Appeal from the Superior Court of the District of Columbia; (Hon. Ronald P. Wertheim, Trial Judge)
Before Ferren and Schwelb, Associate Judges, and Kern, Senior Judge. Opinion for the court by Associate Judge Schwelb. Opinion by Associate Judge Ferren Concurring in part, Dissenting in part, and Dissenting from the judgment.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: On July 27, 1990, a jury convicted Hunter of unauthorized use of a motor vehicle (UUV), D.C. Code § 22-3815 (1989), but acquitted him of armed robbery and of a lesser-included ADW *fn1 charge arising out of the same alleged events. Hunter's principal contention on appeal from his UUV conviction *fn2 is that he was denied a fair trial as a result of improper prosecutorial argument. Specifically, he complains that the prosecutor violated his rights by urging the jurors not to believe his account of his contretemps with the complaining witness because he (Hunter) was relating it for the first time at trial, and because he and his attorney had failed to go to the prosecutor or the police following his indictment to apprise the government of his version of the facts. We agree with Hunter that this argument was improper in a fundamental way, but conclude that no pertinent objection was made in the trial court and that Hunter has failed to make the "clear showing of a miscarriage of Justice," Adams v. United States, 302 A.2d 232, 234 (D.C. 1973), which is required in order to secure a reversal for plain error. We also disagree with Hunter's secondary contention that, in the same portion of his closing argument, the prosecutor improperly attempted to impeach Hunter's trial testimony with a statement which Hunter made to the police shortly after his arrest. Accordingly, we affirm Hunter's conviction.
This is one of those cases in which the prosecution's version of events is dramatically inconsistent with the defendant's; the jury apparently believed some but not all of each side's testimony. The complaining witness, Damon Stevenson, testified that on the morning of March 14, 1989, he was driving his wife's 1985 Mercury Topaz in southeast Washington, D.C. Just after he had turned onto First Street, a car cut him off. Three men, including Hunter, jumped out of the intruding vehicle. One of the men (not Hunter) pulled Stevenson out of the driver's seat and jammed a pistol in his ribs. Hunter shouted "Now we got you," and struck Stevenson in the forehead with a yard long stick. As Stevenson was reeling from the blow, with blood running down his face, Hunter told his confederates that "this isn't him. This is his brother." The man with the pistol nevertheless suggested that they take Stevenson's car, and the robbers went through Stevenson's pockets and wallet and took twelve dollars. While his two companions left in their car, Hunter took Stevenson's jacket and drove off in the Mercury Topaz. On cross-examination, the defense showed that it had taken Stevenson forty minutes to report the robbery, *fn3 brought out Stevenson's criminal record, and pointed to several alleged inconsistencies in his story.
Stevenson also testified that at the time of the incident he did not know Hunter by name, but had seen him in Stevenson's in-laws' neighborhood. He denied ever having been in an apartment together with Hunter and a woman named Teresa (or Tee), although he admitted knowing "Tee." Stevenson also denied that he had ever rented the car out on previous occasions in exchange for drugs or for money.
Officer Lauren Braswell testified that at about 3:20 a.m. on March 15, 1989, while he was monitoring the intersection of Southern Avenue and Wheeler Road for stolen vehicles, he saw Hunter drive through the intersection in Stevenson's car. Officer Braswell checked his list of stolen automobiles and identified the Mercury as one of them. He then radioed for assistance and followed Hunter. After other officers had responded, Officer Braswell stopped Hunter at the intersection of Southern Avenue and 30th Street. Hunter and his female passenger, Stephanie Brown, were arrested and transported to a police station, where one of the arresting officers, Ronald Fluck, processed the paperwork.
Officer Fluck testified that after his arrest, Hunter gave his name as Michael Jackson, and that Hunter initially refused to answer any questions. Subsequently, however, Hunter asked Fluck what was going to happen to Ms. Brown. Officer Fluck replied that Hunter would have to sign a waiver of rights card before Fluck could discuss the case with him. Hunter signed a waiver card, and Officer Fluck told him that Ms. Brown was also going to be charged (as indeed she was). Hunter remonstrated that Ms. Brown didn't have anything to do with it." He also asserted that he had paid a "gentleman" forty dollars for use of the car. The officer asked Hunter for the name of this "gentleman," but Hunter became quiet and said nothing. Having previously learned of the nature of Stevenson's allegations, Officer Fluck, "out of the blue," asked Hunter "what kind of a stick did you hit him with?" Hunter's response was "a broomstick." There is no indication in the record that the officer asked Hunter any more questions, or that Hunter volunteered any further information.
Hunter took the stand on his own behalf. He testified that three or four weeks before his arrest, Stevenson had rented him the Mercury Topaz for a day for the sum of forty dollars. Before Hunter had finished using the car, however, Stevenson drove it away. Hunter related that on the day before his arrest, he ran into Stevenson again at the home of a woman named Teresa, who was then Hunter's girlfriend. Hunter testified that he and Stevenson became embroiled in a heated argument, and that during the unpleasantries he (Hunter) picked up a broom and hit Stevenson in the forehead. Hunter claimed that he later apologized and that the situation cooled down. According to Hunter, Stevenson then authorized him to use the car in consideration for the money Stevenson still owed him.
On cross-examination, the prosecutor asked Hunter whether he had revealed to the police, prior to trial, the details of his story, and whether he had disclosed where he and Stevenson were when the fracas occurred. Hunter responded that he had not. There was no objection to this inquiry.
