U.S. v. Davis, 91-3046

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation974 F.2d 182,297 U.S.App.D.C. 396
Docket NumberNo. 91-3046,91-3046
PartiesUNITED STATES of America v. Dexter Andre DAVIS, a/k/a Winston Richards, Appellant.
Decision Date03 December 1992

Allen H. Orenberg, Washington, D.C. (appointed by the Court), for appellant.

John R. Fisher, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Wendy Wysong, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before EDWARDS, BUCKLEY, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

In late 1989, Dexter Davis ("Davis" or "appellant") was indicted for the unlawful possession of, and intent to distribute, cocaine. 21 U.S.C. § 841(a). Davis initially pled guilty but, later, withdrew the plea. His first trial ended in a hung jury, but a second trial was held and concluded with a guilty verdict.

On appeal, Davis presses four arguments; each of these, he charges, compels the reversal of his conviction. First, he contends that he was effectively denied the right to testify on his own behalf because the prosecutor threatened a perjury charge should he do so. Second, he suggests that the trial court abused its discretion in responding to a jury question by reading certain excerpts of trial testimony. Third, he submits that--even if the court was empowered to read these excerpts--it erred in the process of doing so. Finally, he insists that the evidence adduced at trial was simply insufficient to justify a guilty verdict.

For reasons explored below, we reject these arguments and sustain appellant's conviction.


On the evening of October 13, 1989, two plainclothes Metropolitan Police Department investigators--Edward Howard and Annie Stewart--visited the East Gate Projects located at the 600 block of 50th Street, Southeast Washington, D.C. Howard had suggested a trip to this spot as he apparently knew from previous investigations that drugs could be purchased there. When the detectives arrived, an individual who later was identified as "BJ" approached and asked if they were "looking." When Howard replied "yes," BJ inquired as to what they wanted; Howard answered "a fifty"--meaning a $50 rock of cocaine. BJ lead them down a walkway while jumping up and down and saying that he was going to take them where the best cocaine could be found. At this point, someone on a nearby hill seemingly recognized Howard and yelled to BJ; BJ told the person on the hill to wait as he would soon return. BJ continued to lead the detectives up the walkway, eventually approaching a group of three people standing around appellant. Appellant was himself holding a plastic bag and handing out things contained within it. Next to him was another person taking money from the three gathered visitors.

When Howard was two to three feet away from appellant, the person on the hill shouted "Police" and quickly everyone scattered. Howard testified that he saw appellant take a few steps, drop the plastic bag, and walk away. Howard then identified himself as a police officer, apprehended appellant, placed him under arrest, and recovered the fallen plastic bag. When appellant was stopped, he was about three feet away from the plastic bag; Howard was himself a foot or two from it. A field test on the contents of the dropped plastic bag confirmed the presence of approximately 83 grams of cocaine-base.

At the second trial, the government presented the testimony of Howard and Stewart, as well as that of a narcotics expert who explained, among other things, the roles of a money holder, runner, and stash man in a drug deal. He testified that a runner will attract buyers much like a salesman, that the stash man is the individual who holds the drugs, and that a third person sometimes handles the money as it comes in.

Before the defense opened its case, Davis asked the court to prohibit the government from using a presentence report prepared as a result of his initial guilty plea. In that report, appellant had stated that he was in the area to purchase cocaine and that he supported himself through the sale of drugs. The trial judge granted the request, explaining that if the probation report had been an impediment to appellant testifying in his own behalf, it "is no longer an impediment." Tr. III 323. 1 The prosecutor, apparently aware of defense plans to present witnesses who would testify that Davis was innocently present at the East Gate Projects on the evening of the arrest (a position at odds with his statements in the probation report), immediately intervened, asking the court to instruct Davis about the possibilities and penalties of a perjury charge were he to take the stand and lie. The court, while noting that no one has the right to commit perjury, refused to oblige the prosecutor.

