Appeals from the Superior Court of the District of Columbia (F-3015-92) (Hon. Cheryl M. Long, Trial Judge)
Before Schwelb, Farrell, and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge.
Appellant David A. Rowland was indicted and tried twice on one count of second degree murder while armed. The first trial resulted in a hung jury. In the second trial, the jury acquitted Rowland of murder but convicted him of the lesser-included offense of voluntary manslaughter while armed. The court imposed a sentence of ten to thirty years' imprisonment and subsequentlydenied Rowland's motion for a new trial based on newly discovered evidence that suggested a possible "accidental death" defense.
The primary issue before us in this consolidated appeal is whether the trial court committed reversible error by allowing the prosecution to introduce evidence that a defense witness refused to take a police-administered lie detector test. The United States concedes that this evidence should not have been admitted but argues that the error was harmless. We are persuaded that the error did not contribute to the verdict against Rowland and does not entitle him to relief. In addition, we reject Rowland's other claims of error in his trial, and we affirm the denial of his new trial motion.
David Rowland was charged with murdering Metropolitan Police Officer Christie Hoyle on December 7, 1990. The case was an unusual one. Hoyle died while she was alone with Rowland in his apartment. It was Rowland, a police officer himself, who summoned the police to the scene. The cause of Hoyle's death was a single bullet fired into her chest from close range - two to six inches - out of Hoyle's own service weapon, a 9 mm Glock 17 semi-automatic pistol. That weapon, with the expended shell casing still in its firing chamber, was found on the floor near Hoyle's body when the police arrived. Rowland told the police that Hoyle shot herself without warning when he was not looking and while he was out of the room. Later that night, Rowland voluntarily gave a lengthy written statement about the events leading up to Hoyle's death to Sergeant Daniel Wagner in the offices of the Homicide Branch. After Rowland gave his statement, he was allowed to leave without being charged. *fn1
At trial, the government presented evidence that Hoyle's death was not the suicide that Rowland claimed. The theory of the prosecution was that Rowland was lying to cover up the fact that he shot Hoyle during a violent altercation. Among the witnesses whose testimony supported that theory was a police officer named Daniel Scott. Officer Scott testified that Rowland told him a few months after Hoyle's death that he and Hoyle had been "arguing over some bitch" of whom Hoyle was jealous; that Hoyle became angry and left the room to get her gun, saying she would kill them both; and that "they struggled over the gun and the gun went off and that was it." Even more damaging was the testimony of Terrence and Michael Harper, two young men who lived in the apartment directly beneath Rowland. They testified thatthey were at homeand heard an exceedingly loud and violent fight between a man and a woman in the apartment above them on the night Hoyle died. Terrence Harper went out before the fight ended, but soon after he left, Michael Harper heard a "loud thump" and a female voice yelling "get off of me." This was followed only seconds later by a loud noise that "sounded like a gunshot." Then the fighting stopped.
The prosecution also relied on forensic evidence to prove that Rowland fought with Hoyle and then shot her. The Deputy Medical Examiner who performed the autopsy on Hoyle testified that in addition to the bullet wound in her chest, Hoyle had fresh bruises and abrasions on her forehead, cheek, neck, shoulders, right breast, right forearm, left wrist, and left hand. Of special interest was a suspicious inch-long abrasion on Hoyle's left palm at the base of her thumb. In the opinions of the Deputy Medical Examiner and police firearms experts, Hoyle could have incurred this particular injury by grabbing the "slide" of her sharp-edged Glock in a desperate effort to deflect the weapon and stop it from firing at her - something her police training had taught her to do in self-defense. The empty shell casing found in the chamber of the Glock provided additional evidentiary support for this inference, since grabbing the slide when the weapon was fired could have prevented it from ejecting the expended casing and chambering a new round. In addition, Larry Melton, a former Police Department firearm training expert, testified that Hoyle's Glock 17 was a highly reliable weapon with a five-pound trigger pull and three internal safety mechanisms that ensured it would not fire accidentally. *fn2
The post-mortem forensic evidence did not provide a definitive answer to the question of who pulled the trigger of the Glock, however. No identifiable fingerprints were found on the Glock or its ammunition, and nitric acid swabs taken on the night Hoyle died did not reveal the presence of gunshot residue on the hands of either Hoyle or Rowland.
