Appeal from the Superior Court of the District of Columbia, (F-4756-02) (Hon. Harold L. Cushenberry, Jr., Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before RUIZ, GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges.
Appellant, Robert L. Arthur, was indicted for distribution of marijuana and possession with intent to distribute (PWID) marijuana*fn1 subject to an enhanced penalty in light of appellant's prior drug conviction for distribution of marijuana.*fn2 Following a jury trial, appellant was convicted of the distribution charge; he was acquitted on the PWID count but convicted of the lesser-included offense of possession of marijuana.*fn3 On appeal, he argues that the trial court erred by making comments on the likely impact of his testimony on the jury after he had expressed his intention to testify, comments which led him to change his mind and waive his constitutional right to testify in his own defense. We agree, and conclude that the trial court's intervention constituted plain error. We, therefore, reverse the judgment of conviction for distribution and remand the case for a new trial.*fn4
I. Statement of the Facts
At trial the government presented evidence that at 7:40 p.m. on July 23, 2002, Metropolitan Police Department (MPD) Investigator Jerome McClinton, acting under cover, approached a man on Girard Street, N.W., and said he wanted to buy two ten-dollar bags of marijuana. According to Investigator McClinton, the man agreed and told the investigator to follow him into an adjacent alley. McClinton did so, and, as he entered the alley, he saw another man leave the alley. The man who walked with McClinton into the alley gave him two clear ziplock bags containing a "greenish weed substance," and McClinton paid with a pre-recorded twenty-dollar bill.
After receiving a lookout description from Investigator McClinton, Investigator Stephanie Garner saw a man leaving the alley and getting into the back seat of a black Volkswagen Jetta.*fn5 Investigator Garner and her partner followed the car until it was stopped by an arrest team that had responded to a broadcast of Investigator McClinton's description of the seller.*fn6 As Investigator Tyrone Hunt, a member of the arrest team, approached the Volkswagen, he saw appellant "stuffing something, doing a motion with his right hand."
When Investigator Hunt asked appellant to step out of the car, he saw that appellant was holding a white piece of paper with a greenish substance in it. On the seat where appellant had been sitting, the arresting officers found $475 in cash strewn about, including the pre-recorded twenty-dollar bill. In addition, the officers found one ziplock bag containing a greenish substance (that later tested positive for marijuana) in the area where appellant had been seen "stuffing" something with his right hand. After appellant was arrested, Investigator McClinton rode by and identified him as the person who had sold him the marijuana in the alley.
Defense counsel set out in his opening statement the theory of the defense: that appellant had entered the alley to purchase drugs -- not to sell them -- and that the police had mistaken him for the person who sold marijuana to Investigator McClinton. Counsel proposed that it was the third person Investigator McClinton had seen leaving the alley who had sold him the drugs, and that appellant had purchased from this same person the one ziplock bag of marijuana that was later found in the car. Defense counsel proffered that "the facts will show" that the pre-recorded bill found in appellant's constructive possession was the change he had received from the actual seller after the undercover police officer had used it to pay for the drugs he purchased.
At the beginning of the second day of trial, defense counsel told the trial judge that there was a preliminary matter concerning proof that would be presented, as part of the government's case, of appellant's prior conviction for "distribution or possession with intent to distribute marijuana" that needed to be resolved before the court resumed trial:
Defense Counsel:... There is a preliminary matter, Your Honor. I originally said we would stipulate to [appellant's] prior conviction. He doesn't want to stipulate to it. I guess the Government has to introduce a certified copy.
The Court: Mr. Arthur, you need to think about this, because if the nature of the [prior] conviction becomes apparent to the jury that you have been previously convicted of possession with intent to distribute a controlled substance, or distribution of a controlled substance and you are charged with that same offense now, they will think that is what you do, you are a drug dealer. So what we are trying to do is make sure they don't know what the nature of the charge is, just that you have a prior conviction under the statute.
The reason we are doing it this way is it would prejudice you greatly if the jury knew that you got a conviction for the same type of offense that you are on trial for.
Defense Counsel: He intends to testify to it, I believe. So it could come out there....
The Court:... If you want a stipulation, then the Government can['t] put in the nature of the prior conviction. It is completely up to you. We are trying to protect your rights. Do you understand what I am saying? You have to answer yes or no. Defendant Arthur: Yes.
The Court: It may very well be if you decide the only way you can get your defense before the jury is that you are going to have to testify, that is a decision you and your lawyer have to make.
But if you understand the issue now, the Government is willing to have a stipulation that indicates you were simply convicted of a violation of a statute and not bring out the violation.
We can leave it at that now and you and your lawyer could decide whether you will testify. If you decide to testify and it comes out, that is how it will be, but it will give you some more time to think about that issue; okay?
The Court: Okay. We will have the stipulation then; is that okay with you? Defendant Arthur: Yes.*fn7
After the government presented its evidence to the jury, the judge addressed appellant directly:*fn8
Mr. Arthur, you now have to make a decision about whether or not you wish to testify or not. If you wish to present any evidence to this jury with regard to why you were in the alley and what you did in the alley, and anything other, information you want them to know that obviously hasn't come out from the Government's evidence, other than another person was in that alley and left but wasn't dressed like you, you are going to be the only person who could provide it.
I will give you another five minutes or so to talk to [your counsel] to see if you wish to testify. Obviously, if you wish to testify as [your counsel] has advised you, the Government will impeach you with your prior criminal convictions. That will simply go to your believability as a witness. It won't be offered to prove that you are guilty of this offense. It will affect whether or not they believe you or not. The government won't be able to argue because he has been convicted before, that must mean he did it again. They can't argue that. But the jury will certainly learn if you testify that you have previously been convicted of a distribution or possession with intent to distribute offense.
So you and your lawyer need to balance all these things together.... If you think you need to testify, that is completely up to you.
The trial court recessed for five minutes to give appellant time to consult with counsel. After the recess, appellant himself unambiguously informed the trial court that he wished to testify:
I want to. I would like the jury to find out what I was doing in the alley. Bu[t] by the prosecutor, it never came out, I told my attorney what happened. I don't see how even if I don't, how they are gonna find out what I believe to be the truth.
The judge indicated that he accepted appellant's decision, saying, "That's fine. If you wish to testify, that's fine." Then the prosecutor interjected:
Your Honor, there are several prior convictions the Government would seek to impeach him with. I just want to go over with the Court, the Government has certified copies of convictions for distribution of marijuana, two [violations of the Bail Reform Act], an escape charge....*fn9
Although appellant had already twice indicated that he wished to testify -- once through his attorney and once in his direct statement to the judge -- the trial court, again sua sponte, questioned appellant regarding his decision to testify:
The Court:... Given the nature of the charge I will preclude [the prosecutor] from impeaching him with that rape conviction ...