Appeal from the Superior Court of the District of Columbia; (Hon. Colleen Kollar-Kotelly, Trial Judge)
Before Rogers, Chief Judge, and Steadman, and Sullivan, Associate Judges.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: Appellant Samuel B. Wright appeals his convictions *fn1 by a jury on the principal ground that the trial Judge erred in denying a mistrial after a government witness, a former co-defendant who had pleaded guilty to the same burglary with which appellant was charged, was impeached with his prior convictions and then had a loss of memory. Appellant contends that despite an instruction following the striking of the witness' testimony, it was inevitable that the jury would conclude that because appellant was arrested in a building with a convicted burglar, he was also guilty of the burglary, which the government argued was committed by two men, and that the instruction to strike would be incapable of curing the harm. We disagree, holding that the "almost invariable assumption of the law that jurors follow their instructions" is controlling here. See Richardson v. Marsh, 481 U.S. 200, 206, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987). Accordingly, we affirm the judgment.
On Super Bowl Sunday, January 20, 1985, the Video Place store at 1910 K Street, N.W., was burglarized. *fn2 The evidence showed that the police, in responding around 8 p.m. to a radio call of an activated burglar alarm at that address, found a broken glass door at the rear of the building and two sets of wet footprints leading into the lobby; a sledgehammer, chisel, and other objects were also found on the ground about five feet from the building. Officer Sydnor entered the building, heard footsteps coming down the stairs, and saw two African American males looking down at him over the railing. The officer identified himself and the two men ran up the stairs. Sydnor called out to the other officers, told the two men to halt and began following them up the stairs. As Officers Sydnor and Durant began searching each floor of the building for the two men, they heard a radio broadcast that the two men were on the elevator headed for the lobby. When the elevator reached the first floor, the door opened and appellant and another man were found inside. Before the door opened, Officer Detreci heard someone in the elevator say "It's okay. Its okay." *fn3 When the door opened, Walter Goode came out while appellant was pressing buttons in an effort to close the elevator. Officers Durant, Sydnor and Detreci identified appellant as one of the two men in the elevator, and Officer Sydnor identified appellant and Goode as the same two men he had seen on the staircase based on the fact that they matched the general description he had given and were the only two African American men found in the building. Approximately thirty minutes had elapsed between the time he saw the two men on the stairs and the time they were found in the elevator.
A further search of the building indicated that the Video Place store had been entered. According to the police, the store looked as though it had been ransacked. The officers believed entry had been gained through the fire door since ceiling tiles were on the floor and the door was open. Someone had also entered the inner office and tampered with the alarm box, forcing it open and pulling out the wires.
Ralph May, the property manager at 1910 K Street, N.W., testified that the building was secured by a Castle Card security system at the time of the incident, and that without a card electronically allowing entry, the only other way to get into the building was to be on the visitor list. Mr. May testified that appellant had no authority to be inside the building on the night in question. He also testified that the broken door cost approximately $420 to repair. The manager of the Video Place store stated that when she went to the store the morning after the break-in, she observed the damage to the store, saw that merchandise had been placed in plastic bags at various points in the store, and discovered that money was missing.
Walter Goode was called as a government witness on the third day of trial. After eliciting the fact that he was currently incarcerated, the prosecutor questioned Goode about his prior convictions. Goode admitted numerous criminal convictions, including his guilty plea to second-degree burglary for the Super Bowl Sunday offense. *fn4 After eliciting that the government had made no promises to him in connection with his plea to the burglary of which appellant stood charged, the prosecutor then asked Goode how he had entered the building at 1910 K Street, N.W., on that date. Goode initially said that he could not remember, but he then stated that there was only one way to get in and that he had walked in, gaining entry through a broken door. When the prosecutor asked him whether he was testifying that he found the glass door already broken, Goode stated that he could not remember and did not have any knowledge of who broke the glass door. Goode also claimed that no one was with him when he entered the building.
At the bench, the prosecutor claimed surprise, arguing that his case was "permanently damaged," and asked for permission to impeach Goode with his prior statements at his plea hearing and the statement he had given to the police when he was arrested. Concerned that Goode might perjure himself, the trial Judge appointed counsel for Goode. Defense counsel raised both constitutional and evidentiary objections to Goode's testimony, and she requested that the trial Judge conduct a competency voir dire of Goode, arguing that appellant had a constitutional right to cross-examine a competent witness. The prosecutor replied that the government saw no competency issue but simply a reluctant witness. Defense counsel also stated that if Goode asserted a Fifth Amendment privilege, the defense would move for a mistrial. In response to the trial Judge's question concerning what prejudice appellant could suffer if Goode's testimony were struck, defense counsel responded that, in view of the fact that several police officers had testified that appellant and Goode had been arrested together, appellant would be severely prejudiced because he was inextricably linked -- in the stairwell and the elevator -- with a convicted felon having nine convictions. Defense counsel advised the trial Judge, "And I don't think that's a bell that we can unring. I don't think a corrective instruction will take that from the mind of the jury."
