Appeal from the Superior Court of the District of Columbia; (Hon. Robert M. Scott, Trial Judge)
Before Terry, Schwelb, and Farrell, Associate Judges.
The opinion of the court was delivered by: Terry
Opinion for the court by Associate Judge TERRY.
Concurring statement by Associate Judge SCHWELB at p. 9.
TERRY, Associate Judge: On appeal from his conviction of robbery, *fn1 appellant contends that the trial court abused its discretion by refusing to grant a mistrial when, after allowing the government to reopen its case to elicit testimony from a previously unknown witness, the court discovered that the government's representations about the availability of that witness were untrue. We find no abuse of discretion and accordingly affirm the conviction.
John Lusby, a United Parcel Service (UPS) delivery driver, was robbed while attempting to make a delivery. On the morning of July 31, 1989, Lusby went to an apartment at 2525 Sayles Place, S.E., with a package for someone at that address. *fn2 After finding no one at home, Lusby left a delivery notice and returned to his truck with the package.
Just as Lusby reached his truck, appellant Rambert approached and grabbed at the package, demanding that Lusby turn it over. When Lusby refused, Rambert tried to snatch it out of his hands. After a protracted struggle, Rambert finally seized the package and ran into 2523 Sayles Place, the building next door to Lusby's original destination. knowing that the building had a back door through which the robber would probably escape, Lusby decided that pursuit would be fruitless; accordingly, he called the police.
Leo Brown, an off-duty Metropolitan Police officer who lived nearby, saw Rambert running down the steps from the rear exit of 2523 Sayles Place with a package tucked under his arm "like he was fleeing the scene of a crime." Brown, a twenty-year resident of the neighborhood, recognized Rambert as someone who lived in the area. He went outside and spoke with Mr. Lusby and two police officers who had come in response to Lusby's call. Since their search of the neighborhood had yielded no results, Brown agreed to continue making inquiries in the area in an effort to find out the name of the robber.
A few weeks later, in early September, Officer Brown ascertained Rambert's identity through neighborhood sources. Brown was then shown an array of photographs and positively identified Rambert as the man he had seen running with the package under his arm. Lusby later identified Rambert as the robber from a photograph of a lineup, and both men positively identified him at trial.
The case went to trial on Tuesday, May 29, 1990, the day after Memorial Day. The government completed its presentation in one day, and after it rested, the court adjourned the proceedings until the next morning. However, on Wednesday morning, May 30, the prosecutor moved to reopen the government's case to present testimony from Ronnell Mason, an eyewitness to the crime whom the prosecutor had first heard about on the morning of May 29, just before the trial began. Recounting what Brown had told him, the prosecutor said that Officer Brown had first learned of Mason's existence over the Memorial Day weekend (May 26-28), but that Brown did not tell him about Mason until just before the beginning of the trial on May 29. Since these events had all taken place immediately before trial, *fn3 the prosecutor "had no idea that we were going to be able to get him , and he came this morning for the first time at 10:45." *fn4 Having made these representations, the prosecutor asked the court for permission to reopen his case. The court granted the request over the objection of defense counsel, but said that it would consider granting the defense a continuance if Mason's testimony "would impact upon your defense . . . ."
Mason then testified to substantially the same scenario recounted by Lusby. He said that he looked out his second-floor window and saw "a dude and a UPS man struggling on a truck," which was parked in front of his house. When the struggle ended, the "dude" ran through the building at 2523 Sayles Place carrying a package. On cross-examination, however, Mason stated that he had spoken to Officer Brown about the robbery on the day that it happened; in fact, Mason had gone to Brown's apartment building to talk to him about it. Brown was outside in front of the building, and Mason told him that the man he had seen running "just robbed a UPS truck." Mason testified that he and Brown were "not close, but we're friends," and that Brown knew his name and knew where he lived. Mason identified Rambert in court as the man he had seen struggling with the UPS delivery man.
Because Mason's testimony directly conflicted with the representations that Brown had made to the prosecutor, defense counsel moved for a mistrial "based on the fact that the police had plenty of time to get this witness. They knew his name, and they knew where he was, and the representation put to us does not comport with the testimony that we have just heard." The trial court noted that the only reason it had allowed the government to reopen its case was that the prosecutor represented that Brown had first learned of Mason's existence just before trial. After noting that "somebody isn't telling the truth, either or Brown," the court excused the jury and recalled Officer Brown to the stand ("I want Brown in here right now") to testify about his knowledge of Mason.
During the ensuing voir dire examination, Brown admitted that he had never mentioned Mason to the prosecutor before May 29, and that when he first told the prosecutor about Mason, he had not even mentioned his name, nor had he ever "suggested or intimated to [the prosecutor] that there had been any other witness to the robbery" other than himself. He said that he had become aware of Mason's knowledge of the robbery "maybe two months or something ago," but that he "never really got into the conversation with him" until "last Friday," May 25, when he "really sat and talked to him, and that's when I really found out [what he knew about the robbery]." Brown did not recall having had a ...