Appeal from the Superior Court of the District of Columbia; Hon. Robert M. Scott, Trial Judge
Terry and Steadman, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Terry
Appellant McGrier was charged with kidnapping, *fn1 threats to injure another person, *fn2 second-degree burglary, *fn3 and assault with intent to commit rape while armed. *fn4 At the close of the government's case, the trial court granted McGrier's motion for judgment of acquittal on the burglary charge, and at the end of the trial the jury found him guilty of kidnapping, threats, and simple assault. *fn5 McGrier brings this appeal, claiming numerous improprieties by the prosecutor. We affirm.
A. The government's case in chief
In December 1987 Monica Fenner, a fifteen-year-old high school student, held an after-school job at the Payne Recreation Center ("the Center"). She testified that she first met McGrier while she was working at the Center on December 16. He asked her for her telephone number, which she gave to him. He called her at home later that evening and asked if he could be her boy friend. Fenner declined the invitation, telling him that she already had a boy friend, and then ended the conversation when McGrier threatened her.
Two days later, on December 18, Fenner was getting ready to leave the Center at the end of the day with her friend and co-worker, Nina Stevenson, when McGrier, who had been playing basketball inside the Center, approached the two of them and asked where they were going. Fenner replied that she was going home. She and Stevenson left the building, but McGrier and another young man followed them out of the Center and into the street, where McGrier called out to Fenner to come and talk to him. Fenner told him that she had to go home, but McGrier began to complain about their phone conversation. Stevenson urged Fenner to "come on," but McGrier threatened to "slam [Fenner's] face against the railing" if she tried to leave. When McGrier was briefly distracted, the two girls tried to flee, but McGrier ordered Fenner to stop. He then told Stevenson to leave, threatening to push her through a plate glass window if she stayed. Fenner told Stevenson to go and tell Frank Crawford, their supervisor at the Center, what was happening.
Stevenson went home and called Mr. Crawford to tell him about Fenner's plight. Crawford said that McGrier was "just playing" with Fenner, but when Stevenson said he would not let Fenner go home, Crawford agreed to "go out there and look." The conversation ended at that point. Crawford did not call the police. *fn6
McGrier took the weeping and frightened Fenner to an apartment on D Street, S.E., a few blocks away. Fenner testified that she went with him because she was afraid and because he had threatened to kill her if she tried to run. After they were inside, McGrier locked the door and then, after complaining that "girls neglected him," ordered Fenner to "make love to me." Fenner refused, claiming that she was a virgin. McGrier then became angry and picked up a steak knife from under a table. He threatened to stab Fenner and throw her body in the alley, but then he put the knife down and began to choke her until she grew dizzy. McGrier then told Fenner that he was going to the bathroom and that she should "have pants off" by the time he returned. McGrier left the room as Fenner began to unfasten her clothing.
As soon as McGrier was out of sight, however, Fenner unlocked the door and fled. She ran to a neighboring house and hid under the porch. The occupants of the house found her there and took her inside, where she described what had happened to her. *fn7 Eventually they took her home, and her parents called the police.
McGrier's defense was that Fenner voluntarily accompanied him back to the apartment on D Street. His assertion was that the two of them had been involved in an on-going relationship and on December 18 had gotten into an argument over McGrier's alleged involvement with another woman.
McGrier testified, contrary to what Fenner had said, that he first met Fenner about a week after Thanksgiving. *fn8 A few days after they met, he said, Fenner agreed to be his girl friend. Thereafter the two of them would meet three to five times a week, either during lunch, at a bus stop after school, or at the Center. McGrier said that Fenner frequently pressured him to spend time with her.
On December 18, McGrier testified, he met Fenner at lunchtime outside Eastern High School and reluctantly agreed to see her again later that afternoon at the Center. His reluctance, he said, was due to his desire to avoid Fenner's complaints about his relationship with another woman.
When they met at the Center that afternoon, Fenner chastised him about the fact that he had been seen with another woman. McGrier testified that Stevenson was with them initially, but then became angry that Fenner would not go with her and went away. McGrier and Fenner then went to the apartment on D Street. When they got there, he began to watch television, but Fenner started an argument with him. When he ignored her, she left. McGrier denied having a knife and denied trying to force Fenner to have sex with him.
Frank Crawford testified on McGrier's behalf. He said that he had seen McGrier and Fenner together at the Center some time before December 18 "playing like two young people would play." On direct examination he stated that he saw this on several occasions, "a week or two" before December 18. He expanded his testimony on cross-examination, recalling that he had seen McGrier and Fenner together "almost every day," more than thirty times during the two months prior to December 18. Crawford later testified, somewhat inconsistently, that McGrier had been absent from the Center for a period of ten to twenty days in late November or early December.
