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Furr v. United States

Court of Appeals of Columbia District

April 13, 2017

Kenneth Furr, Appellant,
United States, Appellee.

          Argued March 17, 2015

         Appeal from the Superior Court of the District of Columbia (CF3-16581-11) (Hon. Russell F. Canan, Trial Judge)

          Fleming Terrell, Public Defender Service, with whom James Klein and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

          James M Perez, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, Lara Worm, and Natalia Medina, Assistant United States Attorneys, were on the brief, for appellee.

          Before Glickman and Beckwith, Associate Judges, and Pryor, [*] Senior Judge.


          Glickman, Associate Judge

         Kenneth Furr appeals his conviction for assault with a dangerous weapon ("ADW").[1] He contends the trial court erred by excluding testimony about an internal Metropolitan Police Department ("MPD") investigation that reportedly vindicated an officer whose testimony contradicted the complaining witness. In addition, Furr claims the trial court plainly erred by failing to intervene sua sponte when the prosecutor impugned that officer in her rebuttal argument. We conclude these claims lack merit and affirm Furr's ADW conviction.


         The criminal charges in this case arose from appellant's activities in the predawn hours of August 26, 2011. Appellant, a police officer, was off duty at the time. In a CVS pharmacy at 400 Massachusetts Avenue, N.W., he encountered "Chloe, " a transgender female, and solicited her for sex.[2] She rebuffed him. Appellant then became embroiled in an altercation with Chloe's friend, a man named Wallace Patterson. MPD Officer Edward Stewart, who moonlighted at the CVS as a private security guard, interrupted the two men and asked appellant to leave the premises. Appellant went to his car, which was parked nearby.

         A few minutes later, Patterson left the CVS. He was accompanied by a man whom he identified at trial as Calvin Hogue. As they walked past appellant's car, Patterson testified, appellant rolled down his window and shouted at him. Patterson challenged appellant to step out of his car. According to Patterson, appellant responded by retrieving a gun from the glove compartment and pointing it at Patterson. Appellant did not tell Patterson he was a police officer. This alleged conduct was the basis for appellant's ADW conviction.

         Patterson and Hogue returned to the CVS. They were met by Officer Stewart, who testified that he had stepped outside the store to "make sure everything was okay." Patterson stated that appellant "had a gun."[3] Stewart asked him whether he saw it. Here the two witnesses' accounts diverged. Patterson testified he told Stewart that appellant had pointed the gun at him. He expected Stewart to "do his job" by effecting appellant's arrest. Stewart, however, testified that he "tr[ied] to ascertain how [Patterson] knew [appellant] had a gun, whether he actually saw the weapon, whether the weapon was displayed, just any - what color the weapon was, anything, but . . . [Patterson] wouldn't give [him] that information, and he continued to walk away." Stewart insisted that he "never received a report of a man pointing a gun." This conflict in the testimony generated the principal issue before us in this appeal.

         After speaking with Patterson, Officer Stewart approached appellant's car and called for police backup, telling the dispatcher that a citizen had reported encountering "an individual that's armed." Appellant exited his car and immediately identified himself as a police officer. Feeling "relieved, " as he put it at trial, Stewart cancelled his request for backup. The two officers chatted for a few minutes before Stewart returned to the CVS. Stewart saw no gun in plain view and did not ask appellant whether he had a gun or what had just happened between him and Patterson. Patterson, who drove back to the CVS a little later with some companions, testified that he realized the security guard "didn't do his job" because he evidently had not summoned the police to arrest appellant. The prosecutor's echo of this statement in rebuttal is the subject of appellant's second claim on appeal.

         Patterson and his friends eventually located appellant and pursued him as he attempted to drive off and evade them. In a violent denouement several blocks from the CVS on Pierce Street, appellant - who did indeed have a gun - fired his weapon at his pursuers' car, which then crashed into appellant's own vehicle. Appellant continued shooting after the collision. Patterson fled as police arrived on the scene. Appellant faced additional assault charges arising from the shooting on Pierce Street, but he was acquitted of them at trial based on his claim of self-defense. Thus, the only conviction at issue in this appeal is the one for ADW based on appellant's actions outside the CVS.


         Following appellant's arrest, the MPD investigated not only his behavior, but also the performance of Officer Stewart after he received Patterson's report of a gun. The inquiry reportedly concluded that Stewart acted appropriately under the circumstances. At trial, appellant attempted to present testimony about that inquiry from the officer who conducted it. Appellant's primary claim on appeal is that the trial court abused its discretion by excluding this testimony.


         To find appellant guilty of an ADW outside the CVS, the jury needed to believe Patterson's statement that appellant pointed a gun at him; no other evidence of the assault was presented.[4] But Officer Stewart's testimony that Patterson never told him appellant displayed a gun contradicted Patterson and thereby undercut the credibility of his accusation. The prosecutor tried to deal with this problem by showing that Stewart's need to defend his own conduct from criticism and scrutiny supplied him with a motive to deny having learned that Patterson saw appellant brandish a gun.

         Accordingly, in her direct examination of Stewart, the prosecutor elicited from him the fact that the MPD had investigated whether he took "appropriate police action" in response to Patterson's report. Stewart confirmed that he was "no longer under investigation" at the time of trial. The prosecutor did not ask him about the outcome of the investigation. On cross-examination, though, declaring that he "did not have a complainant, and . . . did not have a crime, " Stewart testified that the MPD investigation had "exonerated" him.

