Lewis v. United States

• Decision Date: 03 October 1978
• Docket Number: No. 12288.,12288.
• Citation: 393 A.2d 109
• Parties: Archie V. LEWIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

393 A.2d 109

Archie V. LEWIS, Appellant, v. UNITED STATES, Appellee.

No. 12288.

District of Columbia Court of Appeals.

Submitted June 29, 1978.¹

Decided October 3, 1978.

COPYRIGHT MATERIAL OMITTED

Richard T. Tomar, Washington, D. C., appointed by this court, for appellant.

Richard C. Otto, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Michael W. Farrell and David W. Stanley, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before NEBEKER, MACK and FERREN, Associate Judges.

FERREN, Associate Judge:

On February 14, 1977, after trial on a ten-count indictment based on a robbery and shooting incident on November 20, 1976, the jury convicted appellant on two counts of assault with a dangerous weapon. D.C.Code 1973, § 22-502.² The court sentenced him to prison for concurrent terms of five to fifteen years on each count. Appellant now challenges the judgments entered on the verdicts on the following grounds: (1) the trial court's refusal to allow appellant to testify on direct examination as to his own prior convictions; (2) the trial court's refusal to declare a mistrial after the jury announced its numerical vote prior to rendering a verdict; and (3) the trial court's failure to require the prosecutor to furnish at trial the impeachable convictions of all government witnesses.³

Although we find that neither of the first two grounds constitutes reversible error on the facts of this case, we must remand the case to the trial court for further findings as to appellant's third claim.

I.

For the government, Lamont Thomas testified that he was driving his automobile on the evening of November 20, 1976, accompanied by two friends, James Hicks and Tyrone Leach. As Thomas stopped the car at a traffic light at the corner of Stanton Road and Bruce Place, a man known to Hicks as "Titi" approached the passenger side and asked if any of the occupants of the car were interested in buying drugs. While Thomas was telling the man to get away from the car, a second man, identified as appellant Lewis, walked up to the car with a shotgun and announced a "stickup."

At that point, according to government witnesses, the gunman pointed his weapon at Hicks, ordered him out of the front seat of the car, and told Titi to search him. Hicks did leave the car; but, as Titi tried to push him to the ground, Hicks broke free and fled the scene, leaving approximately $165 in cash and some papers "shoved . . . under the seat." While Titi attempted unsuccessfully to pursue Hicks, appellant climbed into the back seat of the car and told Leach and Thomas to get out of the car and put their hands on the roof. Both men left the car as directed but immediately began running.

Hicks claimed to have stopped running about a block from the scene and to have turned back in time to see appellant fire the shotgun at Leach as he was fleeing. Thomas, running behind Leach, looked back to see appellant and Titi driving away in his car. He called to Leach, "They're gone. They got the car." Leach claimed to have turned then and also seen Titi driving appellant away.

Later that evening, Thomas and Hicks told Detective Alfred Jackson at Seventh District Headquarters that a man known to Hicks as "Archie" had attempted to rob them with a shotgun. Hicks then selected appellant's photo from an array shown to him by Detective Jackson. The next afternoon, Hicks spotted appellant entering a house at 3159 Stanton Road and called the police. Metropolitan Police detectives found appellant hiding in the closet of an upstairs bedroom of the house with a shotgun. The complainants identified the shotgun at trial, as did the owner of a tavern from which the shotgun allegedly had been taken some weeks earlier.

The defense presented two witnesses. Vernon Williams testified that James Hicks and several other men had been looking for appellant. Then appellant himself took the stand, testifying that he had carried his shotgun "for protection" upon learning from a man named "Titi," who sought out appellant at his girlfriend's house, that "there was somebody out there who wanted to see me." He further testified that upon going outside and seeing Hicks and others in a car — one of whom had a gun and told him to get into the car — he stepped instead behind a tree. At that point, according to appellant, Hicks and Titi fled, whereupon appellant fired his shotgun on the ground toward the car and ran back into the house. He fired, he said, because he feared that otherwise the men remaining in the car were going to shoot him first.

The evidence, of course, must be viewed in the light most favorable to the appellee — the government. We have set forth both versions of the incident, however, as background for an appeal where witness credibility — and thus opportunity for impeachment — is the central issue.

II.

