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January 15, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Donald S. Smith, Trial Judge)

En Banc. Before Rogers, Chief Judge, Ferren, Terry, Steadman, Schwelb, and Wagner, Associate Judges, and Newman,* Mack, and Belson,** Senior Judges.

The opinion of the court was delivered by: Belson

On Rehearing En Banc

Opinion for the majority by Senior Judge BELSON.

Opinion Concurring in part and Dissenting in part by Associate Judge WAGNER.

Dissenting opinion by Chief Judge ROGERS, with whom SENIOR JUDGE MACK concurs.

BELSON, Senior Judge: A jury convicted appellant Thomas E. Harris of distribution of phencyclidine (PCP) and marijuana and of possession with intent to distribute PCP and marijuana in violation of D.C. Code § 33-541 (a)(1) (1988). On appeal Harris contends that prosecutorial "misconduct," primarily in questioning Harris and arguing to the jury regarding "missing witnesses" without first seeking the permission of the trial court, denied Harris a fair trial and substantially prejudiced the jury. At trial Harris did not object to the prosecutor's conduct. We hold that Harris has failed to demonstrate plain error, and therefore affirm.


Our application of the plain error rule will require an evaluation of the strength of the government's case. Therefore, we recite the salient facts in some detail. The government's evidence showed that on August 21, 1984, Officer Byron Wallace, working in plain clothes, was assigned to attempt to purchase illegal drugs. At approximately 1:30 p.m., Wallace drove down the 1800 block of 6th Street, N.W., Washington, D.C., in his personal vehicle. He saw Harris standing on the east side of the street. At that time, Harris was the only person visible in that particular block of 6th Street. Wallace asked him if he had any "loveboat," a street term for PCP. Harris indicated that he did and told Wallace that it would cost $15.00. After Wallace agreed to the purchase price, Harris removed a tin foil packet from a brown paper bag and gave the packet to Wallace. Wallace checked the contents of the packet and discovered that it contained a brownish weed with a strong chemical odor of PCP. Wallace gave Harris a twenty dollar bill drawn from Metropolitan Police Department funds that had been prerecorded by Officer Dwight Mitchell, Wallace's partner. *fn1 Harris then handed Wallace five dollars in change. Wallace drove away from the area and met Officer Mitchell in the 600 block of O Street, N.W. Wallace described Harris to Officer Mitchell as 5'9" to 5'10" tall, approximately 160-170 pounds, wearing green pants, a white pinstriped shirt, and a golf hat.

Officer Mitchell then called for assistance. In addition to Officers Washington and Davis in a uniformed patrol unit, Officer Sovonick and Sergeant Marshall from the vice unit assisted Officer Mitchell. The officers saw Harris in the 1800 block of 6th Street, N.W., and detained him because he matched the lookout description. Officer Mitchell searched where Harris had been standing, "an elevated area higher than the sidewalk," and found a brown paper bag containing three tinfoil packets of PCP.

Officer Washington placed Harris in the prisoner transport cruiser and drove him to 6th and O Streets, N.W., where Wallace positively identified him as the person who had sold him the PCP. Two officers then transported Harris to the First District. After Harris got out of the car, Officer Washington searched it and found a folded twenty dollar bill in the back of the transport cruiser where Harris had been seated. Officer Washington testified that according to police department procedures, the transport vehicle must be searched at the beginning of each tour and immediately after a prisoner has been transported to a station. According to Officer Washington, Harris was the only person who had been transported in that vehicle that day. Officer Mitchell compared serial numbers of the twenty dollar bill he had given Wallace to purchase drugs and the twenty dollar bill found in the transport cruiser. The serial numbers matched. The government adduced evidence that the substance recovered included usable amounts of marijuana and PCP.

Harris presented the defense of mistaken identity. Harris denied that he had lived at the address written on the arrest report and that he had given the false name, James Harris, to Wallace. *fn2 Harris further testified that on August 21, 1984, between noon and 12:30 p.m., he was in the 1800 block of 6th Street, N.W., playing dice for money with other men in an alley and heard two persons on the street selling drugs. After losing forty-five of the fifty-one dollars he had, he went to a nearby store to get something to drink or change for the telephone. Upon returning from the store, Harris stated, he noticed that everyone who previously had been on the block was gone, except for one person, and that an officer then approached and arrested him.

