Appeal from the Superior Court of the District of Columbia; Hon. John H. Suda, Trial Judge
Belson and Terry, Associate Judges, and Mack, Senior Judge.*
The opinion of the court was delivered by: Terry
Appellant was convicted of distribution of phencyclidine (PCP), *fn1 distribution of marijuana, *fn2 and possession of cocaine. *fn3 On appeal he contends that the trial court committed plain error in failing to give an immediate limiting instruction to the jury when the government allegedly impeached its own witness, and that a comment by the prosecutor in his closing argument amounted to misconduct requiring reversal. We reject both contentions and affirm the judgment of conviction.
The evidence showed that appellant sold a plastic bag of marijuana laced with PCP to a man named Bruce Smith. An undercover officer, Victor Graves, witnessed the sale from a secret observation post. He radioed descriptions of Smith and appellant to an arrest team, and in short order both were arrested. In appellant's possession were two plastic bags containing cocaine; in Smith's possession was the bag of PCP-laced marijuana. Both Smith and appellant were taken to the police station in the same scout car. No one else was in the car, according to the testimony of two of the arresting officers, except the officer who was driving. Smith eventually pleaded guilty to possession of marijuana and agreed to testify at appellant's trial.
During his direct testimony, Smith said he could not recall whether the person in the police car with him was the same person who had sold him the PCP-laced marijuana. The prosecutor then started to ask him about the proceedings at which he had entered his guilty plea. Defense counsel immediately objected. At the ensuing bench conference, the prosecutor said:
Your Honor, first, I want to refresh the witness' recollection. He said he doesn't recall. Then, if he still doesn't remember after that, then I may impeach my own witness, that's correct. I believe the Court can determine he's a hostile witness and I may do so. [Emphasis added.]
The Discussion then turned to other matters. *fn4 After the bench conference was over, the prosecutor resumed his questioning of Smith:
Sir, I'm going to hand you . . . a transcript of that [plea proceeding] to see if that refreshes your recollection as to what happened. I just want you to refer to pages 11, 12, 13, and 14. I'd like you to look at that and see if that refreshes your recollection.
Q. Now, after having read this transcript, do you recall now whether Mr. Jones that -- or that the person that was in the squad car with you was the same person that gave you the PCP and marijuana?
Q. Is that yes, it was the same person?
A. I said yes. If I can elaborate, ...