Johnson v. United States

• Decision Date: 19 May 1988
• Docket Number: No. 85-891.,No. 85-707.,85-707.,85-891.
• Citation: 544 A.2d 270
• Parties: Derrick T. JOHNSON, Appellant, v. UNITED STATES, Appellee. Charles A. WILLIAMS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

544 A.2d 270

Derrick T. JOHNSON, Appellant, v. UNITED STATES, Appellee.

Charles A. WILLIAMS, Appellant, v. UNITED STATES, Appellee.

No. 85-707.

No. 85-891.

District of Columbia Court of Appeals.

Submitted December 1, 1987.

Argued March 1, 1988.

Decided May 19, 1988.

Dennis M. Hart, Washington, D.C., was on the brief, for appellant Johnson.

R. Kenneth Mundy, with whom Patrick J. Christmas, Washington, D.C., was on the brief, for appellant Williams. W. Gary Kohlman, Washington, D.C., also argued the case for appellant Williams.

Edward C. McGuire, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., at the time the brief was filed, Michael W. Farrell and Mary Ellen Abrecht, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before FERREN, ROGERS and STEADMAN, Associate Judges.

ROGERS, Associate Judge:

In these appeals from their convictions¹ by a jury after a ten day trial, appellants assign a number of errors as requiring reversal. They contend that (1) the trial judge erred in communicating ex parte when he directed a witness to return to court and excused a juror, (2) the trial judge erred in denying their motions to dismiss the indictments for violation of the right to an independent grand jury, and (3) the prosecutor improperly used grand jury testimony to impeach a witness without leave of court. They also contend that reversal of their convictions is required because of prosecutorial and judicial misconduct, violation of the government's obligation under Brady,² and abuses of discretion by the trial judge in denying a motion to sever and in evidentiary rulings concerning the direct examination of government witnesses. Finding no reversible error, we affirm.

I

The charges against appellants arose out of a shooting in the vicinity of the Manhole Club in southeast Washington, D.C. on March 11, 1983. James Short and another man had purchased heroin which they discovered produced no effect and sought to get their money back. Upon being informed of their complaint, appellant Williams said that someone would take care of the problem. Williams went into the club, returned to the street and thereafter made a telephone call. Suddenly, two men jumped Joseph Short, James' brother, who was standing nearby. When James attempted to help his brother, Williams pulled a gun on James and told him to "hold it." James reacted by pulling out his own gun and next saw Joseph lying on the ground with two men standing over him. A woman shouted "Shoot the motherfucker." James heard a shot and saw appellant Johnson, Williams' son, pointing a gun at a forty-five degree angle at Joseph. Johnson then fled. Williams remained at the club and later threatened a friend of one of the witnesses about talking to the police about the incident.

Numerous other people witnessed the fight and shooting, four of whom testified for the government, including Rose Johnson and Tanya Jones. A detective confirmed that three other people also had identified appellants. Ronald Williams, another son of appellant Williams, testified that he was unable to recall the details of his conversation with appellant Johnson after the shooting and claimed that he did not recall his testimony before the grand jury that Johnson had admitted his involvement in the shooting.

Appellants presented alibi defenses— Williams, that he was inside the Manhole Club, and Johnson, that he was at home with friends at the time of the shooting. Timothy Williams, another of appellant Williams' sons, testified that he had been struggling with Joseph Short when a gun was fired and that he had seen James Short loading his gun and heard him tell Joseph to shoot him. Another defense witness corroborated this testimony but also testified that she saw Joseph Short pull a gun from his waist while he was struggling with Timothy Williams. Appellant Williams testified that he was inside the Manhole Club when he heard a commotion outside and denied any involvement in the incident. Appellant Johnson did not testify. Three other defense witnesses testified that Johnson was at his home with them on March 11, 1983, a date they recalled because a friend of theirs had died. In rebuttal the government presented evidence that their friend had died six days later.

II

Ex Parte Communications. Appellants contend that their right to a fair trial was violated by ex parte communications by the trial judge. At the end of the third day of trial, the prosecutor asked to approach the bench ex parte about a witness problem while both appellants and their counsel were in the courtroom and the proceedings were still on the record. Appellant Johnson's attorney affirmatively asked to be excused. At the prosecutor's request, the judge instructed Ronald Williams, a reluctant government witness, to appear in court the following morning. No contemporaneous record was made of the judge's conversation with the witness. The next day of trial, following an inquiry by defense counsel, the judge stated the substance of his conversation with the witness on the record. After the trial judge had informed appellants and their counsel about the communication, neither appellant lodged any objection on the basis of the trial judge's communication with the witness.

