Nassif v. District of Columbia

• Decision Date: 16 June 1964
• Docket Number: No. 3405.,3405.
• Citation: 201 A.2d 519
• Parties: CaIlie NASSIF, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

Page 519

201 A.2d 519

CaIlie NASSIF, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 3405.

District of Columbia Court of Appeals.

Argued March 2, 1964.

Decided June 16, 1964.

Rex K. Nelson, Washington, D. C., for appellant.

Ted D. Kuemmerling, Asst. Corp. Counsel, with whom Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellee.

Before HOOD, Chief Judge, MYERS, Associate Judge, and CAYTON (Chief Judge, Retired).

HOOD, Chief Judge.

In a trial without a jury appellant was found guilty on a charge of indecent exposure. After the government had presented its case, which consisted of the testimony of the arresting officer, appellant's counsel announced that he would call a Mrs. Rodriguez as a witness for appellant. At this point the court stated: "If the defendant is going to testify, I want him to testify before this witness." Counsel replied that appellant might not testify, saying: "I actually haven't made up my mind as to that at this time." The court then stated: "I will not permit you to call her until you tell the court whether or not the defendant is going to testify." Again counsel stated he had planned to call the witness first and then decide whether to call appellant, and again the court stated: "I would want the defendant to testify first if he's going to testify at all." Finally appellant's counsel announced he would not call appellant as a witness and he was then permitted to call Mrs. Rodriguez.

The effect of the court's ruling was to require appellant, before calling any witness on his behalf, to elect whether he would testify, and to require him, if he elected to testify, to testify before calling any other witness. The question before us is the correctness of that ruling.

In this jurisdiction it has been held that "the trial court in a divorce case is invested with a broad discretion in respect to the order in which witnesses may be called as well as in other particulars," and that it was not error to require that if the defendant and the correspondent intended to testify they should do so before other witnesses in their behalf were called.¹ Although the language of that case could be construed as limited to divorce cases, presumably it is applicable in all civil cases. It has also been held in this jurisdiction that the order of proof in criminal cases is within the discretion of the trial court;² but the order of proof there referred to related to witnesses other than the defendant. Some of the text writers, including Wigmore,³ appear to advocate that the rule should apply to the defendant in a criminal case. We have found only two jurisdictions in which the question has been squarely presented.

In Clemons v. State, 92 Tenn. 282, 21 S.W. 525 (1893), it was held that a defendant in a criminal case was properly denied the right to testify after two other witnesses had testified in his behalf, because the state statute which allowed a defendant in a criminal case to give evidence in his own behalf, gave him the right to testify on condition that he do so before any other testimony for the defense was heard. Obviously that case is distinguishable from the one before us, for no such condition is imposed on a defendant under the federal statute.⁴

In Bell v. State, 66 Miss. 192, 5 So. 389 (1889), it was held error to require an accused, "as a condition upon which he would be permitted to testify at all, to take the stand before examining...