One defense witness testified that he had rented a car from Stevenson on another occasion, and that he knew other people who had rented the Mercury. The witness also confirmed that he had seen Hunter and Stevenson at Teresa's home. A second defense witness testified that he had seen Hunter and Stevenson together at that location at two different times, and that on one of these occasions Stevenson had handed Hunter some keys in exchange for some money. The witness related that he had not heard what the two men said to each other.
THE PROSECUTOR'S COMMENT ON HUNTER'S POST-INDICTMENT SILENCE
In order to place in context Hunter's claim of improper closing argument, it is necessary to set out in full the relevant portion of the prosecutor's remarks:
PROSECUTOR: Now the indictment comes down, and we know from our own general knowledge, do we not, that indictments usually come down before the trials, and sometimes long before the trials and sometimes --
DEFENSE COUNSEL: Objection.
PROSECUTOR: -- not so long before the trials.
THE COURT: It's not relevant. Let's not belabor it.
PROSECUTOR: And here we are on trial day, and Mr. Credibility [ *fn4] once again tells us this afternoon, on the last day of trial, that, oh, here's what happened. See, I hit him with the stick, but it was on 3-14-89, but it was between five and six in the evening at Teresa's house. And it was not as the Government says, at eight in the morning on March 14th; it was later, at five and six p.m. at night.
Now, here's a man charged with an indictment. At the time this indictment came down, it's got armed robbery in here, it's got BRA.
DEFENSE COUNSEL: Objection.
PROSECUTOR: And it has an unauthorized use of a vehicle count. Here's somebody charged in an indictment by the District of Columbia grand jury, which normally you would not take lightly. You'd get yourself an able lawyer. He has an able lawyer. And, yet, he doesn't tell the Government, didn't tell the police, doesn't tell anybody, hey, you don't understand how this all came about.
You know. We're going to wait to the last day of trial, and then we're going to tell the world . . . .
The prosecutor's apparent point, as reflected in the italicized portion of his argument, was that after Hunter had been indicted, he and his attorney should have come to the United States Attorney's office to lay bare their defense for the prosecutor or the police. Such an argument is, to put it charitably, laden with mischief.
"The use for impeachment purposes of petitioner's silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause of the Fourteenth [ *fn5] Amendment." Doyle v. Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91 , 96 S. Ct. 2240 (1976). Hunter did make a statement to the police at the time of his arrest, and prosecutorial comment on any inconsistency between that statement and his trial testimony is permissible. Dixon v. United States, 565 A.2d 72, 79-80 (D.C. 1989).
In this case, however, the prosecutor's argument did not focus on any such purported inconsistency. Rather, the prosecutor asked the jury to draw an unfavorable inference as to Hunter's credibility because Hunter did not volunteer his account to the government after he had obtained the advice of counsel and after he had been indicted. He suggested that Hunter had not taken the indictment seriously enough. No authority has been cited to us on the precise question whether a prosecutor's negative comment on an accused's silence after he has been indicted, and after he has received the assistance of counsel, runs afoul of the constitutional doctrine articulated in Doyle. Although we think that the vice in what the prosecutor said in this case is as serious as that in Doyle, we need not reach the constitutional question, for we can readily dispose of the issue on non-constitutional grounds. See Olevsky v. District of Columbia, 548 A.2d 78, 81 (D.C. 1988).
The Supreme Court has stated that "each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative." Jenkins v. Anderson, 447 U.S. 231, 239, 65 L. Ed. 2d 86 , 100 S. Ct. 2124 (1980). In the federal courts, "prior silence cannot be used for impeachment where silence is not probative of a defendant's credibility and where prejudice to the defendant might result." Id. at 239; see also Grunewald v. United States, 353 U.S. 391, 423-24, 1 L. Ed. 2d 931 , 77 S. Ct. 963, 51 A.F.T.R. (P-H) 20 (1957). Hunter's failure following his indictment to disclose his defense to the prosecutor was not at all probative as to his credibility. As this court pointed out in Walker v. United States, 402 A.2d 424, 427 (D.C. 1979),
knowing that one is the focus of a criminal action serves to make one more cautious about the advisability of discussing one's defense with others than [one's] attorney. Presumably, an attorney would advise his client not to do so.
Accord, Grunewald, supra, 353 U.S. at 423 ("it was thus quite consistent with innocence for to refuse to provide evidence which could be used by the Government in building its incriminating chain"); People v. Conyers, 52 N.Y.2d 454, 458, 420 N.E.2d 933, 935, 438 N.Y.S.2d 741, 743 (1981) (defendant's pretrial failure to speak to law enforcement officers is of "extremely limited probative worth" because, among other reasons, he may be aware that he is under no obligation to speak and that anything he says might later be used against him).
Moreover, the use of an accused's pretrial silence to impugn his credibility "has a significant potential for prejudice." United States v. Hale, 422 U.S. 171, 180, 45 L. Ed. 2d 99 , 95 S. Ct. 2133 (1975). This is especially true where, as here, we are dealing with post-indictment silence at a time when the accused was represented by counsel. For good or ill, criminal trials in this country are conducted pursuant to the adversary system. A litigant who can keep his own evidence under wraps until trial has an obvious tactical advantage over an adversary who has disclosed all. Discovery, and especially discovery of the defendant's case, is very limited in criminal prosecutions. See Super. Ct. Crim. R. 16. A competent attorney will ordinarily provide information about his or her client's evidence to the prosecutor only where there appears to be a reasonable ...