March 17, 2015
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.
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.
Glickman and Beckwith, Associate Judges, and Pryor,
Glickman, Associate Judge
Furr appeals his conviction for assault with a dangerous
weapon ("ADW"). 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.
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. 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.
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
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." 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.
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.
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.
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.
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. 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.
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.
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. 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.
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.
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." 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.
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." 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.
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."
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." 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." 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." 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
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.
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. 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.
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."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. "Opening
the door is one thing. But what comes through the door is
another. Everything cannot come through the
door." 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.'" In the present case, ...