U.S. v. Watson
| Decision Date | 09 April 1999 |
| Docket Number | No. 97-3153,97-3153 |
| Citation | 335 U.S. App. D.C. 232,171 F.3d 695 |
| Parties | UNITED STATES of America, Appellee, v. Talib D. WATSON, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 95cr00276-01).
Peter K. Levitt argued the cause for appellant. With him on the briefs was Peter M. Brody, appointed by the court.
Karen Melnik, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher and Elizabeth Trosman, Assistant U.S. Attorneys.
Before: EDWARDS, Chief Judge, ROGERS and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
The critical issue at Talib Watson's second trial on narcotics-related charges was whether Watson had a connection to a large stash of cocaine base and heroin found inside a burgundy Subaru automobile. 1 Watson did not own the Subaru, nor did any witness or fingerprint evidence place him in the vehicle. To prove his connection to the car, the government relied on a key to the Subaru that the police found on Watson when he was arrested, a Shaw's jewelry bag containing nearly 100 grams of cocaine base that the police found in the car, and a receipt from a Shaw's store that the police found in Watson's home. Defense witnesses, however, placed Watson in church for part of the evening in question and disputed a police officer's testimony that Watson had the car key at the time of his arrest. Instead, defense witnesses connected Everett Hawkins to the Subaru and the car key on the day and evening in question. To strengthen the evidence of Watson's connection to the Subaru, the government attempted to prove that the owner of the car was his girlfriend. The attempt was fumbled, however, when the prosecutor asked a defense witness a compound question assuming a fact not otherwise in evidence, namely that the registered owner of the car was Watson's girlfriend, and then eliminated the ambiguity in the witness' response by purporting to quote the witness' testimony during closing argument to the jury. Because credibility was hotly disputed and the evidence connecting Watson to the car was not weighty, we conclude that the standard jury instructions that the arguments of counsel and counsel's questions are not evidence were insufficient to mitigate the substantial prejudice arising from the prosecutor's misstatement of the evidence. Accordingly, we reverse the judgment of conviction and remand the case for a new trial.
Between 5:30 and 6 p.m. on September 27, 1995, the police received an anonymous telephone call advising that an unidentified person wearing a black baseball cap, blue jeans, and a blue jean jacket had been selling drugs all day near 18th and D Streets, N.E, operating out of a burgundy Subaru with temporary Maryland tags. Around 9 p.m., five plainclothes police officers arrived at the scene. According to three officers, Watson handed a "dark object" to Theodore Ford, who dropped the object, later determined to be a gun, into a trash can. When the police attempted to arrest Watson, two officers testified that he dropped five ziplock bags to the ground that contained about one gram of cocaine base. A third officer testified that he removed from Watson's person a key, a pager, and $57 in United States currency. The key opened the burgundy Subaru.
Upon searching the Subaru, the police found in the glove compartment a Shaw's jewelry bag that contained nearly 100 grams of cocaine base, about a half gram of heroin, as well as a gray sponge, a scale, and empty ziplock bags. According to the police, when Watson saw that the police had found the jewelry bag, he attempted to run. The police grabbed him; Watson hit one of the officers with a police flashlight; and then as other officers held Watson to the ground he yelled to the crowd for help. Gun shots erupted from the crowd. When the area was secure, the police transported Watson and Ford for processing. Upon executing a search warrant of Watson's home, the police found an August 8, 1995, receipt for a purchase at a Shaw's jewelry store.
Watson's defense was part alibi and part mistaken identification. The president and a minister of God's Healing Temple both testified that Watson arrived at church for a recital between 6 and 7 p.m., around the time the police received the anonymous tip, and he did not leave until 8 p.m. Other defense witnesses testified that another man had been selling drugs out of the Subaru all day and ran, discarding various items, when the police arrived in response to the anonymous tip. Leonard Butler, a bystander at the scene, testified that he saw Everett Hawkins standing in the alley near the trash can where the gun was found, and that upon seeing the police, Hawkins ran down the alley discarding objects. Raymond Thomas testified that he saw Hawkins in the area that day wearing a jeans outfit and a hat and that Hawkins left the area when the police arrived. Three other defense witnesses testified that the police initiated the brawl with Watson, beating him with the butt of a gun, their fists, and flashlights.
