Wright v. United States, 10930.

• Decision Date: 15 May 1978
• Docket Number: No. 10930.,No. 10973.,No. 11813.,10930.,10973.,11813.
• Citation: 387 A.2d 582
• Parties: Carlton V. WRIGHT, Appellant, v. UNITED STATES, Appellee. Leroy CARLTON, Jr., a/k/a William M. Carlton, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 582

387 A.2d 582

Carlton V. WRIGHT, Appellant, v. UNITED STATES, Appellee.

Leroy CARLTON, Jr., a/k/a William M. Carlton, Appellant, v. UNITED STATES, Appellee.

No. 10930.

No. 10973.

No. 11813.

District of Columbia Court of Appeals.

Argued January 4, 1978.

Decided May 15, 1978.

Silas S. Wasserstrom, Public Defender Service, Washington, D. C., with whom Karen E. Moore and Robert F. Muse, Public Defender Service, Washington, D. C., were on brief, for appellant in No. 10930.

Herbert N. Beller, Washington, D. C., appointed by the court, for appellant in Nos. 10973 and 11813.

Steven D. Gordon, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on brief, for appellee.

Before HARRIS, MACK, and FERREN, Associate Judges.

FERREN, Associate Judge:

Appellants Carlton Wright and Leroy Carlton have each been convicted of one count of armed robbery (D.C. Code 1973, §§ 22-2901, -3202), and three counts of assault with a dangerous weapon (D.C. Code 1973, § 22-502). They base their appeals, however, on separate grounds. Mr. Wright asserts that the prosecutor's attack on his alibi defense during closing argument to the jury included an impermissible reference to the fact that he had not taken the stand in his own defense, in violation of his Fifth Amendment rights. Mr. Carlton challenges the denial of two alternative motions for new trial — one brought pursuant to D.C. Code 1973, § 23-110 (motion attacking sentence) alleging ineffective assistance of counsel, in violation of his Sixth Amendment rights, and the other pursuant to Super. Ct. Cr. R. 33 claiming newly discovered evidence. Finding no error, we affirm appellants' convictions.

I

The robbery took place at the Astar Men's Shop over a period of two to three hours during the late morning and early afternoon of September 9, 1975. The government's evidence showed that the perpetrators first entered the store at about noon but left without making a purchase. When they returned 45 minutes to an hour later, one of the men, later identified as appellant Wright, displayed a sawed-off shotgun. Samuel Goldsmith, a salesman, and William Willis, the store manager, were forced to lie on the floor while their hands and feet were tied behind them. Store employees Carey Brock and Deirdre Fairley were also tied up after they returned to the store. The four captives were placed in a dressing room. While the robbers busied themselves loading merchandise into Mr. Willis's car, which was parked in front of the store, they made periodic checks on the captives. At approximately 1:47 p. m., a uniformed police officer, Leo Wilson, entered the store. (The open trunk of Mr. Willis's car had attracted his attention.) The robbers forced Officer Wilson to lie on the floor. After they had bound his hands and feet, they moved him with the other four captives to a bathroom at the rear of the store. Sometime between 2:00 and 3:00 p. m., a pair of plainclothes policemen visited the store; they had stopped by to pay a social call on Ms. Fairley. When told by the perpetrators that the shop was closed for inventory, the officers left, unaware that they had walked in on a robbery in progress. By the time that the five captives had freed themselves, the robbers had made their getaway in Mr. Willis's car.

Appellant Carlton became a focus of the subsequent investigation when the police found Mr. Willis's car near the home of Mr. Carlton's brother and father. After Ms. Fairley, working with a police artist, had developed a composite drawing (which bore a resemblance to Mr. Carlton), the police showed her a photo array which included Mr. Carlton's picture. She identified him. Later, from a 36-photo array which included Mr. Carlton and his known associates, Messrs. Willis and Goldsmith identified appellant Wright but made no identification of Mr. Carlton. Still later, Mr. Goldsmith and one of the plainclothes officers were able to pick out Mr. Wright from a police lineup; Officer Wilson made a lineup identification of Mr. Carlton. In-court identifications corresponding to the lineup identifications were made at trial.

Appellant Wright presented an alibi defense through the testimony of the manager of O'Donnell's Sea Grill, where Mr. Wright was employed as one of two dishwashers. Mr. Wright's time card showed that he had punched in at approximately 9:00 a. m., and punched out about 5:00 p. m. The manager's testimony confirmed Mr. Wright's presence at the restaurant at approximately those two times. Mr. Wright also called to the stand two police officers: a Mobile Crime Laboratory technician, who testified that none of the identifiable fingerprints from the store or from Mr. Willis's car matched those of either defendant; and the second plainclothes officer, who was unable to make any identification.

