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06/23/92 CRISTINO A. PORTILLO v. UNITED STATES

June 23, 1992

CRISTINO A. PORTILLO, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Henry H. Kennedy, Jr., Trial Judge).

Before Rogers, Chief Judge, and Ferren and Farrell, Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge : A jury found appellant, Cristino A. Portillo, guilty of possession of cocaine with intent to distribute, D.C. Code § 33-541 (a) (1988 and 1991 Supp.). Appellant challenges his conviction on the grounds that (1) the prosecutor's closing argument improperly appealed to the prejudice and racial or ethnic bias of the jury, and (2) the prosecutor's questions about appellant's status as an illegal alien deprived him of a fair trial. Although we agree with appellant that some of the prosecutor's remarks were improper or ill-advised, we conclude that the challenged irregularities did not result in plain error. We affirm.

On August 15, 1989, at about three a.m., Officer Francis X. Morgan, Jr., received a radio broadcast that "subjects were breaking into the cars along Columbia Road . . . near the phone company." When Officer Morgan arrived on the scene, he saw a group of persons standing around a Nissan automobile. *fn1 Calling for back-up, Morgan questioned them about what they were doing and kept the individuals present together in a group until Officers Gray and Soulsby arrived. The three officers then "checked them out and [] told everybody to turn around and put their hands on the car." Appellant had a shirt in his hand. Before placing his hands on the car as instructed, appellant shook the shirt he was carrying, and out of the shirt fell a packet containing ten rocks of cocaine packaged in small clear ziplock bags, along with three empty ziplock bags. *fn2 After a field test indicated that the substance was cocaine, appellant was arrested and searched. He was carrying $557 in currency.

When Officer Morgan questioned appellant at the station house, the officer "got his name, got his date of birth, got an address." *fn3 Appellant was unemployed at the time of his arrest.

II.

Appellant is a 23-year-old native of El Salvador who entered the United States "without papers." He testified at trial through an interpreter. Appellant challenges as "racially inflammatory" several remarks made by the prosecutor, claiming that the questionable remarks appealed to the jury's prejudice and deprived him of his right to a fair trial under the Sixth Amendment. He further contends that the comments referring to his illegal immigration status amounted to impermissibly prejudicial "other crimes" evidence.

The challenged remarks are: (1) The prosecutor once addressed appellant as "Senor Portillo;" this is the only asserted error to which defense counsel objected at trial. (2) The prosecutor questioned appellant about his immigration status and the risk of deportation upon conviction. (3) The prosecutor remarked, without evidentiary foundation, that "no one on the streets of D.C. carries their life savings around." Appellant argues that this statement disparaged immigrants in particular and the impoverished in general and that it accordingly appealed to the jury's prejudice. (4) The prosecutor suggested that appellant's immigration status negatively impacted his credibility because his illegal status indicated that appellant had "engaged in the grandest form of deception" by illegally entering the country. (5) Finally, the prosecutor suggested that appellant was not truthful regarding his fluency in English, thereby inflaming the jury's prejudice against Hispanics. *fn4

Before appellant took the stand, the prosecutor informed the trial Judge and defense counsel that he intended to question appellant about his immigration status, noting that the threat of deportation "goes directly to bias." Defense counsel responded, "Your Honor, in view of the relevance of his immigration status to other matters, as a tactical decision I'm not going to object to that line of inquiry, if it's more or less limited. . . ."

III.

In evaluating the prosecutor's statements at trial, we first must determine whether any of the challenged comments was improper. McGrier v. United States, 597 A.2d 36, 41 (D.C. 1991); Dixon v. United States, 565 A.2d 72, 75 (D.C. 1989). Viewing the remarks in context, if we conclude that they were improper, then we must "'consider the gravity of the , its relationship to the issue of guilt, the effect of any corrective action by the trial Judge, and the strength of the government's case.'" McGrier, 597 A.2d at 41 (quoting Dixon, 565 A.2d at 75). If an improper remark drew an objection from defense counsel at trial, we will nevertheless affirm the conviction unless the defendant suffered "substantial prejudice." *fn5 Id. If, on the other hand, the defendant failed to object to the improper remark, in order to obtain a reversal, appellant must show plain error, i.e., "error 'so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.'" Id. (quoting Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc)). Without an objection at trial, we will reverse a conviction based on improper prosecutorial argument "only in a 'particularly egregious' case, when 'a miscarriage of Justice would otherwise result.'" Id. (quoting United States v. Young, 470 U.S. 1, 15, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985)). In light of these standards, we examine the prosecutor's challenged comments.

The prosecutor's addressing of appellant as "Senior Portillo," the only claimed prejudicial reference to which counsel objected, was an isolated incident, was not inherently derogatory, and, in any event, may have been inadvertent. There was no evidence that the prosecutor spoke in a tone indicating sarcasm or lack of respect when he addressed appellant as "Senor." *fn6 We would not be troubled by this reference except that it occurred in the midst of a trial that included negative comments regarding appellant's ethnicity and immigration status. But our concern is lessened because of defense counsel's own tactical decision to emphasize appellant's illegal immigration status. Furthermore, we cannot say that a single reference to the defendant by a common form of address in his native language amounted to prosecutorial misconduct.

Nor do we find misconduct in the prosecutor's cross-examination of appellant about his immigration status. Defense counsel had announced that appellant's immigration status was relevant to other matters. *fn7 Once appellant admitted that he had entered "without papers," he opened the door to the government's exploration of his status with the Immigration and Naturalization Service. See United States v. Bagaric, 706 F.2d 42, 65 (2d Cir. 1983) (where defendant testified on direct examination that he had sought and been denied political asylum in United States, defense had opened the door to cross-examination on immigration matters); State v. Lopez, 107 Ariz. 214, 484 P.2d 1045, 1048 (Ariz. 1971) (no abuse of discretion in permitting prosecutor to cross-examine concerning illegal entry because defendant in testifying that he was Mexican national and that he had "never been arrested or gotten in any trouble" had opened the door to impeachment of his credibility).

Where the prosecutor went wrong concerning appellant's immigration status, however, was to suggest that the illegal entry itself was "the grandest deception," which rendered appellant's testimony incredible. This implies that anyone who -- for whatever reason -- has crossed our borders in violation of the government's immigration procedures should not be believed. Appellant, however, had not been convicted of an immigration-related offense. " witness may be cross-examined on a prior bad act that has not resulted in a criminal conviction only where '(1) the examiner has a factual predicate for the question, and (2) the bad act "bears directly upon the veracity of the witness in respect to the issues involved in the trial."'" Sherer v. United States, 470 A.2d 732, 738 (D.C.) (quoting United States v. Akers, 374 A.2d 874, 878 (D.C. 1977) (quoting Kitchen v. United States, 95 U.S. App. D.C. 277, 279, 221 F.2d 832, 834 (1955), cert. denied, 357 U.S. 928, 2 L. Ed. 2d 1374, 78 S. Ct. 1378 (1958))), cert. denied, 461 U.S. 931 (1983). Appellant's ...


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