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Pitt v. United States

Court of Appeals of The District of Columbia

December 5, 2019

Antwon D. PITT, Appellant,
v.
UNITED STATES, Appellee.

         Argued December 4, 2018

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          Appeal from the Superior Court of the District of Columbia, (CF1-17598-15), (Hon. Florence Y. Pan, Trial Judge)

         Stefanie Schneider, Public Defender Service, with whom Samia Fam and Alice Wang, Public Defender Service, were on the brief, for appellant.

         Daniel J. Lenerz, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, Elizabeth Trosman, Nicholas P. Coleman, and Sarah D. McClellan, Assistant United States Attorneys, were on the brief, for appellee.

         Before Fisher and Easterly, Associate Judges, and Ferren, Senior Judge.

         OPINION

         Dissenting opinion by Associate Judge EASTERLY at page 972

         Ferren, Senior Judge:

         Appellant Antwon Pitt was convicted of raping D.B. while burglarizing her home on October 13, 2015.[1] He argues on appeal that the trial court committed two reversible errors. First, appellant, who testified in his own behalf, challenges the trial court’s ruling that permitted the government to cross-examine him about another untried burglary he committed a week earlier, on October 6, 2015 - allegedly impermissible evidence of propensity to burglarize.[2] Second, appellant challenges the trial court’s dismissal of Juror 5 due to her observable illness after the court received a note that an unidentified juror had questioned whether a rape had occurred. Finding no abuse of discretion, we affirm appellant’s convictions.

          I. Other Crimes Evidence

          "It is essential, ... to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth."[3] Prosecutors may cross-examine as to both "the facts asserted by the defendant in testimony" and the "reasonably related ... inferences ... drawn from the direct testimony."[4] Moreover, "we recognize that the evaluation and weighing of evidence for relevance and potential prejudice is quintessentially a discretionary function of the trial court, and we owe a great degree of deference to its decision." [5]

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Thus, we review the trial court’s determinations defining the extent and scope of the prosecution’s cross-examination of appellant’s testimony for abuse of discretion.[6]

          A. Testimony and Objections at Trial

          1. The Government’s Evidence

          D.B. testified for the government that, on October 13, 2015, she was working from her apartment in Southeast Washington and "forgot to lock [the] door that day." Shortly after 2 p.m. she discovered a man in her front hallway, "6’3 to 6’5" tall, "black, maybe medium to dark skin tone," with "short natural hair," wearing a "light to medium gray" T-shirt "with a logo" or "geometric shapes" over another "short sleeve" shirt and "gray denim" pants.

          The man said that he was there looking for someone and asked if her husband was home or coming back soon. D.B. replied that her husband was not home, and the man then grabbed her by the "throat, very, very tightly and very, very hard," covered her mouth, and pushed her down the hallway to her bedroom. D.B. attempted to remove the man’s fuzzy gloves, hooking her finger inside of one of the gloves before her attacker removed her hand. Overpowered and threatened with death for resisting, D.B. realized that the man was raping her, and she demanded that he put on a condom. He did so and resumed the rape. D.B.’s rapist left with her cell phone, checks belonging to her husband, and cash.

         D.B. immediately e-mailed her husband and then other family members, a neighbor, and finally her boss, who was first to respond and call the police. D.B. was taken to the hospital where she was examined and treated for rape, damage to her throat, broken facial bones, and other injuries.

          Around the time of the burglary and rape, a neighbor smoking in the alley behind D.B.’s building saw a man exit with a backpack and head toward Independence Avenue. Appellant was viewed by surveillance cameras on Independence Avenue and in the Metrorail System.

          Late that night, law enforcement personnel traced D.B.’s cellphone to a gas station in Maryland, where appellant was recognized by his description and an image from the surveillance cameras. After a struggle, flight, and continued resistance, appellant was arrested. D.B.’s cellphone was found in appellant’s pants while the checks belonging to her husband, as well as fuzzy gloves, were recovered from his backpack, along with other items.

          An expert witness testified for the government that appellant’s DNA was found in the gloves, and that D.B.’s DNA was found on three finger tips and the inside cuff of one of the gloves. On cross-examination, defense counsel elicited the expert’s testimony about DNA "transference" from one surface to another.

          2. Appellant’s Direct Examination

          Appellant elected to testify that his cousin, Delonte, had driven him into the District of Columbia from Bowie and dropped him off to visit a friend with plans to head back to Maryland to visit appellant’s brother that afternoon. Meeting back up with Delonte an hour later, appellant discovered that his cousin had lent the car to a friend. According to appellant, they were walking to the Stadium Armory Metro when they came to D.B.’s building, and his cousin said, "I got a man that live

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in this building right here. Wait right here." Appellant claims that he waited by the adjacent alley smoking marijuana while his cousin entered the building. Appellant testified that twenty minutes later his cousin left the building, said something to someone appellant could not see, met appellant in the alley, handed appellant a cellphone and checks, told him to sell the items as he "had done [on] previous transactions with him before," then said something had come up and abruptly headed off in a different direction.