Harris asserted that the officer then searched him, took six dollars from him, and placed him in the back of a police cruiser. He was driven to M Street, taken out of and placed back in the vehicle, and then driven to 13th and H Streets where a white male was also placed in the back seat of the vehicle. Harris stated that next he and the other man were driven to the First District, handcuffed at all times.

During cross-examination, Harris denied selling drugs to Wallace. *fn3 He stated that he arrived at the scene of his later arrest around 12 noon or 12:30. When asked how he had gotten there, he responded that he had walked from 11th & Florida Avenue, volunteering that he had been at the Florida Avenue Grill visiting a friend. He also answered that he had left that place around 11:30 or 11:45. After Harris stated that he still knew that the friend in question, the prosecutor asked Harris, "Did you try to see if you could get that friend to come in here and testify?" Harris answered:

Yes, I did but they don't want to be -- like, okay, I even seen one of the guys that I was gambling with but they don't want 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 the police harass people.

They wouldn't testify. I'm saying I just got caught up in something, you know, and I got to deal with it. They won't testify for me.

The prosecutor then asked Harris to name the persons with whom he had been playing dice. In the ensuing colloquy, Harris acknowledged knowing one of those playing dice as Raymond Jones and stated that he had asked him to testify at trial but that the witness said he would not come. *fn4 Defense counsel did not object to this line of questioning.

Wallace testified on rebuttal stating that at the time he purchased drugs from Harris no one else was in the area selling drugs and he did not see anyone playing dice. Officer Mitchell corroborated Wallace's testimony by stating that no one else was in the area. Officer Mitchell further stated that he did not remember removing any money from Harris' possession at the time he was arrested. Similarly, Officer Washington testified that although Harris was frisked for weapons before he was placed in the transport cruiser, no money was taken from him. He also demonstrated how Harris, with his hands cuffed behind his back, could have placed his hands in his pockets. In surrebuttal testimony, Harris demonstrated how the use of his left hand had been limited by a gunshot wound.


Harris contends that the prosecutor committed "misconduct" by failing to secure permission from the trial court before making what amounted to a missing witness argument by his cross-examination of Harris. *fn5 In this way, Harris contends, the prosecutor jeopardized the fairness and integrity of the trial and substantially prejudiced the jury, requiring reversal.

We will identify first the standard by which we will measure any such impropriety by the prosecutor in this case, next evaluate the claim that the prosecutor actually committed any impropriety in his cross-examination of Harris, and finally measure any demonstrated impropriety against that standard. When reviewing allegations that a prosecutor conducted an examination or argument improperly, we determine first whether the prosecutor's statements or actions actually were improper. Gray v. United States, 589 A.2d 912, 916 (D.C. 1991); Hammill v. United States, 498 A.2d 551, 554 (D.C. 1985). Normally, where we find that an impropriety has occurred and that the defendant has made appropriate objection, we then determine 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." (Phillip) Dyson v. United States, 418 A.2d 127, 132 (D.C. 1980) (quoting Gaither v. United States, 134 App. D.C. 154, 172, 413 F.2d 1061, 1079 (1969) (footnote omitted) (quoting in turn Kotteakos v. United States, 328 U.S. 750, 765, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946))). This is done based on "the gravity of the misconduct, 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." Gray, supra, 589 A.2d at 916 (quoting Dixon v. United States, 565 A.2d 72, 75 (D.C. 1989)); accord, Mitchell v. United States, 569 A.2d 177, 183 n.5 (D.C.), cert. denied, 112 L. Ed. 2d 532, 111 S. Ct. 521 (1990); Sherrod v. United States, 478 A.2d 644, 655 (D.C. 1984).

The government contends here, however, and we agree, that because Harris made no objection at trial concerning the errors he asserts on appeal, the appropriate standard to apply here is the more demanding plain error doctrine. Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc); accord, Jones v. United States, 512 A.2d 253, 258 (D.C. 1986) Mitchell, supra, 569 A.2d at 183 n.5; see also Super. Ct. Crim. R. 52 (b).

