Hazel v. United States, 7378.
| Citation | 319 A.2d 136 |
| Decision Date | 18 April 1974 |
| Docket Number | No. 7378.,7378. |
| Parties | John P. HAZEL, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Fred M. Vinson, Jr., Washington, D. C., appointed by this court, for appellant.
Regina C. McGranery, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry and Robert Alan Jones, Asst. U. S. Attys., were on the brief, for appellee.
Before KELLY, KERN and NEBEKER, Associate Judges.
This appeal is from a conviction of second degree burglary. Appellant raises two issues which he contends compel reversal. He urges that a gratuitous statement made by the trial judge constituted prejudicial error. He also contends that his right to cross-examine a prosecution witness was prejudicially curtailed. Having considered these arguments, and finding that no reversible error was committed, we affirm.
At trial, Arthur Trakas, the complaining witness, testified that upon returning to his family's apartment, he inserted his key and unlocked the door only to find that the door was secured from the inside by a chain lock. Mr. Trakas recounted that this was not unusual since his mother often secured the door in this fashion when she was at home. Mr. Trakas called through the slightly opened door three times for his mother, but when no answer was forthcoming, he grew apprehensive and withdrew to a position in the hall from which he could watch the door and "not be seen." After a few moments, appellant exited from the Trakas apartment, and Mr. Trakas immediately apprehended him.
On cross-examination of Ernie Trakas, a brother of Arthur and a co-occupant of the apartment, the defense elicited testimony that he (Ernie) had locked the apartment door when he left approximately twenty-five minutes before Arthur arrived. Then followed this line of interrogation:
BY DEFENSE COUNSEL:
Q. Let me ask you this question: Could anyone possibly have gotten in the door you are talking about as you left it without a key?
Appellant, citing Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321 (1933); Williams v. United States, D.C.App., 228 A.2d 846, 847 (1967); Blunt v. United States, 100 U.S. App.D.C. 266, 276, 244 F.2d 355, 365 (1957), urges that by offering its comment, the court violated the precept that a judge must "not assume the role of a witness" nor distort or add to the evidence. Appellant emphasizes that (Brief for Appellant at 10; brackets supplied.)
Appellant fails to demonstrate, however, in what way the judge's comment was prejudicial under the circumstances in which it was made. The mode of appellant's alleged entry was not at issue in the case, and the fact of entry into the premises was logically inferable from the complaining witness' testimony that he saw appellant leave the premises. The government's burden of proof was in no way lightened. In fact, the line of cross-examination and the comment itself were quite irrelevant. Furthermore, the comment was made following two questions by defense counsel, which sought to elicit the response that the lock could have been opened only with a key. To a large extent the judge's statement merely tended to clear the air of any suggestiveness emanating from defense counsel's questions, objections to which were sustained.
The cases cited by appellant in support of reversal are factually so different from the instant case that they cannot be deemed controlling. In those cases, the court made comments which were clearly prejudicial. The egregious errors there committed which necessitated reversal have no similarity to the isolated and irrelevant comment in the instant case.
Certainly, all gratuitous comments from the bench are not prima facie prejudicial though, for the most part, they should be avoided. Furthermore, even if a comment does create the possibility of prejudice, an effectively worded curative instruction rendered in a timely manner may serve to rectify the error. Cf., e. g., United States v. Patterson, 495 F.2d 107 (D.C.Cir.).
Even if the comment in this case is viewed as error, any tendency of the statement to have improperly affected the jury may, in the circumstances of this case, be deemed to have been eradicated by the following instruction, included in the general jury instructions the next trial day after the comment was made:
In response to one objection made concerning how the apartment was entered into, the Court made some comment about different ways locks can be opened. That, of course, was not evidence and I should not have made that statement in the context that I did. You are to disregard it absolutely, and you are not to consider the statement the Court made as to how the apartment may be entered into as evidence to be considered by you in any way. The evidence is what is produced from the mouth[s] of the witnesses only [Tr. II at 83.]