As to the first claim of error, we have held that the trial court should afford "defense counsel the same privilege traditionally accorded the government to bring out on direct examination damaging information about the defendant and his witnesses," including prior convictions. Kitt v. United States, D.C.App., 379 A.2d 973, 975 (1977). After reviewing the record, however, we have concluded — as we did in Kitt — that the trial court's failure to permit appellant to testify on direct examination as to his prior convictions was harmless error. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

During cross-examination, when appellant was impeached with prior convictions for armed robbery and petit larceny, the trial court immediately gave a limiting instruction. Moreover, appellant's version of the events on the evening of November 20, 1976, was directly contradicted in all essential details by the testimony of the complainants. While, as appellant points out, the verdict in this case presumably rested on the relative weights assigned by the jury to the testimony of appellant and the complainants, we find it highly unlikely on this record that the jury's appraisal of appellant's credibility was influenced by the fact that his prior convictions were brought out on cross-rather than direct examination. Especially in cases such as Kitt and the present one, where a jury has been presented with two complete, detailed, mutually exclusive versions of the single event giving rise to the charges, the jury's assessment of the facts will in all likelihood have been determined by the plausibility of each story.

It is conceivable, after remand, see Part IV, infra, that appellant's position will be strengthened by discovery of impeachable convictions of the complaining witnesses that can be used at a second trial, giving both sides an opportunity to follow the Kitt procedure. If, however, there is no retrial attributable to other error, we are satisfied that a new trial would not be justified by this particular error alone.

III.

After deliberating for more than a day, the jury sent the court the following note:

We are hopelessly deadlocked on a decision. We have discussed the issues and have taken three votes. The result of the three votes are as follows: Eleven (11) jurors voted the defendant guilty on Counts three (3) and six (6), which are assault dangerous weapon. One (1) juror voted the defendant guilty on Count one (1) and four (4), which is armed robbery.

Upon being informed of the note's contents, counsel for appellant requested a mistrial. The trial judge instead instructed the jury to continue with its deliberations. We conclude that the trial judge acted properly; his failure to declare a mistrial was not error.

In Jackson v. United States, D.C.App., 368 A.2d 1140 (1977), we noted that "[i]t is error for a foreman to reveal the numerical split of the jury," but that "such a disclosure is not automatically grounds for mistrial." Id. at 1142 n. 5. In Jackson, the jury's note revealing its division also advised the court that one of the jurors believed she could no longer participate, for she recalled an incident, similar to the one at trial, in which a family member had participated. The court thereupon read the jury members their oaths and made remarks which "intimated that [the single holdout] was guilty of either perjury or negligence in her response to questions on voir dire and that she was not complying with her oath as a juror." Id. at 1142. We held that those remarks were prohibitively coercive; they were directed toward a particular juror and might have had the effect of inducing that juror "to agree to a verdict by fear that a failure so to agree will be regarded as reflecting upon either his intelligence or his integrity." Id.

Here, however, the trial judge — aware of our holding in Jackson — was careful to give no supplemental instruction when informed of the jury's division; he simply advised the jury to continue deliberation. While we reaffirm that it is improper for a jury to reveal its numerical division — and we urge trial courts to make this clear to juries — we reject appellant's argument that the trial court's advice upon such revelation here amounted to impermissible coercion of the jury. United States v. Diggs, 173 U.S. App.D.C. 95, 107, 522 F.2d 1310, 1322 (1975), cert. denied, 429 U.S. 852, 97 S.Ct. 144, 50 L.Ed.2d 127 (1976). See United States v. Jennings, 471 F.2d 1310, 1313-14 (2d Cir.), cert. denied, 411 U.S. 935, 93 S.Ct. 1909, 36 L.Ed.2d 395 (1973); United States v. Martinez, 446 F.2d 118 (2d Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 259 (1971); United States v. Williams, 444 F.2d 108 (9th Cir. 1971); Sanders v. United States, 415 F.2d 621, 629-32 (5th Cir. 1969), cert. denied, 397 U.S. 976, 90 S.Ct. 1096, 25 L.Ed.2d 271 (1970); United States v. Rao, 394 F.2d 354 (2d Cir.), cert. denied, 393 U.S. 845, 89 S.Ct. 129, 21 L.Ed.2d 116 (1968).

IV.

Appellant's final claim of error is the trial court's failure to require the government to...