Rowland's defense at trial mirrored, for the most part, the detailed statement he gave the police on the night Hoyle died. Rowland testified that he and Hoyle were alone together in his apartment on December 7. Their relationship was an intimate one, but on that day they were feuding. At some point in the early part of the evening, according to Rowland, Hoyle became so angry that she started swinging at him. This led to some semi-playful tussling, in the course of which, Rowland claimed, he placed "passion marks" *fn3 on Hoyle's neck, cheek and forehead. Rowland attributed Hoyle's bruises and abrasions to this physical activity, *fn4 which also arguably explained the sounds of fighting heard by the Harpers in the apartment below. After a bit, Rowland said, the tussling came to an end, but the argument resumed, with Hoyle complaining that Rowland was not spending more time with her. Hoyle left the apartment to go out for the evening without Rowland, but she returned a few minutes later. Once again, Rowland said, Hoyle brought up his failure to spend more time with her. Rowland told Hoyle he was tired of hearing it, walked out of the room, and invited Hoyle to lock the door on her way out. Seconds later, Rowland testified, he heard a gunshot, ran back to the bedroom where Hoyle had been, and saw her falling to the floor. *fn5
In view of Rowland'stestimony that Hoyle's fatal wound was self-inflicted, a principal focus of the trial was on Hoyle's mental state around the time of her death and whether she was suicidal. The defense undertook to show that Hoyle was under considerable stress from multiple sources - her rocky relationship with Rowland, her work as an undercover police officer, and her concerns about her family -, that she was in a despondent mood, and that she was at serious risk of committing suicide. The prosecution countered that the defense was exaggerating the stresses on Hoyle, that she was functioning well and was not depressed, and that she was not at a heightened risk of suicide. Several witnesses, lay and expert, testified for one side or the other about these matters.
Only two witnesses testified that Hoyle had ever attempted suicide or made what could be construed as suicidal gestures. One of these witnesses was Rowland himself. He described two incidents of which he claimed to have personal knowledge. The first was an episode in the summer of 1990 in which Hoyle, upset over various matters, briefly held her service weapon to her head and told him not to come near. The second was an occasion on which Rowland was awakened in the middle of the night by "the racking of a gun" and saw Hoyle standing with her weapon in her hand, pointing it at the wall. Hoyle allegedly told Rowland that she was unloading the weapon and then made him promise not to marry or impregnate anyone while she was away on active military duty. There was no independent corroboration of either of these incidents, however. Moreover, Rowland mentioned neither incident when he gave his statement to the police on the night of Hoyle's death. Instead, Rowland denied to Sergeant Wagner that he had "ever seen [Hoyle] threaten to kill herself, or talk about taking her life, or play with her service weapon that way."
The other witness who testified about a suicidal gesture on Hoyle's part was Metropolitan Police Officer Dwayne Washington. A close friend of Rowland and, he said, of Hoyle, Officer Washington described an incident that occurred on a night shortly after Thanksgiving, just a few days before Hoyle's death. According to Washington, Hoyle telephoned him at home and said she was "just calling to say good-bye." Washington drove to Hoyle's apartment. She let him in and then sat down on the floor against the living room wall with her legs crossed, holding her service weapon on her thigh with her trigger finger next to the slide area of the weapon. Washington said he immediately went over to Hoyle and took the weapon out of her hand. The weapon was loaded and there was a live round in the chamber. Washington removed the magazine and the chamber round, placed the weapon and the magazine in separate cabinets in the kitchen, and then returned to the living room. He gave Hoyle a hug, she began to cry, and after she stopped crying, Washington testified, they "started talking about her life, how things were going and her relationship with Mr. Rowland." Hoyle told Washington "how much she wanted to be with [Rowland] and it only to be with her and not no one else that he was seeing."
