Sloan v. United States

• Decision Date: 29 June 1987
• Docket Number: No. 85-892.,85-892.
• Citation: 527 A.2d 1277
• Parties: Norwood SLOAN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

527 A.2d 1277

Norwood SLOAN, Appellant, v. UNITED STATES, Appellee.

No. 85-892.

District of Columbia Court of Appeals.

Argued June 26, 1986.

Decided June 29, 1987.

COPYRIGHT MATERIAL OMITTED

Maureen T. Cannon, Public Defender Service, with whom James Klein, Public Defender Service, and Jennifer P. Lyman, Public Defender Service, were on the brief, for appellant.

Daniel S. Friedman, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Thomas J. Tourish, Jr. and Mark H. Dubester, Asst. U.S. Attys., were on the brief, for appellee.

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

PER CURIAM:

Appellant was charged in a three-count indictment with two counts of assault with a dangerous weapon (bottle and corrosive chemical), D.C.Code § 22-502 (1981), and one count of malicious disfigurement while armed, D.C.Code §§ 22-506, -3202 (1981). After a jury trial, appellant was convicted of one count of assault with a dangerous weapon (corrosive chemical), and acquitted on the other charges. Appellant was sentenced to serve a term of imprisonment of not less than forty months nor more than ten years, and to make restitution in the amount of $6,000.

Appellant contends that the trial court failed to instruct the jury properly on the law of self-defense. Appellant also asserts that the trial court violated his sixth amendment confrontation rights by allowing the government to impeach his testimony with the use of a prior inconsistent statement obtained in cross-examination of a defense witness, Detective Hayes, in questioning that exceeded the scope of appellant's direct examination of that witness. Appellant also contends that during sentencing the trial judge violated the Code of Judicial Conduct by relying upon an ex parte, post-verdict discussion by his law clerk with a juror about the jury's reasons for acquitting the appellant on two of the three filed charges. He then asserts that the trial court violated his right to procedural due process by ordering $6,000 in restitution without making any factual findings. We affirm the conviction, but remand for resentencing to give the trial court an opportunity to make factual findings on the issue of restitution.

I Factual Background

A. The Government's Evidence

On the afternoon of October 15, 1983, appellant struck complainant Steve James on the head with a soda bottle following a verbal altercation. Later that evening, James hit appellant twice with his fist. Two days later, on the afternoon of October 17, appellant assaulted James for the second time, and disfigured him, by throwing lye in his face.

At the time of the offenses, complainant and appellant were both employed as shelter coordinators at the Blair Shelter for homeless men, located at 611 Eye Street, N.W. At approximately 4:00 p.m., on October 15, 1983, appellant arrived and signed in for work. Appellant, complainant, and two co-workers, Steven Spells and Samuel Makins, then left to get some beer. Upon returning from the store, the men sat in James' car and drank the beer when James and appellant began to discuss raising children. Someone in the car then commented that appellant had a "nice looking" daughter. Appellant then became hostile toward James, according to James and both witnesses.¹ After asking appellant to get out of his car, James exited the car to allow appellant, who was seated behind him, to get out. As appellant and James stood facing each other next to the driver's door, appellant lit a match and burned a hole in James' jacket. James then pushed appellant away. Appellant reached into the back of the car, grabbed a soda bottle, and hit James on the head, shattering the bottle and causing a cut on James' head. James then grabbed appellant, wrestled him to the ground and pinned him there until their supervisor, Herman McAlister, came out of the shelter and pulled them apart.

Near the end of the shift, at approximately 11:45 p.m., Curtis Brown and appellant, who were both outside the shelter, went back inside, signed out, and left the shelter together. When they walked outside, James was standing next to his car, and appellant called to him. Brown then returned to the shelter, observing James walking towards the appellant as he did so. When James approached appellant and asked what he wanted, appellant swung at him. James returned the blow, striking appellant in the mouth and knocking him down. Appellant then got up and rushed at him, but James again punched him and knocked him to the ground. James then got in his car and drove away. When Brown came back outside a few minutes later, he observed that appellant was lying on the ground bleeding from the mouth, and had four false teeth knocked out. Brown helped him inside, and an ambulance was called.

