Rogers v. U.S.

• Decision Date: 09 December 1987
• Docket Number: No. 85-1421.,85-1421.
• Citation: 534 A.2d 928
• Parties: Michael W. ROGERS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

534 A.2d 928

Michael W. ROGERS, Appellant, v. UNITED STATES, Appellee.

No. 85-1421.

District of Columbia Court of Appeals.

Submitted November 10, 1986.

Decided December 9, 1987.

Rehearing En Banc Granted and Opinion Vacated March 8, 1988.

Peter N. Mann, Washington, D.C., appointed by this court, was on the brief, for appellant.

Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Thomas E. Zeno, and Elizabeth Trosman, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before PRYOR, Chief Judge, and NEWMAN and BELSON, Associate Judges.

BELSON, Associate Judge:

This appeal presents the questions, first, whether a reputation witness may testify to "negative evidence" of a defendant's reputation, and second, whether the government may impeach a reputation witness by reference to the defendant's juvenile arrests. We hold that negative evidence of reputation is admissible but that, in this case, the trial court's exclusion of such testimony was harmless error. We also hold that the trial court properly allowed the government to test a witness' knowledge of appellant's reputation by asking whether the witness had heard that appellant had been arrested as a juvenile. We therefore affirm appellant's convictions.

I.

Appellant was convicted of distribution of phencyclidine (PCP) and cannabis (marijuana), D.C. Code § 33-541(a)(1) (1981 Supp.). At trial, the government presented testimony to the following effect: Appellant had approached an undercover police officer and risked her whether she was looking for some "herb" (meaning marijuana). The officer replied no, but said that she was looking for some "boat" (meaning PCP). Appellant walked across the street to another person, appeared to receive something from that person, and returned to the officer. The officer then gave appellant twenty-seven dollars in prerecorded police funds in exchange for two tinfoil packets containing PCP and marijuana. The officer broadcast a description of the seller, and an arrest team, on the basis of that description, arrested appellant a short time later. About twenty minutes after the sale, the purchasing officer returned to the scene and identified appellant as the man who had sold her the drugs. Appellant had no money in his possession at the time of his arrest.

Appellant, testifying in his own behalf, denied that he had sold any PCP. Rather, he testified, on the date of his arrest he had walked to a local boys club to find a friend with whom he had planned to play basketball. He stopped to talk with several other acquaintances but, not finding Abbott, left the club and went to look for him. Appellant testified that as he was walking down the street, a policeman detained him. Several other witnesses, including Abbott, corroborated appellant's testimony.

The jury found appellant guilty of distribution of phencyclidine and cannabis. This appeal followed.

II

Appellant first challenges the court's exclusion of testimony by Reverend David Durham, the minister of appellant's church, whom the defense had called to testify about appellant's reputation in the community for truth and veracity.

Defense counsel, attempting to lay a foundation for the witness' reputation testimony, asked Rev. Durham, "Have you heard anything spoken about the defendant and his reputation as to truth and veracity?" Rev. Durham answered, "No, I haven't." The government moved to strike the minister's testimony, arguing that he was not qualified to testify because his knowledge of appellant's "community" was limited to his church congregation, and not to the community in which appellant lived. The court granted the motion to strike not on the objected — to ground, but because appellant had not established that the witness had "actually spoken to members of the community."

Following a recess and discussion of some other matters, defense counsel asked the court's permission to recall Rev. Durham. Counsel argued that, since the minister was "in a position to have heard about" appellant's reputation, he should be allowed to testify that he had heard nothing negative about the defendant. The trial court, while not ruling immediately, eventually denied appellant's request and ruled that reputation testimony was permissible only if the witness had specifically discussed the defendant's reputation with other members of the community.

We agree with appellant that the trial court's ruling was error. If a witness is in such a position that he or she probably would have heard discussions in the community concerning the defendant's reputation, the witness' failure to have heard anything negative about the defendant is probative of a favorable reputation.¹ As the Supreme Court stated in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948),

[T]he [reputation] witness must qualify to give an opinion by showing such acquaintance with the defendant, the community in which he has lived and the circles in which he has moved, as to speak with authority of the terms in which generally he is regarded. To require affirmative knowledge of the reputation may seem inconsistent with the latitude given to the witness to testify when all he can say of the reputation is that he has "heard nothing against defendant." This is permitted upon assumption that, if no ill is reported of one, his reputation must be good.

