Littlejohn v. US, 96-CF-150.

• Citation: 705 A.2d 1077
• Decision Date: 02 October 1997
• Docket Number: No. 96-CF-150.,96-CF-150.
• Parties: Johnny W. LITTLEJOHN, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

705 A.2d 1077

Johnny W. LITTLEJOHN, Appellant, v. UNITED STATES, Appellee.

No. 96-CF-150.

District of Columbia Court of Appeals.

Argued March 4, 1997.

Decided October 2, 1997.

Betty J. Clark, Washington, DC, appointed by the court, for appellant.

Marian L. Borum, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney at the time the brief was filed, and John R. Fisher, Elizabeth Trosman, and Gina L. Simms, Assistant United States Attorneys, were on the brief, for appellee.

Before STEADMAN, SCHWELB and RUIZ, Associate Judges.

SCHWELB, Associate Judge:

Johnny W. Littlejohn was convicted by a jury of three weapons offenses¹ arising out of his possession, on May 3, 1993, of a loaded semi-automatic pistol. On appeal, he contends that the trial judge erroneously sustained the invocation by a prospective defense witness, Leonard Bishop, of Bishop's privilege against self-incrimination. Littlejohn claims that the judge's ruling impaired his right under the Sixth Amendment to present witnesses in his defense. We agree and reverse.

I. THE EVIDENCE

The trial in this case began on June 20, 1995, more than two years after the events that led to Littlejohn's indictment. The prosecution sought to establish, through the testimony of two police officers, that Littlejohn was in possession of a loaded pistol. The defense proposed to call Leonard Bishop to testify that Littlejohn did not have a pistol. After the judge sustained Bishop's assertion of privilege, however, the defense rested without presenting any evidence.

Officer Efrain Soto, then a 5-year veteran of the Metropolitan Police Department, testified that on the evening of May 3, 1993, he and two other officers, Investigators Edward Howard and Kevin Marable, were on patrol in an unmarked police cruiser in the 600 block of 46th Place, S.E. in Washington, D.C. The area was known for a high volume of drug trafficking and, according to Soto, the officers were "out there looking for drugs." Officer Howard, the senior investigator, was driving. Officer Soto was in the front passenger seat.

Soto testified that as the officers were patrolling, Investigator Howard pointed out a man, later identified as Littlejohn, and told Soto and Marable that "he's got a gun."² Officer Soto saw Littlejohn grab his waist and start running towards a wooded area. Soto stepped out of the cruiser and drew his service revolver. Holding the weapon in his right hand and a flashlight in his left, Soto began a lengthy pursuit of Littlejohn. Investigator Marable joined the chase, but stumbled as he ran and fell some distance behind Soto.

Seeking to elude the officers, Littlejohn ran through a hole in a fence. Near the fence, Littlejohn stumbled to the ground. Officer Soto, who was some fifteen feet behind Littlejohn at the time Littlejohn went down, testified that he saw an object which he believed to be a pistol fall from Littlejohn's waist. Identifying himself as a police officer, Soto ordered Littlejohn to stop. Littlejohn, however, ignored the order and got up and continued to run. Officer Soto maintained his pursuit until he finally apprehended Littlejohn some distance away in the 4700 block of Benning Road. Soto estimated that the chase lasted four or five minutes.

When Investigator Marable arrived at the location where Littlejohn had been captured, Soto placed his prisoner in Marable's custody. Soto then returned to the area of the fence near which Littlejohn had fallen to the ground. Soto testified that he immediately found the pistol that Littlejohn had dropped. The weapon was loaded.

On cross-examination, Officer Soto was asked whether he had told anybody that he had recovered the pistol from under Littlejohn's body at the time that Littlejohn fell down. Soto responded that "that never happened. I never told any officer that."

Investigator Marable, like Officer Soto, was a 5-year veteran of the MPD. On direct examination, he substantially corroborated Soto's account of the relevant events. Marable acknowledged that he did not see Littlejohn place the weapon in his waist, and that he likewise did not see the weapon fall from Littlejohn's possession during the chase. He stated, on the contrary, that he first saw the pistol after Soto had recovered it from a wooded area.