The defense went on to offer three live witnesses and the written testimony of a fourth individual hoping to establish that Davis visited the East Gate Projects to join with friends on the way to a movie. The defense also presented testimony indicating that the lighting in the area of the arrest was generally poor, though it was contradicted on this detail by Howard and Stewart who alternatively characterized the lighting as "very good" and "adequate." Davis himself never took the stand. In response to a court inquiry, defense counsel blamed this fact in part on the prosecutor's threats of a perjury prosecution. The court then repeated its earlier instruction that, though it was unable to offer Davis immunity, nothing in connection with the plea would be used at trial.

After the government's rebuttal closing argument, defense counsel informed the trial judge about another warning he had received from the prosecutor: during an earlier break in the trial, the prosecutor "mentioned to me [defense counsel] that if [Davis] took the stand, ... there might be a case of suborning perjury." Tr. III 428. The prosecutor immediately responded by insisting to the trial court that the comment was made "offhandedly" and was not intended as a threat. Id. The trial judge reminded defense counsel that he had given Davis "every opportunity" to testify by ruling the presentence report inadmissible; he then proceeded to instruct the jury. Id. at 429.

During its deliberations, the jury issued a note asking the District Judge a series of questions; one of these inquired as to how far appellant had been from the drugs at the time of his arrest. Defense counsel asked that the court refrain from answering the query and that it instead instruct the jury to rely on its best recollection. The District Judge, however, recalled that Officer Howard had testified on this point and offered to read the relevant portions to the jury. The jury assented, heard the testimony, and, after retiring for further deliberations, returned with its guilty verdict.

A. The Right to Testify and Prosecutorial "Threats"

Davis argues that his constitutional and statutory right to testify as a witness in his own behalf was effectively denied by the prosecutor's repeated threats that a perjury indictment would be forthcoming were he to take--and then lie on--the stand. In approaching this argument, we note at the outset that the accused's right to testify has taken a significant journey in our jurisprudence.

English common law jurists, beginning in at least the sixteenth century, began enforcing an evidentiary rule that rendered any party to a civil lawsuit "incompetent" to testify because of his "interest" in its outcome. 2 Eventually, this prohibition was extended to forbid even the criminal defendant from acting as a witness. 3 The rationale for this rule was, as Gilbert explained, based on the theory that "from the nature of human passions and actions there is more reason to distrust such biased testimony than to believe it." GILBERT, EVIDENCE 119 (ca. 1726). 4 As with so much else of the English common law, this rule found its way across the Atlantic and into many American jurisdictions. See, e.g., Lukens, 1 Dall. at 6; Jones v. State, 1 Ga. 610 (Ga.1846); Roberts v. State, 189 Ga. 36, 40-41, 5 S.E.2d 340, 343 (Ga.1939).

By the middle of the nineteenth century, experience revealed that, while well-intentioned, this ancient and unyielding rule commonly caused severe injustices. Legislative reformers, led by Jeremy Bentham in England and Chief Justice John Appleton of Maine in this country, soon began advocating its abandonment. 5 Their attempts were enormously successful: one fruit of their work is 18 U.S.C. § 3481, a congressional statute enacted in 1878 establishing a presumption in favor of the accused's competence to testify in all federal criminal trials. 6

In Rock v. Arkansas, 483 U.S. 44, 51, 107 S.Ct. 2704, 2709, 97 L.Ed.2d 37 (1987), the Supreme Court transmogrified the federal statutory right to testify into a constitutional right, effectively taking our law a full one hundred and eighty degrees--from a deep hostility toward the accused's testimony to a fundamental appreciation for it. In explaining the textual basis for the right, the Court in Rock indicated that it emanates from a variety of constitutional clauses: the Due Process Clauses of the Fifth and Fourteenth Amendments, the Compulsory Process Clause of the Sixth Amendment, and the Fifth Amendment's privilege against self-incrimination. Id. at 51-53, 107 S.Ct. at 2709-10. In exploring the Compulsory Process Clause rationale, the Court commented that the Sixth Amendment guarantees the right to call witnesses "material and favorable to [the] defense." Id. at 52, 107 S.Ct. at 2709 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982)). 7 Logically included within this...

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