The Prosecutor Is Allowed To Argue That The Police Officer “Didn’t Do His Job”

Furr v. United States (decided April 13, 2017)

Players: Associate Judges Glickman & Beckwith, Senior Judge Pryor. Opinion by Judge Glickman. Judge Beckwith concurring in part and concurring in the judgment. PDS for Mr. Furr. Trial Judge: Russell F. Canan.

Facts: Mr. Furr, an off-duty police officer, propositioned a woman at CVS. The woman said no, and her friend, Wallace Patterson, intervened. Another off-duty police officer, Edward Stewart, was moonlighting as a private security guard at the CVS. He witnessed the dust up between Patterson and Mr. Furr, and asked Mr. Furr to leave.

Outside, Patterson and another friend walked past Mr. Furr’s car. Patterson testified that as they walked by, Mr. Furr rolled down his window and shouted at him. Patterson told Mr. Furr to get out of the car, at which point, Mr. Furr pulled a gun from his glove compartment and pointed it at Patterson.

Patterson went back to the CVS and told Officer Stewart that Mr. Furr had a gun. Stewart approached Mr. Furr’s car and called for back-up. Upon seeing Stewart approach, Mr. Furr got out of his car and told Stewart that he was a police officer too. Relieved, Stewart cancelled the request for back-up. Stewart testified at trial that Patterson never told him Mr. Furr pointed a gun at him.

The night ended with a car chase/crash and a one-way shoot-out. Mr. Furr faced a bunch of charges as a result, and he was acquitted of most of them. The only charge now at issue was the assault with a dangerous weapon count that Mr. Furr was convicted of for pointing a gun at Patterson.

The dispute on appeal revolves around MPD’s investigation into Officer Stewart’s conduct that night. The investigation concluded that Officer Stewart acted appropriately. Nevertheless, at trial, the prosecutor elicited from Stewart that MPD investigated whether he took “appropriate police action” that night. The prosecutor did not ask about the investigation’s outcome. On cross-examination, Stewart testified that the MPD investigation “exonerated him.” The defense wanted to inquire further about why he was exonerated so that the jury would understand that MPD found that Stewart properly exercised his judgment, but the government objected. The court sustained the objection, ruling that the reasons for the exoneration were inadmissible hearsay.

The prosecutor on redirect again brought up the MPD investigation. Stewart acknowledged that an adverse finding would have subjected him to serious consequences, and agreed that when the investigator interviewed him, he was trying to establish that “no crime had occurred.” The prosecutor then asked Stewart whether “it was based on what you told the investigator that you were exonerated,” to which the defense objected. The trial court sustained the objection before Stewart answered.

After a brief recess, defense counsel complained that the “prosecutor’s unanswered question inaccurately implied that Stewart was cleared in the MPD investigation only because of his own self-serving statements.” The trial court agreed that the question may have left that impression. The prosecutor suggested that the court strike the question, but defense counsel argued that would not cure the prejudice and proposed a stipulation listing what the investigation involved. The prosecutor did not like that idea, and proposed that Stewart be recalled to clarify what the investigation included beyond his statement. The court agreed with this solution, and allowed the government to recall Stewart to ask “whether there were other components to the MPD investigation besides his own interview.” Stewart confirmed that there were.

Later in the trial, the defense called MPD Lieutenant John Haines—the officer who investigated Stewart’s conduct. The government objected and the court asked the defense for a proffer of his testimony. Counsel responded that Haines would testify about what things he considered during the investigation without going into what anyone said, and would testify about the conclusion he reached. The government disputed the relevance and admissibility of the testimony, arguing that Stewart himself corrected any misimpression that the investigation considered only his account of events. The trial court agreed with the government and refused Haines’s testimony.

At the very end of the trial, the prosecutor asserted in her rebuttal closing argument that Officer Stewart “didn’t do his job” that night despite the fact that he was exonerated of any wrongdoing.

