United States of America v. Anthony A. Freeman, Appellant, 514 F.2d 1314 (D.C. Cir. 1975)

Appellant raises two points in contesting his conviction for armed robbery. He argues first that the trial court erred in admitting hearsay testimony concerning the identity of one of the two holdup men involved. He also alleges prosecutorial misconduct in certain portions of the Government's summation. Both these issues are raised for the first time on appeal. Our task, therefore, is to determine whether the alleged defects warrant reversal under the plain error rule, after considering their combined effect on the " jury's factfinding function."¹ 

According to the testimony of the complaining witness, Earnest Clark,²  the robbery took place at about one o'clock in the afternoon at 8th and L Streets in Washington. Clark stated that he was approached by a man who asked for money and that when he refused, the man pulled a gun and struck Clark in the head. Clark wrestled momentarily with a second man, who had come up unnoticed behind him, and when his two assailants fled, he discovered that his wallet had been taken. Police officer Mullarky testified that he found Clark at the scene bleeding profusely from a cut over the eye and in a highly agitated state.³ 

Mullarky's testimony indicates that he questioned several witnesses there, none of whom would give his name, and ascertained from one of them that one of the men involved was nicknamed "Dickie."⁴  This name was broadcast over police radios with a physical description of the pair. Police officer Fant later testified that on hearing the broadcast, he recalled an individual by that name and of the general description of one of the assailants living at 914 M Street.⁵  On the strength of Fant's response to the look-out, police converged on the M Street address, where they saw appellant leave the house and run toward a playground nearby. Appellant was arrested in a recreation shack on the grounds and immediately identified by Clark, who had accompanied the police, as "the one who robbed me."⁶ 

Appellant presented an alibi defense. He stated at trial that he had been playing basketball on the playground that morning with a friend, Lawrence Tucker, and others, and had stopped playing about one o'clock.⁷  When the police arrived not long afterwards, appellant claimed, he was returning to the shack on the playground to get his wallet and cigarettes, which he had left there during the game. The police found no money or weapons on the appellant at the time of his arrest, and his alibi was corroborated by the testimony of Lawrence Tucker.⁸ 

Appellant contends that Mullarky's recounting of the "Dickie" tip was inadmissible as hearsay, a secondhand statement offered as proof of the matter asserted.⁹  The Government's answer is simply that the testimony was elicited to explain why the police went to 914 M Street, where the arrest was made. For that purpose it made no difference whether "Dickie" were in fact connected with the robbery, and therefore the testimony was not hearsay at all. This view, however, ignores the Government's subsequent exploitation of the testimony, which went much beyond merely filling in the gaps of the police account.

In his account of a meeting with "Dickie" several months prior to the robbery, Officer Fant remembered that the appellant had walked over and introduced himself as "Dickie's brother."¹⁰  A close friendship between "Dickie" and appellant was established by the Government in its cross-examination of both appellant¹¹  and Lawrence Tucker.¹²  The Government also ascertained from Lawrence Tucker that "Dickie" was indeed Lawrence's brother; that his real name was Ronnie Tucker; and that he lived with Lawrence at the M Street address.¹³ 

The Government's development of the "Dickie" theme continued through summation. The prosecutor stressed that the description of one of the assailants broadcast over police radios matched the description which Lawrence Tucker had given of his brother Ronnie.¹⁴  Even more pointedly, the prosecutor stated: "What about Mr. Tucker, Mr. Tucker, friend of Mr. Freeman. His own brother might be involved in this, Dickie Tucker. What motive (for lying) does he have?"¹⁵  In short, relying implicitly on Mullarky's testimony as evidence that "Dickie" was indeed a participant in the robbery, the Government undermined appellant's case by showing both that appellant was a good friend of "Dickie's" (suggesting appellant as a likely associate in crime) and that Lawrence Tucker was "Dickie's" relative (adding a motive for Tucker to lie on appellant's behalf). For these purposes the testimony was hearsay.

Although the problem could have been avoided entirely simply by restricting the officer's testimony to a statement that he received certain information leading him to the address, the "Dickie" testimony may not have been so prejudicial to appellant that it was inadmissible even for the limited purpose of showing that the officers did not "act in a vacuum."¹⁶  But even granting this for purposes of analysis, the question remains whether the trial court erred in failing to warn the jury against considering the tip in its hearsay sense.

