March 28, 1990
THOMAS E. HARRIS, APPELLANT,
UNITED STATES, APPELLEE
Appeal from the Superior Court of the District of Columbia; Hon. Donald S. Smith, Trial Judge
Rehearing and Rehearing En Banc Denied,
Before Rogers, Chief Judge, and Belson, Associate Judge and Mack, *fn1 Senior Judge.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge: Appellant Thomas E. Harris appeals from his conviction by a jury of distribution of phencyclidine (PCP) and marijuana and of possession with the intent to distribute PCP and marijuana. D.C. Code 33-541 (a)(1) (1981). He contends that he was denied a fair trial when the prosecutor improperly raised a missing witness inference on cross-examination and then used it in rebuttal closing argument to shift the burden of proof, and impermissibly bolstered in rebuttal argument the testimony of the police officers. Viewing the cumulative prejudice created by these errors in the absence of any curative action by the trial Judge, we reverse.
The charges against appellant involved an undercover sale of a $15 tinfoil packet of marijuana laced with PCP. Officer Byron Wallace testified that on August 21, 1984, around 1:30 p.m. while on undercover patrol in the 1800 block of 6th Street, an area known for high PCP sales, he purchased from appellant a tinfoil packet of a greenish weed that smelled of PCP which appellant took from a brown paper bag. Based on Wallace's description, Officers Mitchell and Washington arrested appellant. Mitchell found a brown paper bag with three other tinfoil packets of marijuana laced with PCP on the sidewalk in the area from which appellant had walked. Officer Wallace testified that, surprisingly, appellant was the only person on the street at the time of the drug sale, and that the serial number of the prerecorded $20 bill he used to make the buy matched the serial number of the bill recovered in the back seat of the police cruiser which transported appellant to the police station.
Appellant's defense was misidentification. He testified that, after visiting a friend at the Florida Grill on 11th Street, he began shooting dice with a friend named Raymond Jones and another person, whom he did not know, in an alley near 6th Street. According to appellant, there were other people on the street at the time, at least one of whom was selling drugs. After losing at the crap game, appellant walked to a store and when he returned, everyone including the man who was calling out that he had "love boat" for sale had gone, and Officer Wallace grabbed appellant, saying that he had a warrant for appellant's arrest. Wallace searched appellant, took six dollars and other personal effects from his pocket, handcuffed his hands behind his back and put him in the back seat of a police cruiser. On the way to the police station, the cruiser stopped at 13th and H Streets, and the police put another man in the back seat. According to appellant, when the police found a balled up $20 bill behind the seat of the cruiser and asked both men whose it was, neither man claimed it. Appellant denied knowing anything about the brown paper bag containing drugs, and pointed out that he had not run when Wallace approached him and that because he had been taken to the police cruiser upon being arrested, he did not know whether the police had recovered a bag near him. *fn2
On cross-examination. the prosecutor asked appellant. if he had tried to get his friend whom he was visiting to testify in court. Appellant said that he had tried, but neither that friend nor any of the men with whom he was gambling wanted "to get caught up in no cases whereas they might can get another charge for testifying or they don't want to be able to like--like no police to see them where they could can have to be like harassing them. Because police harass people." The prosecutor, claiming he did not understand, asked appellant if his friends would not testify because they had prior criminal records. Appellant responded that his friends would not testify and that he "just got caught up in something" and he had "to deal with it" because they would not testify for him. The prosecutor asked again if it was because his friends had criminal records. Appellant said he had no knowledge of that. The prosecutor then questioned appellant about the other men playing craps and returned to the question of whether he knew their addresses. Appellant said that he knew one man named Raymond Jones but did not know Jones' address. After asking several questions about appellant's acquaintance with the other man in the crap game, the prosecutor asked whether appellant had tried to get Jones to come to court to testify for him. Appellant again replied that they would not come to court for him. *fn3 On redirect, appellant testified that he had given his counsel the street names of potential witnesses but had been unable to obtain their addresses.
In his initial closing argument to the jury, the prosecutor reviewed the government's evidence and tried to explain the discrepancies between the officers' testimony about the time of the drug buy and the call for transport, stating twice that "the important evidence in this case is the testimony that you heard from the officers," and concluding that on that basis "there's no doubt whatsoever that is guilty of the four counts charged." The defense closing argument focused on the government's burden of proof, noting that there was no evidence of the $5 that would have been returned in the $15 drug buy and no documentary proof of the serial number of the prerecorded $20 bill. Defense counsel asked the jury to use its common sense in considering the likelihood of a drug seller trying to sell drugs in an area where no one else was around, the discrepancy between the officer's testimony about the time of the sale and the call for transport, and the improbability of appellant being able to reach into his pocket and remove a $20 bill with a paralyzed handcuffed arm while the police watched his movements from the front seat.