C. The government's rebuttal
The government began its rebuttal case with a stipulation that McGrier was "not at or near the Payne Recreation Center or Eastern High School" from November 25 through December 13, 1987. *fn9 The effect of this stipulation was to rebut McGrier's testimony that he had been seeing Fenner regularly during that period, and also to rebut Crawford's testimony that he had seen McGrier and Fenner together more than thirty times prior to December 18. The government also presented three other witnesses from the Payne Center who testified that they had seen McGrier and Fenner together on only one or two occasions, as well as evidence that Fenner began work at the Center on November 23 -- only two days before McGrier's absence from the area.
II. A WORD ON NOMENCLATURE
McGrier seeks reversal of his conviction on the ground that the prosecutor engaged in several instances of "misconduct" in his argument to the jury. The government responds with the argument that "the very serious charge of 'prosecutorial misconduct' is ordinarily wholly inappropriate in the context of a criminal appeal," and urges us to adopt some other term to describe harmful remarks by a prosecutor. For two reasons, we think the government's point is well taken.
First, the real issue in cases such as this is not whether the prosecutor engaged in some kind of misconduct but whether the trial Judge should have intervened if and when the prosecutor went beyond the limits of permissible argument. As we pointed out in Irick v. United States, 565 A.2d 26 (D.C. 1989):
It is our function to review the record for legal error or abuse of discretion by the trial Judge, not by counsel. . . . Absent some improper ruling or omission by the trial Judge, we cannot ordinarily reverse a conviction, and our ultimate focus must therefore be on what the Judge did or failed to do.
Id. at 33 (citations and footnote omitted). The term "misconduct" implies that the prosecutor acted with an improper motive, but from our standpoint the prosecutor's motive is essentially irrelevant. What matters instead is the effect of the disputed comment on the verdict. *fn10 Who a claim is made on appeal that a prosecutor said something during a trial that harmed the defense, the threshold issue for us is whether the challenged remark was improper. If we decide that it was, we then must determine whether that remark had any adverse effect on the outcome of the trial. Nowhere in our analysis do we consider the prosecutor's motive in saying what he or she said. Indeed, the record in all but the rarest of cases will be insufficient for us to discern what the prosecutor's motive may have been, and we obviously cannot read the prosecutor's mind.
Second, the term "misconduct" has adverse ethical implications which, in the great majority of cases, are surely unwarranted. An accusation of misconduct against a member of the bar is, as the government reminds us, a "very serious charge." It should not be made without a very solid factual foundation, especially when the accuser is also a member of the bar. In recent years it has been applied all too freely, and without serious reflection, to statements made by attorneys -- prosecutors and defenders alike -- in the heat of a trial, when semantic and stylistic precision are not uppermost in their minds. See Donnelly v. DeChristoforo, 416 U.S. 637, 646-647 (1974). We do not mean to suggest that there are never cases in which an act or omission by an attorney could be called misconduct; that term would almost certainly apply, for example, to the withholding of exculpatory evidence in a criminal case. See Irick v. United States, supra, 565 A.2d at 33 n.16. In general, however, we think that the word "misconduct" is overused, and that some less sinister name should be given to the rhetorical excesses of attorneys who say what they should not say when engaged in forensic combat.
That said, we turn to the assertedly improper remarks by the prosecutor in this case.
III. MCGRIER'S CLAIMS OF ERROR
Our task is well defined by the case law. First, we must determine whether any or all of the challenged comments by the prosecutor were improper. Dixon v. United States, 565 A.2d 72, 75 (D.C. 1989); Irick v. United States, supra, 565 A.2d at 32; Hammill v. United States, 498 A.2d 551, 554 (D.C. 1985). If we conclude that they were, we must then, viewing the remarks in context, "consider the gravity of the , its relationship to the issue of guilt, the effect of any corrective action by the trial Judge, and the strength of the government's case." Dixon, supra, 565 A.2d at 75 (citation omitted).
If we find that a particular comment was improper, and if the issue of impropriety was properly preserved for appellate review, we will nevertheless affirm the conviction unless the defendant suffered "substantial prejudice" as a result. Williams v. United States, 483 A.2d 292, 297 (D.C. 1984), cert. denied, 474 U.S. 906 (1985). The test for determining "substantial prejudice" is well settled:
whether we can say, "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." The decisive factors are the closeness of the case, the centrality of the issue affected ...