Davis v. U.S.

• Decision Date: 28 November 1989
• Docket Number: No. 88-120.,88-120.
• Citation: 567 A.2d 36
• Parties: Ronnie T. DAVIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 36

567 A.2d 36

Ronnie T. DAVIS, Appellant, v. UNITED STATES, Appellee.

No. 88-120.

District of Columbia Court of Appeals.

Argued April 25, 1989.

Decided November 28, 1989.

Walter S. Booth, Bethesda, Md., appointed by this court, for appellant.

Craig S. Iscoe, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, were on the brief, for appellee.

Before NEWMAN, TERRY, and STEADMAN, Associate Judges.

PER CURIAM:

Judge Learned Hand once wrote, "Prosecution and judgment are two quite separate functions; they must not merge." United States v. Marzano, 149 F.2d 923, 926 (2d Cir. 1945) (citations omitted). They merged in this case, to appellant's prejudice. We therefore must reverse his convictions of unauthorized use of a vehicle,¹ malicious destruction of property,² and assault on a police officer with a dangerous weapon.³

I

On the evening of June 11, 1986, Gail Weathers parked her 1985 black Toyota convertible in front of her apartment in Forestville, Maryland, just outside the District of Columbia. She locked the car doors and raised the top of the convertible. When she looked outside the next morning, the car was gone. She immediately called the police and reported it stolen.

In the early morning hours of June 14, shortly before 1:00 a.m., Metropolitan Police Officer Gregory Wells was driving his scout car on Alabama Avenue, S.E., in the District of Columbia, when he saw a black Toyota convertible ahead of him occupied by four young men. The convertible top was down, and the two passengers in the rear were sitting on top of the seat while the car was in motion. Because this was a dangerous way to ride, Officer Wells decided to pull the car over and warn its occupants of the danger. Before doing so, however, Wells radioed the car's license number to the police dispatcher to check on the validity of its registration and to find out if it had been reported stolen. When the dispatcher radioed back that the car had indeed been reported stolen, Wells turned on his flashing red light and siren to signal the driver of the convertible — appellant — that he should pull over. Instead of stopping, however, appellant speeded up, and a chase ensued with both cars traveling at more than double the posted speed limit.

Officer William Hope was riding his motorcycle near the 3000 block of Alabama Avenue when he heard a report over his police radio of a high-speed chase in progress. Hope headed for the vicinity of the chase and fell in behind a scout car that was also responding to the call. When Hope first caught sight of the Toyota, it was headed directly toward that scout car (and Hope's motorcycle) at about forty to fifty miles per hour. When the scout car was unsuccessful in blocking the Toyota, Hope found himself directly in its path. Hope jumped off his motorcycle and ran for the curb, leaving the cycle in the middle of the street. As appellant hit the brakes to avoid running into the cycle, the Toyota skidded toward Hope.

Believing his life was in danger, Officer Hope pulled his service revolver and walked toward the Toyota, which by that time had almost come to a stop. Hope ordered appellant to shut off the engine and put the car in park. Having said that, Hope started walking over to the driver's side of the car, but as he approached, the car suddenly started up again. Hope tried to grab appellant, but appellant ducked, and Hope found himself clinging to the side of the car. He held on as long as he could, but when the car turned onto Alabama Avenue, Hope was thrown to the ground by centrifugal force. He suffered minor injuries. During the time Officer Hope was hanging onto the side of the car, he got a very good look at appellant, staring him practically in the eye. They were no more than two feet apart, and the street was well-lit. Hope's attention was focused on appellant because, he testified, "I was trying to grab hold of him to . . . keep myself from falling off." Both at the scene of appellant's arrest and again in court, Officer Hope identified appellant as the driver of the black Toyota.

Although Officer Hope could not continue the pursuit, Officer Wells could and did, following the Toyota to the vicinity of Southern Avenue and Chesapeake Street, S.E., where it was abandoned after hitting a fence. The occupants of the car all fled on foot. The three passengers got away. Appellant, however, ran across Southern Avenue into Maryland, hotly pursued by Officer Wells, and was eventually apprehended by an off-duty Prince George's County police officer.⁴ When Officer Wells went back to examine the Toyota, he discovered that the steering column had been punched, i.e., the plastic ring around the turn signal had been broken so that the car could be started without an ignition key. In addition, the window on the driver's side was broken, and there were dents and scratches on the hood and the right side.

