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February 28, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Frederick H. Weisberg, Trial Judge)

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

IN Agreement opinion by Chief Judge Rogers, whom Associate Judges Ferren and Terry join, at p. 22.

IN Agreement opinion by Associate Judge Terry at p. 43.

The opinion of the court was delivered by: Schwelb


Opinion for the court by Associate Judge SCHWELB.

Concurring opinion by Chief Judge ROGERS, whom Associate Judges FERREN and TERRY join.

Concurring opinion by Associate Judge TERRY.

SCHWELB, Associate Judge: Rejecting his claim of self-defense, a jury convicted Allen of manslaughter while armed and of carrying a pistol without a license. D.C. Code §§ 22-2405, -3202, -3204 (1989). A division of this court, with one Judge Dissenting, reversed his conviction, holding that the prosecutor's alleged use of missing evidence and missing witness inferences during cross-examination of the defendant, and thereafter in closing argument, was improper, that the prosecutor had shifted the burden of proof, and that Allen was thereby unfairly prejudiced. Allen v. United States, 579 A.2d 225 (D.C. 1990) (Allen I). The United States filed a petition for rehearing en banc and, on January 25, 1991, this court vacated the division opinion, Allen II, 579 A.2d 243 (D.C. 1991) (per curiam) (en banc), and the case was subsequently reheard by the full court. Finding no reversible error, we now affirm.



The facts are described in considerable detail in the majority and Dissenting opinions in Allen I, supra, 579 A.2d at 226-28, 236-38, and we confine our exposition of them accordingly.

On November 13, 1983, Allen shot and killed Samuel Manning. The incident was apparently the culmination of a dispute over Manning's alleged misappropriation during the previous summer of Allen's car, and of some subsequent ramifications of that quarrel. Shortly thereafter, Allen fled to Florida, where he lived under an assumed name. *fn1 When he was apprehended in Miami almost two years after Manning's death, Allen told the FBI that his name was Anthony Jenkins and that he knew nothing about the killing of Manning. On the way back to Washington, D.C., he advised Detective Queen of the Metropolitan Police Department that "the guy you're looking for is in Washington, D.C." After being advised of his rights, however, he told Detective Queen that Manning had pulled a gun on him and that he shot back with a .38 caliber pistol. *fn2

At trial, the prosecution presented evidence which, if credited, tended to show, among other things, that Allen had shot Manning, fled to Florida, concealed his identity, lied to the police as to who he was, and subsequently threatened a government witness. In response, Allen took the witness stand on his own behalf. He acknowledged that he had shot Manning, but claimed that he acted in self-defense after Manning pulled a handgun on him. The prosecution's theory, in refuting that claim, was that Allen's conduct was not consistent with his proffered defense. The government focused on Allen's flight and on what he did and did not do at the scene. The prosecutor pressed Allen on cross-examination as to any attempt that he may have made to ensure that Gerard, a friend of Allen's who was with him at the time of the shooting, would be available to testify, and that any favorable physical evidence would be preserved. The prosecutor also argued these points to the jury. Counsel for Allen objected to the prosecution's approach on the ground that the prosecution's tactics were in violation of the missing witness and missing evidence rules and that the prosecution was shifting the burden of proof.

The prosecutor acknowledged at one point that he had come "very close to the line about missing witness." The Judge, however, overruled Allen's missing witness, missing evidence, and burden-shifting objections. Allen was ultimately acquitted of murder while armed, but convicted of manslaughter while armed and of carrying a pistol without a license. This appeal followed.



A. The Missing Witness and Missing Evidence Inference.

Allen, as we have noted, admitted at trial that he killed Manning, but claimed to have done so to protect his own life. Once he had introduced that issue into the case, the government was required to prove beyond a reasonable doubt that Allen had not acted in self-defense. Bynum v. United States, 133 U.S. App. D.C. 4, 5, 408 F.2d 1207, 1208, cert. denied, 394 U.S. 935, 22 L. Ed. 2d 466 , 89 S. Ct. 1211 (1968). Manning was dead, and his version of the encounter was not available to the jury. In order to contest Allen's proffered justification, the prosecutor was obliged to probe Allen's account to determine if it was consistent with the claim of self-defense. The prosecutor attempted to demonstrate that although Allen's words at trial supported the claim of innocence, his conduct at the time of Manning's death did not.

A principal issue at trial concerned Allen's state of mind. The question presented to the jury was whether Allen shot and killed Manning with criminal intent or in self-defense. Allen's intent could not "be proved directly, because there is no way of fathoming and scrutinizing the operations of the human mind." Allen v. United States, 136 U.S. App. D.C. 381, 383 n.1, 420 F.2d 223, 225 n.1 (1969). Instead, his state of mind could best be inferred from the surrounding circumstances. Id. at 383, 420 F.2d at 225; see also Criminal Jury Instructions for the District of Columbia, No. 3.02 (3d ed. 1978).

