Greenhow v. United States

• Decision Date: 11 April 1985
• Docket Number: No. 83-730.,83-730.
• Citation: 490 A.2d 1130
• Parties: Larry G. GREENHOW, Appellant, v. UNITED STATES of America, Appellee.
• Court: D.C. Court of Appeals

490 A.2d 1130

Larry G. GREENHOW, Appellant, v. UNITED STATES of America, Appellee.

No. 83-730.

District of Columbia Court of Appeals.

Argued March 7, 1985.

Decided April 11, 1985.

Richard K. Gilbert, Washington, D.C., appointed by this court, for appellant.

John M. Facciola, Asst. U.S. Atty., Washington D.C., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Judith Hetherton, Melvin D. Wright, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before PRYOR, Chief Judge, and MACK and TERRY, Associate Judges.

MACK, Associate Judge:

Following a jury trial, appellant Larry Greenhow was convicted of possession of phenmetrazine (Preludin), a controlled substance, in violation of D.C.Code § 33-541(c) (Supp.1983) (now codified at D.C.Code § 33-541(d) (Supp.1984)). Greenhow appeals on two grounds: first, that the trial court erred in refusing to instruct the jury on the defense of alibi; and second, that the court impermissibly intruded into the trial when he gave the prosecutor information from the court file that allowed the prosecutor to impeach appellant in regard to statements he had made concerning his employment history. Finding no error, we affirm.

I.

The government's evidence showed that at 8:50 p.m. on December 13, 1982, two undercover policemen, Leonard Allen and Michael Tyler, were approached in the 2100 block of 14th Street, N.W., by someone offering to sell "bam and works" (Preludin and syringes). Officer Allen told this individual, later identified as appellant's codefendant Herbert Smith,¹ that he wanted to buy one Preludin pill. Smith walked across the street to a grey van, parked 10 to 15 feet away, and had a conversation with someone seated in the driver's seat of the van. According to Allen, this individual got out of the van, recrossed the street with Smith, and walked to a spot within 6 to 10 feet of Allen and Tyler, where Allen had an opportunity to observe him under bright street lights. The individual reached into his coat pocket and gave something to Smith; Smith then walked back to Allen and gave him a Preludin tablet in return for two marked bills, a $10 and a $5.² Smith returned to the man who had left the van and gave him one of the bills.

Officer Michael Tyler testified that he saw Smith walk to the van; an individual in the van got out, but Tyler could not see this individual well enough from his location to identify him; the two men had a conversation, but Tyler did not see anything exchanged; and Smith then returned to Allen with the Preludin. Tyler said that from the officers' vantage point, only the passenger side of the van was visible.

Following the transaction with Smith, Allen and Tyler engaged in a second, unrelated drug transaction, and then returned to their squad car, where Allen filled out a "buy" report and broadcast a description of two suspects and the vehicle out of which they were operating. Allen described the individual who had exited the van as a short black male, wearing a green army field jacket and brown pants, sitting in the driver's side of a parked grey van.

Officers Peter Serbinoff and Angelo Parisi saw the parked van described by Allen, and ordered all of its occupants — appellant Greenhow, who was in the driver's seat, Smith, and three other men, Ronald Shorter, William Johnson, and Steven Wise — to get out and stand on the corner. Serbinoff testified that several men grabbed coats as they exited the van. Parisi said that only Smith took a coat, and that all the other men had their coats on at the time they exited the van. Allen rode by several times in an unmarked car in order to attempt to identify the two men involved in the Preludin transaction. On the first rideby he identified Smith; on the second, he identified Greenhow as the man who had given Smith the Preludin and received from him one of the two marked bills. Smith and Greenhow were arrested, and although no narcotics were found on their persons (and none were found in the van), Greenhow had the marked $10 in his pants pocket and Smith had the marked $5 in his sock. Allen testified that approximately 20 minutes elapsed from the time he purchased the Preludin to the time he identified Smith and Greenhow; since he stated that the purchase occurred at 8:50 p.m., appellant therefore was arrested at approximately 9:10.

