Sherrod v. United States, 83-1565.
Decision Date | 06 June 1984 |
Docket Number | No. 83-1565.,83-1565. |
Citation | 478 A.2d 644 |
Parties | Dennis SHERROD, Appellant, v. UNITED STATES, Appellee. |
Court | D.C. Court of Appeals |
Timothy Deforest Junkin, Washington, D.C., for appellant.
Craig N. Moore, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, and Michael W. Farrell, John R. Fisher, and William D. Nussbaum, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.
Before FERREN, BELSON and ROG-ERS, Associate Judges.
Appellant was convicted by a jury of murder in the first degree while armed (D.C.Code §§ 22-2401, -3202 (1981)) and assault with intent to kill (id. §§ 22-501, -3202). He seeks reversal of his convictions on the grounds that the prosecutor's conduct in examining witnesses and closing argument denied him a fair trial; the trial judge erred in allowing inadmissible hearsay into evidence through a detective's testimony about two conversations with the surviving victim and through a witness' written statement to the police; the trial judge's revocation of his bond during trial had a prejudicial and chilling effect on the fairness of his trial; and the trial court erred in refusing to allow defense counsel to read from the trial transcript during his closing argument.1
We conclude after reviewing the record, Part I, that neither the prosecutor's conduct in examining witnesses nor his closing argument amounts to misconduct warranting reversal. Our discussion of the prosecutor's closing argument, Part II, does indicate certain misconduct, but none so substantial as to require reversal; nor do we find, as appellant urges, that the cumulative effect of the prosecutor's conduct was plain error. With regard to the hearsay objections, Part III, we hold that the identification testimony was admissible under an exception to the hearsay rule, but the testimony recounting the victim's description of the assaults and the witness' police report were inadmissible prior consistent statements; their admission was not reversible error, however, in view of the witnesses' testimony, which was subject to cross-examination, and other circumstances indicating the reliability of the statements. We also find, Part IV, no prejudice to appellant as a result of the revocation of his bond at the close of the government's case. Upon review of the trial judge's denial of defense counsel's request to read from the trial transcript during his closing argument to the jury, Part V, we decline to adopt a per se rule prohibiting such a practice, but find no prejudice to appellant and no abuse of discretion in this case. Accordingly, we affirm the judgments of conviction.
On October 14, 1981, Gary Primrose received a letter informing him that his job application as a maintenance worker at Howard University had been accepted. He wanted to celebrate and that evening went to see his old friend Donald Moon about having a drink. Moon, who had won the numbers lottery, suggested they buy some heroin, being occasional users, and offered to pay. The two men then proceeded in search of a seller. At 14th and U Streets, N.W., a friend of Moon's joined them and they eventually approached a man who was standing in front of a Wings & Things carryout. Moon bought "two quarters" of heroin from him. After injecting the heroin at an "oil pad" and discovering that the drugs had very little effect, they decided to try to get their money back, and returned to 14th and U Streets. They found the man who had sold them the drugs where they had left him a half hour earlier; that man, standing in front of the carryout, was Steve Gordon.
Gordon testified that earlier in the evening he had gone to 14th and U Streets and approached appellant, who was standing on the street, about "some work." Gordon had known appellant, nicknamed "Chico," for about a year as a result of prior drug transactions at 14th and U Streets. Appellant agreed to let Gordon sell some heroin, and told him to go to the corner of 13th and W Streets, where "someone would come and see [him]." Gordon did so, and after he waited approximately ten minutes, someone unknown to him walked by and dropped a package at his feet. The package contained five "quarter" bags of heroin. Gordon injected one of the bags, but found that the heroin had almost no effect on him.
When Primrose, Moon and his friend returned to 14th and U Streets, Moon told Gordon that the heroin was "no good" and they wanted their money back. Gordon said they would have to check with "the dude across the street." Primrose recognized "the dude" as "Chico," whom he had known in high school. Gordon crossed the street to speak to appellant and then relayed to the three men that appellant said they could get their money back if they went into the alley with him. Gordon warned them not to go into the alley, but they went anyway. As Primrose, Moon and his friend entered the alley, appellant beckoned to "one of his buddies" to follow him.