In rebuttal closing argument, the prosecutor told the jury that "what this case really boils down to is whether you believe the testimony of the police officers or not. It's whether you take their word against the word of ." After reviewing the police officers' testimony, the prosecutor told the jury that "to believe that is telling the truth and to find him not guilty you have to believe that the three police officers . . . who testified, are lying to you." He asked the jury to consider the improbability that the policemen, "all of whom have been on the force for many years, would risk their careers, their future, their retirement with the police department and lie, commit perjury on the stand to you about this case . . . ." For two typed pages of transcript the prosecutor pointed out why the police were telling the truth, noting that each corroborated the others' testimony. Then the prosecutor asked, "Was there any kind of corroboration for 's testimony. Is there anything to corroborate or support what he told you. There's not." In a final foray, the prosecutor told the jury again that the case "boils down to whether you believe what the police officers testified to or whether you don't."
Defense counsel raised no objections to the cross-examination or rebuttal arguments.
Appellant contends that he was denied a fair trial as a result of the prosecutor's comments which had the effect of improperly raising a missing witness argument, unfairly bolstering the weight to be given to police testimony, and shifting the burden of proof to appellant.
The prosecutor's cross-examination of appellant about the absence of Raymond Jones at trial constituted at least an "incomplete" missing argument by noting the absence of a witness even if the prosecutor's questions did not suggest a negative inference from their absence. Because of the particular hazards of using the missing witness argument, which "essentially creates evidence from non-evidence," Thomas v. United States, 447 A.2d 52, 58 (D.C. 1982), and poses the danger of appearing to shift the burden of proof, Price v. United States, 531 A.2d 984, 994 (D.C. 1987), this court has delineated a clear rule requiring a party who wishes to make such an argument to obtain the prior permission of the trial Judge.
Before a party may argue an adverse inference as to an absent witness, counsel must seek permission from the court, and the court must determine (1) that the witness in question is peculiarly available to the party against whom the inference is sought, and (2) that the witness' testimony would have elucidated the transaction at issue.
Lawson v. United States, 514 A.2d 787, 789 (D.C. 1986) (emphasis added) (citations omitted). The court has long warned the prosecutor and the trial court of the limited circumstances under which missing witness arguments are to be permitted, see, e.g., Conyers v. United States, 309 A.2d 309, 312-13 (D.C. 1973). See also Gass v. United States, 135 U.S. App. D.C. 11, 19-20, 416 F.2d 767, 775-76 (1969) (in future counsel should obtain advance court ruling before arguing to jury inference from absence of a witness); Young v. United States, 150 U.S. App. D.C. 98, 105, 463 F.2d 934, 941 (1972) (Gass established a "rule of practice"). Although the requirement that a party seek prior permission originally applied only to "complete" missing witness arguments, Logan v. United States, 489 A.2d 485, 490 (D.C. 1985), it is now, and was when appellant was tried, equally applicable to "incomplete" missing witness arguments. *fn4 Thus, a lawyer who proposes to make a missing witness argument, "even if it goes no further than to note the absence of the witness, should first obtain permission from the court to do so in order to avoid injecting prejudicial error into the trial." Arnold, supra note 4, 511 A.2d at 416 (citing Young, supra, 150 U.S. App. D.C. at 107 n.16; Conyers, supra, 309 A.2d at 313), quoted in Lawson, supra, 514 A.2d at 790. These cases leave no ambiguity about the requirement that parties must obtain prior permission from the trial Judge in all instances. It was, therefore, error, as the government conceded at oral argument, for the prosecutor to raise a missing witness inference without first obtaining the trial Judge's permission.