Two days later, on October 17, at approximately 4:00 p.m., James arrived at the shelter, signed in, and went to talk to shelter coordinator Clayton Montgomery. After a brief time, James, Montgomery, and others went outside together. Four shelter coordinators — James, Montgomery, Makins and Brown — then gathered around supervisor McAlister's car in front of the shelter. The men stood facing each other and talked for ten to twenty minutes at which time appellant came out of the building and walked toward them.

Appellant, carrying a bag, walked within approximately two feet of James, stood directly in front of him, and with an underhand shoveling motion threw a liquid from the bag into James' face. According to witness Makins, appellant called James several obscene names as he threw the liquid at him, and then threw the jar in which the liquid was contained at James.²

James' face, according to testimony, then began "bubbling" and his skin started "peeling" off. James then began to scream in pain and was led inside where his face was flushed with water. He was later taken to the hospital, where he remained for ten days. Despite plastic surgery, his face remained scarred and discolored. The treating plastic surgeon testified that James' face would never have a normal appearance again.

The government also presented evidence that appellant had purposely emptied a mayonnaise jar and refilled it with lye. Shortly before 4:00 p.m. on the afternoon of October 17, the shelter supervisor, McAlister, had encountered appellant on an upper floor of the shelter building. Appellant was looking out a window which overlooked the front of the shelter where James and the other men were standing. A short time later, McAlister saw appellant walk into the shelter's small upstairs kitchen; he then heard water running in the kitchen sink. McAlister later noticed a white substance resembling mayonnaise in the sink. In addition, Makins noticed that a mayonnaise jar that had been in the kitchen refrigerator before the incident was no longer there, and he found the label to a mayonnaise jar lying on the ground where the jar of liquid thrown by appellant had fallen to the ground. After the incident McAlister found a small white container of lye on the steps between the first and second floors of the shelter.

B. Defense Evidence

Appellant's description of the events leading up to the soda bottle incident on October 15 was substantially identical to that of the government's witnesses, except that, according to him, James said, in obscene terms, that he wanted to have sexual intercourse with appellant's daughter. Appellant denied deliberately striking James with the bottle in the ensuing altercation, but admitted that the bottle landed on James' head during the struggle before he was beaten by James.

Appellant then testified that on the evening of October 15 he left the shelter, and passed by James, who was standing outside. Appellant claimed that James then struck him with "something that appeared to be a hammer." While appellant reaffirmed at trial that only James had assaulted him, appellant also acknowledged telling a detective after the incident that two people had assaulted him. At trial, appellant also denied telling the detective that one man had held him from the rear while the other hit him in the face with "sort of a sock filled with a hard object."

Appellant then testified that after his release from the hospital on October 17, he went to work at the shelter but decided to go home because he was in pain. As he attempted to leave, he observed James with the other coordinators standing in front of the building, with James pounding his fist into his palm. Afraid, he then went back into the shelter to find something with which he could protect himself. Appellant claimed that he went upstairs, picked up a jar of cleaner, put it in a bag and attempted to leave the shelter again. James then approached him, screaming obscenities, and, according to appellant, "started after" him. Appellant claimed he then threw the liquid in the jar at James to keep him away.

Several defense witnesses described appellant's injuries from the incident on October 15. The final defense witness, Detective Harry Hayes, then related that he spoke to appellant on October 16 in the course of investigating James' assault on appellant, and testified to appellant's condition at that time. After several questions calling for inadmissible hearsay and prior consistent statements,³ counsel had no further questions. After announcing that he had no cross-examination, however, the Assistant United States Attorney approached the bench and advised the court that he wished to complete his impeachment of appellant by eliciting from Detective Hayes what appellant had told the detective about the assault on the evening of October 15. The court ruled the questioning to be within the scope of cross-examination and the prosecutor proceeded. According to the detective, appellant called the detective on the evening of October 16, and described the incident of the night before. Appellant told Hayes that as he walked past James, James grabbed him from behind, and...