Appellant Canton's counsel obtained a pretrial ruling which barred the prosecution from bringing out (1) his client's criminal record and (2) the Tact that at the time of the robbery, Mr. Carlton was residing in the same halfway house where his codefendant, Mr. Wright, lived. Mr. Carlton limited his defense at trial to cross-examination of government witnesses.

II

Appellant Wright contends that the prosecutor improperly attempted to attack his alibi defense by pointing out to the jury that there was no testimony placing him at the restaurant during the hours when the robbery was taking place. He argues that his prosecutorial tactic constituted an implicit comment on his failure to testify at trial, in violation of his Fifth Amendment right to remain silent.

In making this argument, appellant Wright has not maintained that his Fifth Amendment rights could bar the government from introducing evidence which only the defendant could successfully contradict. Accordingly, "[i]f the state is free to do this, it must also be free to engage in normal advocacy so long as it does not point a finger at the accused's remaining silent in the courtroom." United States ex rel. Leak v. Follette, 418 F.2d 1266, 1268 (2d Cir. 1969), cert. denied, 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970). More particularly, as stated in Peoples v. United States, D.C.App., 329 A.2d 446 (1974), the test for whether a prosecutor's remarks crossed the boundary of permissible advocacy, infringing upon a defendant's Fifth Amendment rights, is whether the prosecutor's statements "`manifestly intended or [were] of such character that the jury would naturally and necessarily take [them] to be a comment on the failure of the accused to testify.'" Id. at 450 (quoting Doty v. United States, 416 F.2d 887, 890 (10th Cir. 1969) (emphasis added). Accord, Brown v. United States, D.C.App., 383 A.2d 1082 (1978); Byrd v. United States, D.C.App., 364 A.2d 1215, 1218 (1976); Blango v. United States, D.C.App., 335 A.2d 230, 232 (1975).

We find no direct or circumstantial evidence of a conscious design — an intent — on the part of the government to deprive appellant Wright of a fair trial by words or acts which the prosecutor knew or should have known to be impermissible. Cf. Villacres v. United States, D.C.App., 357 A.2d 423 (1976) (erroneous description of evidence and reference to suppressed evidence); United States v. Hawkins, 156 U.S. App.D.C. 259, 480 F.2d 1151 (1973) (repetition of inflammatory comments in the face of warnings from the bench); United States v. Phillips, 155 U.S.App.D.C. 93, 476 F.2d 538 (1973) (prosecutor's use of inflammatory comments in rebuttal and closing argument); Jones v. United States, 119 U.S.App.D.C. 213, 338 F.2d 553 (1964) (prosecutor's erroneous description of government's evidence). Thus, we are left to apply the second, objective standard in the test.

By way of background, it is important to note a well-established principle: "The rule that the prosecution shall not comment on the failure of the accused to testify should not prevent an argument that the evidence of the government is uncontradicted or unexplained." Carlisle v. United States, 194 F. 827, 830 (4th Cir. 1912). Accord, Lefkowitz v. United States, 273 F. 664 (2d Cir.), cert. denied, 257 U.S. 637, 42 S.Ct. 49, 66 L.Ed. 409 (1921). When this principle is coupled with our test in Peoples, supra (and the subsequent cases cited), it follows — and this is the critical point — that for Fifth Amendment purposes a prosecutor's argument to the jury that the defense failed to contradict government evidence is forbidden only in cases where the defendant alone could possibly have contradicted the government's testimony. See, e. g., Ruiz v. United States, 365 F.2d 103, 105 (10th Cir. 1966); Garcia v. United States, 315 F.2d 133, 137 (5th Cir.), cert. denied, 375 U.S. 855, 84 S.Ct. 117, 11 L.Ed.2d 82 (1963); Leathers v. United States, 250 F.2d 159, 165-166 (9th Cir. 1957); Hunt v. United States, 231 F.2d 784, 785 (8th Cir. 1956); Langford v. United States, 178 F.2d 48, 55 (9th Cir. 1949). This of course, requires a case-by-case evaluation.

In White v. United States, D.C.App., 248 A.2d 825 (1969), for example, we found it reversible error for the prosecutor to point out that the testimony of two police officers with whom the defendant had been involved in an altercation was uncontradicted, for all the evidence indicated that only the defendant and the two officers had been present when the incident occurred. In Manago v. United States, D.C.App., 331 A.2d 335, 337 (1975), however, we held that a prosecutor's comment that "[a]ll of the evidence came from the government" did not amount to plain error. It was only a passing reference; moreover, defense counsel himself, prior to the prosecutor's rebuttal, had commented on his client's decision not to take the stand. Similarly, in Blango v. United States, supra, we held that the prosecutor's comment that the government's witness had "the guts to get on the stand" was not an impermissible comment on the failure of the defendants...