It cannot be gainsaid that, in probing Allen's conduct to determine whether it matched Allen's claimed state of mind, the prosecutor incidentally brought to the jury's attention Allen's failure to undertake efforts to collect or preserve evidence arguably relevant to self-defense, an issue as to which the government, not Allen, bore the burden of proof. We are of the opinion, however, that the trial Judge acted reasonably in permitting the prosecutor to do so. The division majority thought that the government's position that the prosecutor's questioning was permissible "undermines the missing evidence and missing witness rule." 579 A.2d at 232. Our view is the exact converse; Allen's attempt to extend the missing evidence doctrine to reach the facts here undermines the prosecution's right to conduct a thorough exploration and exposition of relevant facts, and therefore impairs the even-handed balance that is essential to adversarial litigation. *fn3

Over defense objection, the Judge permitted the prosecutor to cross-examine Allen in detail about his conduct after Manning's death. Did Allen look for Gerard after the shooting? Did he ask his sister to keep the van from which he said he had shot Manning? Did he attempt to preserve a shell casing which may have "popped out" after he fired the fatal shot? Did he and Gerard search the van to see if there was anything in it that could support his claim that he had acted in self-defense? Did he ask Gerard to preserve the weapon with which he (Allen) had killed Manning? Did he request Gerard to keep in touch "so he could say what really happened in the van?" In his rebuttal argument, the prosecutor reemphasized that if Allen had truly acted in self-defense he would have "scoured that van to get that shell casing and to preserve the gun" and would have "tried to keep Gerard or Gerald, or know his last name." He argued that Allen "did nothing, nothing to preserve what would support him." A similar theme appeared in the prosecutor's initial argument as well.

Allen contends that "the inference the government was urging was that appellant's failure to produce the gun, the shell casing or Gerard created the presumption that the if produced would be unfavorable." We cannot agree that the prosecutor was urging such a presumption, either directly or implicitly. Rather, the prosecutor's focus was on the plausibility of Allen's claim of self-defense in light of his pre-arrest conduct, and not on any missing witness or missing evidence inference.

During cross-examination, the prosecutor sought to show that if Allen had killed Manning justifiably in self-defense, then it would have been logical for him to do what he could to enable the authorities to find out what really happened. Specifically, the prosecutor suggested that an innocent man would have kept the pistol, searched the car for clues, told his sister and brother-in-law about Manning's death, attempted with their help to preserve the van and its contents, and requested Gerard to stay in touch. Similarly, in his closing argument, the prosecutor focused on what Allen did after the killing. He did not argue or even mention Gerard's absence from the trial. As the trial Judge put it, such cross-examination *fn4 "shows the jury something about whether [Allen's] conduct is consistent with [that of] a man who tells the story he's telling here today."

The missing witness and missing evidence rules focus on the impact on the jury of the defendant's nonproduction of evidence at trial. To put it in the vernacular, the prosecutor -- or, indeed, any attorney -- should not be allowed to mislead the jury by trying to make something out of nothing. We are of the opinion, however, that this wise policy is not significantly implicated here. The government was not making something out of nothing. Rather, as the trial Judge recognized, the prosecutor was asking the jury to draw reasonable inferences from Allen's conduct at a time when actions spoke louder than words.

Allen maintains, not implausibly, that there were legitimate reasons for his failure to preserve evidence immediately after the killing. *fn5 He had every opportunity, however, to explain these reasons to the jury. *fn6 The overall character of Allen's conduct at the time -- his failure to report Manning's death or to preserve the scene for investigators, his flight, and his assumption of an assumed identity -- were all relevant to an informed assessment of his state of mind. The prosecutor's concentration on this theme during cross-examination and in closing argument did not, in our view, run afoul of the missing witness or missing evidence doctrine.

It is axiomatic that the trial Judge, who is on the scene and has an opportunity to obtain a "feel" for the case which is not available to an appellate court reviewing a paper record, is invested with wide latitude in determining the permissible limits of cross-examination, see Springer v. United States, 388 A.2d 846, 854 (D.C. 1978), and of closing argument, Irick v. United States, 565 A.2d 26, 32 (D.C. 1989). Allen has failed to show abuse of that discretion.

B. Shifting the Burden of Proof.

Allen contends that the prosecutor impermissibly shifted the burden of proof to him with respect to the issue of self-defense. He says that this occurred both during cross-examination and in closing argument. We disagree.

Early in his instructions, the Judge explained the presumption of innocence. He told the jury that the government had the burden to prove Allen's guilt beyond a reasonable doubt. He specifically stated that this burden of proof never shifts. He again referred to the requirement of proof beyond a reasonable doubt on each occasion that he explained the elements of a particular offense. *fn7 Addressing the question of self-defense, the Judge said:

The defendant is not required to prove that he acted in self defense. Where evidence of self-defense is present, the government must prove beyond a reasonable doubt that the defendant did not act in self-defense. If you find that the government has failed to prove beyond a reasonable doubt that the defendant did not act in self-defense, it is your duty to find him not guilty. And that applies to ...

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