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. ...