According to Primrose, after they went past a bend in the alley, appellant turned and punched Moon in the face, knocking him down and saying Appellant and two or three of his friends continued to beat Moon, and shortly thereafter, someone hit Primrose in the face and knocked him down. Appellant also came over and started punching him and Primrose became aware that appellant was stabbing him. One or two minutes later, Gordon, who had waited across the street from the alley, saw Moon's friend run out of the alley; three to five minutes after that Moon emerged from the alley, bleeding from the stomach. At that point Gordon left the area. Primrose "hobbled" out of the alley shortly thereafter and collapsed beside Moon who was lying on the street. They were eventually taken to Washington Hospital Center where Moon died at 10:30 p.m. that night.
The same night, between 9:30 p.m. and 10:00 p.m., Primrose told Homicide Detective Kilcullen that four men had stabbed him and he knew one of them as "Chico." Primrose was in the critical shock-trauma unit of the hospital and the interview had to be cut short because he was groaning in pain; he had been stabbed four times, his eyes were swollen and rolling and intravenous tubes were attached to his body. Two days later, Detective Kilcullen interviewed Primrose again. He was still in intensive care but recovering, although the intravenous tubes were still attached to his body. Primrose identified appellant from an array of ten photographs.2 Appellant was arrested two days later in a vacant lot next to the Wings & Things carryout on 14th Street; a knife was recovered from his rear pants pocket.
The Deputy Medical Examiner, Dr. Kim, performed an autopsy on Moon's body and testified, as an expert in forensic pathology, that the cause of death was multiple stab wounds. He found ten stab wounds in Moon's body, eight of which were between ¾ and 1 inch wide. In his opinion, all ten of Moon's stab wounds could have been caused by a knife with the same dimensions as the knife recovered from appellant.3 Dr. Kim also found a contusion on Moon's face but no indication of wounds which would have resulted from Moon trying to defend himself. Dr. Kim detected a small amount of morphine, alcohol and quinine in Moon's body, which indicated he had injected heroin, and found track marks on Moon's arm, from which Dr. Kim concluded Moon was a drug addict.4
Appellant's defense was a combination of innocent presence and misidentification. Two of his friends testified they saw appellant in the alley on the night of the murder, but denied he had been involved with the assaults on Moon and Primrose. Appellant's mother and father testified that appellant lived at home and had often left the knife, which was on him when he was arrested, on his bureau at home; his mother also testified she had not noticed any tears or blood stains on his clothing when she did his laundry for the week in which the murder occurred. Appellant testified that he was in the alley on the night of the murder playing craps but did not know much about the assaults other than that he was not involved.
Darian Patterson, a good friend of appellant's, testified that he had accompanied appellant in his search for a crap game and was with appellant in the alley where the murder occurred. They had gone into the alley to gamble in a dice game with ten or fifteen other people. According to Patterson, after about an hour, and while appellant was intent upon the game, Patterson saw two men, Moon and "Penrose," approach the game.5 One of the players in the crap game stood up and confronted the newcomers. Cursing followed and one of the newcomers, Moon, punched the player in the face and knocked him down. When he fell, three of his friends, who had been gambling, pulled out knives (about five to six inches long) and began stabbing Moon and "Penrose." Then the player who had been knocked down got up and pulled out a gun. At that point, Patterson tapped appellant on the shoulder and they, and everyone else, ran out of the alley, leaving Moon and "Penrose" on the ground. The cross-examination recounted the details of the assaults and Patterson testified that Ligon, Poole, Williams and Witherspoon were also in the alley that night, but he could not remember who else was there.6
Harold Ligon testified that he and appellant had gambled together for a couple of years. Ligon said he was already in the crap game on the night of the murder when appellant and Patterson had joined the game. Sometime later, according to Ligon, two other men approached the game and as they did, one of the players in the game stood up and punched the shorter newcomer,...
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