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September 3, 1998



Before Terry and Steadman, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Steadman, Associate Judge:

Appellant Grant D. Moctar, along with two confederates, plotted and carried out the robbery and murder of a drug dealer, Juan McWeay, and the serious wounding by a bullet through the head of the drug dealer's companion, Ralph Cherrico. The details are set out at length in our opinion, also released today, in Green v. United States, 718 A.2d 1042 (D.C. 1998), and need not be repeated here. *fn1 Appealing his convictions, appellant argues that the trial court committed reversible error in 1) the conduct of the inquiry [718 A2d Page 1065]

regarding his right to testify, 2) not granting an overnight continuance to secure a missing defense witness, and 3) refusing to suppress his videotaped statements. We affirm.

I. The Request for a Continuance

We begin with appellant's second issue, although the least substantial, because it bears upon his first issue. On January 24, 1994, a trial date of May 31, 1994, was scheduled. On Wednesday, June 1, the case was certified to the trial judge for trial and proceeded through the week. That Friday, June 3, the trial court alerted defense counsel that he should be ready with witnesses late Monday morning, June 6, and that it would be on a "speed track."

After the weekend had passed, the trial resumed on Monday morning with what were essentially some closing witnesses for the prosecution, mainly to authenticate exhibits. The defense case began shortly before lunch with an expert medical witness. *fn2 Cross-examination of that witness occurred after lunch. Defense counsel then told the trial court that to be "quite candid with you, my position would be not to call anyone at this point beyond this." However, after talking with his client, counsel asked for an overnight continuance so that he could present one other witness for about fifteen minutes of testimony.

Specifically, defense counsel proposed that "we do jury instructions and that sort of thing now and just give me fifteen minutes in the morning to put that witness on." The trial court replied that "[w]e are going to do the jury instructions and argument today, as well as whatever witnesses you have. I don't know what made any of you think that we weren't finishing this case today, you all know I have another case scheduled for tomorrow morning." Defense counsel responded, "I understand that, Your Honor." The defense then put on an alibi witness and rested, following which defense counsel and the trial court resumed the discussion of the missing witness, who was identified as Rondale Pinkney. During the discussion, no proffer was made as to the nature of Pinkney's testimony nor its importance to the defendant. The trial court ascertained that defense counsel had not subpoenaed the witness for these trial dates, although she had been under subpoena four times previously when the trial date was postponed. *fn3 Reiterating a point it had made previously, *fn3 the trial court noted the absence of a subpoena and again denied the request for more time.

As we have repeatedly held, the grant or denial of a continuance rests within the sound discretion of the trial judge, to whom we accord wide latitude. See Little v. United States, 709 A.2d 708, 715 n. 17 (D.C. 1998); Owens v. United States, 688 A.2d 399, 404 n. 3 (D.C. 1996); Edelen v. United States, 627 A.2d 968, 972 (D.C. 1993); Tucker v. United States, 571 A.2d 797, 800 (D.C. 1990). "To establish abuse of that discretion, the defendant must, at the minimum, make some showing of prejudice." Mack v. United States, 637 A.2d 430, 432 n. 3 (D.C. 1994). Hence, a party seeking a continuance to locate a missing witness

"must make a showing that such continuance is 'reasonably necessary for a just determination of the cause.' " O'Connor v. United States, 399 A.2d 21, 28 (D.C. 1979) (citing Brown v. United States, 244 A.2d 487, 490 (D.C. 1968)). In fulfilling this requirement, the movant must make a fivefold showing. He or she must establish (1) who the missing witness is, (2) what the witness' testimony would be, (3) the relevance [718 A2d Page 1066]

and competence of that testimony, (4) that the witness could probably be obtained if the continuance were granted, and (5) that the party seeking the continuance has exercised due diligence in trying to locate the witness.

Bedney v. United States, 684 A.2d 759, 766 (D.C. 1996).

Applying this standard, we see no basis for reversal. Defendant had ample opportunity to prepare his case. The trial was in its fourth day. The witness had not been subpoenaed. No proffer was made as to the relevance of the witness to the defendant's case. *fn4 The trial court did not abuse its discretion in denying the request for a continuance.

We turn now to appellant's first argument, which also involved possible trial delay.

II. The Boyd Inquiry

In Boyd v. United States, 586 A.2d 670, 674-75 (D.C. 1991), we held for the first time *fn5 that a defendant's right to testify in a criminal trial "is a fundamental and personal right which can only be waived by the defendant," and that such a waiver must be " 'an intentional relinquishment or abandonment of a known right or privilege,' " (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Thus, we said, the defendant's right to testify is "one of those constitutional rights in which the Johnson v. Zerbst standard must apply in determining whether the defendant has waived that right." Id. at 677.

However, we did not have occasion to determine precisely how to apply that standard. We acknowledged three prevailing approaches: one would require the trial court at trial to engage the defendant in an on-the-record colloquy to determine whether the waiver is voluntary and intelligent, another would impose a duty on the defendant to affirmatively demand at trial his or her right to testify in order to preserve it for a post-trial challenge, and the third would not require trial court or defendant action at trial but would allow the defendant freely to bring a post-trial challenge. We effectively rejected both the first and second alternatives. However, given our holding on the fundamental nature of the right and the requirement of a personal waiver, we urged trial courts to engage in what is now sometimes known as a Boyd inquiry:

We take this occasion . . . to advise the trial court and the Bar, that while we do not today hold that the trial court has a sua sponte obligation to inquire of a non-testifying defendant before the defendant rests whether the defendant has waived the right to testify, it behooves the trial court to make such an on-the-record inquiry in order to avoid issues on appeal and collateral attacks.

Id. at 678 (footnotes omitted). *fn6

Pursuant to that behooval, the trial court, after the defense rested without the defendant [718 A2d Page 1067]

having testified, made inquiry of the defendant personally as follows:

THE COURT: First of all, Mr. Moctar, do you understand you have a right to testify. ...

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