It is well settled that reversal under the plain error doctrine is justified only in exceptional circumstances where "a miscarriage of Justice would otherwise result." United States v. Frady, 456 U.S. 152, 163, 71 L. Ed. 2d 816, 102 S. Ct. 1584 n.14 (1982). Stated otherwise, "errors complained of must be so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial." Watts, supra, 362 A.2d at 709; accord, Allen v. United States, 495 A.2d 1145, 1152 (D.C. 1985) (en banc); (Frank) Arnold v. United States, 467 A.2d 136, 137-38 (D.C. 1983). "An error, of course, must be more than obvious or readily apparent in order to trigger appellate review" under the plain error standard. United States v. (Billy) Young, 470 U.S. 1, 17, 84 L. Ed. 2d 1, 105 S. Ct. 1038 n.14 (1985). *fn6 As we recently stated, "the Supreme Court has cautioned that reversal for plain error in cases of alleged prosecutorial misconduct should be confined to 'particularly egregious' situations." Doe v. United States, 583 A.2d 670, 676 (D.C. 1990) (citations omitted).

This court, when addressing allegations of plain error, must review the entire record because "it is simply not possible for an appellate court to assess the seriousness of the claimed error by any other means." (Billy) Young, supra, 470 U.S. at 16.

In reviewing criminal cases, it is particularly important for appellate courts to relive the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure. To turn a criminal trial into a quest for error no more promotes the ends of Justice than to acquiesce in low standards of criminal prosecution.

Id. (quoting Johnson v. United States, 318 U.S. 189, 202, 87 L. Ed. 704, 63 S. Ct. 549 (1943) (Frankfurter, J., Concurring)).

Relaxation of the "exacting definition of plain error," (Billy) Young, supra, 470 U.S. at 15, should be avoided; to do otherwise "would skew the . . . 'careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious inJustice be promptly redressed.'" Id. (quoting Frady, supra, 456 U.S. at 163 (footnote omitted)).

Our ultimate focus in this case, therefore, is on whether the asserted errors jeopardized the very fairness and integrity of the trial and contributed to a miscarriage of Justice rather than simply on the propriety of the prosecutor's actions. See Black v. United States, 506 A.2d 1130, 1131 (D.C. 1986).


We turn to a Discussion of the missing witness rule. It has been recognized for almost a century that "if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable." Graves v. United States, 150 U.S. 118, 121, 37 L. Ed. 1021, 14 S. Ct. 40 (1893). This court has clarified the circumstances in which the missing witness argument may be permitted and has established the procedure to be followed by counsel who wish to make the argument. We have emphasized that the trial court must first determine both "that the witness in question is peculiarly available to the party against whom the inference is sought, and . . . that the witness' testimony would have elucidated the transaction at issue." Lemon v. United States, 564 A.2d 1368, 1375 (D.C. 1989) (quoting Lawson v. United States, 514 A.2d 787, 789 (D.C. 1986)); see also German v. United States, 525 A.2d 596, 611 (D.C.), cert. denied, 484 U.S. 944, 98 L. Ed. 2d 358, 108 S. Ct. 331 (1987); Thomas v. United States, 447 A.2d 52, 57 (D.C. 1982); Conyers v. United States, 309 A.2d 309, 312-13 (D.C. 1973); United States v. (James) Young, 150 App. D.C. 98, 103-05, 463 F.2d 934, 939-41 (1972).

The first requirement, peculiar availability, is satisfied if "the party had the physical ability to locate and produce the witness and there was such a relationship, in legal status or on the facts as claimed by the party as to make it natural to expect the party to have called the witness." Thomas, (supra) , 447 A.2d at 57 (quoting (James) Young, supra, 150 U.S. App. D.C. at 107, 463 F.2d at 943); accord Lawson, supra, 514 A.2d at 791. Two aspects of peculiar availability must be met. First, a witness must be physically available, i.e., capable of being brought to court. If not, "no factual Conclusion can be drawn from the failure to produce him. In general, a witness is not physically available unless he can be located . . . and is within the subpoena power of the court." Thomas, supra, 447 A.2d at 57 (citations omitted). Second, practical availability is required. The party's ability or reasons for producing the witness "must be stronger than those of the party seeking an inference in his favor." Id. at 58.

