Peyton v. US

• Decision Date: 12 March 1998
• Docket Number: No. 96-CF-903,96-CF-993.,96-CF-903
• Citation: 709 A.2d 65
• Parties: Dwayne PEYTON and Darrell Jackson, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

709 A.2d 65

Dwayne PEYTON and Darrell Jackson, Appellants, v. UNITED STATES, Appellee.

Nos. 96-CF-903, 96-CF-993.

District of Columbia Court of Appeals.

Argued December 10, 1997.

Decided March 12, 1998.

Thomas G. Ross, appointed by the court, with whom Gregory C. Powell was on the brief, Centreville, MD, for appellant, Dwayne Peyton.

Bradford P. Johnson, Washington, DC, appointed by the court, for appellant, Darrell Jackson.

Stuart G. Nash, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney at the time the brief was filed, and John R. Fisher and Thomas J. Tourish, Jr., Assistant United States Attorneys, were on the brief, for appellee.

Before SCHWELB and KING,^* Associate Judges, and PRYOR, Senior Judge.

SCHWELB, Associate Judge:

These consolidated appeals present the question—one of first impression in this jurisdiction, though much-litigated elsewhere— whether the trial judge committed prejudicial error by refusing to declare a mistrial after a key prosecution witness volunteered, during his redirect examination, that he had taken a "lie detector" test. The issue is a troubling one, for even an indirect reference to the administration of a polygraph examination has a substantial potential for prejudice. In this case, however, the trial judge's prompt, thorough and effective admonition to the jury minimized the possibility of such prejudice, and we conclude, in light of that admonition, that the judge did not abuse her discretion by denying appellants' motions for a mistrial. We are likewise unpersuaded by appellants' other contentions on appeal. Accordingly, we affirm their convictions.

I. THE TRIAL COURT PROCEEDINGS

A. Background.

On April 17, 1996, a jury found appellants Dwayne Peyton and Darrell Jackson guilty of first-degree murder while armed¹ and related weapons offenses² in connection with the shooting death on October 13, 1990 of Billy Hopkins. Hopkins was apparently murdered because Jackson believed that Hopkins was the man who shot and killed Jackson's friend, Cedric Boyd, on August 29, 1990. The principal prosecution witness, Kenneth Curtis, was with Boyd and Jackson when Boyd was murdered. Curtis claimed at trial that he was also on the scene of the October 13 retaliatory slaying, and that he had seen both Peyton and Jackson fire the fatal shots at Hopkins.

On October 30, 1990, seventeen days after Hopkins' death, Peyton was arrested,³ charged with the murder, and detained without bond. On February 7, 1991, while Peyton remained in jail, Curtis appeared before a grand jury and testified that he had no knowledge of the identities of Hopkins' killers. Five days later, bail was set in Peyton's case, and he was ultimately released after posting bond. No indictment was returned against Peyton in 1991 and, on June 17 of that year, the case was dismissed for lack of prosecution.

More than three years later, on November 7, 1994, Curtis appeared before a grand jury for the second time. On this occasion, he testified that Peyton and Jackson were the two men who shot Hopkins. Two days later, on November 9, 1994, the grand jury returned an indictment charging both defendants with premeditated murder while armed, PFCV, and CPWOL. The government subsequently represented to the trial court that it was the emergence of Curtis as an eyewitness that "provided the break-through the government needed to refocus the investigation and indict sic⁴ the defendant."

B. The evidence at the trial.⁵

Kenneth Curtis was the prosecution's star witness. He testified that on October 13, 1990, Peyton and Jackson were in a blue BMW near the intersection of East Capitol Street and Benning Road, near Texas Avenue. Curtis was behind them in another vehicle. Observing a man on the street, Jackson rolled up his window and asked Curtis: "Ain't that the dude that killed Ced?"⁶ Curtis answered "Naw," but Jackson insisted that "it is that motherfucker." Curtis testified that "I slowed up and came to the light and the next thing I know, I seen Darrell Jackson and Dwayne Peyton shooting the man down."

