Dyson v. United States

• Decision Date: 23 August 1982
• Docket Number: No. 80-1189.,No. 81-216.,80-1189.,81-216.
• Citation: 450 A.2d 432
• Parties: Duane T. DYSON, Appellant, v. UNITED STATES, Appellee. Marsden D. FERGUSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

450 A.2d 432

Duane T. DYSON, Appellant, v. UNITED STATES, Appellee.

Marsden D. FERGUSON, Appellant, v. UNITED STATES, Appellee.

No. 80-1189.

No. 81-216.

District of Columbia Court of Appeals.

Argued February 4, 1982.

Decided August 23, 1982.

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David A. Lee, Washington, D. C., appointed by this court, for appellant Dyson.

James H. McComas, Public Defender Service, Washington, D. C., with whom William J. Mertens, Public Defender Service, Washington, D. C., was on the briefs, for appellant Ferguson.

Helen M. Bollwerk, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time of argument, John A. Terry, John R. Fisher, and William J. Bowman, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEBEKER, PRYOR and BELSON, Associate Judges.

BELSON, Associate Judge:

Appellants were convicted by jury of burglary in the second degree, D.C. Code 1981, § 22-1801(b).¹ Appellant Dyson appeals his conviction on the grounds that: 1) there was insufficient evidence to support the conviction, and 2) prosecutorial misconduct prejudiced his right to a fair trial. Appellant Ferguson asserts that he is entitled to reversal by reason of prosecutorial misconduct and on several other grounds. We affirm Dyson's conviction. We conclude, however, that the prosecutor's misconduct violated Ferguson's right to a fair trial, and we therefore reverse his conviction²

We will set forth the facts in some detail in view of Dyson's assertion of insufficiency of the evidence. Appellants were convicted of the burglary of a private home located at 4535 Iowa Avenue, N.W. At approximately 1:30 p.m. on October 10, 1979, William Briscoe observed at the front door of his apartment building two young black males who wore knit stocking caps. He saw them run their hands around the glass panes of the door, but did not pay close attention to their faces. He then observed them cross Iowa Avenue and go on the front porch of 4535 Iowa Avenue, a row house directly across the street from his apartment. They peered in the windows of the house and thereafter appeared to Briscoe to be examining something on the north side of the house. The men then disappeared from view. Briscoe had a neighbor call the police while he kept the house under observation. He saw no one leave the area before the police arrived.

At approximately 1:30 to 1:40 p.m. Metropolitan Police Officer Phillip Parker responded to a radio run of a burglary in progress at 4535 Iowa Avenue, N.W. Shortly after he arrived at the scene he noticed that the lattice on the north side of 4535 had been removed. Officer Parker looked under the porch and observed a head duck down under the far south side of the porch. Immediately thereafter Officer Parker and another police officer observed Ferguson in the basement stairwell of the adjoining house, 4533 Iowa Avenue. The space under the porch of 4535 provided unobstructed access to the stairwell of 4533. Ferguson's clothing was covered with dry dirt and his stocking cap contained dirt particles and paint chips.

After Ferguson came up out of the stairwell, Officer Parker noticed that the basement door of 4533 had been opened forcibly. Together with a resident of the house, he searched the basement area except for a small storage room. He found no one. Between 1:30 and 2:00 p.m., Crime Scene Search Officer Richard Hughes was photographing the area under the porch of 4533 when he observed Dyson crouching in the basement stairwell. His clothing and stocking cap were covered with dry dirt and cobwebs. Upon being arrested and questioned at the scene, he gave the police a false name. A pair of socks containing particles of dirt and paint was seized from his pants pocket and a pair of leather gloves was found under the porch of 4533. Officer Hughes made an in-court identification of Dyson. At the scene, Briscoe viewed appellants from a distance of approximately forty to fifty feet and made a tentative identification.

The occupant of 4535 Iowa Avenue reported that personal items had been moved within the house, but that nothing had been taken from the premises. She confirmed that the lattice outside the house had been removed, and stated that an inside door leading from the basement to the upper floors had been tampered with.

Police investigation of the crime scene revealed that the ground under the porch of 4535 was dry and dusty although the surrounding area was wet from snow which had fallen earlier in the day. The basement window under the porch was unlocked and the window frame was weathered and peeling. An analysis of paint particles found on both appellants' clothing and on the socks Dyson was carrying indicated that the paint was of a type similar to the paint peeling around the window.