Id. 335 U.S. at 478, 69 S.Ct. at 219 (emphasis added) (footnotes omitted). While this question has never been addressed directly in this jurisdiction,² the rule allowing testimony by a reputation witness that he or she has heard nothing bad about a defendant, although the witness was in a position to have heard such statements, is well established in other jurisdictions. See, e.g., State v. Huffman, 607 S.W.2d 702, 704 (Mo.Ct.App. 1980); Baldwin v. State, 538 S.W.2d 109, 113 (Tex.Crim.App. 1976); Lowery v. State, 39 Ala.App. 659, ___, 107 So.2d 366, 367 (1958): State v. Gambutti, 36 N.J.Super. 219, 232, 115 A.2d 136, 143 (1955): cf. Wisniewski v. State, 51 Del. 84, 94, 138 A.2d 333, 339 (1957) (witness who is well acquainted with person may testify to his or her reputation, even if witness never heard that reputation discussed). We join those jurisdictions in adopting this rule.

Although testimony as to a lack of bad reputation is thus admissible under appropriate circumstances, it is incumbent upon the trial court to assure that the absence of notoriety reflects the community's esteem rather than the witness' ignorance. Thus, negative evidence of reputation "is accepted only from a witness whose knowledge of defendant's habitat and surroundings is intimate enough so that his failure to hear of any relevant ill repute is an assurance that no ugly rumors were about." Michelson, supra, 335 U.S. at 478, 69 S.Ct. at 220. In the instant case, however, the exclusion of Rev. Durham's testimony was based on the court's erroneous assumption that negative evidence of reputation was improper under any circumstances, rather than on a determination that Rev. Durham was not in a position to know of appellant's reputation. We therefore hold that the trial court abused its discretion in striking Rev. Durham's testimony, and in refusing to allow appellant to recall him. See Johnson v. United States, 398 A.2d 354, 363 (D.C. 1979) (failure to recognize need to exercise discretion constitutes abuse of discretion).

Without deciding whether the trial court's error was of constitutional magnitude, cf. Bassil v. United States, 517 A.2d 714, 716-17 (D.C. 1986) (error of constitutional dimension to deny defense right to call witness to testify concerning government witness' bad reputation for truthfulness), we nevertheless conclude that, under either a non-constititutional harmlessness test, see Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946), or under the more stringent "harmless beyond a reasonable doubt" test, see Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), the trial court's exclusion of Rev. Durham's testimony could not have prejudiced appellant. Even assuming that proper inquiry would have revealed that Rev. Durham was sufficiently intimate with appellant's surroundings, his testimony would have been merely cumulative of the more concrete testimony of appellant's second reputation witness, who testified that she had heard people speak about appellant and that his reputation was "[t]hat he tells the truth." Furthermore, as discussed infra, if Rev. Durham had been allowed to testify, the government would have been permitted to probe his knowledge of appellant's reputation by inquiring whether he knew that appellant had been arrested as a juvenile. Because we are convinced that Rev. Durham's testimony could not have affected the jury's verdict, we need not remand the question of whether he was in a position to have known if appellant had had a bad reputation for truth and veracity.

III.

Appellant next challenges the trial court's ruling that the prosecutor could ask appellant's reputation witness whether she had heard about appellant's juvenile arrests.

Before the defense began to present its case, the prosecutor inquired as to whether he could use appellant's record of juvenile arrests to impeach defense witnesses who would testify about appellant's reputation for truth and veracity. In the course of a colloquy among the prosecutor, defense counsel, and trial judge, it was revealed that, of the three arrests that the prosecutor wished to raise, two had been dismissed and one had resulted in a consent decree.³ Initially, based on the respective outcomes of the arrests, the trial court ruled that the potential prejudice of allowing questions about them outweighed any probative value. Later, however, the court reversed its ruling and allowed the prosecutor to ask appellant's reputation witness about the arrests. The witness answered that she had not heard about the...