Appellant testified in his own defense. He stated that he and Ronald Shorter had driven to 14th and V Streets that evening in order to get something to eat, but he did not know what time they arrived in the area. After he parked the van, he saw William Johnson and Steven Wise, who asked him for a ride home. He agreed to take them home, and told them to wait in the van until he returned from a carry-out across the street. He said that he and Shorter were in the carry-out for about 20 to 30 minutes, but he had no idea what time it was when they came out. He and Shorter brought their food back to the van to eat. He started up the van and turned on the heater, and after a few minutes he took off his coat, a burgundy leather jacket. Five to ten minutes after he had started up the van, Smith arrived, and asked him for a ride home. He agreed, and asked Smith for money owed for items Smith had taken from a concession truck operated by Greenhow and his mother. Smith gave him $10. Five to ten minutes after Smith's arrival, the police came and ordered everyone out of the van. A police officer grabbed a green jacket and ordered Greenhow to put it on, which he did, even though it did not belong to him. He did not tell anyone that he was wearing the wrong jacket. He maintains that, based on the green jacket, he was incorrectly identified by Officer Allen as one of the individuals involved in the drug transaction. Appellant further points out that, although Allen described him as "short," he in fact was one of the taller men in the van.

Ronald Shorter corroborated appellant's version of the events in all material respects. Appellant's codefendant, Smith, testified that he first saw appellant and Shorter when they came out of the carry-out; he asked appellant for a ride home, appellant agreed, and he got in the van. The police arrived shortly thereafter, and ordered appellant to put on a green jacket that did not belong to him.

William Johnson also corroborated appellant's contention that he had gone to get something to eat, and that he first saw Smith when he came back to the van from the carry-out. Johnson's testimony is significant in that he is the sole defense witness who was able to give times for the events with any specificity. Johnson stated that he, Smith, and Wise had been together that evening, and at about 7:15 p.m. they saw Greenhow and asked for a ride home. At that point, Greenhow said that he was going to get something to eat and that Johnson and his friends could wait in the van. Greenhow and Shorter were away from the van for half an hour; thus, according to Johnson, Greenhow returned to the van at approximately 7:45, over an hour before the Preludin transaction at issue here.

II.

Appellant contends that he presented evidence which, if believed, demonstrated that he was not on the scene when the drug transaction took place, and that the trial court therefore erred by refusing to instruct the jury on the defense of alibi. We disagree. Although the trial court must instruct on any defense fairly presented by the evidence,³ appellant's evidence provided no basis upon which an alibi defense could be constructed. The "hornbook" definition of alibi provides:

[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 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 130-31 (1961). In order to warrant an alibi instruction,⁴ the defense evidence must be of such a character that, if believed, it would show that the defendant could not have committed the crime. See State v. Gillespie, 163 N.W.2d 922, 925 (Iowa 1969); Commonwealth v. Whiting, 409 Pa. 492, 497, 187 A.2d 563, 566 (1963); State v. Martin, 2 Ariz.App. 510, 515, 410 P.2d 132, 137 (1966); People v. Terrell, 138 Cal. App.2d 35, 291 P.2d 155, 166 (1955); Commonwealth v. McQueen, 178 Pa.Super. 38, 40, 112 A.2d 820, 822 (1955). "The question whether an alibi is claimed is not settled by what a defendant contends his defense is," State v. Dunne, 234 Iowa 1185, 1191-92, 15 N.W.2d 296, 300 (1944); rather, the alibi instruction is appropriate only when the defense evidence demonstrates the defendant's presence elsewhere for the entire period of time the government's evidence shows he was involved in criminal activity, see id.

The defense evidence presented in this case did not meet the prerequisites set forth above for the grounding of an alibi instruction. Appellant's version of the events that transpired that evening is not necessarily inconsistent with his participation in the Preludin transaction. The government's evidence showed that the drug transaction took place at 8:50 p.m., and that Allen's ride-by took place at approximately 9:10 p.m. The occupants of the van were therefore ordered out into the street some minutes before 9:10. Appellant testified that Smith arrived at the van five to ten minutes prior to the arrival of the police, and that he had returned to the van from the carry-out five to ten minutes before Smith arrived. Appellant's testimony is therefore not inconsistent with his presence in the van at 8:50 that evening. Moreover, although defense witnesses...