Issue 1: Did the trial court abuse its discretion by excluding Lieutenant Haines’s testimony?

Holding 1: No. The DCCA reasoned that Lieutenant Haines’s investigation of Officer Stewart was relevant and admissible for one purpose: “to show the existence of a motive for Stewart to deny that Patterson told him appellant had a gun.” Because of this, only the fact that an investigation was pursued was probative of Stewart’s motive; not what evidence was considered during the investigation, how thoroughly it was conducted, or the conclusions that were reached.

The DCCA went on to state that Haines’ testimony would not have been appropriate under the curative admissibility doctrine “to allay prejudice to appellant’s defense from the prosecutor’s implication that Stewart’s exoneration was based solely on his own statement.” The Court concluded that the “posited implication of the prosecutor’s question was not unfairly prejudicial, and in any event, Haines’ testimony was not required to correct it.”

The DCCA noted that the trial court “after careful and thoughtful consideration of proposed alternatives,” “settled on a suitable evidentiary cure: having the government recall Stewart to the witness stand” to testify that there were “other components” to the MPD investigation. According to the DCCA, it “was entirely reasonable for the court to conclude that any possible relevance of Haines’ proffered testimony was substantially outweighed by the potential for prejudice and misleading the jury . . . because it would have exacerbated the risk that the jury would treat Haines’ exoneration of Stewart as a reason to credit Stewart and find that Patterson did not tell him appellant brandished a gun.”

In sum, the DCCA concluded that the trial court correctly exercised its discretion by excluding the proffered testimony of Lieutenant Haines.

Issue 2: Did the trial court plainly err by permitting the prosecutor to comment in rebuttal argument that Officer Stewart “didn’t do his job?”

Holding 2: No. The DCCA considered this argument “unobjectionable because it was a fair comment on Stewart’s failure to investigate appellant’s encounter with Patterson and his possible testimonial bias resulting from the MPD’s investigation of that failure.”

Of Note: Judge Beckwith wrote a separate opinion concurring in part and concurring in the judgment. Judge Beckwith agreed that the trial court did not abuse its discretion by excluding Lieutenant Haines’s proffered testimony. Judge Beckwith took issue with, however, the panel’s discussion of the curative admissibility doctrine and the notion that the trial court would have abused its discretion by admitting the testimony under that doctrine. As Judge Beckwith put it, “The essential problem with the court’s analysis on this point is that it fails to fully account for the prejudice to Mr. Furr resulting from the prosecutor’s questions about the investigation into Officer Stewart’s misconduct.” Judge Beckwith explained that the jury may have concluded from the line of questioning that Officer Stewart “acquired evidenced that Mr. Furr had pointed a gun at Mr. Patterson yet had failed to act.” Given this possibility, Judge Beckwith opined that “the trial court could have admitted the testimony under the curative-admissibility doctrine to remedy the misimpression created by the government’s question . . . and to mitigate whatever remaining unfair prejudice had resulted from the government’s initial questioning about the investigation.”

Judge Beckwith also disagreed with the majority’s conclusion that the prosecutor’s rebuttal comment that Officer Stewart “didn’t do his job” was “unobjectionable” given that MPD exonerated Officer Stewart. Understanding this fact, Judge Beckwith opined that the trial court would have been within its discretion to sustain an objection to the argument. DH

Read full opinion here

“It’s not evidence tampering. . . . I was hiding evidence of a crime that police didn’t know about yet!”

Offutt v. United States, (decided April 6, 2017)

Players: Associate Judges Thompson and McLeese, Senior Judge Ferren. Opinion by Judge McLeese. Thomas D. Engle and Sharon L. Burka for appellant. Trial Judge Todd E. Edelman.

