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01/17/90 CHARLES L. VAN NESS v. UNITED STATES

January 17, 1990

CHARLES L. VAN NESS, A/K/A CHARLES JACKSON, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Herbert B. Dixon, Jr., Trial Judge.

Before Newman and Schwelb, Associate Judges, and Gallagher, Senior Judge.

Opinion for the court by Gallagher, Senior Judge.

Opinion Concurring in part and Dissenting in part by Schwelb, Associate Judge.

The opinion of the court was delivered by: Gallagher

GALLAGHER, Senior Judge: After a jury trial, appellant was convicted for distribution of cocaine in violation of D.C. Code § 33-541 (a)(1) (1989 Repl.). He contends that the trial court committed reversible error in (1) denying defense counsel the opportunity to cross-examine a government witness regarding his bias, and (2) refusing to order a mistrial or give a requested instruction to mitigate the impact of prosecutorial misconduct. We affirm.

I.

Appellant first contends that the trial court's restriction of cross-examination resulted in reversible error. He argues that all inquiry was foreclosed "on the crucial subject of bias." *fn1

The segment of the cross-examination at issue, is as follows:

Q. Good afternoon, officer.

A. Good afternoon.

Q. Now you--You told us on direct examination, and again on cross-examination, that you had been a police officer for about two years or I should say about a year and a half at the time of March of 1987?

A. That's correct.

Q. And when you became a police officer did you want to become an undercover officer?

MS. BASS: Objection.

THE COURT: Sustained.

MR. BROWN: Your Honor, may we approach the bench?

THE COURT: No, sir, the objection is sustained.

BY MR. BROWN:

Q. Officer Thompson, are you still working as an undercover officer?

MS. BASS: Objection.

THE COURT: Sustained.

BY MR. BROWN:

Q. Officer, your performance is evaluated by your superiors--

MS. BASS: Objection.

THE COURT: Sustained.

MR. BROWN: Your Honor, may we approach the bench?

THE COURT: Yes, sir.

(Thereupon, the witness stepped down from the witness stand, counsel for both parties approached the bench and conferred with the Court, as follows:)

THE COURT: Yes Mr. Brown?

MR. BROWN: Your Honor, the area that I'm attempting to get into is this Officer's bias as an undercover officer to try to make as man arrests as he can. And what I'm trying to get into is that his performance as an officer, evaluation of his performance as an officer is based in, in part, on the number of arrests that result from his undercover buys. My good faith basis for that is testimony from a 5th District vice officer--undercover officer in another case who admitted, during testimony, that one of the bases for evaluation is whether arrests are made on the basis of their undercover operations.

MS. BASS: Your Honor, I'm going to withdraw my objection to the question of whether their evaluations are based on the number of arrests made.

MR. BROWN: As a factor.

THE COURT: Counsel, I want to be careful in avoiding this becoming a free for all. What about the Government's ability to go back into this area on redirect, Mr. Brown?

MR. BROWN: I expect Ms. Bass to ask the Officer at least whether or not his evaluation is based rely on the number of arrests he makes, his answer will be no. But I want to elicit that it is certainly a factor--elicit--as well as--as long as we are up here--that this is part of Operation Clean Sweep.

MS. BASS: Well, I object to that.

MR. BROWN: And one of the things the police try to do in terms of Operation Clean Sweep is make plenty of drug arrests.

THE COURT: Part of my function as a trial Judge is to avoid problems that I'm going to have to resolve later on these evidentiary issues. And I think, even in the absence of a Government objection, you are not going to be allowed to go into that, Mr. Brown, because I can see too many problems I'm going to have to resolve later, whether the objection is made by the Government, or by the Court, sua sponte.

MR. BROWN: Your Honor, what about the Operation Clean Sweep issue?

THE COURT: What about it?

MR. BROWN: What I would like to ask the Officer is whether this was part of Operation Clean Sweep. My good faith basis is that it written on the report--(sic)

THE COURT: What comes after that?

MR. BROWN: The question after that, what is Operation Clean Sweep, the Officer will define it. I will ask him whether or not one of the purposes of Operation Clean Sweep is to make a lot of drug arrests.

MS. BASS: I object to that as being irrelevant.

MR. BROWN: Your Honor, it goes directly to the bias of this Officer to think that this Officer's motive to try to make cases against as many people as he possibly can, to make weak cases into stronger cases.

THE COURT: Where do you go after that? Isn't the purpose of Operation Clean Sweep to ...


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