Appellant admitted being in the Toyota, but only as a rear-seat passenger, not as the driver. He testified that he was walking home alone after a basketball game when an acquaintance named Bern is (or Bernice), whom he knew from the basketball courts, drove up in a Toyota and asked him if he wanted a lift. Appellant hopped into the back seat between two other passengers, one of whom he knew only as "Little Man," and asked Bernis to take him to a 7-11 store. After they left the store, the four of them just rode around (Bernis driving) for want of anything better to do. When a police car came up behind them with its lights and siren on, Bernis "jumped" instead of stopping, increasing speed as the pursuit went on.

Appellant recalled seeing Officer Hope approach the car after Bernis slowed down to avoid hitting the motorcycle, but he said that Hope pointed a revolver at him from behind and reached over another back-seat passenger in an attempt to grab him (appellant) when the car took off. Appellant testified that he was the last one to get out of the car when it hit the fence and that he ran because he was scared. On direct examination appellant said that he turned himself in to the Prince George's County police officer, but on cross-examination he admitted that he was still running when the officer caught him. Appellant not only denied driving the Toyota at any time that evening; he testified that he did not drive at all and did not even possess a driver's license.

At the conclusion of the defense case, the court called counsel to the bench and suggested that one of them ask appellant if he ever drove a car, observing that "[i]f somebody establishes that he has a driver's license, the defense would look pretty flimsy." The court said it would not ask the question "because I don't know what he might say." The prosecutor declined to ask it, and defense counsel said she was satisfied that appellant did not drive; consequently, the question was not asked.

The prosecutor then called a Prince George's County police officer as a rebuttal witness, apparently to refute appellant's testimony that he had surrendered to the police, rather than being apprehended while fleeing. It quickly became clear, however, that this officer had no direct knowledge of the arrest. As a result his entire testimony was stricken by the court, and the jury was instructed to disregard it. The trial then recessed for lunch.

The first order of business after the recess was a discussion about jury instructions. Then, before the jury was brought back into the courtroom, the court asked the prosecutor if she had any more rebuttal witnesses, and she replied that she did not. The court then said, "Something has come to my attention, which I want to take a short break and look into. . . ." When the proceedings resumed, the court asked appellant if he ever went by the name Tyrone Lewis or Ronnie Tyrone Lewis. Appellant denied using either name. The court then asked appellant's mother, who was in the courtroom but unsworn, whether her son sometimes used the name of Lewis; she said that he did. Appellant thereupon admitted (not under oath) that he knew how to drive.

After these exchanges, the trial judge informed counsel that over the lunch hour he had asked his law clerk to have his (the judge's) secretary make a telephone call to find out whether appellant had a driver's license. As a result of this call, the judge learned that a person by the name of Ronnie Tyrone Lewis had a District of Columbia driver's license and that Lewis' address, social security number, and date of birth were identical to appellant's. Defense counsel said that appellant had told her he had lost his license, implying that he was telling the truth when he said he did not have one. Nevertheless, the judge said he was inclined to allow the prosecutor to recall appellant for additional cross-examination in order to "get this thing straightened out." Defense counsel immediately objected on the ground that the information about the driver's license had been gathered by the court,⁵ and that the court was now allowing the government to reopen its case after saying that it had no further evidence to present.⁶ The court, however, granted the government's motion to reopen its cross-examination of appellant, and the jurors were brought back into the courtroom.

On the reopened cross-examination and again on redirect, appellant admitted going by the name of Ronnie Tyrone Lewis, Lewis being his father's surname. He also admitted obtaining a driver's license under that name. He testified that he knew how to drive and that he had driven his uncle's car dour or five times. He also said that he considered himself not to have a driver's license because he had lost his license.⁷ Appellant then stepped down from the stand, and the trial proceeded to closing argument, instructions, and verdict.

A few days later appellant's counsel filed a motion for a new trial, arguing inter alia that appel...