On cross-examination, Investigator Marable testified that he had prepared the paperwork relating to Littlejohn's arrest. He acknowledged that he had been trained to pay particular attention to accuracy in the preparation of police reports. Marable was then confronted with the Form PD 163 (the prosecution report) which he had signed shortly after the incident, and with the "Gerstein proffer,"³ a document used by prosecutors to establish probable cause at the defendant's initial appearance before the court following his arrest. On the Form PD 163, Marable wrote that "after a short foot chase,⁴ the defendant fell to the ground and placed the handgun on the ground." In the Gerstein proffer, Investigator Marable stated that the handgun was "recovered under the defendant's body before he fell." Marable conceded that notwithstanding the importance of assuring accuracy in police documents, his contemporaneous accounts of the events of May 3, 1993 were not accurate. This testimony led to the following exchange:

Q. Are you telling us that your memory is better now than the day after it happened?

A. Yes, sir.

Q. Actually, the 163 was prepared on the evening of May 3rd, wasn't it?

A. Yes, sir.

Marable attributed the inaccuracies in the paper work to "me miswording the 163."

At the conclusion of the government's case, Littlejohn's counsel made an oral motion for a judgment of acquittal (MJOA). The trial judge denied the motion.

II. BISHOP'S INVOCATION OF THE PRIVILEGE

At the beginning of the trial, during jury selection, Littlejohn's attorney told the members of the venire that he might call Leonard Bishop, aged about 20-25, as a defense witness. He stated that Bishop lived on 46th Place, S.E. Soon thereafter, in his opening statement, the defense attorney told the jury that

you will hear from a gentleman who was with Mr. Littlejohn. He didn't see Mr. Littlejohn put a gun into his waistband, and he didn't see Mr. Littlejohn with a gun that evening.

After he had denied Littlejohn's MJOA, the judge inquired regarding the defense case. Littlejohn's attorney announced that his first witness would be Leonard Bishop, and the judge asked what counsel expected Bishop's testimony to be. Counsel responded that Bishop would "in essence say, your honor, that Mr. Littlejohn was out in the circle that evening and he did not have a gun."

The judge asked the prosecutor whether the government had "anything that could conceivably tie Mr. Bishop to any criminal activity including the gun charge in this case." The prosecutor responded: "No. That's my preliminary answer."⁵ The matter was deferred, however, until the court could hear from Bishop and Bishop's attorney, Anthony Matthews, Esquire.

When the case was re-called, Mr. Matthews advised the court that Bishop had been charged with a murder which took place in the 600 block of 46th Place, S.E. on November 25, 1994, a year and a half after the present case arose. The judge commented that "I don't see a Fifth Amendment problem based upon that at all. That's for sure." Bishop's attorney stated, however, that "the problem is it puts Mr. Bishop in that area and it suggests that he hangs out on the scene." According to Mr. Matthews, the government would attempt to prove at Bishop's forthcoming trial that "Mr. Bishop is part of something called `Simple City Crew,' a crew that deals drugs." He explained that he did not want any testimony by Bishop to help the government "to hook my client up with some crew who deals drugs there...." The trial judge stated that he could "see a possible concern if it's the defense position that Mr. Bishop never is in the vicinity of the 600 block of 46th Place, S.E."

The judge asked the prosecutor whether she wished to say anything about the general nature of her proposed cross-examination of Bishop if Bishop took the stand. The prosecutor stated that "I'm going to probe primarily for issues of bias, but I'm not going to, at this juncture, promise not to ask him about things like how long he was out there that night, what he was doing that night." She also expected to ask Bishop how he knew Littlejohn and for how long he had known him. Littlejohn's attorney asked the judge to restrict the government's cross-examination to events that happened after 10 p.m. on May 3, 1993. The judge declined to do so, noting that the prosecutor had the right to explore the question whether "Mr. Bishop has any bias or prejudice in favor of Mr. Littlejohn."

Bishop, who was in custody, was brought to the courtroom. The judge carefully explained Bishop's rights to him, and he invited Bishop to discuss his options with his attorney. Bishop twice asked for more time to consider his decision, and the judge granted each request. Finally, Bishop stated: "All right. Gee, I'll take the Fifth."

The judge then immediately delivered his ruling:

I don't think that there is any sort of testimony that Mr. Bishop could give that would not implicate his Fifth Amendment right so I don't think this has to be done on a question by question basis.⁶ Mr. Bishop has chosen to assert his Fifth Amendment right not to testify. I find for the reasons given earlier on that he does have a Fifth Amendment right in view of the pending murder case, and anything that he might say in this case would implicate and hurt him in that case because it would tie him to the 600 block of 46th Place, Southeast, where the gun charge in this case arose and the pending murder case arose. So at this point he can step out with the marshal.

Littlejohn's attorney invited the judge's attention to the fact that Bishop had been convicted of a drug offense that was incurred in the same...