Arthur Trakas stated on direct examination that he saw appellant exit from the Trakas apartment. Defense counsel attempted to impeach this testimony by reference to Arthur's grand jury testimony in which he had stated, "About no more than a minute later [following retreat from the door] the chain came off and out came the defendant, I guess." [Tr. II at 57.] In attempting to establish that Arthur had withdrawn to a position from which he could not see the apartment door, defense counsel initiated the following:
Q. As a matter of fact, you didn't see the defendant coming out of that apartment because you were standing by the elevator preparing to go downstairs to tell the switchboard operator someone was in your aparement; isn't that correct?
A. No, sir. I stated right here that I heard the chain come off the door. If I had went [sic] down to the lobby he would have gone. What good would it have done? Right here (indication) I heard the chain come off the door as I turned around the corner to wait. I hadn't finished coming out of this hallway when I heard the latch coming off the door. I turned right around here and waited (indicating).
In the ensuing bench conference the court asked defense counsel whether he was capable of offering evidence to establish that Arthur had moved to the elevator. Counsel stated, in effect, that the factual assumption in his question was based on what the accused had told him. He also questioned whether it was necessary "to have a factual basis for an effort to impeach a witness and seek to pursuade him to say what I believe the facts [to] be . . ." Counsel also acknowledged that the accused was not then going to testify.
The judge then read from the ABA Standards as follows:
It is unprofessional conduct to ask a question which implies the existence of a fact which the examiner cannot support by evidence.1
The judge continued:
Later on in the Standards it says that people engaged in the unprofessional conduct should be subject to disciplinary sanction. So, you are put on notice. If you present a fact question which you cannot support by evidence you will be subject to disciplinary sanction pursuant to the ABA Standards which applies to the defense as well as the prosecution.
In reviewing the record on this question we note that the Standard as finally adopted contained an amendment to the tentative draft requiring actual knowledge of counsel's inability to support his factual predicate by evidence. The purpose of this change was to require culpability for possible disciplinary action.2 See the Supplement preceding the Tentative Draft to the Standard as cited in note 1, supra. In overlooking this added element of actual knowledge, the trial judge took counsel to task for pursuing a line of cross-examination which can hardly be viewed as unprofessional. Cross-examination is a vital part of our adversary process. Indeed, it is an art which, when mastered and professionally used, is the most powerful tool for reaching the truth. See Davis v. Alaska, ___ U.S. ___, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).
This Standard, along with its counterpart — The Prosecution Function, § 5.7(d) — obviously applies to the extreme situations where counsel well knows his assumed factual predicate is either false and thus incapable of proof or true but incapable of proof because of...
To continue reading
Request your trial
-
U.S. v. Harris
...it or where counsel has no factual foundation but a reasonable suspicion that the circumstances might be true. Hazel v. United States, 319 A.2d 136 (D.C.App.1974) (The accused was the source of the information but counsel had no intention of calling him to the stand); United States v. Pugh,......
-
Jones v. United States
...biased in the manner asserted. United States v. Fowler, 151 U.S.App. D.C. 79, 81, 465 F.2d 664, 666 (1972); see also Hazel v. United States, 319 A.2d 136, 140 (D.C. 1974) (attorney may not ask questions of witness that are "totally groundless"). In addition, the attorney must proffer facts ......
-
State v. Telego
...be done with hard proof in hand of every assumed fact." Gillard , 40 Ohio St.3d at 231, 533 N.E.2d 272, quoting Hazel v. United States , 319 A.2d 136, 139 (D.C.App.1974). {¶ 25} Furthermore, where the prosecutor's good-faith basis for asking the contested questions of the defendant was not ......
-
State v. Williamson
...v. Harris, 542 F.2d 1283, 1307 (7th Cir. 1976), cert. denied 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977); Hazel v. United States, 319 A.2d 136 (D.C.App.1974). As the court in Harris has pointed out, an examiner need not produce a factual predicate in every case because the rules of e......