Villacres v. United States

• Decision Date: 11 May 1976
• Docket Number: No. 7066.,7066.
• Parties: Mario R. VILLACRES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

357 A.2d 423

Mario R. VILLACRES, Appellant, v. UNITED STATES, Appellee.

No. 7066.

District of Columbia Court of Appeals.

Argued August 14, 1974.

Decided May 11, 1976.

W. Gary Kohlman, Washington, D.C., appointed by this court, for appellant.

Jeffrey T. Demerath, Asst. U.S. Atty., Washington, D.C., with whom Harold H. Titus, Jr., U.S. Atty., at the time the brief was filed, and John A. Terry, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before KELLY, KERN and YEAGLEY, Associate Judges.

KERN, Associate Judge:

Appellant, convicted after trial by jury of murder in the second degree, unlooses on appeal a stream¹ of objections to his conviction composed of four estuaries of argument. Specifically, he argues:

First, that certain events occurring before trial both within and without the courtroom required the trial court to hold a hearing to determine (a) whether he was competent to waive his right to counsel and proceed to defend himself and (b) whether his waiver of counsel had been knowing and intelligent.

Second, that the trial court during trial erred in forbidding appellant, proceeding pro se, to cross-examine an officer who had conducted before trial a lie detector test of appellant and who would have testified, if the subject had been opened up on cross-examination, that appellant had sought to manipulate the test results.

Third, that certain comments by the prosecutor in the presence of the jury during trial and to the jury during argument, when taken together, constituted such prejudicial misconduct as to require a new trial; and

Fourth, that the trial court's use of the Allen charge in its supplemental instruction to the jury after the jury had deliberated more than three hours and had then at 6:15 p. m. advised "it is unable to reach a unanimous verdict," was under the circumstances so impermissibly coercive as to deprive him of his constitutional right to trial by jury. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

We sketch briefly the government's evidence. Appellant's mother owned a three-story house in northwest Washington in which the deceased, Jesus Guiterrez, was a boarder on the third floor. In the summer of 1972, appellant, although not living there, was a frequent visitor. On the morning of August 1st, so far as his mother knew, only she, appellant, and a boarder, Mrs. Ayala, were in the house. Appellant's mother heard noises sounding like gunshots coming from upstairs and, upon investigation, she saw appellant standing on the second floor. When she asked him what had happened, he replied, "Go downstairs ; there's nothing there, nothing."

The continued whining and crying of Mrs. Ayala's dog brought Mrs. Villacres to the third floor around noon where she discovered the decedent's body in the hallway with considerable blood in the immediate vicinity. She found appellant in the front asked him if he knew who was responsible and was told, "I don't kill nobody, I don't know who is there." Appellant then called the police.

Appellant's brother, Patricio, asked appellant two days later if he had a gun. Appellant produced a pistol, a .38 caliber Colt, from which he removed four live rounds of ammunition and two spent shells and which he attempted to clean. Appellant explained he had twice fired the weapon in the backyard during the month before. Patricio Villacres subsequently called the Homicide Squad and turned the pistol over to them. Appellant's sister, Margarita, confirmed her brother's account about appellant's pistol and added that appellant had some ten months before been selling marijuana and she told the police he "might have been" selling heroin, also.

A police fingerprint analyst arriving on the scene found appellant's prints near the top of the closet door in the hallway behind which decedent's body had been found. Another officer from the Mobile Crime Laboratory found the decedent in a semi-seated position with a bullet hole below each of his eyes and blood "sprayed the entire length of the body and on the opposite wall where the feet were." The Deputy Medical Examiner opined that one of the two fatal shots had been fired at close range.

An officer from the Firearms Identification Division determined that the two slugs removed from or near the body had been fired from a .38 caliber Colt pistol and were of the same unusually heavy weight as the live rounds contained in a box of revolver ammunition identified by Patricio Villacres as belonging to appellant. Since the slugs inflicting the fatal wounds were copper-coated, it could not be determined whether they came from appellant's pistol but they were fired from a .38 Colt pistol.

Another police officer testified concerning a comment made by appellant, after voluntarily coming to the police station, during the course of undergoing a lie detector test. Appellant's comment was that he had stopped selling marijuana as a result of his suspicion that decedent was an informant for the police and that he had "passed" that word to others.