          Appellant admitted that he then exited the alley to Independence Avenue where he first appeared on the surveillance footage introduced in evidence putting on his jacket, took the Metro from Stadium Armory to Suitland, was unable to get in touch with his brother, and returned to Gallery Place to try (unsuccessfully) to sell "some of the stuff" he had received from his cousin before heading back toward Bowie. Appellant further testified that he had used his gloves to wipe his finger prints off D.B.’s cellphone after using it to call his brother so that it could not be traced back to him, as he was on probation for robbery and assaulting a police officer in 2013. He also acknowledged two misdemeanor convictions for weapon possession and failure-to-appear in 2013 as well as an earlier assault conviction in Georgia when he was seventeen. Finally, appellant stressed that he had used gloves to handle the stolen property and explained that his fight and flight reactions when law enforcement officers caught up with him were due, in part, to the fact that he "was currently on probation." (Appellant’s pretrial report, not before the jury, states that he had most recently been released on probation from federal custody for his 2013 robbery and assault convictions on July 29, 2015.)

          3. Cross-Examination of Appellant

          The government then asked the trial court, outside the presence of the jury, for permission to present physical evidence of the October 6, 2015, burglary, found alongside D.B.’s husband’s checks from the October 13 rape and burglary, as well as appellant’s fuzzy gloves. The prosecutor argued that the defense had "completely opened the door" to cross-examination about the October 6 burglary and "the rest of the property that [appellant] had on him" to rebut "the suggestion that [appellant] acted as the middleman in these types of transactions." Thus began a lengthy midtrial discussion among the court, the prosecutor, and defense counsel that resulted in a full-day hearing (with the jury excused) about what legal theory supported admission of the October 6 burglary.

         Initially, defense counsel observed that, to demonstrate appellant was not a mere fence - that he also stole property - the government could cross-examine him about his admitted robbery conviction, whereas evidence of the October 6 burglary would be highly prejudicial and unnecessary. Focusing, next, on specific exceptions to the traditional bar against admission of other crimes evidence, defense counsel stressed that the October 6 burglary involved appellant’s going into a woman’s bedroom and taking her phone while she slept - a scenario showing that the October 6 burglary was too different from the October 13 rape and burglary to be admissible as identity evidence.[7]

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The court then turned the discussion to whether the October 6 burglary could be used, instead, to impeach appellant’s testimony and how far the government "should be able to" go to "complete [that] impeachment." Defense counsel replied that any inquiry into that burglary should be limited to asking whether, on October 13, appellant had "other stolen property" on him. According to counsel, only if appellant answered "yes" but denied stealing the property should the issue of proving his alleged October 6 thefts "extrinsically" arise. The court agreed that this was an appropriate starting point, but asked for additional argument before ruling on what questions the government would be allowed to ask.

          Defense counsel responded that night with a written objection arguing that appellant had not "open[ed] himself to impeachment with propensity evidence simply by testifying." Nor, wrote counsel, was the October 6 burglary admissible as "identity" evidence, as there was "no shared distinctive signature" creating the required similarity of the October 6 and 13 crimes. The next morning, defense counsel renewed appellant’s general objection to any question about the October 6 burglary, arguing that it is never "proper impeachment to use propensity evidence" or "to prove it up substantively" or "extrinsically."

         Disagreeing with defense counsel’s "repeated characterization" of the issue as "propensity" rather than relying on October 6 evidence to contradict "the inference of [appellant’s] testimony," the trial court took a short recess to review "all the cases" presented by the parties before ruling. When the proceeding resumed, the court began by rejecting "identity" and "intent" as grounds for its decision.[8] Next, as background for its ruling, the court observed that the government was "seek[ing] to introduce evidence that on October 6, 2015, about a week before the events in this case, [appellant] committed a burglary at approximately five or 6 a.m. in which he entered [a] woman[’s] room while she was sleeping. She awoke. He took her cell phone and left."

         Relying on Havens, Kinard, Wesley, and Raper [9] for the proposition that cross-examination of a defendant’s direct testimony may be very broad, the trial court ruled that, "to the extent" evidence of the October 6 burglary "refutes the implication that [appellant] was just a fence who sells items stolen by Delonte," and "only does small crimes now like smoke weed and receive stolen property," such evidence would come in "under [an] impeachment theory." The court added that appellant’s testimony had "open[ed] the door to inquiry about all the items he had in his possession when he was arrested[,] which included another burglary victim’s cell phone." The court thus ruled that the government could use the October 6 burglary to impeach appellant’s "carefully crafted" testimony (a) describing "his arrangement to fence or sell stolen items," (b) emphasizing the "age" of "his prior convictions," (c)

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using the fact that he was "in violation of his probation" to explain his actions, and, on that foundation, (d) denying "raping, beating[,] and choking" D.B. on October 13.

          The court, however, did not approve admission of the October 6 burglary wholesale. While holding that the "probative value of the overall burglary [on October 6] substantially outweigh[ed] the prejudicial effect," the court announced that October 6 evidence would be considered for admission piece by piece in the court’s "discretion." Recognizing the importance of sensitivity to the potential prejudice as well as the probative value of each aspect of the October 6 burglary, the court stressed: "I would be remiss [unless] I would withhold ruling on that [evidence] until I hear how the testimony goes."

