Powell v. United States, 83-65.

• Decision Date: 13 December 1984
• Docket Number: No. 83-65.,83-65.
• Parties: William A. POWELL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

485 A.2d 596

William A. POWELL, Appellant, v. UNITED STATES, Appellee.

No. 83-65.

District of Columbia Court of Appeals.

Argued August 1, 1984.

Decided December 13, 1984.

Barbara Bergman, Public Defender Service, with whom James Klein, Public Defender Service, Washington, D.C., was on brief, for appellant.

Helen M. Bollwerk, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Pamela B. Stuart, Asst. U.S. Attys., were on brief, for appellee.

Before PRYOR, Chief Judge, and NEBEKER and ROGERS, Associate Judges.

PER CURIAM:

Appellant was convicted by a jury of second-degree murder while armed, D.C. Code §§ 22-2403, -3202 (1981), and assault with a dangerous weapon, id. § 22-502. He seeks reversal of his conviction on grounds of prosecutorial misconduct, instructional error concerning the malice element of second-degree murder and insufficiency of the evidence. Being unpersuaded by these contentions, we affirm.

Early on a Sunday morning in October 1981, a uniformed police officer assigned to a marked cruiser stationed himself at a radar checkpoint along a well-travelled thoroughfare in Southeast Washington. At approximately 10:30 a.m., the officer observed a black Cadillac moving at an extremely high rate of speed. As the automobile approached, the officer checked his radar device, revealing that the vehicle was travelling at eighty-two miles per hour although the posted speed limit was only thirty-five miles per hour. The officer exited his vehicle and motioned to appellant, who was driving the speeding Cadillac, to pull over. Appellant disregarded the command and sped past, turning to look at the officer as he did so. When the officer realized that appellant did not intend to stop, he ran back to his vehicle, activated the emergency lights and siren, and gave chase. The officer was soon joined in pursuit by a second officer who was also driving a marked police cruiser. Appellant led the two officers on a high-speed chase along a highway, at times driving on the shoulder of the highway and frequently cutting in and out of traffic lanes, causing other drivers to swerve to avoid him. The officers followed appellant as he sped through a tunnel in excess of ninety miles per hour. The officers observed appellant leave the tunnel and turn onto a congested exit ramp which was blocked by vehicles waiting for a traffic light.

The officers slowed their vehicles, assuming appellant would also stop his car. Instead, as they watched, appellant's Cadillac continued up the ramp where Clarence Nicholson's Honda station wagon was stopped momentarily as the drivers in front of him proceeded off the ramp. Mr. Nicholson was seated in the driver's seat and his eleven year old daughter, Melanie, was seated at his side. Suddenly, Mr. Nicholson heard a siren, glanced into his rearview mirror and saw the Cadillac coming at him from out of the tunnel at a high rate of speed. As Mr. Nicholson reached for his daughter, the Cadillac struck the rear of the Honda, spinning it around and knocking the girl to the floor under the dashboard. The impact ruptured the Honda's gasoline tank and the car burst into flames, filling the passenger compartment with smoke.

The officers stopped their cruisers and ran toward the scene of the collision after observing the impact and immediate explosion of the Honda. Upon reaching the Cadillac, they found no one and proceeded to the burning Honda where they were able to pull Mr. Nicholson out of the smoke-filled passenger compartment, noting that his face, hands and clothing were severely burned. Unaware that Melanie Nicholson remained in the Honda, the officers carried Mr. Nicholson a short distance from the burning vehicle and began to administer first aid. Mr. Nicholson soon regained his breath and shouted to the officers that his daughter was still in the car. Both officers returned to the Honda, but were unable to free the child because of the ferocity of the f ire.

Several blocks away, two other officers on routine patrol observed smoke billowing from the burning Honda. Their suspicions were soon aroused by the sight of appellant, clothed in street attire, running from the source of the smoke. One of the officers ordered appellant to stop, but he continued to run. The officers gave chase and promptly subdued appellant who immediately said, "Why did I do it? Why didn't I stop? I didn't mean to hurt anybody. It was just a traffic violation." Appellant, although excited, was uninjured and repeated the statements several times. Moments later, the officer who had first observed the speeding Cadillac arrived at the scene where appellant was being detained and identified him as the driver of the Cadillac.