The error was compounded since the missing witness inference never should have been allowed in the case. See Lawson, supra, 514 A.2d at 793. This court has long placed an obligation on the trial Judge to disallow missing witness argument unless both preconditions are met--the witness is peculiarly available to one party and able to elucidate the transaction--and even then, the trial Judge must exercise discretion in determining whether to allow such argument. Id. at 789; Thomas, supra, 447 A.2d at 58; Simmons v. United States, 444 A.2d 962, 963-64 (D.C. 1982); Dyson v. United States, 418 A.2d 127, 131 (D.C. 1980); Cooper v. United States, 415 A.2d 528, 534 (D.C. 1980). In the instant case, the trial Judge should not have permitted the argument since neither pre-condition would have been met. The witnesses were not "peculiarly within" appellant's power to produce since appellant testified that he had asked Raymond Jones and his friend to come into court, and they had refused. Thomas, supra, 447 A.2d at 57-58. Nor would their testimony have "elucidated the transaction" since they were neither eyewitnesses to the drug transaction nor alibi witnesses, but would only have testified that they were with appellant before the alleged drug sale took place. Young, supra, 150 U.S. App. D.C. at 104; Dyson, supra, 418 A.2d at 131; Haynes v. United States, 318 A.2d 901, 903 (D.C. 1974).
In rebuttal closing argument the prosecutor's comments on appellant's failure to offer corroboration for his testimony completed the missing witness argument. By focusing on the lack of corroboration for appellant's defense, the prosecutor called attention to the differences between the testimony of the police officers and appellant and reminded the jury of witnesses whom appellant had not called to testify. By juxtaposing these arguments, the prosecutor implied to the jury that the missing witnesses' testimony would have been adverse to appellant. See Conyers, supra, 309 A.2d at 313. The effect of the rebuttal argument was to unfairly shift the burden of proof and jeopardize the fairness of appellant's trial because the comments went to the very essence of his defense at a point when he could not respond. Garris v. United States, 295 A.2d 510, 512 (D.C. 1972) (quoting Gaither v. United States, 134 U.S. App. D.C. 154, 172, 413 F.2d 1061, 1079 (1969)). *fn5
The prejudice to the fairness of the trial was exacerbated when the prosecutor, also in rebuttal argument, impermissibly bolstered the credibility of the police officers thereby suggesting that the jury should believe them, not appellant. While these comments about the police standing alone would not be determinative, United States v. Stevenson, 138 U.S. App. D.C. 10, 12, 424 F.2d 923, 925 (1970), viewed in the context of the entire closing argument, they lend weight to appellant's other claims of prejudicial error. See Young, supra, 150 U.S. App. D.C. at 104; [ Howard] Jones v. United States, 512 A.2d 253, 258 (D.C. 1986). The prosecutor's statements that the police officers had too much interest in protecting their jobs and retirement plans to risk lying were not grounded in evidence and therefore, were improper. Toliver v. United States, 468 A.2d 958, 961 (D.C. 1983). In addition, the prosecutor not only stated an erroneous syllogism--that to believe appellant the jury had to disbelieve the police officer--but he contrasted "career" officers with appellant who had nothing to lose by testifying. Even viewed, as the government maintains, as argument made in response to defense attacks on the police officers' credibility beyond challenges to the officers' ability to observe and recall, the defense argument gave no leeway to the prosecutor to argue that appellant had to corroborate his misidentification defense or non-evidence about police careers and retirement. *fn6
The question remains whether reversal of appellant's convictions is required since defense counsel failed to object at trial to the missing witness inference or the improper rebuttal argument. Watts v. United States, 362 A.2d 706, 709 (D.C. 1976). In Thomas, supra, the court made clear that "where the defendant's credibility is a key issue and the missing witness inference goes to that credibility, an improper argument or instruction will ordinarily require reversal." 447 A.2d at 59, quoted in Lawson, supra, 514 A.2d at 790. See Simmons, supra, 444 A.2d at 965; Coombs v. United States, 399 A.2d 1313, 1318 (D.C. 1979). The court has pointed out, moreover, that "repetition is an important factor in determining the gravity of such misconduct . . . ." Parks v. United States, 451 A.2d 591, 614 (D.C. 1982), cert. denied, 461 U.S. 945, 77 L. Ed. 2d 1303, 103 S. Ct. 2123 (1983); Dent v. United States, 404 A.2d 165, 172 (D.C. 1979). If, however, there is overwhelming evidence of a defendant's guilt or of a tactical choice by the defendant, then the alleged error does not effect a "miscarriage of Justice" requiring reversal of a conviction on appeal. See Allen v. United States, 495 A.2d 1145, 1152 (D.C. 1985).
