Deneal v. U.S., 85-1554.

Decision Date14 December 1988
Docket NumberNo. 85-1554.,85-1554.
Citation551 A.2d 1312
PartiesKenneth D. DENEAL, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Ted Kavrukov, appointed by this court, for appellant.

Roy W. McLeese III, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell and Debra L. Long— Doyle, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN and STEADMAN, Associate Judges, and REILLY, Senior Judge.

REILLY, Senior Judge:

Appellant, found guilty by a jury of carrying a pistol without a license, D.C. Code § 22-3204 (1981); possession of an unregistered firearm, id. § 6-2311(a) (1981); unlawful possession of ammunition, id. § 6-2361(3) (1988 Supp.); possession of phencyclidine (PCP), id. § 33-541(d) (1988 Repl.); and possession of marijuana, id.;1 asserts three grounds for reversal: the trial court erred in (1) permitting one of the government's principal witnesses to invoke the privilege against self-incrimination; (2) limiting the cross-examination of one of the arresting officers; and (3) instructing the jury regarding the possession with intent to distribute and carrying a pistol without a license counts. We affirm.

I

On January 7, 1985, two policemen in a marked scout car observed an erratically-driven Audi heading north on Ninth Street. The vehicle swerved at them from the left lane, almost striking their car, and continued on. The officers followed, and stopped the vehicle. Officer Mayberry went to the passenger side where appellant sat and shined his flashlight into the car where he spotted the cylinder of a gun with live ammunition in it between appellant's legs. He immediately ordered appellant out of the car, and called for a back-up unit. After assistance arrived, Mayberry looked in the car and discovered the frame of a .38-caliber revolver lying on the floor beneath where appellant had been sitting. A search of appellant incident to his arrest uncovered a bag containing what laboratory analysis later proved to be 43.41 grams of marijuana laced with phencyclidine (PCP) with an approximate street value of $2,100. Although both appellant and the driver of the car, Enrico Hoye, were arrested at the scene, the United States Attorney declined to prosecute Hoye. Appellant was indicted after the case against him was presented to a grand jury.

II

Prior to trial, defense counsel subpoenaed Hoye to testify. However, he failed to honor the subpoena served on him, and was later arrested on a bench warrant issued after his failure to appear. Once his presence was obtained, the trial court appointed counsel for Hoye to advise him of his privilege against self-incrimination. After counsel had conferred with Hoye, the trial court conducted an inquiry on the matter and permitted him to assert Ms privilege as to the circumstances surrounding his presence in the car on the night of the arrest. Appellant argues that it was error for the trial judge to have excused Hoye from taking the stand without first determining whether the proffered testimony was incriminating in nature and whether such testimony would have exposed Hoye to a substantial risk of prosecution.

We remark that at no time during the hearing on Hoye's assertion of his privilege did appellant's trial counsel object to any facet of the proceeding; in fact, he was in complete agreement with the trial court at all stages of its inquiry and ruling.2 As a result, we conclude that the trial court properly allowed the witness to claim the privilege, see Holbert v. United States, 513 A.2d 825, 829 (D.C. 1986); daggers c. United States, 482 A.2d 786, 793 (D.C. 1984);3 and to assert it prior to testifying in response to any question posed, see Holbert, supra, 513 A.2d at 829; Jackson, supra, 490 A.2d at 196. While it was revealed for the first time by a question put to the government in oral argument that Hoye had previously testified before the grand jury—conduct that generally precludes a later assertion of the privilege,4 see Salim v. United States, 480 A.2d 710, 713-14 (D.C. 1984); Ellis v. United States, 135 U.S. App.D.C. 35, 46-47, 416 F.2d 791, 802-03 (1969); appellant is hardly "`in a position to complain since his counsel neither asked the judge to direct the witness to answer questions nor to rule that the privilege was improperly asserted.'" Vaughn v. United States, 364 A.2d 1187, 1190 (D.C. 1976) (quoting United States v. Domenech, 476 F.2d 1229, 1231 (2d Cir.), cert. denied, 414 U.S. 840, 94 S.Ct. 95, 38 L.Ed.2d 77 (1973)).