Thereafter, Goode's attorney advised the trial Judge that he did not think his client was incompetent, but in view of Goode's inability to remember he suggested that the Judge strike Goode's testimony and instruct the jury to disregard it. Otherwise, if the prosecutor were allowed to proceed, the attorney advised, Goode would invoke the Fifth Amendment because he would risk subjecting himself to perjury charges. The prosecutor advised that in view of Goode's "sudden memory loss," the government wished to question Goode about the plea transcript and have him testify that he did not remember the events relating to the burglary. Defense counsel moved, on evidentiary and constitutional grounds, that any further testimony by Goode be barred, and that a mistrial was appropriate in the absence of overwhelming evidence against appellant.
The trial Judge rejected the idea that Goode had a right to assert a Fifth Amendment privilege against testifying, and she denied Goode's motion to strike his testimony. *fn5 With regard to appellant's Sixth Amendment right to cross-examine, the trial Judge ruled that California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970), was dispositive of the procedure to be followed. Accordingly, the Judge stated that the prosecutor could recall Goode and impeach him. The Judge rejected defense counsel's renewed evidentiary and constitutional objections, noting that the situation did not indicate that Goode was incompetent or that the government could not attempt to impeach its witness. When Goode returned to the witness stand, however, he claimed that he could not recall his testimony of four days earlier, on May 17, 1990. Defense counsel renewed her objection to Goode's testimony on competency grounds. The trial Judge offered the prosecutor the option of impeaching Goode with his earlier trial testimony. But, when Goode returned to the witness stand and the prosecutor asked him if he recalled his statements to the police on the day of his arrest and the day he entered his guilty plea to the Super Bowl Sunday burglary, the prosecutor was met again with Goode's lack of memory and concluded at this point that it would be "useless" to continue. Defense counsel renewed her motion to strike Goode's testimony on evidentiary and constitutional grounds. The prosecutor advised that he had no objection to the motion, and the Judge granted the motion to strike, stating that she would instruct the jury to disregard Goode's testimony.
Defense counsel nevertheless also moved for a mistrial on the basis of prejudice suffered by appellant through association with a convicted felon, in effect renewing her argument that a motion to strike with an instruction could not cure the harm. Defense counsel argued that appellant had been "unsullied by any prior criminal conduct" before Goode's testimony and that prejudice would accrue to appellant as a result of the fact that Goode and appellant had become "inextricably bound together" by government testimony indicating that he and Goode were found together in the building. *fn6 Thus, had the government not begun its examination of Goode by bringing out his prior convictions and guilty plea, defense counsel continued, the jury would have been in a position to evaluate appellant's presence in the building without being tainted by association with Goode, who had pleaded guilty to the burglary charge arising from the same events. The trial Judge denied the motion for a mistrial. The Judge ruled that the government had presented a sufficiently strong circumstantial case and that appellant had not been prejudiced by the events surrounding Goode's testimony. The Judge observed also that the testimony had come as a surprise to the government and that it was not improper for the government to first elicit its witness' prior convictions in order to "take the sting out." Underlying the Judge's ruling was her view that Goode's testimony had not added anything to either side's case. *fn7 Thereafter, the trial Judge instructed the jurors to strike Goode's testimony from their minds, and the government rested its case-in-chief. *fn8
On appeal appellant contends that despite the striking of Goode's testimony and the giving of the associated curative instruction, the jury would inevitably have to conclude that a person arrested in a building with a convicted criminal, who had pleaded guilty to the crime charged, was also guilty of the offense. He argues that only Goode was in a position to provide overwhelming proof against appellant if he identified appellant as the other burglar. Because the trial Judge did not strike Goode's testimony until after he had retaken the witness stand and claimed for a second time that he could not remember anything concerning the incident leading to his arrest, appellant maintains that Goode's earlier prejudicial testimony was thereby refreshed in the jurors' minds. Hence, he contends that the Judge abused her discretion by denying a mistrial. By analogy to cases in which the trial court must take steps to ensure that a non-confessing defendant is not prejudiced by evidence of a confessing co-defendant's out-of-court statement, appellant maintains that it was clear to the jury that appellant was the other man who was arrested at the scene of the crime. Therefore, he contends that the trial Judge should have realized that notwithstanding an instruction to strike Goode's testimony from their minds, the jurors could not in ...