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Perkins v. United States

October 12, 2000

DERRIN A. PERKINS, APPELLANT,
V.
UNITED STATES, APPELLEE.



Before Schwelb, Farrell, and Ruiz, Associate Judges.

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

Appeal from the Superior Court of the District of Columbia (Hon. Brook Hedge, Trial Judge)

Argued May 10, 2000

Derrin A. Perkins was convicted by a Superior Court jury of possession of cocaine with intent to distribute it (PWID). On appeal, he contends that the trial judge misapplied the doctrine of "curative admissibility" and erroneously admitted "bad acts" evidence that was substantially more prejudicial than probative. We conclude that the issue presented on appeal has not been adequately preserved and that Perkins has not shown plain error. Accordingly, we affirm.

I.

THE TRIAL COURT PROCEEDINGS

The government's evidence, if credited, established that on April 16, 1991, at approximately 1:30 a.m., officers of the Metropolitan Police Department stopped Perkins, who was driving a green Mercedes-Benz, for an illegal left turn. As one of the officers was writing a ticket, Perkins attempted to run away. Perkins slipped and fell, however, and the officers were quickly able to apprehend him.

While attempting to make his escape, Perkins reached into his waistband area and removed a brown paper bag. The police recovered the bag, and it was subsequently determined that the bag contained seventeen grams of crack cocaine with a street value of $3,300. The sum of $581 was recovered from Perkins. According to a police detective, Perkins stated that he had run because the drugs were on him.

Testifying in his own defense, Perkins denied the government's allegations. He disclaimed any knowledge of the drugs or of the bag in which they were contained. Perkins argued that it would have made no sense for him to attempt to run away when the officers had his driver's license and registration in their possession. He denied making any admissions to police, and he noted that he had entered a plea of not guilty at arraignment. Perkins acknowledged that cash in the approximate amount of $600 was recovered from him, but he claimed, and his girlfriend verified, that the girlfriend had given him the money to purchase a money order so that she could make a mortgage payment.

When his case came to trial in the Superior Court, Perkins not only denied his guilt of the PWID charge, but also claimed that the police had fabricated the allegation in order to coerce him into testifying for the government in a major federal drug conspiracy prosecution. The federal case involved a group of defendants who allegedly belonged to the "R Street crew." See Thomas v. United States, 324 U.S. App. D.C. 374, 114 F.3d 228, cert. denied, 522 U.S. 1033 (1997). Perkins was one of the defendants indicted in the R Street matter, and he was convicted by the jury of three federal felony charges. *fn1 On December 6, 1993, Perkins was sentenced to serve three concurrent life terms. *fn2

During in limine proceedings in the PWID case in the Superior Court, Perkins sought to subpoena as a witness Assistant United States Attorney Russell Duncan, the prosecutor who had handled the R Street case. Perkins hoped to establish through Duncan's testimony that the PWID charge had been fabricated in order to pressure Perkins into assisting the government in its prosecution of the R Street crew. The judge ultimately ruled that Perkins' trial counsel had provided no factual basis for connecting the PWID charge to the R Street matter. The judge declined to require Mr. Duncan to testify, and she ordered that "the R Street incident is not to come into this trial." The judge went on to state that, subject to one possible limited exception, *fn3 she "expect[ed] absolutely no reference or testimony or discussion of the R Street case or Mr. Perkins' involvement in that." This ruling is not challenged on appeal.

In compliance with the judge's order, the attorneys did not elicit any information about the R Street case during the presentation of the prosecution's evidence or during Perkins' direct examination or cross-examination. While cross-examining Perkins, however, the prosecutor attempted to impeach him by showing that he had given false testimony in the R Street case regarding what had occurred at a meeting between Perkins and prosecutors on May 3, 1991, approximately two weeks after Perkins' arrest in the PWID case. Perkins had testified in the R Street matter that, at that meeting, he was shown a newspaper article entitled "D.C. Death Penalty Case Will be First in 35 Years." In the present case, the prosecutor pointed out that this article had appeared in the Washington Post of May 16, 1991, thirteen days after the meeting. Perkins indignantly insisted that the May 16 article was not the one he had been talking about during his R Street trial testimony, and he accused the prosecutor in the PWID case of "trying to switch the newspapers up and confuse me."

On redirect examination, Perkins' attorney followed up on the foregoing exchange by asking his client how the PWID case was discussed at the May 3, 1991 meeting. Perkins responded to this question by declaring that the PWID charge "was brought up as part of a bribe. This case was initiated for coercion." *fn4 This remark was in direct contravention of the trial judge's in limine ruling, and Perkins does not contend otherwise. At a bench conference following Perkins' comment, the prosecutor stated that Perkins had "opened the door" and that "what we plan to do now is [go] full throttle." The judge, adopting the prosecutor's emphatic phraseology, told defense counsel that "now that you have opened the door, [the prosecutor] can go into full throttle."

The prosecutor promptly demonstrated what he meant by going "full throttle." On recross-examination, his strategy was to try to establish, inter alia, that the government had no need to fabricate evidence against Perkins because the government had a powerful case against him and against the other R Street defendants. In conformity with this strategy, the prosecutor attempted to bring before the jury much of the evidence that had been presented at the federal trial against the R Street defendants (including Perkins). Specifically, the prosecutor began to interrogate Perkins regarding the testimony given by various government witnesses at the federal trial. ...


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