Gethers v. U.S.

• Decision Date: 21 March 1989
• Docket Number: No. 87-51.,87-51.
• Parties: James GETHERS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 201

556 A.2d 201

James GETHERS, Appellant, v. UNITED STATES, Appellee.

No. 87-51.

District of Columbia Court of Appeals.

Argued December 14, 1988.

Decided March 21, 1989.

Peter H. Meyers, Washington, D.C., appointed by this court, for appellant.

Kevin A. Forder, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, and Mary Ellen Abrecht, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, TERRY, and SCHWELB, Associate Judges.

SCHWELB, Associate Judge:

Gethers was convicted of one count of distribution of cocaine and one count of possession of cocaine with intent to distribute (PWID), both in violation of D.C.Code § 33-541(a)(1). On appeal, he contends, among other things,¹ that the trial judge committed reversible error in failing to instruct the jury with respect to alibi, as requested by the defense. In light of Gray v. United States, 549 A.2d 347 (D.C. 1988), we conclude that Gethers had a right to the requested instruction, but with respect to the distribution charge only. Accordingly, we must reverse his conviction for distribution. Finding no prejudicial "spillover" to the PWID charge, however, we affirm Gethers' conviction of that offense.

I

The facts pertinent to this appeal are disarmingly simple. The government's evidence showed that on the evening of October 8, 1985, a police officer acting under cover approached Gethers in the 400 block of O Street, N.W. and asked him for a "half" of cocaine. Gethers directed him to a playground area approximately thirty-five to fifty feet south of O Street known as the "cut." Shortly thereafter, Gethers joined the officer at a bench in the "cut." After some discussion of the manner in which the cocaine was to be ingested, Gethers took a single plastic packet of white powder from a brown paper bag containing other similar packets and handed the packet to the officer. In return, the officer gave Gethers $50 in prerecorded funds.

The two men then walked back to O Street and the officer observed Gethers toss the paper bag containing the packets of white powder into a bush which was "right there on O Street." The officer promptly advised members of the "arrest team" of what had transpired. He provided them with a description of Gethers, and told them where they could find the discarded bag.

Shortly thereafter, officers arrested Gethers. In a search incident to the arrest, they found the prerecorded money with which the undercover officer had purchased the single packet—two $20 bills and one $10 bill—in Gethers' left front pants pocket. The officers also recovered the brown paper bag, which contained thirteen additional plastic packets of white powder. Chemical tests conducted by the Drug Enforcement Administration disclosed that the single packet sold to the undercover officer contained 656 milligrams of 37% pure cocaine. The thirteen packets in the paper bag contained 8,250 milligrams of 34% pure cocaine.²

Gethers testified in his own defense and denied committing the offenses. He claimed that he had come into possession of the prerecorded funds by making change for someone on the street shortly before his arrest. He and two defense witnesses, Allen Snead³ and Ella Wilson, testified that they had been talking and drinking with Gethers on O Street for two hours (Snead) and twenty-five minutes (Ms. Wilson) and did not see him leave O Street or go to the "cut" or possess or distribute cocaine.

After both parties had rested, defense counsel requested the judge to give an alibi instruction. In support of his request, he stated that "there has been evidence introduced in this case that Mr. Gethers was standing and conversing with other individuals when these alleged offenses—in a different place from where these offenses— separated spatially from where these offenses occurred." The judge disagreed:

Sir, that's the most strained explanation [of a] request I've heard in years. That request is denied. The defendant was clearly at the scene since 4:20. By his own admission, he was at the scene. . . . That's not an alibi defense. This is a misidentification defense, that's what he is saying in effect. "I didn't do it, therefore the policeman has misidentified me. . . ." So I'm going to deny that because alibi is not a defense in this case. There is no evidence to support the instruction is the technical reason for the denial.

Gethers was convicted of both charges. The judge sentenced him to serve two concurrent terms of three to ten years, consecutive to any other sentence. This appeal followed.