          The court then offered defense counsel a final opportunity to request "any additional findings of fact or conclusions of law" before cross-examination of appellant began. In response, defense counsel posed one additional question about physical evidence: whether the government intended to ask about a knife and rope that were also found in appellant’s backpack. The prosecutor’s reply alleviated counsel’s concern.

          At this point, appellant’s general objection to admission of all the evidence from October 6 was no longer in play. Rather, the trial court established a regime of cross-examination in which the government would ask appellant questions derived from the October 6 burglary, each subject to objection and a corresponding ruling. The trial court thus proceeded from the premise that, for impeachment purposes, specified evidence from the October 6 burglary would be admissible if more probative than prejudicial.

          Thereafter, once the jury had returned to the courtroom and appellant had retaken the stand, the government proceeded to ask him about items retrieved from his backpack (but not yet connected to the October 6 burglary). Defense counsel eventually renewed specific objections to admission of that physical evidence, which the court denied.

          The court then permitted questions by the prosecutor about how appellant had portrayed himself as someone who did not "actually do the job of" stealing. Appellant, however, replied: "If you [are] asking me did [I] receive th[is] property from other people, I would tell you no." The government went on to reveal the October 6 burglary for the first time by asking - without further objection - whether the newly admitted exhibits were in fact "items that [appellant] went inside of [another woman’s] home ... and took from her bedroom while she was sleeping." Appellant responded that he had done so, at an unknown early morning hour, and, in response to the government’s final question, confirmed his possession of those items from October 6 until his arrest on October 14.

          4. Redirect Examination of Appellant and Closing Argument for the Defense

          Defense counsel opened redirect-examination by eliciting appellant’s testimony that he had left the October 6 burglary without assaulting the woman he had inadvertently found asleep in her bedroom. Relying on that testimony later, in closing argument, defense counsel urged the jury to find "reason to doubt that" appellant was "the man who committed the crimes charged here," because on October 6 appellant "got out of there. He didn’t touch that woman. He didn’t hit that woman. He certainly didn’t rape that woman."

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          5. Instructions and Closing Argument for the Government

          Earlier that afternoon the court addressed the government’s request to respond to that closing by the defense. The court made clear that the October 6 burglary "was admitted to assess the credibility of [appellant’s] testimony" and that the government could "argue it in a way that goes to the credibility of [his] story" without saying that "he committed the burglary the first time and therefore [the jury] can conclude he committed the burglary the second time."

         The trial court instructed the jury that evidence of the October 6 burglary "was admitted for the limited purpose of impeaching [appellant’s] credibility" and that appellant could not be convicted "simply because [the jury] believe[d] [that] he may have done bad things not specifically charged as crimes in this case."[10]

          The government’s closing argument adhered to this line, stressing that the jury should not confuse the October 6 and October 13 crimes; it should use the October 6 burglary only to assess the credibility of appellant’s "story about being a middle man" and his explanations for some of the other physical evidence against him for the October 13 crimes.

          B. Discussion

          1. Law Applicable to Admission of Other Crimes Evidence

          "The jury’s knowledge of a defendant’s unrelated past [criminal or wrongful] behavior raises the obvious danger that the jury will infer a disposition on the part of the defendant toward criminal activity and thus find him guilty of the crime charged."[11] Accordingly, "evidence of other crimes, which are independent of the one charged, is inadmissible unless it

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comes under one or more well recognized exceptions."[12] This means that other crimes evidence "must be admissible for some legitimate purpose other than to prove the accused’s propensity to commit the act in issue."[13] Moreover, "even when evidence of wrongful behavior is relevant" to a legitimate purpose, the trial court must exclude it "when the degree of prejudice exceeds the probative value of the evidence."[14] More specifically, exclusion is required when anticipated prejudice to the defendant from the jury’s likely inference of criminal propensity exceeds the probative value for reaching the truth through impeachment of the defendant’s testimony with evidence of another crime committed by that defendant.

         Appellant’s October 6 burglary does not fit the usual permissible uses of other crimes evidence approved in Drew. [15] Rather, this case concerns a testifying defendant who, on direct examination, volunteered instances of his older serious crimes and more recent lesser criminal activities to build - as the trial court found - an overall impression that he was presently no more than a minor criminal who had been merely an innocent bystander to the burglary and rape for which he was on trial. The question presented on appeal, therefore, is whether the government could properly impeach the credibility of that defense on cross-examination with the inconvenient truths of appellant’s most recent and more serious criminal activity a week earlier, which he omitted from the account to the jury of his prior crimes.

         Appellant emphatically answers "No," arguing that the October 6 burglary was "propensity evidence" introduced specifically to persuade the jury to infer his guilt of the October 13 burglary and rape a week later.[16] In response, the government justifies appellant’s impeachment with the October 6 burglary for a reason "entirely unrelated" to a "propensity to commit burglaries," namely, ...


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