Appeal from the Superior Court of the District of Columbia; (Hon. Colleen Kollar-Kotelly, Trial Judge)
Before Rogers, Chief Judge, and Ferren and Terry, Associate Judges.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge: Appellant Woodrow Wilson was indicted for distribution of cocaine in violation of D.C. Code § 33-541 (a)(1). Following a mistrial after two days of jury deliberations, he was convicted by a jury after a second trial. On appeal he contends that the trial Judge erred by allowing the prosecutor, over defense objections, to impeach him with his criminal convictions after the prosecutor had advised defense counsel and the trial Judge before trial that there were no impeachable convictions. Specifically, he contends that his right to select a jury, by exercise of peremptory challenges, and his right to decide whether to go to trial, or to enter plea negotiations with the government, were prejudiced. Therefore, appellant maintains that his due process rights were violated and his conviction should be reversed. We agree that the prosecutor's pretrial statement was an assurance on which defense counsel could reasonably rely, and that its breach during trial prejudiced appellant. Accordingly, we reverse. *fn1
Around midnight October 31, 1989, undercover police officer Michael Quander was approached by Michael Pointer, who asked the officer if he was "looking" for drugs. Quander replied that he "wanted a 20," meaning a small amount of crack cocaine. He then followed Pointer to the rear of the carry-out, where they approached a man whom Quander later identified as appellant. Pointer asked appellant "to give him one," and appellant handed Pointer an "off-white substance that was already in his hand." Pointer handed the object to Officer Quander, who gave appellant twenty dollars in pre-recorded funds. The officer never spoke to appellant during the drug transaction.
Officer Quander returned to his car, and broadcast a "lookout" description of the two men. He described appellant as "a black male, about five-eight, five-nine, medium to dark complected, wearing a red shirt and blue sweat pants." A police arrest team apprehended Pointer in front of the carry-out, and Quander drove by to confirm his identification. Pointer was searched but nothing was found on his person.
Twenty to twenty-five minutes later, Officer Quander noticed appellant on the corner of Eastern Avenue and Rhode Island Avenue. Appellant was wearing the same clothing he had worn earlier, except that he now wore a green hat. Quander broadcast a "lookout," and an arrest team detained appellant; no pre-recorded funds or narcotics were found on him. A member of the arrest team testified, as did an expert witness.
Appellant's defense was innocent presence. He testified that he lived near the carry-out and had left home around 12:05 a.m. on November 1, 1989 to buy some egg rolls for his pregnant wife at the carry-out; he had approximately three dollars with him. He was wearing blue sweat pants and a red sweat shirt with FILA on it. On his way to the carry-out he was arrested. He denied speaking to anyone or participating in the sale of drugs. On cross examination he was impeached with two 1977 convictions, one for sodomy and the other for indecent acts. Appellant's wife also testified, corroborating his testimony that she had asked her husband to get some egg rolls shortly after midnight.
In rebuttal, the government called Michael Pointer, who claimed that appellant was with him behind the carry-out early on the morning of November 1, 1989. Pointer claimed that he had approached a man who turned out to be Officer Quander, and brought Quander to appellant. According to Pointer, appellant had given Pointer "a loose twenty rock" of crack cocaine, and Pointer had sold it to Quander. Pointer admitted on cross examination that he had entered into a plea agreement to testify against appellant in return for a plea of guilty to the lesser offense of attempted distribution of cocaine. He also conceded that he did not have an arrangement for selling drugs that evening with appellant, and he denied knowing where the drugs came from.
At a pretrial status conference before the second trial, the trial Judge inquired of the prosecutor, "What about impeachable convictions?" The prosecutor replied, "No, ma'am." Appellant contends that the prosecutor's statement was an implicit if not explicit promise that appellant would not be impeached with his prior convictions were he to testify. He further contends that although defense counsel had access to information about appellant's prior convictions, defense counsel was entitled to rely on the prosecutor's assurance in preparing for trial and presenting a defense. Therefore, he continues, the prosecutor's mid-trial disclosure of his intention to impeach appellant was a breach of the promise, prejudiced appellant by causing him to forego opportunities to exercise peremptory challenges and to engage in plea negotiations, and was fundamentally unfair. The government responds that the prosecutor's response to the trial Judge's pretrial inquiry was not a promise, but was only "a mistaken response to the trial court's administrative inquiry," and that appellant has failed to show any detrimental reliance. *fn2
In a series of decisions the court has concluded that a prosecutor's pretrial representation of the government's intention creates an obligation to inform the defense and the trial court of new information in a timely manner since the defense and the court are entitled to rely on the prosecutor's pretrial representation. Where the prosecutor fails to honor his or her pretrial obligation, and the defendant is prejudiced, the court has reversed the conviction and remanded the case for a new trial.
Thus, in Rosser v. United States, 381 A.2d 598 (D.C. 1977), the prosecutor, in response to a question by the trial Judge about whether the defendant had made any statements, indicated that the defendant's statements had been exculpatory and oral. At trial the prosecutor impeached the defendant with an incriminating transcript of grand jury testimony. Although the defendant had not requested the statements pursuant to Super. Ct. Crim. R. 16, the court concluded that the prosecutor's representation eliminated the need for the defendant to make such a request, because "in open court, the court has the right to rely on the truthfulness of the government's statements." 381 A.2d at 605 (quoting United States v. Fallen, 498 F.2d 172, 174 (8th Cir. 1974)). *fn3 See Arnold v. United States, 511 A.2d 399, ...