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02/07/92 GEORGE L. SAMUELS v. UNITED STATES

February 7, 1992

GEORGE L. SAMUELS, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Reggie B. Walton, Trial Judge)

Before Rogers, Chief Judge, Schwelb, Associate Judge, and Kern, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellant George Samuels appeals his conviction by a jury of assault with intent to commit robbery while armed, D.C. Code §§ 22-501, -3202 (1989 Repl.), and carrying a pistol without a license, D.C. Code § 33-3204 (1988 Repl.), on the grounds that the trial Judge abused his discretion by allowing the government, in an attempt to demonstrate bias, to cross-examine a defense witness on her receipt of PCP from, and use of PCP with, appellant after granting appellant's motions to sever the narcotics counts from the original indictment. We affirm.

I

Belinda Fowler testified that at 3:00 a.m. on November 3, 1987, she observed appellant and two females walking toward her on Wheeler Road. After she stopped at a telephone booth, appellant approached her and said, "Bitch, give me your coat." When she refused, appellant repeated his demand and opened his jacket to reveal the butt of a gun. Unmoved by this threat, Ms. Fowler said "you better go ahead," at which point appellant paused and then rejoined his female companions. Soon thereafter, Ms. Fowler stopped a police car and, after a brief search, the police arrested appellant and the two females.

Defense witness Michone Nathan testified that she and her sister had met appellant on the night of the alleged assault on Ms. Fowler. According to Ms. Nathan, she had previously been introduced to appellant by a former boyfriend but did not consider him a close friend. Furthermore, although she and her sister had walked with appellant past a telephone booth on Wheeler Road that night, Ms. Nathan claimed she did not see appellant stop or talk to anyone in the booth.

On cross-examination, the government asked Ms. Nathan what appellant first said to her the night of the alleged attack. When Ms. Nathan responded "loveboat," defense counsel objected. The trial Judge conducted a voir dire of Ms. Nathan's potential testimony and after hearing argument of counsel, ruled that the government could question Ms. Nathan to elicit testimony concerning her use of PCP with, and receipt of PCP from, appellant for the limited purpose of establishing her bias. *fn1 The trial Judge concluded that such testimony was more probative of bias than prejudicial because defense counsel had raised the issue of appellant's relationship with Ms. Nathan by eliciting testimony from Ms. Nathan that appellant was not a close friend. The Judge gave a limiting instruction to the jury.

II

Appellant contends that the trial Judge erred by allowing Ms. Nathan to testify concerning appellant's use and distribution of PCP because the testimony was inadmissible both as "other crimes" evidence and to show bias. Appellant's contention that Ms. Nathan's testimony constitutes inadmissible "other crimes" evidence, relying on Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964), and Jefferson v. United States, 463 A.2d 681 (D.C. 1983), is meritless. Sherer v. United States, 470 A.2d 732, 738 n.5 (D.C. 1983) (Drew inapplicable to evidence admitted strictly for impeachment purposes); see also Drew, supra, 118 U.S. App. D.C. at 16 n.10, 331 F.2d at 90 n.10 (recognizing circumstances in which "prior convictions may be utilized for purposes of impeachment"). *fn2 In Sherer, the court indicated that Drew "restricts the introduction . . . of an accused's prior crimes or bad acts" "as substantive evidence" and is, thus, "analytically distinct" from the rules governing admissibility of impeachment evidence. Sherer, supra, 470 A.2d at 738 n.5 (emphasis added). *fn3 Therefore, since Ms. Nathan's testimony concerning her use of PCP with, and receipt of PCP from, appellant was only admitted for the limited purpose of demonstrating bias, the fact that such testimony did not satisfy the Drew test is irrelevant.

Similarly, appellant's contention that Ms. Nathan's testimony was inadmissible to prove bias is meritless. The scope of cross-examination on the issue of a witness' bias is "a matter within the sound discretion of the trial court." See Adams v. United States, 379 A.2d 961, 965 (D.C. 1977). The court has stated that:

A party's right to undertake demonstration of the bias of his adversary's witness coexists on the same plane with the adversary's prerogative to use the witness. Such an effort may properly solicit over a wide range any information of potential value to the trier of fact in the assessment of credibility . . . .

Best v. United States, 328 A.2d 378, 381 (D.C. 1974) (quoting Wynn v. United States, 130 U.S. App. D.C. 60, 62, 397 F.2d 621, 623 (1967)).

As the trial Judge noted, by seeking to "establish a distance between [Ms. Nathan] and ," the defense sought to give the jury an impression that "[Ms. Nathan] would have no motive to . . . give testimony that would tend to help ." This, the trial Judge found, "opened the door" for the government to demonstrate her bias by cross-examining her on her receipt of PCP from, and use of PCP with, appellant. A jury could reasonably find that such testimony would indicate that Ms. Nathan could have a greater desire to protect a person with whom she used, and from whom she had received, narcotics, than a mere passing acquaintance. Contrary to appellant's assertions, the testimony was relevant, United States v. Abel, 469 U.S. 45, 50-51 (1984), and the trial Judge did not abuse his discretion by allowing the government to elicit such testimony ...


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