It may be seen from the summary of evidence that the government's theory of the case was that appellant in order to remove an obstruction to his narcotics trade plotted and then carried out the murder of Jesus Guiterrez. While no eyewitness to the crime was available, the circumstances developed by the government's evidence appeared sufficient to the jury to convict appellant of murder in the second degree.

We turn now to appellant's arguments for reversing the conviction — one of which we find persuasive. Having examined the prosecutor's argument in summation to the jury and his questioning during trial of appellant and appellant's mother, we are constrained to find misconduct on his part. Upon careful consideration of the record we also conclude that the misconduct was so egregious as now to require reversal of the conviction.

We begin with the general comment that the prosecutor's closing argument to the jury in this case is a painful example of the kind of summation, long on personal opinion and comment and short on review of the evidence, which Circuit Judge now Chief Justice Burger condemned in Harris v. United States, 131 U.S.App.D.C. 105, 402 F.2d 656 (1968). He commented aptly :

[L]awyers should train themselves to eschew opinions in the course of arguments to juries because this diverts them as well as jurors from their respective functions. By avoiding expressions of personal opinions, the advocates will tend to concentrate on facts, issues and evidence, and make reasoned, even if vigorous, arguments. . . . The personal evaluations and opinions of trial counsel are at best boring irrelevancies and a distasteful cliche-type argument. At worst, they may be a vague form of unsworn and irrelevant testimony. [Id. 131 U.S.App.D.C. at 108, 402 F.2d at 659.] The Assistant United States Attorney's jury argument here was just such a distasteful and improper melange of "boring irrelevancies,"² "cliche-type argument,"³ and "unsworn and irrelevant testimony."⁴

We now proceed to focus on three misstatements of the evidence made by the prosecutor which, when examined in context, cannot be excused as an honest misunderstanding of the substance of previous testimony because of haste or confusion. See King v. United States, 125 U.S.App. D.C. 318, 330, 372 F.2d 383, 395-96 (1967).

First, the prosecutor stated to the jury during argument in allegedly recounting for them the conversation between appellant and his mother after her discovery of the body (R. 903):

Perhaps that's why Mario said to his mother "Are you sure he's dead? My God, I shot him in each eye, he ought to be." [Emphasis added.]

The prosecutor thereby presented to the jury a confession by appellant which was never in evidence. Such a misstatement could not have been inadvertent because the prosecutor had conceded before trial (R. 239) that an incriminatory statement by appellant after his arrest was inadmissible because it had been taken in violation of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L.Ed.2d 977 (1964). Thus, he was well aware of the limitations extant on the use of self-incriminating statements by appellant.

The next misstatement of evidence was the prosecutor's recounting for the jury in summation what had occurred when appellant and his mother met on the steps after she had heard gunshot noises (R. 888):

And when she [appellant's mother] turned at the top of the steps, there was Mario, facing her across from the bathroom, at the banister. . . . She knows that [the shots] means Mario shot that man and she knows that when she confronted Mario on the banister there, Mario said, "Forget what you heard. Forget it, Mother. Go back downstairs; don't tell anybody." [Emphasis added.]

The prosecutor went on (R. 889):

[W]e see that Mario Villacres then called the police, but he told his mother before he called the police, "Don't tell anyone what you heard; . . . Forget about it." [Emphasis added.]

The record in fact reflects that appellant's mother, a government witness, did not so testify at all. Rather, her testimony (R. 407) was "I go upstairs and I look at my son. I ask him, `What happened,' and he say, `Nothing; nothing.' That's all. [Emphasis added.] Indeed, even when the prosecutor pressed appellant's mother by posing the question on direct examination, viz., "What, if anything, did he say about `Forget what you heard'?", the witness's answer was in the negative. (R. 407.)

We note that the prosecutor had in his opening statement expressly asserted (R. 394):

Now, Mario Villacres had told his mother not to tell the police what she had seen when she saw him up near that banister previously.

Given the prosecutor's assertion in his opening statement of what he would prove and his unsuccessful effort to adduce such proof when examining his own witness, appellant's mother, we cannot say that his statement made later in closing argument was an isolated...