Appellant's credibility was "all important to his defense." Haynes, supra, 318 A.2d at 903. See Thomas, supra, 447 A.2d at 60. His entire defense rested on the jury believing his testimony about his innocent behavior and his explanation of how the prerecorded $20 bill came to be found in the police cruiser. Some corroborative evidence was provided in the police transport log, which indicated that there was another run between the time appellant was picked up and his arrival at the police station. *fn7 Although three police officers testified for the government, only Officer Wallace was involved in the drug transaction. Wallace admitted that he never checked the alley where appellant claimed he had been playing craps. He also could not produce any documentation to confirm the serial number of the prerecorded $20 bill that he had used; he claimed that it had been stolen from his car. The officers' explanation of the transport log, in view of what was and was not stated in the report, was hardly compelling. Moreover, the transport log contained neither a log notation of recovery of $20 nor a notation of a vehicle check after appellant had been taken out of it. *fn8 The record is unclear about how close appellant was seen to the brown paper bag on the sidewalk, *fn9 and the discrepancies in appellant's testimony, noted by the prosecutor in his closing argument, were minor.
The government emphasizes that the testimony of the three officers corroborated each other, that the chain of custody of the cruiser was well established, and that the trial Judge instructed the jury that appellant was not required to produce any evidence and that the burden of proof never shifts. The jury is presumed to follow the instructions. See Hairston v. United States, 497 A.2d 1097, 1103 (D.C. 1985). These arguments, however, overlook the centrality of the credibility contest at issue and the fact that the jury was never instructed about how, if at all, it should view the so-called evidence that appellant did not call his friend or Jones as a witness or otherwise corroborate his misidentification defense. Long ago this court made clear that the trial court should not permit the prosecutor to make continued comments inviting the jury to speculate on the reason for the witnesses absence. Conyers, supra, 309 A.2d at 313. Here the prosecutor commented twice, once with respect to appellant's friend and again with respect to Jones. Further, having directed the jury's attention during cross-examination to the absence of individuals whose testimony could only have elucidated earlier events unrelated to the drug sale, the prosecutor proceeded to argue to the jury not only that appellant had failed to corroborate his misidentification defense, but that the testimony of the police officers was worthy of more belief because they put their careers and retirement on the line. *fn10 Appellant had no burden to produce any evidence, see United States v. Alston, 179 U.S. App. D.C. 129, 551 F.2d 315 (1976), and there was no evidence to support the comments about the policemen's careers and retirement. See Toliver, supra, 468 A.2d 958. Coming in rebuttal closing argument made the misconduct more prejudicial to a fair trial. See, e.g. Jones, supra, 512 A.2d at 257; Powell v. United States, 455 A.2d 405, 411 (D.C. 1982); see also Young, supra, 150 U.S. App. D.C. at 104 (proper argument by the prosecutor when combined with improper argument "may actually escalate the impact of the improper, just as some truth may bait the hook for the impact of a partial lie or libel").
The trial Judge did not indicate in any way to the jury that the cross-examination on the failure of appellant's friend and Jones to testify was improper, that the closing argument was improperly based on non-evidence, or that missing witnesses' testimony would have been of limited relevance to the issue of appellant's guilt. See Conyers, supra, 309 A.2d at 313; Young, supra, 150 U.S. App. D.C. at 104. The general instructions that the arguments of counsel are not evidence and that the government had to prove appellant's identification beyond a reasonable doubt were insufficient to cure the harm. See Logan, 489 A.2d at 488; Miller v. United States, 444 A.2d 13, 16 (D.C. 1982); Villacres v. United States, 357 A.2d 423, 428 (1976). Rather, portions of the Judge's instructions in combination with the prosecutor's argument had the effect of highlighting points that the prosecutor improperly made. *fn11
Accordingly, since the missing witness inference directly related to the issue of guilt, there were no curative instructions, and the evidence consisted primarily of the word of Wallace against that of appellant, and nothing in the record suggests that defense counsel's failure to object was a tactical decision, *fn12 we hold that the errors jeopardized the fairness of appellant's trial and reverse. *fn13
BELSON, Associate Judge, Dissenting: This court reviews claims of errors not objected to at trial only for "plain error." Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc). Where, as here, the errors alleged were not raised before the trial court, they will not be treated as "plain error," i.e., cause for reversal, unless they result in a "miscarriage of Justice." United States v. Frady, 456 U.S. 152, 163, 71 L. Ed. 2d 816, 102 S. Ct. 1584 n.14 (1982). Stated otherwise, to show plain error an appellant must establish that the errors complained of were "so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial." Watts, supra, 362 A.2d at 709 (emphasis added). Although the majority opinion repeatedly refers to the issue as simply whether appellant has received a fair trial (Majority at 2, 6, 9, 15), it does refer at one point to the miscarriage of Justice standard (Majority at 10). The opinion then proceeds to conclude that the errors that occurred in this case "jeopardized the fairness of appellant's trial." In my view, the substance of what happened at trial does not come close to constituting the miscarriage of Justice that the majority apparently perceives.
