Hughes v. US

• Decision Date: 29 November 1993
• Docket Number: No. 92-CF-1196.,92-CF-1196.
• Parties: Reginald E. HUGHES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

633 A.2d 851

Reginald E. HUGHES, Appellant, v. UNITED STATES, Appellee.

No. 92-CF-1196.

District of Columbia Court of Appeals.

Argued November 4, 1993.

Decided November 29, 1993.

Francis T. Lacey, Rockville, MD, appointed by this court, for appellant.

Eugenia Eyherabide, Asst. U.S. Atty., with whom J. Ramsey Johnson, U.S. Atty. at the time the brief was filed, and John R. Fisher, Elizabeth Trosman, and Linda Otani McKinney, Asst. U.S. Attys., Washington, DC, were on the brief for appellee.

Before FERREN, STEADMAN, and SCHWELB, Associate Judges.

SCHWELB, Associate Judge:

Hughes was convicted by a jury of distribution of cocaine and of possession of cocaine with intent to distribute it. See D.C.Code § 33-541(a)(1) (1993). On appeal, he contends that the trial judge committed reversible error (1) by permitting the prosecutor to re-call an undercover officer as a rebuttal witness and (2) by denying defense counsel's request for a "missing evidence" instruction and for leave to make a "missing evidence" argument. We affirm.

The trial judge did not abuse his discretion when he allowed the officer to testify on rebuttal that an individual suggested by the defense as being the real guilty party was not the seller, and to reiterate that Hughes was. See Fitzhugh v. United States, 415 A.2d 548, 551 (D.C.1980). "We are disinclined to overturn a trial judge who has determined—after watching a case unfold—that testimony properly rebuts an inference that a party's adversary has sought to make." United States v. Tejada, 956 F.2d 1256, 1266-67 (2d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 124, 121 L.Ed.2d 80 (1992).

The defense's "missing evidence" theory in this case related to the prosecution's failure to introduce evidence that Hughes' fingerprints were on the ziplock bag containing the cocaine. A contention similar to that made here by Hughes was recently rejected by the court in United States v. Hoffman, 296 U.S.App.D.C. 21, 24-26, 964 F.2d 21, 24-26 (1992) (per curiam). The court explained in Hoffman that

it is permissible for a defense attorney to point out to the jury that no fingerprint evidence has been introduced and to argue that the absence of such evidence weakens the Government's case;¹ however, the attorney may not use the absence of fingerprint evidence as a springboard for arguing facts not in evidence, e.g., that the Government made no effort to obtain fingerprints, that fingerprints could have been obtained from the object at issue, or that

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