At trial Ferguson presented a defense of innocent presence. He testified that on the day of the offense, he was in the 4500 block of Iowa Avenue, N.W. looking for a friend, Eric Thompson, who sometimes stayed in a basement apartment at 4531 Iowa Avenue, N.W. Appellant mistook 4533 Iowa Avenue for the house next door, 4531, which he had visited only once previously. Appellant's testimony was corroborated in part by his brother who stated that appellant had told him on the day of the offense that he was going to look for Thompson, and by Thompson who testified that he sometimes stayed in the basement apartment. Thompson further testified that the row houses on the odd-numbered side of Iowa Avenue N.W. were similar in appearance.

Ferguson denied having had any dry dirt on his clothing at the time of his arrest and attributed any dirt or paint on his clothing to his wearing the clothing he wore when he worked at his usual job as a roofer. He testified that he had met Dyson ten years previously but had not seen him from that time until they were arrested. Dyson presented no defense at trial.

I

We address first Dyson's contention that the trial court erred in denying his motion for judgment of acquittal at the close of the government's case-in-chief. In reviewing the sufficiency of evidence presented at trial we must consider the evidence in the light most favorable to the government to determine if it was sufficient to permit reasonable jurors to find guilt beyond a reasonable doubt. Byrd v. United States. D.C.App., 388 A.2d 1225, 1229 (1978); Crawford v. United States, 126 U.S.App.D.C. 156, 158, 375 F.2d 332, 334 (1967). It is not necessary that the government's evidence compel a finding of guilt beyond a reasonable doubt, nor that the government negate every possible inference of innocence. Chaconas v. United States, D.C.App., 326 A.2d 792, 798 (1974). In applying the above standards, we make no distinction between direct and circumstantial evidence. Franey v. United States, D.C.App., 382 A.2d 1019, 1023 (1978).

We are satisfied that the government introduced sufficient evidence to permit the jury to find beyond a reasonable doubt that Dyson was guilty of burglary in the second degree.³ Evidence was adduced that the lattice under the porch of 4535 Iowa Avenue, N.W. had been removed, that a basement window under the porch had been left unlocked and that an inner door leading from the basement to the upper portion of the house had been tampered with. Such evidence was sufficient to permit the jury to conclude that the premises had been entered forcibly, probably through the basement window. Moreover, there was circumstantial evidence from which it could be inferred that the entry was effected with the requisite specific intent to commit an offense inside the house. See Massey v. United States, D.C.App., 320 A.2d 296, 299 (1974). The suspicious behavior of persons peering into the windows of 4535, the manner of entry, and the fact that items had been removed from a closet inside the house, was sufficient evidence to establish that the house had been entered with the intent to steal the property of another.

Finally, there was convincing circumstantial evidence that appellant was one of the persons who burglarized the house. Dyson matched the general description of one of the men observed acting suspiciously in the area of the burglarized house. He was found shortly after the burglary, crouched in a stairwell of an adjoining house. When he was questioned, he gave a false name to the police. It was established that the area under the porch of the burglarized house was dry and dusty and provided an adult access to the stairwell where appellant was apprehended. Appellant's clothing and the socks he was carrying were covered with dry dirt and paint chips of a type of paint similar to that near the basement window by which entry to the burglarized house was gained. Such evidence was sufficient to enable the jury to infer that Dyson had entered and exited 4535 Iowa Avenue through the basement window, using socks to cover his hands, and then crawled under the porch to the adjoining basement stairwell.⁴

The facts of the instant case thus are distinguishable from those of cases in which we have held that an individual's mere presence near the scene of a crime is insufficient evidence of guilt. See e.g. Perry v. United States, D.C.App., 276 A.2d 719 (1971); Davis v. United States, D.C.App., 230 A.2d 485 (1967). We conclude that the trial court did not err in denying Dyson's motion for judgment of acquittal.

II

Appellants Dyson and Ferguson both assert that the prosecutor's remarks in closing and rebuttal argument constitute prosecutorial misconduct which requires reversal of their convictions. In ruling upon appellants' assertions we must determine whether misconduct occurred and, if so, whether it created "substantial prejudice" to appellants. See Bennett v. United States, D.C.App., 375 A.2d 499, 504 (1977); Garris v. United States, D.C.App., 295 A.2d 510, 512 (1972). This test in this jurisdiction for determining if prosecutorial misconduct...