In United States v. McClain,¹⁷  we held that

whenever evidence is admitted only for a limited purpose, it is plain error, in the absence of manifest waiver, to omit an immediate cautioning instruction.¹⁸ 

In McClain the potential prejudice of the evidence of prior fights between the defendant and his wife was immediately apparent and the Government itself acknowledged that, if the evidence were allowed in, an instruction limiting its use to the issue of malice would be appropriate. In this case, it was not clear at the time of Mullarky's testimony what, if any, bearing "Dickie's" presence at the scene might have on the main issues in the case.¹⁹  This may explain why the testimony slipped in unremarked by either the trial judge or the defense attorney,²⁰  and may justify the failure to respond with an immediate instruction.²¹ 

But the fact remains that central elements in the case were affected by subsequent development of the hearsay dimension of the "Dickie" tip. And even if it is assumed that this impact could have been mitigated by an instruction at some later point, such as the charge to the jury,²²  no such instruction was given. The Government maintains rather vigorously that the defense waived any right to such an instruction by expressing general satisfaction with the charge. We have held, however, that this sort of general agreement does not constitute "a clear statement that the particular instruction is being waived," as required by McClain.²³ 

Although the insidious effect of the Government's development of the " Dickie" hearsay is easily underestimated, we do not reach the question of whether it is sufficient to warrant reversal alone. Where there are numerous errors in a trial, the reviewing courts must weigh the cumulative impact.²⁴ 

The portions of the prosecutor's summation to which appellant takes exception appear in the following paragraph:

You have another corroborating factor, Mr. Freeman himself. Why would he have to take the stand? Why would he testify they were all playing basketball until one o'clock, decided to walk across the street and then go back and was arrested? . . . Unless, ladies and gentlemen, he knows that he is the one who committed the offense and he tried to run away the first time, that didn't work and now he's trying to get himself out of it any other way he can. And can't you tell from all of the evidence, can't you put it down that the reason that he told you the stories was because of his background? Doesn't the evidence lend that conclusion?²⁵ 

Appellant's first objection goes to the prosecutor's reference to his decision to take the stand as indicative of his guilt ("another corroborating factor"). His argument relies on analogy to Griffin v. California,²⁶  which held that the prosecution overstepped its bounds in commenting on defendant's failure to take the stand, thereby chilling his fifth amendment right not to incriminate himself.²⁷  Appellant contends that the prosecutor's reference impinged impermissibly on his right to take the stand, which derives from his general right to present witnesses in his defense. The Supreme Court has identified this right as "a fundamental element of due process of law."²⁸  It is not necessary to decide the question thus raised, whether the remark so prejudiced appellant's right as to amount to its denial,²⁹  in order to appreciate its seriousness.

Against this background, we focus on what we perceive as the lack of any probative value in the mere fact that appellant took the stand.³⁰  Isolatedfrom the substance of appellant's testimony, as it was by the prosecutor's question in this instance, this fact has no rational bearing either on appellant's guilt or on his credibility. The inferences which the Government sought to draw from it thus could only serve to confuse and mislead the jury. Such a tactic does not become the prosecutor, as an exemplar of fairness and justice in the criminal system.³¹ 

The appellant also objects to the reference to his "background," which seems intended primarily to reflect on appellant's credibility but is also suggestive on the issue of guilt. There is no evidence on the record that could have supplied content to the word "background." No prior arrests or convictions were introduced; in fact, defense counsel stated in summation that the defendant "was a young man with no prior record."³²  There was some evidence that the appellant had been out of work at the time of his arrest and was seeking employment, but contemporaneous circumstances are hardly synonomous with "background." Thus, the reference was "an appeal wholly irrelevant to any facts or issues in the case," which called upon the jury to speculate about appellant's past in a prejudicial manner,³³  and was therefore impermissible.³⁴ 

The Government downplays the possible impact of these statements by contending they were fleeting, inconsequential references in a lengthy statement. Fleeting they may have been, but they came one after another in what may be considered a climactic passage of the summation, characterized by a series of rhetorical questions fired at the jury. The Government further minimizes their impact by failing to consider them together with the hearsay issue. The error of this sort of compartmentalization is particularly apparent in this case, where the prosecution, as we have seen, also used summation to emphasize the implications of the "Dickie" hearsay on the issues of appellant's guilt and Lawrence Tucker's credibility. The adverse impressions generated by both defects, then, were fresh in the minds of the jurors as they sat down to their deliberations.