Facts: Mr. Offutt was shot by a neighbor outside of his apartment following an altercation on August 12, 2013. Evidence showed that during the altercation, Offutt retrieved the gun from his apartment but was disarmed and shot with it. A witness flagged down two officers and reported the incident. When police arrived, Offutt reported that he had been shot. The officers called an ambulance that took Offutt to the hospital (but not before he punched his neighbor in the face, saying “that’s the [expletive] who shot me”).

At the hospital, a detective told Offutt that police were getting a warrant to search his apartment. Later, Offutt went to the police station and complained about being barred from his apartment. A detective told him he would not be allowed in until a search warrant could be executed.

Police executed their warrant on the afternoon of August 13. They discovered that a large glass door leading to the balcony had been shattered and a screwdriver lay next to an access panel on a wall in the back bedroom. There were also signs (debris and marks) that something had been dragged across the floor.  Offutt’s upstairs neighbor (not involved in the shooting) testified that late on the night of August 12, he heard glass shatter, went out on his balcony, looked down, and saw Offutt. He saw Offutt again later that morning.

Offutt testified that his neighbor pulled the gun during their altercation. Offutt also testified that he weighed over 300 pounds and had injured his neck and back just before August 12, and that he had a plate in his arm that prevented him from doing a pull-up or scaling his balcony. Offutt did not tell the physicians treating his gunshot wound about this injury. A jury found Offutt guilty of simple assault and tampering with evidence but acquitted him of numerous weapon offenses.

Issue 1: Whether the evidence was sufficient to support Mr. Offutt’s conviction for tampering with evidence, given the lack of evidence as to what he tampered with.

Holding 1: Yes. A person is guilty of tampering if, knowing or having reason to believe an official proceeding has begun or knowing that one will likely be instituted, that person conceals or removes an object with the intent to impair its availability for use in the proceeding. The jury could have reasonably found that Offutt broke into his apartment and removed something. It could have also inferred that Offutt acted with intent to prevent police from finding something that could be used in the investigation and prosecution of the shooting. Offutt was shot outside of his apartment and knew he was not allowed in until after police searched; still, he broke in to remove something in the middle of the night. Although Offutt could have wanted to take something unrelated to the incident, there is no indication that he did, given the risk required to get in. Evidence need not rule out every possible inference of innocence to be sufficient.

Issue 2: Whether the trial court reversibly erred by allowing the prosecution to cross-examine Mr. Offutt about his attorney’s failure to introduce medical records related to his physical therapy.

Holding 2: No. Assuming error, it was harmless under Kotteakos. The government permissibly cross-examined Offutt on his failure to inform the physicians who treated him for his gunshot wound of his alleged accident, injury, or physical therapy. The government was allowed to draw attention to the absence of records corroborating the injury.

Of Note: 
The rule announced here—that in order to prove tampering, the government need not “necessarily” prove what evidence was concealed or removed—is best understood in light of the unusual facts of this case. Offutt was arguing that the government had failed to rule out the possibility that he broke into his apartment to conceal or remove something illegal but unrelated to this case. In making its ruling, the Court relied on the absence of any suggestion that Offutt possessed an unrelated object that was incriminating enough to prompt the “extraordinary” steps taken.

WC

Read the full opinion here.

Trial court finding of guilt reversed based on doctrine of “inherent incredibility” . . . for the first time in 50 years!

Dion M. Slater-El v. United States (decided July 7, 2016).

Players: Associate Judges Thompson and Easterly, Senior Judge Ferren.  Opinion by Judge Thompson.  Dissent by Judge Ferren.  Edward E. Schwab for Mr. Slater-El.  Trial judge: Marisa Demeo.

Facts: Louisetta Koh and Mr. Slater-El have a son, D.S., who was 16 months old at the time of this incident.  A dispute arose after Ms. Koh informed Mr. Slater-El that she would be taking D.S. to North Carolina the following day.  D.S. was seated in a high chair at the time.  Mr. Slater-El grabbed D.S. while the baby remained in the high chair.  A melee ensued.  Mr. Slater-El and Ms. Koh ended up on a couch, with Ms. Koh on her back at the bottom, Mr. Slater-El facing her on top, and D.S. in the middle, still in the high chair.  Mr. Slater-El’s sister, Donna Robinson, tried to pull Mr. Slater-El off, and her husband, Ellsworth Robinson, began to hit Mr. Slater-El.  Mr. Slater-El was charged with attempted second-degree cruelty to children.