Curtis also testified that, some time prior to the shooting of Hopkins, he (Curtis) had purchased a number of firearms, including a 9mm Browning pistol and a 9mm Tanfoglio semi-automatic handgun, and that he had provided the Browning to Peyton and the Tanfoglio to Jackson. These weapons, which were apparently used in the fatal shooting of Hopkins, were subsequently recovered from the two defendants.⁷

On cross-examination, Curtis was impeached with prior statements to the grand jury and to the police in which he had denied any knowledge of the identities of the murderers. Curtis also admitted that he had previously been convicted of conspiracy to commit murder, several drug offenses, and a firearms offense. Curtis acknowledged that he did not disclose his knowledge of the Hopkins murder to the police until after he had been convicted of the most recent charges against him and faced the possibility of imprisonment for life. Curtis also testified that in return for his cooperation with the government, the prosecutor had requested major sentencing concessions on Curtis' behalf. Curtis was further impeached with alleged inconsistencies in his testimony; he had stated at different times, for example, that he had witnessed the events of October 13, 1990 through his side window, his windshield, and his rear-view mirror.

Curtis was the only witness who identified Jackson as one of the shooters. Crystal Walker, who was fifteen years old at the time of the killing, testified that she had seen Peyton, whom she knew, shooting at the decedent. Ms. Walker admitted, however, that she had lied to the police and to the grand jury, and that she had implicated two men other than Peyton and Jackson in the murder, even though she knew that these other men were innocent.⁸

Finally, the prosecution presented evidence showing that Peyton had lied to the police regarding the circumstances under which his car came to be at the murder scene, and that he had induced his girlfriend, Sabrina Pannell, to back up his lie.⁹ There was also evidence that Jackson lied to the grand jury on the same subject.¹⁰ The government argued that this deceptive conduct on appellants' part reflected consciousness of guilt.

Neither defendant testified. Peyton did not present a defense. Jackson called two witnesses, Dwight Sullivan and Sean Hatton. Sullivan testified that he had known Curtis for seven years, and that Curtis had a reputation in the community as a liar. Hatton claimed that, a few days after Hopkins' death, Curtis admitted to Hatton that he (Curtis) had killed the man who shot Cedric Boyd.¹¹

C. The reference to the polygraph test.

After Curtis had been impeached on cross-examination with his failure in 1991 to disclose to the grand jury or to the police his knowledge of the circumstances of Hopkins' murder, the prosecutor attempted to rehabilitate his witness and to elicit the reasons for Curtis' initial lack of candor:

Q. My question, sir, is . . .—if you saw this, why didn't you just tell the grand jury what you saw?

A. Because the first time—I mean, the first time I went in front of the grand jury, it was a lie. So the second time when I went up to the grand jury, they had—they had me put on a lie detector test—

MR. JONES (Counsel for Peyton): Objection.

MR. DAUM (Counsel for Jackson): Objection. May we approach?

THE COURT: Sustained. No.

THE WITNESS:—a lie detector test—

THE COURT: No, no. Don't say anything about that. Sit down, please, gentlemen.

The questioning continued briefly, and the judge called counsel to the bench for a conference on an unrelated issue. While at the bench, Jackson's attorney moved for an immediate mistrial on the grounds that

once Curtis brought out that nonresponsive answer about the polygraph, I think he's poisoned the well. This is a first-degree murder case. He's essentially suggesting to the jury that someone else is vouching for his credibility.

Peyton's counsel made a similar motion. He argued that

it's laying out there in the air now. They know that a polygraph was given and the inference is that he passed it. Why would he say it if he didn't?

The judge denied the motion for a mistrial, but offered to give a "convincing" instruction directing the jury to disregard the reference to the polygraph. Without objection from counsel, the judge then told the jurors that she wanted them "to strike the reference by this witness to any polygraph test." The judge continued:

In this jurisdiction, polygraph tests are not admissible evidence because the science hasn't developed enough to be sufficiently sound to be reliable evidence. Not only that, but we don't know—you certainly don't know the results of any polygraph test, and not only that, but you don't know what questions were asked to lead to those results.

So when I ask you to strike, I mean for you to do that, and what I mean by that is to make certain that whatever your verdict is in the case, it never makes any reference whatsoever to the comment about a polygraph test.

The last thing I want to tell you is, because it isn't admissible evidence or competent evidence, nobody else is going to be permitted, neither defense counsel nor the government counsel, to discuss that any further. So let's disregard it and move on.

Curtis then testified that, in 1991, "I lied and told the grand jury that Dwayne Peyton and Darrell Jackson weren't, you know, the killers to the case." He stated that the truth about the murder was "I seen Darrell Jackson and Dwayne Peyton and I went to the 1994 grand jury and testified."

There was no further reference at the trial to a polygraph test. Both defendants were convicted of all charges.

II. LEGAL DISCUSSION

A. Standard of review.

Peyton contends on appeal that the trial judge committed reversible error by declining to declare a mistrial following Curtis' statement that "they had put me on a lie...