Appeal from the Superior Court of the District of Columbia (F-3719-94) (Hon. William M. Jackson, Trial Judge).
The opinion of the court was delivered by: Schwelb, Senior Judge
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and SCHWELB, Senior Judge.
On October 1, 1996, following a jury trial, Clifton Anthony was convicted of possession of crack cocaine with the intent to distribute it while armed (PWIDWA),*fn1 possession of a firearm during a crime of violence or dangerous offense (PFCV),*fn2 carrying a pistol without a license (CPWOL),*fn3 and unlawful possession of PCP.*fn4 On appeal, Anthony claims, inter alia,*fn5 that during her rebuttal argument, the prosecutor twice misrepresented the testimony of a defense witness, Janice Jackson, by asserting that Ms. Jackson had incriminated Anthony of possession of a pistol when in fact she had not. More specifically, Anthony contends that the trial judge erred by overruling defense counsel's objection to the prosecutor's misrepresentation, by refusing to declare a mistrial, and by permitting the prosecution to repeat her misstatement after a bench conference at which the judge and attorneys discussed the defense objection.
The case is a very troubling one. The prosecutor's misstatement of the evidence, though presumably unintentional, directly contravened Anthony's defense to those counts of the indictment which required proof that he was armed. Moreover, the prosecutor's repetition of her misrepresentation after the bench conference precipitated by her initial misstatement compounded the problem and increased the probability of prejudice. If Ms. Jackson had in fact testified as the prosecutor incorrectly claimed that she did, the government's case would have been far stronger than it was in fact.
"Although [Anthony] primarily find[s] fault with the prosecutor's [statement] we must review the record for legal error or abuse of discretion by the trial judge." Gordon v. United States, 783 A.2d 575, 589 (D.C. 2001) (quoting Irick v. United States, 565 A.2d 26, 33 (D.C. 1989)). We conclude, nevertheless, that given the sequence of events and the manner in which the trial unfolded, the judge abused his discretion by overruling the defense objection without determining, before permitting the prosecutor to repeat her misstatement, whether Ms. Jackson had in fact testified as the prosecutor asserted that she had. Since, as has now been revealed, the prosecutor's description of Ms. Jackson's testimony was false, the judge, had he known the facts, should (and undoubtedly would) have taken far stronger remedial measures than he did, and the potentially severe prejudice to Anthony's defense would have been avoided. The fact that the judge did not have the critical information at the time of his ruling cannot justify the failure to take such measures.
If the judge had known that the prosecutor had misrepresented Ms. Jackson's evidence, it would not have been a permissible exercise of discretion to permit the trial to continue without bringing the correct facts to the jury's attention. Even if we were to assume, solely for the sake of argument, that the judge did not err by declining to grant the "severe remedy" of a mistrial, see, e.g., Peyton v. United States, 709 A.2d 65, 69 (D.C. 1998), the scuttling of the trial could have been avoided if the judge had ascertained, before ruling on the objection and Anthony's request for a mistrial, that the prosecutor's statement was in fact false. Had the judge done so, we are confident that he would have sustained the objection, and either corrected the prosecutor's misrepresentation in the presence of the jury or permitted the prosecutor to do so herself. We conclude, under the circumstances, that the judge's instruction to the jurors that their recollection controlled and that counsel's statements were not evidence was insufficient, on this record, to cure the prejudice generated by the prosecutor's misstatements. Accordingly, we reverse Anthony's convictions for PFCV and CPWOL and the "while armed" element of PWIDWA. We affirm the convictions of [unarmed] PWID and of unlawful possession of PCP.
It is undisputed that, at the time of his arrest, Anthony was in possession of a medicine bottle containing forty-eight rocks of crack cocaine. Although Anthony did not take the witness stand, he presented a two-fold partial defense: (1) the cocaine was for his own personal use, not for distribution; and (2) he was not armed at the time of the offense. The issues raised by the prosecutor's rebuttal argument are relevant only to the second of these partial defenses.*fn6
For present purposes, the facts relevant to Anthony's claim that he was not armed can be stated briefly. The prosecution presented evidence that in the early morning hours of April 25, 1996, Officers Donald Leach and Sean McLaughlin of the Metropolitan Police Department entered the landing of 35 Ridge Road, S.E., a building which was known by the police, and acknowledged by the defense, to be the site of frequent unlawful drug activity. McLaughlin saw a woman, later identified as Janice Jackson, on the floor above the landing. Ms. Jackson was inhaling cocaine from a pipe. Clifton Anthony, the appellant, was standing near Ms. Jackson. McLaughlin directed both Mr. Anthony and Ms. Jackson to walk down to the landing. Officer Leach testified that as Anthony proceeded down the stairs, he pulled a pistol from his waistband. According to Leach, Anthony then noticed Leach on the stairwell, and he immediately attempted to conceal the weapon by pushing it inside his waistband. Officer Leach testified that he ran up the stairs and pushed Anthony against the wall, and that Anthony dropped the pistol on the ground. Leach handcuffed Anthony, searched him, and recovered a pill bottle containing the forty-eight rocks of crack cocaine on which the PWIDWA charge against Anthony was premised.
On cross-examination, Anthony's attorney attempted to demonstrate that Leach's testimony regarding Anthony's alleged possession of a pistol was unworthy of belief. Specifically, she contended that the officer's actions, as described by Leach himself, were not the kinds of measures that a reasonable officer would have taken if he had really been confronted with the threat posed by an armed man in a drug haven who had pulled a pistol out of his waistband in the middle of the night. According to his own testimony, Leach did not unholster his service revolver, nor did he shout a warning to his partner that Anthony was armed. The defense also called the jury's attention to differences between the weapon that was seized by the police and introduced into evidence, namely, a .32 caliber Smith and Wesson revolver, and the description of that weapon (in police documents executed at the time or soon after Anthony's arrest) as a .38 caliber pistol. In addition, while most of the Form PD-163 arrest report was typed, the information regarding the pistol had been inserted in handwriting. In her closing argument, Anthony's attorney stated:
I submit that there is an odor coming up off this evidence, this conduct, which [you] can't miss. This smacks of untruth. And just like the police version of the events in this case doesn't make any sense, the police paper work doesn't make any sense either, and neither do the [officers'] explanations for why this paper work is like this.
According to the defense, in other words, Officer Leach's testimony that Anthony was armed with a pistol was false, the police were unable to adhere to a consistent account, and the reference to the pistol was probably fabricated and added to the PD-163 as an afterthought.
Janice Jackson was called as a witness for the defense. Ms. Jackson testified that on the evening in question, she had smoked five $10 rocks of crack cocaine. She denied that she had purchased the drugs from Anthony. With respect to Anthony's alleged possession of a pistol, Ms. Jackson testified as follows:
Q: And what happened to Mr. Anthony that you could see?
A: What I could see was happening to him. The police pulled his jacket over - - he was on [his] face - - laying on the floor, with his face down and they pulled his hood like over his head and they took a capsule from him.
Q: Did you see the police officer take a gun from Mr. Anthony?
A: No, I didn't. Matter of fact, the only gun I saw was what the police had when he ran up the steps as I was hitting the pipe.
Q: Okay; that police officer had his gun in his hand?
Q: Now, the police officer that had Mr. Anthony face down on the first landing, did he have his gun out?
Q: Okay. And you said you saw the police officer that had Mr. Anthony down on the landing ...