Officer Washington testified that after they talked for awhile, he and Hoyle left her apartment and drove to the Fifth District Police Headquarters, where Hoyle was detailed as a member of the Vice Unit. Washington carried Hoyle's service weapon and its magazine on the way because he "didn't feel it would be right to give the weapon back to her at the present time." He intended to turn the weapon in to the watch commander. Upon arriving at the Fifth District, however, Washington gave the weapon and the magazine back to Hoyle, and she then went by herself into the Vice Unit office. It was now late at night and the office was unoccupied. Washington followed Hoyle into the office "shortly thereafter" and saw her placing her weapon in the Vice Unit safe, which she had evidently opened. The two then returned to Washington's car and drove to Georgetown, where they got out and took a long walk. Eventually, Washington testified, he drove Hoyle back to her apartment and left her there. Washington telephoned Hoyle the next day to check up on her. She assured him that she was "feeling fine."
This was the testimony that the prosecution was permitted to impeach by presenting evidence that the witness, Washington, declined to take a polygraph examination.
II. The Evidence That Officer Washington Refused to Take a Lie Detector Test
Rowland's main contention on appeal is that the trial court erred by admitting evidence that Officer Washington volunteered to take a police-administered polygraph examination but later, through counsel, declined to appear for the examination. The government concedes Rowland's point but argues that the error was harmless. On the latter point, we agree with the government.
The "lie detector" questioning at trial came about in the following manner. Washington admitted that he did not tell the police about Hoyle's recent suicidal behavior when they interviewed him at police headquarters on the night of Hoyle's death. *fn6 But, he testified on re-direct, he did report the post-Thanksgiving incident in Hoyle's apartment to detectives at the Homicide Branch in a second interview a few days later. On re-cross-examination, Washington acknowledged that the homicide detectives told him they thought he was lying. Over defense objection, the court then permitted the prosecutor to ask Washington if he offered to submit to a lie detector test to convince the detectives that he was telling the truth. Washington denied making any such offer and agreed that he never took a polygraph examination.
In its rebuttal case, the prosecution recalled Sergeant Wagner to the witness stand. Sergeant Wagner was one of the officers who conducted the second interview of Washington. Sergeant Wagner testified that during the second interview, Washington acknowledged that he had not mentioned the recent incident in Hoyle's apartment to police investigators on the night of Hoyle's death. Washington told Sergeant Wagner, however, that he had described the incident to Rowland's father that night while they both were waiting outside the Homicide Branch for Rowland to be released. *fn7 Upon hearing Washington say this, Sergeant Wagner interrupted the interview and went to ask Rowland's father, Metropolitan Police Officer John Rowland, if Washington's account was true. According to John Rowland, it was not. John Rowland flatly denied that Washington had told him about the alleged incident. *fn8 Sergeant Wagner testified that he returned to Washington and confronted him with this contradiction. According to Sergeant Wagner, Washington "became very belligerent" and "complained that everybody was calling him a liar." Sergeant Wagner responded that he did indeed believe that Washington was lying.
Sergeant Wagner testified that Washington then volunteered to take a lie detector test. Sergeant Wagner accepted the offer and scheduled a test for the following afternoon. The next morning, though, Washington's attorney called and left the message that Washington would not be coming in that afternoon to take the test. On cross-examination, Sergeant Wagner testified that he assumed that Washington skipped the polygraph examination on the advice of his attorney. Sergeant Wagner acknowledged that he did not know why the attorney gave that presumed advice. Sergeant Wagner did not know if Washington's attorney simply did not trust polygraphs, "didn't want [Washington] to get caught telling a lie," or had some other reason.
In her initial closing argument, the prosecutor made no mention of Washington's offer and refusal to take a polygraph, though she offered the jury other reasons to disbelieve Washington's story about Hoyle's suicidal behavior. For her part, Rowland's trial counsel told the jury that the polygraph-related evidence "has no place in this courtroom." *fn9 In her rebuttal, the prosecutor ignored this comment. She resumed her attack on Washington's credibility but again said nothing about his failure to take a lie detector test.
After arguments, the trial court, concerned that the jury would wonder "why this case isn't getting resolved through lie detector tests," gave a cautionary instruction explaining that lie detector test results "are not usable in court." "We need," the court stated, "live jurors to listen to live witnesses and decide who is telling the truth." Although the court alluded to "the fact that a witness allegedly offered to take a ...