To meet the second requirement, it must be demonstrated that the absent witness' testimony would elucidate the transaction. This is determined by inquiring whether the testimony is "relevant and material to a disputed issue in the case[,] . . . noncumulative, and an 'important part' of the case of the party against whom the inference is drawn." Id. at 57 (citations omitted).

Both requirements must be met before counsel may be permitted to make even a partial or incomplete missing witness argument. Lemon, supra, 564 A.2d at 1375. Counsel makes a partial or incomplete missing witness argument when counsel notes the absence of a witness but falls to take the additional step of asking the jury to infer that the witness' testimony would have been adverse to the other party. If counsel takes that step, the argument becomes a complete missing witness argument. Id.; Lawson, supra, 514 A.2d at 789-90; (James) Arnold v. United States, 511 A.2d 399, 415-16 (D.C. 1986). Unless the party seeking to use a missing witness argument can meet both requirements, the trial court must preclude counsel from making either type of missing witness argument, and the trial court itself must not give a missing witness instruction. See Dent v. United States, 404 A.2d 165, 169-70 (D.C. 1979).

It has long been clear in this jurisdiction that before making a missing witness argument, counsel must obtain advance consent from the trial court. See Chappell v. United States, 519 A.2d 1257, 1259 (D.C. 1987); accord (James) Arnold, supra, 511 A.2d at 415; 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). "When counsel, either for the prosecution or the defense, intends to argue to the jury for an inference to be derived from the absence of a witness, an advance ruling from the trial court should be sought and obtained." Gass v. United States, 135 App. D.C. 11, 19, 416 F.2d 767, 775 (1969) (footnote omitted). "To avoid injecting prejudicial error into the trial," advance permission from the trial court is needed even before counsel makes an incomplete missing witness argument. (James) Arnold, supra, 511 A.2d at 416. By so doing, the trial court can "ensure that the foundational issues are addressed before possibly improper inferences are suggested to the jury." Id. (emphasis in original) (quoting Thomas, supra, 447 A.2d at 58).

We note that in closing argument the prosecutor made no mention of any of the potential defense witnesses discussed here, i.e., the persons Harris said were playing dice with him before his arrest or the friend Harris had seen at the Florida Avenue Grill. This court has recognized, however, that the impact of some techniques of cross-examination can be substantially the same as an incomplete missing witness argument. See Chappell v. United States, 519 A.2d 1257, 1259 (D.C. 1987); Sherrod v. United States, 478 A.2d 644, 654 (D.C. 1984). Thus, Judge Nebeker wrote for the court in Price v. United States:

The [prosecutor's] questions suggested that the jury draw an adverse inference from the fact that the witnesses had not testified. The resulting adverse inference may have been that the absent witnesses' testimony would have been unfavorable to Price. In this way, the cross-examination of Price operated in much the same manner as an incomplete missing witness argument. We conclude that the government's inquiry should not have taken place without the trial court first determining that the same preconditions necessary for an incomplete missing witness argument were also present here.

531 A.2d 984, 993-94 (D.C. 1987); accord, Lemon, supra, 564 A.2d at 1375. *fn7

We have recognized that it is permissible for counsel to cross-examine with a view toward establishing that a purported witness does not exist and that this is different from a missing witness implication. See generally Alston v. United States, 552 A.2d 526, 528 (D.C. 1989). Because, however, counsel may explore whether, in fact, a witness actually exists in such a fashion as to suggest a missing witness inference, advance permission from the trial court should be sought. The trial court, when exercising its discretion whether to permit such questioning, should give consideration to our holdings that it is permissible for counsel to attempt to establish by cross-examination the non-existence of a purported witness.

Finally, we reiterate that the trial court has the discretion, even if the requirements of both peculiar availability and elucidation are met, to deny a request for a missing witness argument ...

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