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01/26/93 ALICE SCOTT v. UNITED STATES

January 26, 1993

ALICE SCOTT, APPELLANT
v.
UNITED STATES, APPELLEE; PHILLIP N. SCOTT, APPELLANT V. UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Eric H. Holder, Jr., Trial Judge)

Before Terry, Steadman, and Wagner, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: Appellants, who are mother and son, were both convicted on three counts of armed robbery, *fn1 and appellant Phillip Scott was also convicted of carrying a pistol without a license. *fn2 Phillip Scott now argues that his convictions should be reversed because the trial court refused to admit into evidence certain police reports, because the trial court failed to conduct a sufficient inquiry into his complaints about the performance of his counsel, and because the prosecutor engaged in improper conduct in the course of cross-examining him and in closing argument. Alice Scott contends that the trial court erred in permitting one of the victims to identify her in court and in denying her motion for severance based on an asserted disparity of evidence. She also joins in some of Phillip Scott's arguments concerning the prosecutor's cross-examination. We agree that the conduct of the prosecutor was improper in at least three instances, but we are persuaded that it does not require reversal. Since we find no other error, we affirm the convictions of both appellants.

I. FACTS

In the early morning hours of January 6, 1989, Kathleen Beall, Cameron Boswell, and Lisa Holmes were working at the River Club, a restaurant and night club in the Georgetown section of Washington. At about 2:00 a.m., as the club was closing for the night, Alice Scott came in and asked for "the Burton party." Both Beall and Boswell remembered her quite well because the club was closing and no customers were left in it, and because Scott was "completely underdressed" compared with the River Club's usual clientele. *fn3 The manager told Mrs. Scott that the club was closed and escorted her out the side entrance.

A few minutes later, Beall, Boswell, and Holmes left the River Club together and walked to Holmes' car. *fn4 When they reached the car, Alice Scott, who was sitting in another parked car nearby, called out to them, asking directions to George Washington University Hospital. Holmes and Boswell by this time had entered the car, but Beall was still standing next to the right rear door, so she gave the requested directions. Almost immediately a man got out of the other car and started running toward the three women. This man, Phillip Scott, pushed Beall into the car, pulled a gun out of his pocket, and ran around to the left rear door and got into the car. Phillip Scott demanded the car keys from Holmes and then, with Alice Scott's help, proceeded to rob the three women of their jewelry as well as a camera bag and its contents -- a camera with a flash attachment -- belonging to Beall. During the robbery, Phillip Scott pointed the gun, described by Boswell as a revolver, at each of the three victims (Boswell testified that he held the gun "right at my temple") and warned them not to look at him.

When the robbers started running back to their car, Beall got out of the back seat and yelled, "Stop, we've been robbed, call the police." Phillip Scott turned and fired his gun once in Beall's direction, but the bullet missed her. The robbers then drove off, throwing Holmes' car keys into the street as they fled. The victims returned to the River Club and called the police.

Both appellants were then living in a rooming house in Mount Rainier, Maryland, a suburb of Washington. In early February, about a month after the robbery, Phillip Scott attempted to pawn the items stolen from Kathleen Beall in order to pay rent to Donald Barkley, his landlord. Scott told Barkley he could pay the rent if Barkley would give him a ride to a pawn shop. Barkley arranged for a friend to drive them both there, and Scott went into the pawn shop with a leather bag, a camera, and a flash attachment. *fn5 Scott was unable to complete the pawn transaction, however, because he had no identification with his photograph on it, so Barkley agreed to pawn the items for him. When Barkley asked Scott whether these items belonged to him, Scott replied that they did. Maryland police received a routine copy of the record of the pawn transaction, and they in turn notified Detective Howard Blum of the Metropolitan Police that property reported as stolen in the District of Columbia had been pawned. *fn6

Blum's investigation led him to suspect that Alice and Phillip Scott had been involved in the robbery at the River Club, so he arranged to have the three victims view two arrays of nine photographs each -- one of men and one of women -- in March 1989. Kathleen Beall was unable to identify either of the robbers from these photographs, but Cameron Boswell and Lisa Holmes both identified Alice Scott from one of the photographs as the woman who had robbed them. Holmes, in addition, identified Phillip Scott from a photograph as the male robber. On June 12, about three months later, all three victims went to police headquarters to attend a lineup of women. Viewing the lineup separately, both Beall and Boswell identified Alice Scott. Holmes "couldn't decide" between two of the women in the lineup -- Alice Scott and another -- and in the end she selected the other woman "because of the hair." *fn7 At trial, however, when Ms. Holmes was shown a photograph of the lineup, she identified Alice Scott from that photograph as the female robber. All three victims identified Alice Scott in open court. Beall and Holmes identified Phillip Scott as well, but Boswell did not, explaining that she had only looked at the male robber "for a few seconds when I turned around to give him my ring." Ms. Boswell did testify, however, that she had seen Phillip Scott at an earlier hearing in the case, and that he was then wearing "the same jacket he was wearing the night I was robbed."

Alice Scott filed a motion to suppress all identification testimony. Lisa Holmes testified at the hearing on that motion that she had been told by either Detective Blum or an Assistant United States Attorney at the lineup that the woman she had identified was "not the right one." She also learned that Beall and Boswell had identified someone else, but she was not told who that person was. The trial court found that this notification was "somewhat suggestive," but it denied the suppression motion on the ground that Holmes had made a reliable identification of Alice Scott from the photographic array before being informed that she had picked the wrong person in the lineup.

