Johnson v. US

• Decision Date: 03 February 1994
• Docket Number: 91-CO-1406.,No. 90-CF-566,90-CF-566
• Citation: 636 A.2d 978
• Parties: Melvyn A. JOHNSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

636 A.2d 978

Melvyn A. JOHNSON, Appellant, v. UNITED STATES, Appellee.

Nos. 90-CF-566, 91-CO-1406.

District of Columbia Court of Appeals.

Argued March 24, 1993.

Decided February 3, 1994.

Michael L. Spekter, Washington, DC, appointed by this court, for appellant.

Kathleen S. Davies, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher and Thomas C. Black, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before TERRY, STEADMAN and SULLIVAN, Associate Judges.

PER CURIAM:

This is an appeal from appellant's conviction following a non-jury trial for possession with intent to distribute heroin, in violation of D.C.Code § 33-541(a)(1) (1993 Supp.), and from the denial of his motion for a new trial. Although appellant presents us with numerous issues on appeal, only one issue requires plenary discussion, namely, whether the trial court committed reversible error by considering appellant's potential punishment in concluding that he was not a credible witness.¹ We hold that the court did not and accordingly affirm.

I.

The government's evidence at trial showed that Detective Gary O'Neal was on duty at approximately 7:00 p.m. on August 22, 1989, in an alley behind 146 "L" Street, Southeast, an area described as an "open air drug distribution center." Detective O'Neal observed appellant standing in a walkway holding several blue ziplock packets of white powder in the palm of his outstretched hand while a female, later identified as Ms. Robin Lyles, reached within one inch of appellant's hand. Suspecting a drug transaction, although he could not determine whether Lyles was moving her hand toward or away from appellant's hand, Detective O'Neal identified himself and demanded that appellant and Lyles emerge from the walkway. Lyles fled and appellant dropped his hand to his side. Detective O'Neal struggled with appellant and eventually recovered from appellant's hand nine packets of powder which field-tested positive for heroin. Officer Kemper Agee then searched appellant and found one packet of a white substance that tested positive for crack cocaine and $74.00 in cash in a bicycle pouch which was strapped around appellant's waist.

Officer David Stroud was qualified as an expert in street trafficking and packaging of illicit drugs. He testified that the nine packets of heroin had a street value of $180.00 as packaged, but the same quantity of heroin could be purchased in bulk for $60.00. He also testified that the quantity, variety, and value of the drugs were more consistent with distribution than with personal use. Further, Officer Stroud opined that the maximum amount of heroin an addict would use in a day would be six packets; and that a heroin addict would buy no more than two bags of heroin at one time.

Appellant was the sole defense witness. He testified that he was a heroin addict and that he had purchased the drugs from Ms. Lyles in exchange for his girlfriend's camcorder; further, he said that he intended to use all of the drugs within twenty-four hours. Moreover, he testified that he had two prior convictions for distribution of drugs, had been sentenced under the addict exception,² had previously participated in drug programs, and had been hospitalized because of his long-standing drug addiction.

In rendering its decision finding appellant guilty of possession with intent to distribute heroin, the trial court stated:

I have been sitting here wondering why Mr. Johnson would go to trial in this case and the minute I hear about his prior record I say, uh-huh, he wants to avoid a mandatory minimum.

* * * * * *

I don't believe we've got any real doubt. I think I am entitled to take into account the defendant's desire to avoid the mandatory minimum sentence in evaluating his credibility. That does not substitute evidence but it does give him a very powerful motivation not to tell the truth on this specific narrow point of intent to distribute.

Following appellant's conviction and the trial court's imposition of the mandatory-minimum sentence, this appeal ensued.

II.