A subsequent investigation of the collision revealed that the Cadillac was travelling at a speed well in excess of the posted limit at the moment of impact. Moreover, it was determined that appellant failed to apply his brakes in any meaningful way although the vehicle's brakes and other mechanical systems were in good working condition at the time of the collision. An autopsy conducted on the day after the accident disclosed that Melanie Nicholson had died as a result of smoke inhalation and burn injuries suffered during the fire.

Appellant first contends that the manner in which the prosecutor presented and argued the government's case against him constituted misconduct necessitating reversal. He asserts that the prosecutor purposefully attempted to appeal to the jurors' emotions throughout the trial and sought to divert their attention from the question of guilt.

In evaluating a claim of misconduct by the prosecutor, the reviewing court "must determine whether misconduct occurred and, if so, whether it created `substantial prejudice' to [appellant]." Dyson v. United States, 450 A.2d 432, 437 (D.C. 1982) (citation omitted). This court has repeatedly held that it is improper for the prosecutor to employ inflammatory tactics and devices intended to appeal to the passions and fears of the jurors or to seek a verdict reflecting sympathy for the victim. See, e.g., Hawthorne v. United States, 476 A.2d 164, 170-72 (D.C. 1984). It is also true, however, that some types of cases, particularly those involving tragic death or injury, have an inherent emotional impact. See, e.g., Hall v. United States, 84 U.S. App.D.C. 209, 212, 171 F.2d 347, 350 (1948). Our case law demonstrates that the prosecutor is not required to sanitize the government's evidence. Green v. United States, 440 A.2d 1005, 1007 (D.C. 1982). It is with these factors in mind that we assess the actions of which appellant complains.

During voir dire, the prosecutor requested that the veniremen be provided with information concerning Melanie Nicholson's background. Defense counsel objected, asserting that the information was irrelevant and would serve only to apprise the panel of Melanie's good character. The trial court determined that it was proper to provide the panel with background information about the deceased and concluded that as part of the voir dire, it would inform the jurors of Melanie's name, age, address, school and church. Appellant maintains that error attended this determination. We do not agree. The very purpose of voir dire is to permit the defense to be satisfied that prospective jurors are impartial. Harvin v. United States, 297 A.2d 774 (D.C. 1972). Moreover, one means of assuring the impartiality of the jury is by inquiring whether prospective jurors are acquainted with the witnesses or parties. Brown v. United States, 383 A.2d 1082 (D.C. 1978). In the circumstances of the present case, we conclude that it was not improper to describe the decedent briefly, permitting the prospective jurors to determine if they knew, or knew of, Melanie Nicholson.

Appellant next avers that the prosecutor's opening statement and the manner in which she presented the government's evidence at trial require reversal. During her opening statement the prosecutor described the collision and the events that preceded it as well as the fire and the police officers' efforts to rescue the Nicholsons. It was in this context that many of the sensitive details surrounding Melanie Nicholson's death were first revealed to the jury. Yet the record demonstrates that the emotional impact of this case evolved in large part from the facts, not the manner in which the government's case was presented or argued. The record further reveals that in examining witnesses, the prosecutor dwelt neither upon the gruesome aspects of the young girl's death nor upon the virtues of the decedent. Compare Reed v. United States, 403 A.2d 725 (D.C. 1979) (prosecutor repeatedly asked questions designed to elicit information concerning the complainant's schooling, awards and talents). While the record discloses that certain of the prosecutor's comments would have better been left unsaid (i.e., referring to the fire as a "funeral fire" and an "inferno"), these comments do not mandate reversal. See, e.g., United States v. Jones, 157 U.S.App.D.C. 158, 164, 482 F.2d 747, 753 (1973). Appellant is entitled to a new trial based upon prosecutorial misconduct only if, after balancing the gravity of the misconduct against the weight of the evidence against him, we are unable to say that the conduct did not substantially sway the judgment of the jury. See Miles v. United States, 374 A.2d 278, 284 n. 9 (D.C. 1977); Villacres v. United States, 357 A.2d 423, 428 (D.C. 1976); Medina v. United States, 315 A.2d 169, 171 (D.C. 1974); see also D.C.Code § 17-305 (1981). We are confident that in this context, these remarks did not affect the verdict.

Appellant further maintains that the prosecutor's closing argument was intended to win the jurors' sympathy and prey upon their fears for their own personal safety. Yet when considered in context, it is clear that the prosecutor argued the evidence, not inflammatory generalities. Compare Clarke v....