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December 30, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Michael L. Rankin, Trial Judge)

Before Ferren and Steadman, Associate Judges, and Newman, Senior Judge.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: After his first trial ended in a mistrial, appellant Arno M. Henderson was retried and convicted of unlawful distribution of cocaine and unlawful possession with intent to distribute cocaine. D.C. Code § 33-541(a)(1) (1988 Repl.). The trial court sentenced him to four to twelve years' imprisonment on each count, both sentences to run concurrently. Henderson claims on appeal (1) that the trial court committed reversible error in denying the defense request for an alibi instruction and (2) that prosecutorial misconduct denied him a fair trial. We conclude that appellant was entitled to an alibi instruction and therefore reverse his conviction.


According to the government's evidence, on December 7, 1990, police received a telephone complaint that someone was selling crack cocaine inside the lobby at 832 Rittenhouse Street, Northwest. Ten to fifteen minutes later, police went out to visit this location. At about 5:55 p.m., an undercover officer went to 832 Rittenhouse, where he met appellant at the door of the apartment building and asked appellant about purchasing crack cocaine. Appellant told the officer to follow him inside the building. After the officer did so, he noticed a second man, later identified as a Mr. Kelly, sitting on the stairs leading to the second floor. Appellant told the officer to wait in the lobby, and appellant went partway down a flight of stairs to the basement, returning with a plastic bag containing several smaller zip-lock bags of a white rock substance, later identified as crack. The officer purchased two of the zip-lock bags for $40 in prerecorded bills. The officer then left the building, noticing two or three individuals who were approaching the building. After he returned to his car, the officer broadcast a lookout for a black male wearing a black hat, black coat, and blue jeans inside 832 Rittenhouse.

The arrest team went inside the building at about 6:00 p.m. and found four men. Police seized both appellant and Kelly because they were wearing similar clothing, although only appellant was wearing a hat. Police took both men outside, where the undercover officer identified them, and the police arrested appellant, releasing Kelly. In the "modus operandi" (MO) photograph that was later taken of appellant at the central cellblock, he was wearing a coat that did not match the lookout description.

Appellant and two other witnesses testified for the defense. Appellant's half-brother, Rodney Williams, who lived in Apartment 8 (not appellant's apartment) at 832 Rittenhouse, testified that on the evening of the arrest, he left his apartment and passed through the lobby on his way to taking out the trash. He saw Kelly in the lobby but not his brother. He went out through the front door and around the side of the building to the back. As he did so, he noticed police cars at the side of the building. He then saw the police jump out and enter the building, and, shortly thereafter, bring out appellant and Kelly. Williams said he recognized the distinctive-looking jacket in the MO photo as one belonging to appellant. *fn1

Appellant's girlfriend, Ti Ray Edwards, testified that she lived with appellant in Apartment 1 (a basement apartment) at 832 Rittenhouse. She and appellant were in the apartment planning to go to the store together. Apparently while Edwards was in the bathroom getting ready to leave, appellant left the apartment, telling Edwards he would wait for her on the stairs. *fn2 She also stated that the jacket appellant was wearing in his arrest photo was the same jacket he was wearing on the day of his arrest.

Appellant testified that he was in Apartment 1 when he heard his brother taking out the trash. He had no question about this not only because of his brother's loud voice but also because his basement apartment had a window on the side of the building. Very shortly thereafter, appellant left his apartment and went up the stairs to the lobby where he began talking to Kelly. No more than "a good couple of minutes" later the arresting officers came into the building and seized appellant and Kelly. Appellant denied selling drugs or taking money from anybody on the day of his arrest. He further denied seeing a police officer making a drug buy inside 832 Rittenhouse before his arrest, saying that he was in his apartment. *fn3 Appellant also stated that he was wearing a burgundy, black and turquoise jacket.

Appellant's testimony was therefore consistent with Williams' testimony that appellant was not in the lobby when Williams walked through carrying out the trash, and saw only Kelly there, very shortly before the police arrived to make the arrest. Appellant, moreover, completed his alibi by testifying that he had been in his apartment until approximately two minutes before the police arrived. (Police witnesses had testified the transaction occurred five minutes before the arrest team entered the building.)


The trial court refused defense counsel's request for an alibi instruction *fn4 on the ground that there was no evidence of alibi in the case. The reasoning behind the trial court's ruling is not entirely clear. On one hand, the trial court noted the testimony of both appellant and Ms. Edwards that appellant was in his apartment, but on the other hand the court also concluded, somewhat inconsistently, that "they both agree that at the crucial times she was in the bathroom and he was in the lobby." *fn5 On our review of the record, that understanding of the testimony was erroneous. As a result, as elaborated below, the trial court erred in denying the requested instruction.

Alibi instructions are not a precious commodity to be hoarded by the trial court; they should be granted liberally when there is any evidence to support them. "When a defendant requests an instruction on his theory of the case, including alibi, and when that instruction is supported by 'any evidence, however weak,' an instruction stating the substance of the defense must be given." Gethers v. United States, 556 A.2d 201, 204 (D.C. 1989) (emphasis in original) (quoting Gray v. United States, 549 A.2d 347, 349 (D.C. 1988)). Such instructions are necessary to ensure that the jury clearly understands that, in presenting an alibi defense, the defendant is not taking on the burden of proving his or her innocence, and that at all times the onus remains upon the government to prove beyond a reasonable doubt that the defendant was present at the scene of the crime at the time of its commission. Otherwise, there is a danger that the jury may simply weigh the defendant's alibi claim against the government's evidence and convict on a mere preponderance of the evidence. Even if the jury does not wholly believe defendant's alibi claim, the jury must still acquit if the defendant has raised a reasonable doubt as to his or her presence at the relevant place and time. See Gethers, 556 A.2d at 204 (quoting Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597, 603 (Pa. 1980)); Greenhow v. United States, 490 A.2d 1130, 1134 n.4 (D.C. 1985); United States v. Alston, 179 U.S. App. D.C. 129, 133, 551 F.2d 315, 319 (1976).

In this case, the government contends that an alibi instruction was not required because the defense evidence, if credited, still failed to "demonstrate[] the defendant's presence elsewhere for the entire period of time the government's evidence shows he was involved in criminal activity." Greenhow, 490 A.2d at 1134 (citation omitted). We disagree. Although appellant admitted being in the lobby shortly before the arrest team entered, he denied being there when the drug sale was made, saying that he was in his apartment instead. Furthermore, appellant said that he was in his apartment when he heard his half-brother, Rodney Williams, taking out the trash. Williams testified that when he walked through the lobby carrying the trash he saw neither appellant nor any-drug transaction, although he did see Kelly. Williams also said that he saw the police enter the building very shortly after he was outside the building. Finally, appellant testified that he had not been in the lobby for more than "a good couple of minutes" before the police ...

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