HARRIS v. U.S.

• Decision Date: 15 January 1992
• Docket Number: No. 87-155,87-155
• Parties: Thomas E. HARRIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

602 A.2d 154

Thomas E. HARRIS, Appellant, v. UNITED STATES, Appellee.

No. 87-155.

District of Columbia Court of Appeals.

Argued en banc November 8, 1990.

Decided January 15, 1992.

Appeal from the Superior Court, Donald S. Smith, J.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Paul H. Zukerberg, Washington, D.C., appointed by the court, for appellant.

Elizabeth Trosman, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell and Mary Ellen Abrecht, Asst. U.S. Attys. at the time the brief was filed, and John R. Fisher, David Schertler and Gregory E. Jackson, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before ROGERS, Chief Judge, FERREN, TERRY, STEADMAN, SCHWELB, and WAGNER, Associate Judges, and NEWMAN, MACK, and BELSON, Senior Judges. ^*.

Judge Newman was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on March 11, 1991. ^**.

Judge Belson was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on July 24, 1991.

BELSON, Senior Judge:

ON REHEARING EN BANC

A jury convicted appellant Thomas E. Harris of distribution of phencyclidine (PCP) and marijuana and of possession with intent to distribute PCP and marijuana in violation of D.C. Code § 33-541(a)(1) (1988). On appeal Harris contends that prosecutorial "misconduct," primarily in questioning Harris and arguing to the jury regarding "missing witnesses" without first seeking the permission of the trial court, denied Harris a fair trial and substantially prejudiced the jury. At trial Harris did not object to the prosecutor's conduct. We hold that Harris has failed to demonstrate plain error, and therefore affirm.

I

Our application of the plain error rule will require an evaluation of the strength of the government's case. Therefore, we recite the salient facts in some detail. The government's evidence showed that on August 21, 1984, Officer Byron Wallace, working in plain clothes, was assigned to attempt to purchase illegal drugs. At approximately 1:30 p.m., Wallace drove down the 1800 block of 6th Street, N.W., Washington, D.C., in his personal vehicle. He saw Harris standing on the east side of the street. At that time, Harris was the only person visible in that particular block of 6th Street. Wallace asked him if he had any "loveboat," a street term for PCP. Harris indicated that he did and told Wallace that it would cost $15.00. After Wallace agreed to the purchase price, Harris removed a tin foil packet from a brown paper bag and gave the packet to Wallace. Wallace checked the contents of the packet and discovered that it contained a brownish weed with a strong chemical odor of PCP. Wallace gave Harris a twenty dollar bill drawn from Metropolitan Police Department funds that had been prerecorded by Officer Dwight Mitchell, Wallace's partner.¹ Harris then handed Wallace five dollars in change. Wallace drove away fromthe area and met Officer Mitchell in the 600 block of O Street, N.W. Wallace described Harris to Officer Mitchell as 5'9" to 5'10" tall, approximately 160-170 pounds, wearing green pants, a white pinstriped shirt, and a golf hat.

Officer Mitchell then called for assistance. In addition to Officers Washington and Davis in a uniformed patrol unit, Officer Sovonick and Sergeant Marshall from the vice unit assisted Officer Mitchell. The officers saw Harris in the 1800 block of 6th Street, N.W., and detained him because he matched the lookout description. Officer Mitchell searched where Harris had been standing, "an elevated area higher than the sidewalk," and found a brown paper bag containing three tinfoil packets of PCP.

Officer Washington placed Harris in the prisoner transport cruiser and drove him to 6th and O Streets, N.W., where Wallace positively identified him as the person who had sold him the PCP. Two officers then transported Harris to the First District. After Harris got out of the car, Officer Washington searched it and found a folded twenty dollar bill in the back of the transport cruiser where Harris had been seated. Officer Washington testified that according to police department procedures, the transport vehicle must be searched at the beginning of each tour and immediately after a prisoner has been transported to a station. According to Officer Washington, Harris was the only person who had been transported in that vehicle that day. Officer Mitchell compared serial numbers of the twenty dollar bill he had given Wallace to purchase drugs and the twenty dollar bill found in the transport cruiser. The serial numbers matched. The government adduced evidence that the substance recovered included usable amounts of marijuana and PCP.