II

In Greenhow v. United States, 490 A.2d 1130, 1134 (D.C. 1985), this court defined the defense of alibi as follows:

[Alibi] involves the impossibility of accused's presence at the scene of the offense at the time of its commission. . . . The defense of alibi is designed to prove that the accused, during the whole time that the crime was being committed, was so far from the place where the crime occurred that he could not have participated in it, or that he was so far away that he could not, with ordinary exertion, have reached the place in time to have so participated in the crime; and in order to be legally effective it must cover the entire time during which the crime is alleged to have been committed. 22 C.J. S. Criminal Law § 40, at 130-131 (1961).

More recently, in Gray v. United States, supra, the court elaborated on the Greenhow definition, and particularly on the words "so far away," in language which has considerable import for the distribution charge here:

"So far away" conjures an image of great distance, but actually it means only so removed as to be not precisely at the scene of the crime. Thus it matters not whether the defendant was in the house next door or halfway across town; if he or she was not at the exact scene of the crime, the defendant has an alibi.

549 A.2d at 349 (emphasis added).⁴

In the present case, the entire distribution offense—the exchange of cocaine for cash—was committed in the "cut." The defense case was that Gethers was never in the "cut" at the time the crime was committed. Under these circumstances, Gray and to some extent Fay hold that an alibi instruction must be given upon request.

Although the evidence against Gethers was compelling—the police identification was corroborated by the recovery of the prerecorded purchase money on his person—the failure to give the requested instruction cannot be dismissed as harmless error. It is true, as the Supreme Court of Kansas has stated, that "a jury may be supposed to know without being told that, where the commission of a crime depends upon the personal presence of the defendant at a given time or place, he cannot be guilty if he [was] then somewhere else." State v. Nichols, 117 Kan. 630, 632-33, 232 P. 1058, 1059 (1925). Nevertheless, it has been consistently held to be error to decline to give an alibi instruction when it is requested and where there is an evidentiary basis for the instruction, and it is ordinarily insufficient to instruct the jury, as the trial judge did here, that the defendant's guilt must be proved beyond a reasonable doubt. See generally Annotation: Duty of court to instruct on the subject of alibi, 118 A.L.R. 1303, 1312-16 (1939), and authorities there cited. The reason for requiring a specific alibi instruction was well stated by the Supreme Court of Pennsylvania in Commonwealth v. Pounds, 490 Pa. 621, 633-34, 417 A.2d 597, 603 (1980):

[T]he trial court failed to instruct the jury that it should acquit if Pounds' alibi evidence, even if not wholly believed, raised a reasonable doubt of his presence at the scene of the crime at the time of its commission and, thus, of his guilt. . . . Where an alibi defense is presented, such an instruction is necessary due to the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant's guilt. . . .

General instructions on the Commonwealth's burden of proving each element of the offense beyond a reasonable doubt, the absence of a burden of proof on the defendant, and assessing the credibility of witnesses do not adequately protect against this danger.

(Citations and footnotes omitted.) See also United States v. Alston, 179 U.S.App.D.C. 129, 134, 551 F.2d 315, 320 (1976).⁵

In Gray v. United States, supra, this court reiterated that when a defendant requests an instruction on his theory of the case, including alibi, and when that instruction is supported by "any evidence, however weak," an instruction stating the substance of the defense must be given. 549 A.2d at 349. Rejecting the government's claim that failure to give the instruction, if error at all, was harmless, the court stated:

Although we need not adopt in this case a per se rule that the failure to give an alibi instruction when one is warranted can never be harmless error, we find it difficult to imagine a case in which such an error could possibly be harmless.

Id. at 351. Assuming that a case of harmless error, though "difficult to imagine," can still arise in this kind of situation after Gray, the government has offered no suggestion as to why this should be deemed to be the extraordinary case in which Gray's strong presumption of prejudice would not apply.⁶ An alibi instruction must be given even where the defendant is the sole alibi witness. Smith v. State, 302 Md. 175, ___, 486 A.2d 196, 199-200 (1985). Here, two other witnesses purported to corroborate Gethers' absence from the "cut." Accordingly, we cannot find the judge's refusal to give the requested instruction harmless.

III

The considerations which require reversal of Gethers' distribution conviction do not, however, apply to the PWID offense. As we have noted at p. 203, supra, an alibi must, in order to be effective, cover the entire time during which the crime is alleged to have been committed. Gray, supra, 549 A.2d at 349; Greenhow, supra, 490 A.2d at 1134. Gethers allegedly...