputy Medical Examiner, testified at trial and summarized the findings in Dr. Dixon's autopsy report, which was admitted into evidence.

The medical evidence indicated that Perez was shot five times. Three bullets entered his arm, one entered his back and one entered his leg. The autopsy report labeled the gunshot wounds "A" through "E," without indicating the order in which the bullets entered Perez's body. The report recorded the direction of the bullets once inside the body, the angle in which they entered and the internal organs that were affected.3 At the time of his death, Perez was wearing a striped shirt, with a dark shirt underneath. At trial, it was revealed that the striped shirt which was originally taken into custody was missing. Apparently no test had been porformed on the shirt before it was lost. Therefore, the medical examiner could not make any predictions as to how far Perez was from his attacker when the four shots entered Perez's upper body.4 Additionally, Dr. McMahon stated that she could not determine the trajectory of the bullets, that is whether the gun was aimed from above or below Perez, because she had no way of knowing the relative positions of the gun and the body. Finally, although the autopsy report contained no evidence or analysis about the order of the bullets, Dr. McMahon attempted to hypothesize about the order at trial. At one point, she stated that the three shots to the arm came first; then she stated it was possible that the shot to the leg came first. Finally, however, she admitted that she could not testify as to the order of the bullets with reasonable scientific certainty.

Appellant, Florencio Coreas, also an immigrant to this country from El Salvador, surrendered himself to the police the next day and admitted that he had shot Perez in self-defense. He testified at trial; there were no other witnesses to the shooting.

Coreas testified that Perez had threatened him in the past and that he was afraid of Perez. Specifically, Coreas testified that he had heard that Perez had killed his brother and that Perez "had a gun and he wanted to kill [Coreas]". (Tr. 551). On one occasion, according to Coreas, he was with two friends on the street when Perez "stopped and said that he wanted to kill me there. . . . [B]ut the person who was with [Perez] said not to do it there because I was in the middle of other persons and he continued walking." (Tr. 552).5

On the day of the incident, Coreas claimed that when he returned home from work he encountered Perez in the lobby.6 Coreas testified that Perez, "took out the gun and threatened" him. According to Coreas, he tried to grab Perez's hand, they fell to the floor where the two men struggled and Coreas was able to wrest the gun from Perez. At that point, Coreas stood up and moved towards the wall. As Perez came toward Coreas. Coreas started to shoot, and Perez "started staggering and fell down the stairs to the basement of the building." Coreas claimed that he "became very scared and ran upstairs to [his] apartment and out the window and down a fire escape." He testified that he left the pistol on the lobby floor at the top of the basement stairwell, although the police did not find the gun when they arrived at the crime scene. Finally, Coreas stated that although he never saw or felt a knife, he discovered later that his arm had been cut during the struggle. Coreas did not tell the arresting officer about his wounds. Photographs of his injuries were admitted into evidence.

In the government's closing argument, the prosecutor primarily attempted to show that the evidence surrounding the killing was inconsistent with Coreas' version of events: that he had struggled with Perez to defend himself and had wrested control over Perez's gun. The prosecutor focused on the fact that Dell' Acqua had not heard any scuffle before he heard the gunshots; that the bag he had earlier seen Perez carrying was still underneath Perez's arm as he lay at the bottom of the steps; that the knife lodged in Perez's unbelted waistband had not cut his skin or his shirt; that if a fight had ensued Perez would have used his knife and that Coreas had not been injured in the alleged altercation.

During the remainder of its initial closing argument, the government discussed the autopsy report, highlighting the testimony of Dr. McMahon, the medical examiner who did not actually perform the autopsy, but who testified at trial as to the contents of the report. The prosecutor discussed the five wounds, the trajectory of the bullets within Perez's body, and the damage sustained by the organs and tissues. The prosecutor did not allege that Coreas was lying in wait at the bottom of the stairs or articulate a scenario of the events consistent with such a theory (i.e., the outward trajectory of the bullets, the effect of the bullets on Perez's movements or the relative positions of the decedent and Coreas during the altercation).

The defense then presented its closing argument, claiming essentially that Coreas had shot Perez in self defense, out of fear and during an armed struggle. The defense noted that based on the autopsy report and the medical examiner's testimony it was impossible to determine how far apart the two men stood or the trajectory of the bullets.

The government then delivered its rebuttal argument. It articulated a new theory of the case in which Coreas was lying in wait at the basement steps for Perez to appear. In so arguing, the government offered a complete explanation of the order, effect, trajectory and firing distance of the bullets which entered Perez, as well as the relative positions of Coreas and Perez during the shooting. No objection was made during rebuttal, however, two days later the defense moved for a mistrial in the middle of jury deliberations. The motion was denied.

On the third day of deliberations, after having sent the trial judge a note the previous day indicating that it was unable to reach a unanimous verdict (and being asked by the trial judge to continue deliberations), the jury sent the judge a note indicating its confusion on second degree murder and voluntary manslaughter. Before reinstruction on those charges, the defendant requested that the court also reinstruct on self-defense. The court...

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