Defense witnesses also disputed the government's evidence regarding the Subaru. Anthony Shank, another bystander, testified that he saw an officer remove Watson's shoe laces and belt, but not the Subaru key, from his person. Raymond Thomas put Everett Hawkins in the Subaru on the night in question. A sixteen-year-old high school student testified that the Subaru belonged to Hawkins, that Hawkins was in the car on the day in question (and on other occasions), and that the key introduced into evidence by the government was the key Hawkins used to open the Subaru. To corroborate his version of events, the student testified that on the afternoon of the day in question he left his school books in the Subaru; the government stipulated that the police found his books inside the Subaru.
On appeal Watson contends that he is entitled to a new trial on three grounds: first, the district court abused its discretion under Rule 403 in admitting his 1988 conviction for drug trafficking inasmuch as possession was the only contested issue and there was ample other evidence to show knowledge and intent; second, the district court plainly erred in allowing expert witness testimony in the form of mirroring hypotheticals suggesting personal knowledge of Watson's intent to distribute; and third, the district court erred in denying his motion in limine to restrict the prosecutor from misstating evidence during closing argument and the prosecutor's subsequent misstatement of the evidence during closing argument substantially prejudiced his right to a fair trial. Because we conclude that Watson's third ground requires reversal of his conviction, we limit our comments on his first two grounds to matters that are likely to arise upon retrial.
During closing argument to the jury the prosecutor misstated a defense witness' testimony on a critical point and did so while purporting to quote the witness' testimony. The unfortunate sequence of events arose when the prosecutor cross-examined defense witness Raymond Thomas about whether Tyra Jackson, the registered owner of the Subaru where the drugs and contraband were found, was Watson's girlfriend. In asking the question, however, the prosecutor presented the witness with a compound question assuming a key fact not in evidence--namely, that Jackson was Watson's girlfriend--with the result that the witness' response was ambiguous on the critical point the prosecutor sought to establish. Yet in closing argument the prosecutor, purporting to quote the defense witness, told the jury that Jackson was Watson's girlfriend, thereby establishing a stronger connection of Watson to the Subaru than the disputed evidence regarding the Subaru key and the seven week old sales receipt from Shaw's jewelry store. Otherwise the Subaru had been connected only to Jackson as the owner and to Hawkins as the user of her car. We review the record to emphasize both the significance of the evidence at issue and the context in which the prosecutor's error occurred.
On cross examination during the defense case, the prosecutor asked Raymond Thomas about his knowledge of Tyra Jackson. The prosecutor asked, "Mr. Thomas, you believe that you know Watson's girlfriend, Tyra Jackson, right?" Thomas replied: "I never testified I knew her or not." The prosecutor then asked, "You believe that you may have met her once or twice, right?" Thomas's response: "Maybe." Thus, the witness' reference to "her" might have been simply to Tyra Jackson as an individual rather than as Watson's girlfriend; the form of the question rendered the response ambiguous.
Prior to closing argument, Watson's counsel moved in limine to exclude from the prosecutor's closing argument any reference to Tyra Jackson being Watson's girlfriend. Defense counsel argued that the prosecutor's question had assumed a fact not in evidence, namely that Tyra Jackson was Watson's girlfriend. As defense counsel recalled, somewhat inaccurately, the prosecutor had asked Thomas "Have you ever met Mr. Watson's girlfriend, Tyra Jackson?," and Thomas responded "I think I have." The district court stated that it thought that the witness had answered "Yes," and that any ambiguity about whether she was Watson's girlfriend should have been taken care of on redirect; the court ruled that the witness' answer placed the fact in evidence and denied the defense motion.
In his initial closing argument, the prosecutor told the jury:
We have the registration to the car, the Subaru. I[t] is in the name of Tyra Jackson. It's not in the name of ... Everett Hawkins. It's in the name of Tyra Jackson. The only evidence we have about Tyra Jackson is Thomas's answer, one of the...
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