It is axiomatic that "[a]ny discussion with the trial judge relating to the trial should be conducted only in the presence of all counsel." Clifton v. United States, 363 A.2d 299, 301 (D.C. 1976). A defendant has a right to be present at all stages of the trial. Super.Ct.Crim.R. 43; see Gary v. United States, 499 A.2d 815, 835 (D.C. 1985) (en banc) (voir dire), cert. denied, 475 U.S. 1086, 106 S.Ct. 1470, 89 L.Ed.2d 725 (1986); Boone v. United States, 483 A.2d 1135, 1139 (D.C. 1984) (en banc) (voir dire). In the instant case all counsel should have been present during at least the initial stage of the conversation between the judge and the prosecutor so that defense counsel would have been aware of the general nature of the request before the judge acted. See Smith v. United States, 389 A.2d 1356, 1361 (D.C.) (per curiam), cert. denied, 439 U.S. 1048, 99 S.Ct. 726, 58 L.Ed.2d 707 (1978). As to later stages of the conversation, defense counsel could have been excluded only if the trial judge was convinced of the legitimacy of the government's need to keep the identity of the witness to be admonished secret from the defense. See Davis v. United States, 315 A.2d 157, 161 (D.C. 1974) (government has no duty to disclose its witness list absent statutory or constitutional requirement). The trial judge also should have taken steps to assure that an official record of his meeting with the prosecutor and the witness was made, and, if necessary, should have ordered the record to be placed under seal, so there would be a record available for judicial review. Cf. United States v. Gagnon, 470 U.S. 522, 524, 105 S.Ct. 1482, 1483, 84 L.Ed.2d 486 (1985).

Here, with only the prosecutor present, and without awareness by defense counsel of even the nature of the prosecutor's request, the judge admonished the witness to appear in court the next day to fulfill his obligation to testify. However, we conclude that the error was harmless beyond a reasonable doubt. See Winestock v. United States, 429 A.2d 519, 529 (D.C. 1981); United States v. Washington, 227 U.S.App.D.C. 184, 193, 705 F.2d 489, 498 (1983) (FED.R.Caim.P. 43). Appellants do not allege, nor is there any evidence to suggest, that anything more occurred than was disclosed by the trial judge. Defense counsel's objection that the police had deprived appellants of their right to communicate with the witness is unsupported by the record. Although the witness was under the protection of the police the night before he testified—he had been threatened by appellant Johnson—there is no evidence that he was ever told he could not discuss the case with defense counsel if he so desired. Nor has there been any showing that the government at any time instructed the witness not to cooperate with the defense. Absent a "clear showing that the government instructed the witness not to cooperate with [appellants]," Matter of B.L.B., 432 A.2d 722, 725 (D.C. 1981) (quoting United States v. McDougald, 350 A.2d 375, 377 (D.C. 1976)), appellants are not entitled to relief.

Johnson also complains about a second ex parte communication when the trial judge excused a juror without first notifying appellants. The record reflects that the juror's mother had died during a weekend recess of the trial, that the trial judge promptly notified appellants when the trial resumed that he had excused the juror, and that no objections were made. See Gagnon, supra, 470 U.S. at 526, 105 S.Ct. at 1484 (quoting Rushen v. Spain, 464 U.S. 114, 118, 104 S.Ct. 453, 455-56, 78 L.Ed.2d 267 (1983)). Under these circumstances, we find no basis on which to conclude that Johnson's right to a fair trial was prejudiced, see Roberts v. United States, 402 A.2d 441, 443 (D.C. 1979) (per curiam), and hold that the error, being facially benign, was harmless beyond a reasonable doubt. See Winestock, supra, 429 A.2d at 529.

III

Independent Grand Jury; Rule 6'. Appellant Johnson also argues that the trial judge erred in denying his motion to dismiss the indictment for the government's failure to comply with Super.Ct. Crim.R. 6. At the time of appellants' indictments, Rule 6 prohibited the disclosure of matters occurring before a grand jury except under specifically enumerated circumstances or "when so directed by an order of a court within the District of Columbia." Super.Ct.Crim.R. 6(e)(3)(C)(i). Although it was error for the government to present evidence from one grand jury to another grand jury without first obtaining court permission, the error was harmless in the absence of any showing of abuse.

Rule 6 of the D.C. Superior Court was amended in 1985, following a similar amendment to the Federal Rules of Criminal Procedure, to permit disclosure of grand...