At trial, Ms. Robinson, Mr. Robinson, and one of the responding police officers testified for the government; a second responding officer, Ms. Koh, and Mr. Slater-El testified for the defense.  The trial court relied heavily on Ms. Robinson’s testimony in finding Mr. Slater-El guilty of attempted second-degree cruelty to children.  

Issue: Was Ms. Robinson, upon whom the trial court relied in making its finding of guilt, “inherently incredible,” such that the court’s credibility finding was not entitled to deference? 

Holding:  Yes.  The trial court’s finding rested on Ms. Robinson’s claims that Mr. Slater-El held D.S. in a tight grip while D.S. remained in his high chair; and that Mr. Slater-El gripped the baby very tightly for several minutes while D.S. was pinned between Mr. Slater-El and the high chair.  The DCCA found that each of these findings was clearly erroneous and contrary to the physical evidence, and therefore were not entitled to deference.  Ms. Robinson’s claim that Mr. Slater-El had a tight grip on the baby was internally unsupported and contradicted by many other statements Ms. Robinson made, including her admissions that “you really couldn’t see the baby,” and that she was standing behind Mr. Slater-El.  Likewise, Ms. Robinson’s claim that Mr. Slater-El put his weight on D.S. was speculative.

Of Note:

• Since this is the first time in more than 50 years that a conviction has been reversed in this jurisdiction based on the doctrine of inherent incredibility, a review of the standard is perhaps in order.  A fact-finder’s credibility determination is not entitled to deference “if the testimony of a witness is inherently incredible under the circumstances.”  Slip op. at 17 (quoting Robinson v. United States, 928 A.2d 717, 727 (D.C. 2007).  In order for the doctrine to apply, the testimony must be capable of being “disproved as a matter of logic by the uncontradicted facts or by scientific evidence, or when the person whose testimony is under scrutiny made allegations which seem highly questionable in light of common experience and knowledge, or behaved in a manner strongly at variance with the way in which we would normally expect a similarly situated person to behave.” Id. (quoting Payne v. United States, 516 A.2d 484, 494 (D.C. 1986).

• Consider keeping this case in your trial folder for MJOAs.  The Court’s analysis will be helpful in cases where a determination of guilt would have to rely on witness testimony that is internally inconsistent or illogical.  NG

Read full opinion here.

Court didn’t shift the burden when instructing the jury that it could consider lack of alibi evidence

Donnell Thomas v. United States (decided April 28, 2016).

Players: Associate Judges Glickman and Blackburne-Rigsby, Senior Judge Steadman.  Opinion by Judge Glickman.  Ron Earnest for Mr. Thomas.  Trial judges: Ronna L. Beck and Robert I. Richter

A brief note on a jury note case – The deliberating jury at Mr. Thomas’s trial sent a note asking whether it could consider the absence of alibi evidence when it was evaluating the government’s proof of Mr. Thomas’s presence at the scene of the crime.  The trial court didn’t err when it instructed the jury that yes, it could consider the lack of contradictory evidence presented by the defense.  In the same instruction, the court reminded the jury that the defense had no burden to present any evidence.  The DCCA reasoned that the instruction did not impermissibly shift the burden to the defense because the jury is permitted to consider whether the government’s evidence has been contradicted.   As the DCCA pointed out, the Redbook instruction on witness credibility “tells the jury that it ‘may consider whether the witness has been contradicted or supported by other credible evidence.’”  Slip op. at 6 (quoting Criminal Jury Instructions No. 2.200 “Credibility of Witnesses”).  NG

Read full opinion here.