Dent v. United States

• Decision Date: 16 July 1979
• Docket Number: No. 13798.,13798.
• Parties: Maurice E. DENT, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

404 A.2d 165

Maurice E. DENT, Jr., Appellant, v. UNITED STATES, Appellee.

No. 13798.

District of Columbia Court of Appeals.

Argued April 11, 1979.

Decided July 16, 1979.

COPYRIGHT MATERIAL OMITTED

Daniel Burke, Washington, D. C., for appellant.

F. Joseph Warin, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Peter E. George, and Larry G. Whitney, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before NEWMAN, Chief Judge, and KELLY and GALLAGHER, Associate Judges.

NEWMAN, Chief Judge:

Appellant seeks reversal of his conviction for robbery. He contends that the government's cross-examination of him and its closing argument, which repeatedly called to the jury's attention the absence of certain witnesses and asked the jury to draw inferences adverse to him from their absence, was prejudicial error. We agree and reverse.¹

On January 27, 1978, at about 6:30 p. m., Sandra Reaves returned from grocery shopping to her apartment on 25th Street, S.E., Washington, D. C. As she started to unload her groceries, she was stopped by a young man who offered assistance. During this encounter, he grabbed her purse and ran off. The entire events constituting the robbery took no more than ten minutes. On February 1, at about 6:00 p. m. and on February 2, at about 10:00 p. m., she spotted appellant and identified him as the man who grabbed her purse. After the February 2 spotting, appellant was arrested.

Trial Proceedings

Appellant testified in his own behalf, denying any connection with the robbery. The only event he remembered about the evening in question was that he called his cousin from his parents' home in Landover, Maryland, and learned that she had had a baby. On cross-examination, the defendant testified that the call was placed at about 9:00 p. m. and that some family members were at home at that time. The prosecutor then suggested, through cross-examination of appellant, that appellant's family, at his request, testified at the Grand Jury on his behalf and were offered to — but not able to — supply appellant with an alibi for the time of the incident. The prosecutor was fully aware that the government had subpoenaed these family members to the Grand Jury and that they had only testified to not remembering the evening in question²

During closing argument, the prosecutor used this testimony as a basis for his argument before the jury. In pertinent part that argument is as follows:

Is he telling the truth, that he wasn't the one and proffered at another proceeding an alibi supported by family members and now changes his story, and there is no alibi and no family members.

Defense counsel objected on the ground that appellant did not testify at the Grand Jury and thus, did not testify inconsistently at trial. Counsel also noted that the government subpoenaed the family members before the Grand Jury.³ The court sustained the objection, instructed the jury as to the nonexistence of prior inconsistent statements made by appellant concerning an alibi, and directed the prosecutor to correct the misconception given the jury by his improper argument. Unfortunately, the correction offered by the prosecutor compounded the error.

Okay. The statement which I am referring to is a statement of witnesses which were subpoenaed by the government, not by the defendant. The defendant had nothing to do with it. But at the time, and as he was cross-examined, in cross-examination, those witnesses testified concerning alibi for him. They are not here. Okay, in addition, that none of the witnesses who would corroborate that. Now, one of the witnesses — the witnesses that would corroborate that were witnesses that testified at the Grand Jury, his mother, his father-in-law,⁴ his brothers and sisters, if he was home.

Why weren't they brought here? If that is where he was at and they can prove it. They could prove it.

The prosecutor thus again asked the jury to draw a negative inference from the absence of these witnesses at trial, while knowing that no alibi was offered by the appellant to account for his whereabouts at the time of the crime. At most the witnesses referred to could have corroborated an immaterial aspect of appellant's story — where he was at 9:00 p. m. on the evening in question.

Defense counsel again objected on the ground that there was no basis for arguing what the alleged witnesses could prove. The court sustained the objection. The prosecutor thereafter again argued to the jury that the missing witness inference was sound because, "[T]hey would be able to give you information to support where he was at." The defense again objected. The prosecutor was aware that these family members could not and did not remember the night in question and were never offered at the Grand Jury, in appellant's direct testimony, or cross-examination as being able to establish where the appellant was at the time of the incident in question. The court sustained the objection and cautioned the jury that counsel's argument was not evidence. In spite of these repeated objections, all of which were sustained by the court, the prosecutor continued his closing argument:

Let's talk about conversations supposedly occurred with the cousin. There was no cousin brought here who could speak about that conversation on the 27th. I am asking you to look at all of the situations and all of the situations in terms of credibility, because that is the issue that comes out now before you. Who is believable? You can determine believability by not only positive factors of the ability of the witness to observe what the witness says they observed, but also from the negative side, what other persons said occurred which was never presented to you. . . .

Here again the prosecutor asked the jury to draw an inference adverse to the appellant from the absence at trial of his cousin, despite the fact that the cousin's testimony was not relevant to prove the nonasserted alibi and also incompetent to prove the appellant's presence in Landover, Maryland, at the time of the call. The defense objected and asked for a mistrial which was denied.

Defense counsel, in his closing argument, tried to defuse any misconceptions created by the prosecutor's improper argument.

Now Mr. Dent got on the stand and he testified in his own behalf. . . . And he didn't do a very good job of explaining where he was on January 27th. He didn't even know what day of the week it was. So that might be significant if this was the day after, or if he had been arrested that night, or if the 27th was a Friday and he had been arrested that weekend, it might have been easy to say, oh yes, on Friday, here I was. But keep in mind this was a week later, that he moved back and forth to people in that area there, and — from his mother's home out in Landover — he didn't know because there wasn't any significant reason why he should remember that date.

Later on, after he was arrested, and through conversations with his cousin, he was able to find out, yes, that was the date she had had a baby, and he remembered that he had talked to her on that date. But that was the only way he could associate that date. None of the people he knew, none of the people he could talk to after the day he was arrested, on February the 3rd, were able to supply him with that kind of information. And I submit to you that that's not consistent or inconsistent with anything except with the problems of a young man who's been accused of a crime a week after it happens.

He hasn't offered any kind of an alibi whatsoever. He hasn't brought you any witnesses to say where he was or to say where he usually was, because he simply doesn't know. . . .

In spite of the prior rulings by the court, the prosecutor in rebuttal argument again made reference to the missing witnesses and in effect again asked the jury to draw an inference adverse to appellant from their absence.

Now, also, what does demeanor have to do with the fact that witnesses were not brought to your attention that may have been able to clarify matters that you must decide? Witnesses that were family members and close contact with the defendant. What does that have to do with credibility? That has nothing to do with credibility. It has something to do with whether the truth is going to be brought to you from the side of the defendant since he took that stand. Where were they at? Why weren't they here for your inspection?

Once he takes that stand, and once he produces evidence, then you have a right to demand that this evidence be as great as it possibly can be.

* * * * * *

Defense counsel again objected to the prosecutor's argument and renewed his request for a mistrial which was again denied. No instruction or explanation was offered to the jury. Further, in the court's final instructions no mention was made of the improper argument and no corrective instruction was given (other than the standard instruction that statements of counsel are not evidence ⁵) to dispel the misconception created by the prosecutor's improper argument.

Missing Witness Inference

Over eighty years ago, the Supreme Court enunciated a rule that "if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable." Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 37 L.Ed. 1021 (1894). The rule is still followed in the District of Columbia. See, e. g., Coombs v. United States, D.C. App., 399 A.2d 1313 (1979). The two criteria that must be present before the jury may be invited to infer that the testimony of an absent witness would have been adverse to a party are (1) that the witness is peculiarly within the power of the party to produce, and (2) that the witness' testimony is likely to elucidate the transaction in issue. If either condition is not present then "[b]...