Hammill v. United States, 84-801.

Decision Date19 September 1985
Docket NumberNo. 84-801.,84-801.
Citation498 A.2d 551
PartiesDeborah P. HAMMILL, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

David I. Bookspan, Washington, D.C., with whom Stephen G. Milliken, Washington, D.C., was on the brief, for appellant.

Debra N. Diener, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before FERREN, TERRY, and ROGERS, Associate Judges.

ROGERS, Associate Judge:

Appellant seeks reversal of her convictions of second degree murder while armed, D.C.Code §§ 22-2403, -3202 (1981), and carrying a pistol without a license, id. § 22-3204, because of prosecutorial misconduct in closing argument and error by the trial court in denying a motion to suppress three statements allegedly made in violation of Miranda.1 Although the prosecutor's closing argument contained errors to which defense counsel objected or to which the trial judge should have responded sua sponte, particularly in view of his rule that counsel could not make contemporaneous objections, we conclude no reversible error occurred. Finding no other reversible error, we affirm.

I

Appellant's husband, Ray Hammill, and Tony Mitchell along with others, transported visitors daily to Lorton Reformatory in their vans from a central loading point at 11th and G Streets, N.W. On January 25, 1983, an argument arose between Ray Hammill and Mitchell over passenger "snatching." As others watched, the argument erupted into a fist fight between the two men which ended spontaneously. Shortly after the fight broke up and the two men had separated, appellant approached Mitchell. She told him, "you are not going to f____ with my husband no more," and shot him in the chest with a gun she had concealed in her pocket. Appellant then gave the gun to an unidentified woman who fled the area. At trial appellant testified that she had shot in selfdefense out of fear for herself and her husband when, after she had run to her husband, who was lying in the street, Mitchell told her, "B____, you want some too," and had lunged at her.

II. Prosecutorial Misconduct

Appellant claims the prosecutor failed in his obligation to prosecute fairly, Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), because in delivering his closing argument to the jury, the prosecutor (1) appealed to the sympathies of the jury, especially by employing the first person singular rhetorical device and arguing facts not in evidence; (2) improperly made a missing witness argument; and (3) misstated applicable law and ridiculed appellant and her counsel.

A.

At the end of the prosecutor's initial closing argument, defense counsel objected to the closing argument as improper and requested a mistrial "on the totality of the argument." He enumerated specific objections: the prosecutor speaking for the defendant, appealing to the jury's passions, and commenting on a missing witness. He also requested the trial court instruct the jury that there was no evidence appellant's husband was a missing witness. After the prosecutor's rebuttal closing argument, defense counsel renewed his motion for a mistrial, and specifically objected to a missing witness comment as well as the prosecutor's reference that appellant was discredited by a greater number of witnesses than testified. The trial judge overruled all of the defense objections. The government contends appellant failed to object specifically to the prosecutor's rebuttal remarks which allegedly misstated the law on appellant's defense and ridiculed the defense and defense counsel, and hence these objections are reviewable only for plain error.

In evaluating appellant's claims, we must determine whether the prosecutor's comments constituted misconduct, and if so, then, viewing the comments in context, we must consider the gravity of the misconduct, their direct relationship to the issue of guilt, the effect of specific corrective instructions by the trial court, and the strength of the government's case. Sherrod v. United States, 478 A.2d 644, 655 (D.C.1984); accord Gaither v. United States, 134 U.S.App.D.C. 154, 172, 413 F.2d 1061, 1079 (1969). Where a defendant has properly preserved his objections to the prosecutor's closing argument by objecting in the trial court, this court must determine "whether we can say with fair assurance, after pondering all that has happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." Jaggers v. United States, 482 A.2d 786, 796 (D.C. 1984) (quoting (Phillip) Dyson v. United States, supra, 418 A.2d 127, 132 (D.C. 1980)); Hawthorne v. United States, 476 A.2d 164 (D.C.1984). Otherwise our review is for plain error. Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc). We hold appellant properly preserved his objections, Hawthorne, supra, 476 A.2d at 170, including those to the rebuttal argument, Powell v. United States, 455 A.2d 405, 408 n. 1 (D.C.1982). The same degree of specificity in noting an objection hardly seems necessary when counsel is precluded from making a contemporaneous objection and the error is clear.

