Johnson v. United States

• Decision Date: 02 July 1979
• Docket Number: No. 13055.,13055.
• Citation: 404 A.2d 162
• Parties: William Frank JOHNSON, a/k/a William Frank Rosmond, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 162

404 A.2d 162

William Frank JOHNSON, a/k/a William Frank Rosmond, Appellant, v. UNITED STATES, Appellee.

No. 13055.

District of Columbia Court of Appeals.

Argued November 21, 1978.

Decided July 2, 1979.

Linda J. Ravdin, Washington, D. C., for appellant.

Charles L. Hall, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Peter E. George and Donald L. Golden, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before YEAGLEY and FERREN, Associate Judges, and WAGNER, Associate Judge, Superior Court of the District of Columbia.^*

YEAGLEY, Associate Judge:

Appellant was found guilty by a jury of attempted petit larceny, D.C.Code 1973, §§,22-2202, 22-103. He challenges his conviction on the ground that he was denied his rights to testify and to effective assistance of counsel when the trial court, having concluded that appellant's testimony would be perjurious, ruled that if appellant took the stand his attorney could not elicit his testimony through questioning and could not argue the testimony to the jury. Because we conclude that the trial court improperly imposed these restrictions, we reverse the judgment of conviction and remand for a new trial.

The government's evidence showed that on June 24, 1977, the store manager of the Capital Supermarket observed appellant remove a large plastic trash can from a shelf and proceed to place several hams inside of it. At the check-out counter, the clerk informed him that the charge for the trash can was $4.80. Appellant placed $2.31 on the counter. When told that that amount was insufficient, appellant put his money back into his pocket, picked up the trash can, and started towards the door. Just as he reached the door, however, he was stopped by a special police officer and arrested. When the officer discovered the hams inside the can, appellant said he did not know how they got there. A search of appellant revealed that he had only $2.33 on his person and no checks or credit cards.

Before swearing in the jury, the trial court had asked appellant's attorney for a proffer of the defense. Counsel responded that appellant was a cab driver and had driven to the grocery store at the request of a woman passenger. When they arrived, she asked appellant to park the cab and meet her inside to help carry her groceries. Once inside the store, she handed him a covered trash can, gave him some money, and told him she would meet him back at the cab. Appellant said he did not realize the hams were inside the trash can until they were discovered by the officer at the check-out counter.

After the government presented its case and rested, the defense also rested. The trial court called the parties to the bench and inquired as to why appellant was not going to testify as had been proffered before trial. After conferring with appellant, defense counsel announced that appellant would take the stand after all. At the court's direction, counsel then proffered that appellant's testimony would be that he never attempted to leave the store.

Because of the inconsistency between the first and second proffer the court felt that counsel would be suborning perjury if he assisted his client in presenting the second version. The court stated that if appellant took the stand, counsel was required by the canons of ethics to refrain from questioning his client on direct examination and from arguing his client's testimony to the jury during closing argument. Although counsel disagreed with the ruling, he again conferred with appellant and it was decided that appellant would not testify. The jury eventually returned a verdict of guilty.

In Thornton v. United States, D.C.App., 357 A.2d 429 (1976), we held that where defense counsel knows that the defendant intends to commit perjury it is not a denial of the right to assistance of counsel for the defense attorney to restrict his or her presentation of the defendant's testimony in accordance with § 7.7 of The ABA Project on Standards for Criminal Justice: The Prosecution Function and the Defense Function, Defense Function (Approved Draft, 1971). Under § 7.7(c), if a defendant insists upon testifying falsely, the defense attorney "may not lend his aid to the perjury," and must therefore limit his or her further participation as follows:

The lawyer must confine his examination to identifying the witness as the defendant and permitting him to make his statement to the trier or the triers of the facts; the lawyer may not engage in direct examination of the defendant as a witness in the conventional manner and may not later argue the defendant's known false version of facts to the jury as worthy of belief and he may not recite or rely upon the false testimony in his closing argument.

Our holding in Thornton recognized that while a defendant has the right to testify in his own behalf with the assistance of his Worney, there is no right to commit perjury or to make the attorney a party to the commission of perjury.

In support of the trial court's ruling in the instant case, the government contends that our ruling in Thornton is equally applicable when the restrictions set forth in § 7.7 are imposed by the trial court rather than self-imposed by counsel. A premise of this argument is that the trial court has a responsibility to monitor and assure a lawyer's ethical conduct during a trial. While there may be such a role under some circumstances, we need not and do not define it here. Putting aside the question of the propriety of the trial court's two requests for proffers of the defense case — both of which are cause for concern — we are satisfied that by imposing restrictions on counsel, the trial court impermissibly interjected itself in this case.

We agree with appellant that the inconsistency between his two proffered defenses was insufficient to establish that the second proffer, the intended testimony, was false and that the trial court's conclusion to the contrary was based on surmise.¹ Section 7.7 speaks to a situation in which the falsity of the defendant's testimony is known and not merely suspected.² Likewise, our previous cases in which this problem arose involved situations in which the attorney knew, based on independent investigation of the case or on prior discussions with the client, that the...