III

Appellant also contends that the trial court erred in limiting defense counsel's cross-examination of Officer Mayberry. He had been allowed to ask the witness about the efficiency ratings issued to police officers by their superiors and had brought out the fact that the number of arrests was one of the factors considered in evaluating the performance of an officer. When defense counsel then attempted to interrogate Mayberry further about personnel regulations and practices, the trial court ruled out further resort to this line of questioning.

Although possible bias of a principal government witness is always a proper subject for cross-examination, Springer v. United States, 388 A.2d 846, 855 (D.C. 1978), the right to explore that possibility is not without limits, Washington v. United States, 499 A.2d 95, 101 (D.C. 1985); see Chipman v. Mercer, 628 F.2d 528, 531 (9th Cir. 1980) (court not required to permit cross-examination simply on theory bias might be disclosed). Once a trial court has allowed some inquiry on a particular topic during cross-examination,5 the extent of that examination is within the sound discretion of the trial court, Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931); Bush v. United States, 516 A.2d 186, 196 (D.C. 1986); and we will reverse only on a showing of an abuse of that discretion. See Reed v. United States, 452 A.2d 1173, 1178 (D.C. 1982), cert. denied, 464 U.S. 839, 104 S.Ct. 132, 78 L.Ed.2d 127 (1983); Mitchell v. United States, 408 A.2d 1213, 1215 (D.C. 1979).

When questioning seeking to show bias is objected to as being irrelevant or nonprobative, as in this case, the party posing the questions must proffer to the court "some facts which support a genuine belief" that the witness is biased in the manner asserted, see Jones v. United States, 516 A.2d 513, 517 (D.C. 1986) (citation omitted); see also 3A WIGMORE, EVIDENCE § 945 (Chadbourn rev. 1970) (cross-examination to show bias must be designed to elicit a specific personal bias on part of witness); and that the proposed questions are probative of bias, see Best v. United States, 328 A.2d 378, 381-82 (D.C. 1974). Here, appellant proffered neither facts nor follow-up questions which would support the theory that Mayberry's own personnel record was such that he had any incentive to misrepresent the circumstances justifying the arrest. The trial court did not abuse judicial discretion in curtailing the scope of appellant's cross-examination. See Jones, supra, 516 A.2d at 517.6

IV

Finally, appellant argues that the trial court incorrectly instructed the jury. Specifically, he assigns error to the court's instructions regarding the charge of carrying a pistol without a license (CPWL).7 After charging the jury on the four elements of this particular offense, see Criminal Jury Instructions for the District of Columbia, No. 4.81(A) (3d ed. 1973), the court also said that "a pistol is carried openly or concealed on or about the defendant's person if it is located in such proximity to the person as to be convenient of access and within reach." See id. no. 4.81(C). Defense counsel voiced no objection to these instructions.

Shortly after the case had been sent to the jury, the court received a note which read, "Judge, we need to have you explain the definition of carrying a firearm." The judge proposed to both counsel to reiterate instruction no. 4.81(C). Defense counsel also requested that the possession instruction, no. 3.11, be given, and the court agreed to do so. The judge then reread no. 4.81(C), and told the jury that the offense of CPWL "does not include the concept of possession per se[, Nut it might help you to have that possession instruction head again because I think it's a different concept." The trial judge reread instruction no. 3.11, reminding the jury that it applied to the other charges in the case and that the concept of possession "is not really applicable" to a charge of CPWL. After the jury retired to resume deliberations, defense counsel informed the court that he thought it erroneous to charge that possession is not an element of CPWL, but did no more to pursue the issue than to say he would look for supporting cases and present them to the court when deliberations resumed after the weekend. He submitted none before the verdict was returned, but now presses the issue on appeal.

Super.Ct.Crim.R. 30 sets forth the procedural guidelines for challenging jury instructions. "[N]o party may assign as error any portion of a charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict. . . ." The purpose of this timely exception rule is to give the trial court the opportunity to correct errors and omissions which otherwise might necessitate a new trial, thus discouraging counsel from purposefully withholding objections. While the rule is not explicit, its intent is no less applicable to situations where the jury, having begun its deliberations, is reinstructed by the trial court. Hence, to preserve for appeal an objection to the form of a charge given while reinstructing a jury, counsel must object before the jury again retires to resume deliberations.8 As appellant did not comply with this requirement,9 we review his claim under the plain error rule. See Sloan v. United States, 527 A.2d 1277, 1284 (D.C. 1986); Allen v. United States, 495 A.2d 1145, 1151 (D....

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