         Defense counsel then sought to inquire into "the reason they said you were exonerated." In response to the government's objection, defense counsel told the court she wanted the jurors to understand that "the police had decided [Stewart] was correct" in his judgment of the situation.[5] The court sustained the objection to this line of inquiry, ruling that the defense had established "definitively" that the investigation had exonerated Stewart and that the reasons articulated for that determination were inadmissible hearsay.[6]

         On re-direct, the government again brought up the MPD investigation. Stewart acknowledged that an adverse finding would have subjected him to serious discipline or possibly termination of his employment. Stewart agreed that when the investigator interviewed him, he was "essentially trying to establish that no crime had occurred." The prosecutor then asked Stewart whether "it was based on what you told the [investigator] that . . . you were exonerated?" The court sustained a defense objection to this question, and Stewart did not answer it. The prosecutor did not pursue the inquiry further and concluded her examination of the witness.

         After a brief recess, however, defense counsel complained that the prosecutor's unanswered question inaccurately implied that Stewart was cleared in the MPD investigation only because of his own self-serving statements. The court agreed that the question might have conveyed that impression. The prosecutor stated she had not intended that implication and did not oppose an appropriate curative measure to dispel it. There ensued a colloquy in which the court and counsel considered different curative options. The prosecutor initially proposed that the court strike the question. Defense counsel thought that insufficient and suggested a stipulation "list[ing] what [the investigation] involved." The prosecutor commented that a written stipulation would "draw more attention to it than is really necessary" and proposed as an alternative that Stewart simply be recalled to the witness stand to "clarify" that the MPD investigation extended beyond his statement. Defense counsel expressed no objection to that alternative solution. (Counsel did not disagree with the prosecutor's reservation about a stipulation or continue to press for one.) The court was satisfied that "it's just fair to get out that there was more than just [Stewart's] say-so that exonerated him." Accordingly, cautioning that "we're not going to get into all the subsidiary facts that went into it, " the court elected to allow the prosecutor to recall Stewart to the stand and ask him whether there were "other components" to the MPD investigation besides his own interview "and whether other witness statements were reviewed as well."[7] Stewart confirmed there were. The prosecutor accepted the witness's answer and moved on. Defense counsel raised no objections to this procedure and appeared satisfied with the prosecutor's question and the witness's answer. She did not request that Stewart be allowed to provide any additional or more specific information about the breadth of the investigation.

         Later in the trial, however, the defense called MPD Lieutenant John Haines to the stand. When Haines identified himself as the officer who had investigated Officer Stewart's "alleged misconduct, " the government objected and the court asked for a proffer of the witness's testimony. Defense counsel responded that Haines would testify about "what things he considered" in the investigation (but without repeating what "anyone said, " which counsel conceded would be hearsay) and about "what conclusion he reached." This testimony was necessary, counsel stated, because Stewart, in his testimony, "was basically guessing about the things that were considered, " while Haines "knows what was actually considered."[8] The government disputed the relevance and admissibility of Haines's testimony and argued that Stewart himself had corrected any misimpression that the MPD investigation considered only his account.

         The court agreed with the government's objections and ruled that Haines's proffered testimony would not be relevant and that "whatever relevance this witness's testimony might have . . . is substantially outweighed by the potential for prejudice and misleading the jury [and] confusing the issues."


         "We review a trial court's decision to admit or exclude evidence for abuse of discretion. An evidentiary ruling by a trial judge on the relevancy of a particular item is a highly discretionary decision that will be upset on appeal only upon a showing of grave abuse."[9] In addition, "[t]hat the evidence may be minimally relevant does not end our analysis. The trial judge has the discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice."[10] We recognize that "the evaluation and weighing of evidence for . . . potential prejudice is quintessentially a discretionary function of the trial court, and we owe a great degree of deference to its decision."[11] In reviewing such rulings, "we must be mindful of context" and recognize that the trial court "virtually always is in the better position to assess the admissibility of the evidence in the context of the particular case before it."[12]

         For the following reasons, we conclude that the trial court in this case exercised its discretion carefully and appropriately, and certainly did not abuse its discretion, by excluding the proffered testimony of Lieutenant Haines.

         First, Lieutenant Haines's investigation of Officer Stewart was relevant and admissible at this trial for one purpose only: to show the existence of a motive for Stewart to deny that Patterson told him appellant displayed a gun. Only the fact that an investigation was pursued, with potential adverse consequences for Stewart, was probative of this motive; not what evidence Haines considered, how thoroughly he conducted his investigation, or what conclusions he reached. Haines's findings regarding what Stewart was told and whether he properly performed his duties as a police officer in response to that information were not admissible in evidence to prove those facts because they were based on hearsay rather than Haines's personal knowledge of what happened.[13] Testimony about the information on which Haines based his conclusions would likewise have been inadmissible hearsay. Indeed, for the same reason, Stewart's own testimony that he was "exonerated" by Lieutenant Haines's inquiry was not admissible to prove he acted appropriately; rather, it was only permissible for the jury to hear about Stewart's vindication as a precautionary measure to ensure that the jury did not draw an adverse inference from the mere fact that Stewart had been under investigation.[14]

         Second, it would not have been appropriate to admit Haines's testimony under the "curative admissibility" doctrine to allay prejudice to appellant's defense from the prosecutor's implication that Stewart's exoneration was based solely on his own statement. The doctrine of curative admissibility "provides that in certain circumstances [one party] may inquire into evidence otherwise inadmissible, but only after [the other party] has 'opened the door' with regard to this evidence."[15]Trial judges are enjoined to exercise caution and restraint before relying on the curative admissibility rationale, because "[t]he doctrine of curative admissibility is one dangerously prone to overuse, " and the idea that the one side might "open the door, " is often oversimplified.[16] "Opening the door is one thing. But what comes through the door is another. Everything cannot come through the door."[17] Rather, "[i]ntroduction of otherwise inadmissible evidence under shield of this doctrine is permitted 'only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.'"[18] In the present case, ...

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