II. PHILLIP SCOTT'S CONTENTIONS

A. The refusal to admit certain police reports

Phillip Scott maintains that the trial court erred in refusing to admit into evidence several police reports that contained descriptions of his appearance and clothing on the night of the robbery. He asserts that these documents were prior inconsistent statements by Beall and Boswell that were "successfully used on cross-examination." We hold that the trial court committed no error because the police reports did not clearly impeach any government witness and because, in any event, the defense failed to lay a proper foundation for their admission.

Scott contends, in particular, that the police reports contained information which contradicted testimony by both Beall and Boswell describing his clothing and skin tone. Beall testified that soon after the robbery Officer Minnie Holden interviewed all three victims, and that Beall described the male robber as being darker than the female robber, "but not dark-skinned." Beall also said that she told Officer Holden that the male robber was wearing a black leather jacket with an embossed pattern and a black fur collar. Boswell testified that the description she gave to Officer Holden of the male robber's clothing included a black leather coat with a fur collar. Officer Holden later testified and was questioned about certain information on the police reports she had prepared, including a Form PD-251. Holden had written on the PD-251 that the male robber wore a "black jacket" and that he had a "dark" skin tone. On cross-examination, however, Holden said that she did not consider Phillip Scott to have dark skin. She described him as "light" skinned.

Phillip Scott's counsel later requested that Officer Holden's reports (the PD-251 and other descriptions of the robbers) be admitted into evidence because they contained prior inconsistent statements impeaching the testimony of two government witnesses, Beall and Boswell. The trial court denied the request, however, on the ground that no impeachment had occurred.

We affirm the court's exclusion of the proffered documents on two grounds. First, it is not at all clear that the information contained in Officer Holden's reports actually impeached the testimony of any government witness. See McClain v. United States, 460 A.2d 562, 568 (D.C. 1983) (trial court properly excluded a police report sought to be admitted for impeachment because the report "was not necessarily inconsistent" with the witness' testimony). The notation in the PD-251 that the male robber wore a "black jacket" did not contradict the testimony of Beall and Boswell that he wore a black leather jacket. As for the fur collar, Officer Holden testified, "I don't recall hearing fur." Likewise, with respect to Scott's skin tone, Officer Holden testified that she would "consider him light." Thus it was Officer Holden's testimony, not anything in the PD-251 (or any other report), that contradicted the testimony of Beall and Boswell about the fur collar. There being no impeaching material in the police reports, we find no error in their exclusion.

Moreover, Scott did not lay the requisite foundation for the admission of materials used to impeach a witness. A party seeking admission of a witness' prior inconsistent statement must first confront that witness with the prior statement and give her an opportunity to explain it. McClain v. United States, supra, 460 A.2d at 568-569; United States v. Wright, 160 U.S. App. D.C. 57, 63, 489 F.2d 1181, 1187 (1973). Because Scott's counsel failed to confront either Beall or Boswell with the information contained in the police reports, we hold that she failed to lay a foundation for their admission. *fn8

B. Ineffective assistance of counsel

Phillip Scott claims that the trial court "failed to conduct an adequate inquiry into claims of ineffective assistance of counsel as required" by Monroe v. United States, 389 A.2d 811 (D.C.), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978), and Farrell v. United States, 391 A.2d 755 (D.C. 1978). He urges us to reverse his convictions, or at least to remand the case for a hearing on his ineffective assistance claim. We find no basis for either reversal or remand on this ground.

We conclude, first of all, that Monroe and Farrell do not even apply to this case. In Nelson v. United States, 601 A.2d 582, 591 n.26 (D.C. 1991), in reviewing a defendant's complaint to the trial Judge at the outset of trial about his attorney, we said that the Monroe-Farrell standard of review was applicable "because the jury had not been sworn and jeopardy had not yet attached . . . ." We hold today that the converse of that principle is equally true: once jeopardy attaches, Monroe and Farrell are no longer applicable.

In Monroe we held that when a defendant, before trial, claims ineffective assistance of counsel based on counsel's lack of investigation, preparation, "or other substantial reason," a trial court must "conduct an inquiry sufficient to determine the truth and scope of the defendant's allegations." . . . "The requirement of an 'inquiry' in such circumstances, which has come to be called a ' Monroe-Farrell hearing,' has been reaffirmed by this court on numerous occasions."

Nelson, supra, 601 A.2d at 591-592 (citations omitted and emphasis added); accord, e.g., Gordon v. United States, 582 A.2d 944 (D.C. 1990) (when defense counsel advised the trial court "prior to trial" that defendant was "upset with counsel," id. at 945, this court reviewed the trial court's inquiry under Monroe-Farrell standards). As we explained in Monroe, the factors to be weighed by the court in assessing a pre-trial claim of ineffective assistance are different from those which relate to the more usual post-trial claims, and the remedy for counsel's shortcomings is likely to be different as well. See 309 A.2d at 818-819. Thus the applicability vel non of the Monroe-Farrell test is the first issue to be resolved. In this case, because the jury was sworn (and jeopardy attached) on January 30 but Scott's complaint was not voiced until the morning of January 31, *fn9 we hold that Monroe and Farrell have no bearing on this case.

The standard of review applicable to Phillip Scott's claim of ineffective assistance of counsel is the more familiar two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which this court adopted in White v. United States, 484 A.2d 553, 558 (D.C. 1984):

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant ...


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