Appellant contends that the trial court, sitting as the trier of fact, was bound by the same prohibition as a jury not to consider potential punishment in assessing his credibility as a witness. It is, of course, true that as a general principle, "the jury is to determine guilt or innocence on the evidence before it and should not consider the possibilities of punishment in its deliberations..." Brown v. United States, 554 A.2d 1157, 1160 (D.C.1989) and cases cited therein; see also Criminal Jury Instructions for the District of Columbia, No. 2.74 (4th ed. 1993).³ The reason for such a general principle is, at bottom, one of relevance. The jury's role is that of the determiner of guilt or innocence, an issue upon which the possible punishment for the crime casts no light whatever. As the court said in United States v. Patrick, 161 U.S.App.D.C. 231, 234, 494 F.2d 1150, 1153 (1974): "The jury's only function is to assess guilt or innocence on the basis of their independent view of the evidence. Sentencing decisions, on the other hand, are within the exclusive province of the court...." The court then went on to quote from Miller v. United States, 37 App.D.C. 138, 143 (1911):

it is error for the court to put before the jury any considerations outside the evidence that may influence them, and lead to a verdict not otherwise possible of attainment. The deliberations of the jury should revolve around the evidence before them, and should be uninfluenced by other considerations or suggestions.

But the situation in the case before us was different. The defendant had taken the stand and testified. His credibility was at issue, to be determined by the finder of fact. Plainly, anything that might sway the truthfulness of his testimony was a relevant fact, including the prospect of incarceration. As has been well-established for many years, the bias of a witness is "always relevant." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); Springer v. United States, 388 A.2d 846, 855 (D.C. 1978) ("The exposure of bias or partiality as a motivational factor may be ... a crucial determinant in the jury's assessment of the trustworthiness of a witness. Thus, `bias is always a proper subject of cross-examination,'" quoting Hyman v. United States, 342 A.2d 43, 44 (D.C.1975)).⁴Cf. Criminal Jury Instructions for the District of Columbia, No. 2.28 (4th ed. 1993) (in weighing defendant's testimony, jury "may consider the fact that the defendant has a vital interest in the outcome of this trial"). The nature of the punishment faced by the defendant is thus a relevant fact in assessing his motive to lie: a potential $10 fine is different from the prospect of a death penalty.

Therefore, if a jury were not to be told of the precise punishment potentially faced by the defendant, the reason would not be that of the general proscription against such evidence. Rather, it would presumably be based on a determination that, although relevant, its probative value is substantially outweighed by the danger of unfair prejudice, under the principle that applies to any evidentiary decision in jury trials. See, e.g., District of Columbia v. Cooper, 483 A.2d 317, 323 (D.C.1984); Fed.R.Evid. 403.

However, here we are dealing with a bench trial. It is standard doctrine that in such circumstances, a trial judge is presumed to know of the proper use of evidence. See, e.g., Moore v. United States, 609 A.2d 1133, 1136 (D.C.1992) (acknowledging "the well-recognized `presumption that a trial judge, in deciding a case without a jury, will disregard any inadmissible evidence and any improper argument,'" citing Singletary v. United States, 519 A.2d 701, 702 (D.C.1987)). There can be no real concern that a trial judge will use the evidence of the length of punishment to which a defendant is subject in any improper way in his deliberations. Here, it is plain that the trial judge considered it only as to the defendant's credibility.⁵

In this posture, we see no need to determine whether the evidence would, of necessity, be excludable in a jury trial as unduly prejudicial.⁶ It would be a feckless procedure, on some principle of total equivalency, to require a trial court upon each proffer of clearly relevant and otherwise admissible evidence in a bench trial to engage in the hypothetical process of determining whether, in a jury trial, that evidence would be excluded under the principle of outweighing prejudice or any of the other doctrines controlling the presentation of evidence to juries, such as confusion of the issues, misleading nature, undue delay, waste of time, or needless presentation of cumulative evidence, and to require an appellate court to review this hypothetical determination.⁷ We know of no authority to this effect and none is cited to us. We decline to adopt such a rule here.

Accordingly, the judgment appealed from is

Affirmed.

SULLIVAN, Associate Judge, dissenting:

I respectfully dissent from the opinion of the court. I would hold that the trial court erred in considering potential punishment in assessing appellant's credibility as a witness and that the error was not harmless under the circumstances. Accordingly, I would reverse appellant's conviction for possession with intent to distribute heroin and remand for a new trial.

In rendering its decision finding appellant guilty of possession with intent to distribute heroin, the trial court, sua sponte, stated:

I have been sitting here wondering why Mr. Johnson would go to trial in this case and the minute I hear about his prior record I say, uh-huh, he wants to avoid a mandatory minimum.

* * * * * *

I don't believe we've got any real doubt. I think I am entitled to take into account the defendant's desire to avoid the mandatory minimum sentence in evaluating his credibility. That does not substitute evidence but it does

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