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Gibson v. U.S.

November 10, 1994

HERBERT GIBSON, APPELLANT
v.
UNITED STATES, APPELLEE. RUSSELL H. SYKES, APPELLANT V. UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia. (Hon. Joseph M.F. Ryan, Trial Judge)

Before Ferren, Steadman and Sullivan, Associate Judges. Opinion for the court by Associate Judge Sullivan. Dissenting opinion by Associate Judge Steadman.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge: After a joint jury trial with Russell H. Sykes and other defendants, Herbert Gibson was convicted of conspiracy to distribute cocaine, distribution of cocaine, and possession with intent to distribute marijuana, in violation of D.C. Code § 33-541 (a)(1) (1993); Sykes was convicted of conspiracy to distribute cocaine. *fn1 Gibson and Sykes contend on appeal: (1) that the trial court improperly refused to permit adequate voir dire questioning into the relationships between prospective jurors and law enforcement personnel; (2) that the trial court erred in limiting the scope of a Jencks *fn2 inquiry and in failing to compel the production of all relevant Jencks material to trial counsel; and (3) that the evidence was insufficient to support their conspiracy convictions. Gibson also maintains that the marriage of his trial counsel to a police officer -- which was not disclosed to Gibson until after the trial was underway and only after Gibson had observed his trial counsel's husband fraternizing with other police officer witnesses in the case -- presented a conflict of interest which abridged his Sixth Amendment right to effective assistance of counsel. We find persuasive the voir dire argument made by appellants. Accordingly, we reverse their convictions and remand their cases for new trials. *fn3 In view of our Disposition, it is not necessary for us to reach the remaining issue raised on appeal.

I.

During the voir dire phase of jury selection, the government's attorney introduced to the panel of prospective jurors eight witnesses the government intended to call to testify in its case-in-chief. Seven of the eight witnesses were police officers and one was a civilian. Thereafter, thirteen prospective jurors stated that they or a close relative had been directly involved in law enforcement. *fn4 The trial court asked the prospective jurors with connections to law enforcement whether any member would be inclined to give either greater or lesser weight to the testimony of a police officer merely because the person testifying was a police officer; no one responded affirmatively. When counsel for co-defendant Harris requested the trial court to ask follow-up questions to those prospective jurors and to grant permission for him to inquire further about a prospective juror's daughter, who was employed as a metropolitan police officer, the court denied the requests. In denying the requests, the trial court noted the negative response by the panel to the court's follow-up question. The dialogue between the trial court and defense counsel, who was interrupted by the trial court as he attempted to explain his point, was as follows:

MR. MCMILLEN: My point is, Your Honor--

THE COURT: I know what your point is. It doesn't impress me.

THE COURT: You have your thoughts on the record. I want to seat the jury now.

MR. MCMILLEN: Very well, your honor.

THE COURT: This isn't Maryland.

II.

Gibson contends that the trial court erred in not permitting any follow-up questioning of the thirteen prospective jurors who stated that either they or a close relative had been directly involved in law enforcement. The government contends that this court must apply the "plain error" standard since no objection was made at trial. While counsel for neither Gibson nor Sykes objected to the adequacy of voir dire at trial, and plain error is ordinarily applied in such circumstances, Harris v. United States, 602 A.2d 154, 159 (1992) (en banc); see also Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc) (to justify reversal under this standard, "the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial"), we reject the plain error standard in the present case.

This court has held that an objection is preserved when made by a codefendant. (Kirk) Williams v. United States, 382 A.2d 1, 7 n.12 (D.C. 1978) (if a co-defendant has raised an objection, the purposes of the plain error rule -- presentation of the issues by the prosecution and review by the trial court -- may be satisfied and the defendant's failure to object overlooked); Perkins v. United States, 446 A.2d 19, 25 n.4 (D.C. 1982) (same). *fn5 Moreover, when "counsel has attempted to proffer a particular type of evidence [or objection] and the trial court has made its unwillingness to entertain a proffer absolutely clear, [co-] counsel should not be expected to risk contempt by pressing further to make an offer of proof [or to preserve that objection]." See McBride v. United States, 441 A.2d 644, 657 (D.C. 1982). Since the trial court record reveals clearly that appellants' codefendant, Harris, made the objection, thereby preserving that objection for appellate court review, we measure this case against the "harmless error standard" ...


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