B.

The trial judge imposed a noncontemporaneous objection rule, advising counsel prior to argument that "[u]nless it shocks the Court's conscience, . . . [t]here will be no objection on the part of any counsel until after counsel finishes his argument, [n]o matter what he says." Such a ruling does not, of course, diminish the obligation of the trial judge to assure that counsel's arguments remain within proper bounds. United States v. Young, ___ U.S. ___, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985). On appeal appellant contends that the prosecutor erred in over twenty instances during his closing arguments. We comment only on those where the trial judge erred in overruling a defense objection or had a duty to act sua sponte.

1. Jury Sympathy. Appellant claims that the prosecutor inflamed the sympathies of the jury by orchestrating a descriptive narration of the last moments of the decedent's life, testifying to facts not in evidence, and misstating some of the testimony. She relies on Hawthorne, supra, 476 A.2d at 170-71, where the prosecutor delivered most of his closing argument in the first person voice of the deceased, graphically portraying the brutality of the killing, the kind character of the victim, and described the victim's feelings both during the murder and after he died.

We agree that a prosecutor's comment about what the decedent was thinking necessarily involves an attempt to evoke sympathy.2 Id. at 171 n. 17. In the absence of evidence before the jury about what the decedent said before his death, such comments should be avoided. See Berger, supra, 295 U.S. at 84, 55 S.Ct. at 631 (error to put words into witness' mouth). Contrary to the government's assertion, the prosecutor's comment was irrelevant to appellant's claim of self-defense.

In context, however, the comment was no more than a momentary assumption of the decedent's persona in the course of reviewing the perceptions of various witnesses to the fist fight.3 The prosecutor never actually described the shooting from the decedent's viewpoint or his thoughts at the time or thereafter. The one time that the prosecutor spoke in the first person about the decedent at the time of the shooting,4 the comment was a reasonable inference drawn from the decedent's conduct and not comparable in its ability to invoke sympathy to the closing argument in Hawthorne.

We are satisfied that the error did not rise "to the level of serious misconduct which reasonably could be viewed as having swayed the jury." (Duane) Dyson v. United States, 450 A.2d 432, 438 (D.C. 1982). Given the strength of the government's case — four witnesses testified that they saw appellant shoot the decedent — and the fact that most of the prosecutor's comments did not bear directly on appellant's guilt or innocence, Sherrod, supra, 478 A.2d at 655; Parks v. United States, 451 A.2d 591, 613 (D.C.1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2123, 77 L.Ed.2d 1303 (1983), we find no substantial prejudice.5

2. Missing Witness. Appellant further contends the prosecutor made an impermissible missing witness argument. Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893). Before closing arguments, the trial judge ruled that the prosecutor could mention only that appellant's husband did not testify, but could not argue to the jury that an adverse inference could be drawn from that fact. This distinction, the "incomplete" missing witness argument, has been approved by this court. Logan v. United States, 489 A.2d 485, 490 (D.C.1985); Parks, supra, 451 A.2d at 614; accord Burgess v. United States, 142 U.S.App.D.C. 198, 207, 440 F.2d 226, 235 (1970). However, the prosecutor argued to the jury not only that appellant's husband did not testify, but that appellant did not "give" her husband to the jury.6

Because of our concern about the perils of the missing witness argument, Parks, supra, 451 A.2d at 614-15; (Phillip) Dyson, supra, 418 A.2d at 131; Givens v. United States, 385 A.2d 24, 26 (D.C. 1978), when evidence is created from nonevidence, the "incomplete" missing witness argument must be strictly adhered to. Some adverse inference is almost inevitable when the prosecutor mentions during argument that a defendant has failed to call a witness. We can conceive of no other purpose in the prosecutor's argument about appellant's failure to give her husband to the jury, particularly in light of his rebuttal argument about what her husband could have told the jury. Indeed his argument was remarkably similar to that which was disapproved in Kleinbart v. United States, 426 A.2d 343, 350-51 (D.C.1981). We hold the prosecutor's argument was not in...

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