At the outset, I agree with the majority that the prosecutor injected error into this case. As detailed in the majority opinion, at trial the prosecutor developed through cross-examination of the defendant the facts regarding the absence of a witness who apparently was in a position to give testimony favorable to the defense but was not called by the defense. The government concedes that it was improper for the prosecutor to engage in such cross-examination without first seeking the permission of the court, citing Arnold v. United States, 511 A.2d 399[, 416] (D.C. 1986) (counsel must request permission of the court before making an incomplete missing witness argument) and Sherrod v. United States, 478 A.2d 644[, 654] ("In the absence of a prior ruling on missing witnesses by the trial court, it would be improper for the prosecutor to pursue questining which would suggest to the jury that their testimony would be adverse to appellant."). As I have stated, however, in reviewing for plain error this court's inquiry must focus not on the propriety of the government's actions but on the overall fairness and integrity of the trial. The consideration of the prejudicial effect, if any, that the prosecutor's failure to approach the bench had on appellant's case, is really one of impact on the jurors. Experience over the years has established that jurors possess much wisdom and common sense and that they make good use of their combined life experiences. In this case, even if the prosecutor had not raised the matter, it would not have been lost on the jury that those persons who had allegedly been playing dice with appellant would have known what he was doing just before his arrest, and yet had not come into the courtroom to testify on his behalf. The jurors would undoubtedly have noticed, without assistance from the prosecutor, that appellant was the only person to testify that he was engaged with others in entirely innocent activities shortly before his arrest.
In addition, as the matter developed in this case, the jury heard the appellant's explanation for their absence--that they did not want to be put in a position in which the police might try to bring charges against them or harass them--an explanation that the jurors might find understandable. I therefore question the majority's Conclusion that the interrogation and the argument about witnesses substantially worsened appellant's position in the eyes of the jury.
The majority attempts in three ways to bolster the thesis that there was plain error in this case. First, the majority contends that no missing witness argument or instruction would have been allowable under the circumstances even had the government requested prior leave of the court. Indeed, it must be doubted that the majority would reverse absent this Conclusion. In my opinion, however, the majority's reasons for concluding that neither of the two requirements for the use of a missing witness argument could be met in this case will not stand scrutiny.
The majority opinion states that witnesses Raymond Jones and his friends "were not 'peculiarly within' appellant's power to produce" since appellant asked them to come into court and they had refused. (Majority at 8.) But is a party's mere statement that a potential witness is unwilling to come in to testify sufficient to establish that the opposing party cannot meet the first prong of the test? The defendant had compulsory process available to him. The majority opinion cites Thomas v. United States, 447 A.2d 52, 57-58 (D.C. 1982), apparently for the proposition that a defendant's statement that a knowledgeable witness has refused to testify precludes any reference to that person as a missing witness, but I see no statement in Thomas that supports the majority's thesis. It could hardly be said that a party's testimony about a witness' unwillingness to testify forecloses the question of the peculiar availability of that witness to the party.
With equal facility, the majority Opinion disposes of the second requirement--that the witnesses in question could not elucidate the transaction. The majority asserts that the missing witnesses were neither eyewitnesses to the drug transaction nor alibi witnesses. Appellant, however, testified that shortly before his arrest he was playing dice with two others and that he saw another man selling drugs nearby. Surely a witness who could testify that he was playing dice with appellant shortly before his arrest and that appellant was not engaged in the sale of drugs at that time could shed light on whether the appellant was the person who did the things that Officer Walsh described. For these reasons, I cannot join in the majority's Conclusion that the prosecutor's error in failing to approach the bench to get permission to enter the area of missing witness interrogation "was compounded since the missing witness inference never should have been allowed in this case."