Harris presented the defense of mistaken identity. Harris denied that he had lived at the address written on the arrest report and that he had given the false name, James Harris, to Wallace.² Harris further testified that on August 21, 1984, between noon and 12:30 p.m., he was in the 1800 block of 6th Street, N.W., playing dice for money with other men in an alley and heard two persons on the street selling drugs. After losing forty-five of the fifty-one dollars he had, he went to a nearby store to get something to drink or change for the telephone. Upon returning from the store, Harris stated, he noticed that everyone who previously had been on the block was gone, except for one person, and that an officer then approached and arrested him. Harris asserted that the officer then searched him, took six dollars from him, and placed him in the back of a police cruiser. He was driven to M Street, taken out of and placed back in the vehicle, and then driven to 13th and H Streets where a white male was also placed in the back seat of the vehicle. Harris stated that next he and the other man were driven to the First District, handcuffed at all times.

During cross-examination, Harris denied selling drugs to Wallace.³ He stated that he arrived at the scene of his later arrest around 12 noon or 12:30. When asked how he had gotten there, he responded that he had walked from 11th & Florida Avenue, volunteering that he had been at the Florida Avenue Grill visiting a friend. He also answered that he had left that place around 11:30 or 11:45. After Harris stated that he still knew that the friend in question, the prosecutor asked Harris, "Did you try to see if you could get that friend to come in here and testify?" Harris answered:

Yes, I did but they don't want to be — like, okay, I even seen one of the guys that I was gambling with but they don't want to get caught up in no cases whereas they might can get another charge for testifying or they don't want to be able to like — like no police to see them wherethey could can have to be like harassing them. Because the police harass people.

* * * * * *

They wouldn't testify. I'm saying I just got caught up in something, you know, and I got to deal with it. They won't testify for me.

The prosecutor then asked Harris to name the persons with whom he had been playing dice. In the ensuing colloquy, Harris acknowledged knowing one of those playing dice as Raymond Jones and stated that he had asked him to testify at trial but that the witness said he would not come.⁴ Defense counsel did not object to this line of questioning.

Wallace testified on rebuttal stating that at the time he purchased drugs from Harris no one else was in the area selling drugs and he did not see anyone playing dice. Officer Mitchell corroborated Wallace's testimony by stating that no one else was in the area. Officer Mitchell further stated that he did not remember removing any money from Harris' possession at the time he was arrested. Similarly, Officer Washington testified that although Harris was frisked for weapons before he was placed in the transport cruiser, no money was taken from him. He also demonstrated how Harris, with his hands cuffed behind his back, could have placed his hands in his pockets. In surrebuttal testimony, Harris demonstrated how the use of his left hand had been limited by a gunshot wound.

II.

Harris contends that the prosecutor committed "misconduct" by failing to secure permission from the trial court before making what amounted to a missing witness argument by his cross-examination of Harris.⁵ In this way, Harris contends, the prosecutor jeopardized the fairness and integrity of the trial and substantially prejudiced the jury, requiring reversal.

We will identify first the standard by which we will measure any such improprietyby the prosecutor in this case, next evaluate the claim that the prosecutor actually committed any impropriety in his cross-examination of Harris, and finally measure any demonstrated impropriety against that standard. When reviewing allegations that a prosecutor conducted an examination or argument improperly, we determine first whether the prosecutor's statements or actions actually were improper. Gray v. United States, 589 A.2d 912, 916 (D.C. 1991); Hammill v. United States, 498 A.2d 551, 554 (D.C. 1985). Normally, where we find that an impropriety has occurred and that the defendant has made appropriate objection, we then determine whether we can say "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." (Phillip) Dyson v. United States, United States, 418 A.2d 127, 132 (D.C. 1980) (quoting Gaither v. United States, 134 U.S.App.D.C. 154, 172, 413 F.2d 1061, 1079 (1969) (footnote omitted) (quoting in turn Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946))). This is done based on "the gravity of the misconduct, its relationship to the issue of guilt, the effect of any corrective action by the trial judge, and the strength of the government's case." Gray, supra, 589 A.2d at 916 ...