Second, the majority assigns, I think, undue gravity to the missing witness argument by mislabeling it as a complete missing witness argument. A complete missing witness argument has been made when counsel directly urges the jury to draw from the fact of the witness' absence an inference adverse to the defendant. In this case, the prosecutor never invited the jury directly to draw the inference that if the witnesses had appeared their testimony would have been adverse to the appellant. The majority acknowledges that, by way of completion of the missing witness argument, the prosecutor merely argued in closing that appellant's version of the occurrence lacked any corroboration. While it is true that an indirect invitation to the jury to draw the forbidden inference may complete the missing witness argument, Arnold, supra, 511 A.2d at 416, I think the majority opinion strains when it states that the prosecutor's mere reference to a failure to offer corroboration completed the missing witness argument. In an attenuated analysis, the majority opinion explains that by focusing on the lack of corroboration for appellant's defense, the prosecutor called attention to the differences between the police officers' testimony and appellant's. This supposedly reminded the jurors of the witnesses that appellant had not called. Those two thoughts, juxtaposed, are said to have amounted to an implication to the jury that the missing witnesses' testimony would have been adverse to appellant. This argument, I contend, falls of its own weight and leaves us with the fact that this is not a case where the jury was asked to draw from the fact of the witnesses' absence an inference adverse to appellant. Thus, this case involves an incomplete, rather than a complete, missing witness argument. See Lawson v. United States, 514 A.2d 787, 790 (D.C. 1986). This is important because where a missing witness argument is unauthorized, the complete argument brings home the unpermitted argument more immediately and forcefully than the oblique or subtle suggestions of the incomplete argument.
Third, the majority notes that the government attempted to enhance the credibility of its police officer witnesses by referring to their interest in not jeopardizing their jobs and retirement by perjuring themselves. The majority opinion acknowledges that these comments standing alone would not be determinative of the outcome of this case but views the argument as exacerbating the missing witness error. It is true, as the majority opinion states, that the prosecutor's statements that the police officers had a great interest in protecting their jobs and retirement plans and thus would not jeopardize these interests by perjuring themselves, found no support in the evidence produced at trial. Yet, it is difficult to agree that much, if any, prejudice could flow from such an observation, for it is fair to assume that the jurors would think it quite natural that by being caught in perjury, a police officer would be jeopardizing his livelihood and retirement.
Finally, in order to reach its determination concerning plain error, it was necessary for the majority to assess the impact upon the jury of the errors and to consider the strength of the government's case. For the reasons expressed above, I view the errors as far from grave. I also take issue with the way in which the majority downplays the strength of the government's case.
Despite some debate about fringe matters, the government's case was quite substantial. An experienced police officer made an undercover buy of marijuana laced with PCP from appellant. He then gave a description of appellant. Several other officers soon located and detained appellant who matched the description. One of the officers searched the area where appellant had been standing, "an elevated area higher than the sidewalk," and found a brown paper bag containing three additional packets of marijuana treated with PCP. Appellant was then taken to another location where he was identified by the undercover buy officer as the person who had sold him the illegal drugs. The undercover officer paid for the buy with a twenty dollar bill, the serial number of which had been recorded by his partner. The serial number of a twenty dollar bill that was recovered from the back seat of the police cruiser in which appellant and a man picked up at another location were later transported matched that used in the undercover buy from appellant.
The foregoing facts alone make this fundamentally a very strong case. In addition, however, it is unlikely that there is a sufficient, innocent explanation, consistent with appellant's version of the events, for the presence of a bag containing additional drugs near him. Appellant was the only person in the vicinity of the place of his arrest. Indeed, he was the only person visible in the block at that time. It is most unlikely that some other drug dealer previously had abandoned his valuable stash and appellant simply happened to be standing nearby.
The majority opinion also, in my view, overemphasizes certain deficiencies in the police record concerning the marked police money which was recovered from the police cruiser after appellant emerged. The majority's focus on these imperfections would be more persuasive if this court were considering whether the errors in this case were harmless. But we are not. The question is whether the prosecutor's failure to approach the bench before engaging in missing witness questioning along with the lesser matters raised by the majority brought about "a miscarriage of Justice." To say that they do gives a new and significantly broadened meaning to that term.
Government counsel must be aware that whenever the prosecution fails to follow this court's admonition that it should get the approval of the trial court before it engages in missing witness interrogation, the prosecution may inject error into the case, prejudice the accused, and jeopardize any conviction that may result from the trial. Reversal, however, should not result when there is no objection at trial unless the error was so grievous and prejudicial to substantial rights as to bring about a miscarriage of Justice. For the reasons I have given above, that did not happen here. I Dissent. *fn1