Against the potential of these impressions to influence the jury, we may test the strength of the Government's case. The prosecution depended chiefly on the testimony of its complaining witness. It was through his testimony alone that appellant was identified as one of the robbers, and although there were others at the scene who got a look at the men who attacked Clark, none of these people were produced as witnesses. The Government's case was opposed, of course, by appellant's alibi defense. And although the complaining witness's identification was corroborated to some degree by the testimony of police officers concerning the circumstances of appellant's arrest,³⁵  the case went to the jury essentially as Clark's word against appellant's and Tucker's.³⁶  This is not to suggest that an errorless trial would necessarily or even probably have resulted in acquittal,³⁷  but given the narrow base on which the prosecution rested, we cannot say using the test established in Kotteakos v. United States³⁸  "with fair assurance that the jury was not substantially swayed" by the combined effect of these errors.³⁹  Assessing prejudice is an elusive task, requiring appellate judges to weigh the impact of trial defects on the minds of other people, not their own, but we are confirmed in our result by Kotteakos' teaching that serious doubts on the issue should be resolved in defendant's favor.⁴⁰ 

By way of postscript, we believe that the circumstances of this case warrant reiteration of the warning to prosecutors delivered recently in United States v. Bell.⁴¹  Except in cases of abuse with strong potential for harm to the defendant,⁴²  the custom of courts in responding to instances of courtroom misconduct by prosecutors has been to issue a verbal reprimand and affirm under the harmless error rule.⁴³  Despite these verbal slaps-on-the-wrist, prosecutorial misconduct continues to provide "one of the most frequent contentions of defendants on appeal."⁴⁴  Our experience thus suggests that courts must begin to take prophylactic considerations together with probable prejudice to defendant in deciding whether to reverse.⁴⁵  We have no need to rely on such considerations in this case, as we have found reversal to be warranted on a traditional analysis.

Reversed and remanded for a new trial.

MacKINNON, Circuit Judge (dissenting):

Freeman was convicted by a jury of a vicious armed robbery and on this appeal, with new counsel, claims he was denied a fair trial because of (1) the admission of one item of hearsay evidence, (2) the prosecutor's reference to his "background," and (3) the prosecutor's reference to his taking the stand. None of these objections were raised at any time during the trial.

The essence of Officer Mullarky's testimony was that a witness at the scene told him that one of the robbers was nicknamed "Dickie." If this was hearsay, it was hearsay at the moment it was introduced in evidence. A timely objection at that point would have forced the Government to disclose the purpose for which the evidence was being introduced and would have led to a prompt ruling on its admissibility and possibly an immediate cautionary instruction if it was ruled admissible for only a limited purpose. Despite this, appellant made no attempt to call any deficiency in the evidence to the court's attention at any time and thus waived the right to raise it on appeal.¹  United States v. Lewis, 140 U.S.App.D.C. 40, 433 F.2d 1146 (1970); Washington v. United States, 134 U.S.App.D.C. 223, 414 F.2d 1119 (1969).

Since the majority recognizes (slip page ---, --- U.S.App.D.C. ---, --- F.2d ---, supra) that the "Dickie" testimony was admissible to show why the officers went to a particular address, it is left only with an argument that under United States v. McClain, 142 U.S.App.D.C. 213, 218, 440 F.2d 241, 246 (1971), the trial court should have sua sponte given a cautionary instruction limiting the use of the testimony. Even under this principle, the majority must concede that an immediate instruction was not necessary because the relevance of the testimony did not become apparent until later in trial. However, according to the law of this Circuit, which is also the generally accepted doctrine elsewhere:

Hearsay evidence is not wholly alien to the judicial process and in the absence of objection may be accorded within reason its natural probative effect.

United States v. Harris, 141 U.S.App.D.C. 253, 258, 437 F.2d 686, 691 (1970). See Diaz v. United States, 223 U.S. 442, 450, 32 S. Ct. 250, 56 L. Ed. 500 (1912); United States v. Carney, 468 F.2d 354 (8th Cir. 1972); Newsom v. United States, 335 F.2d 237 (5th Cir. 1964); Petro v. United States, 210 F.2d 49 (6th Cir.), cert. denied, 347 U.S. 978, 74 S. Ct. 790, 98 L. Ed. 1116 (1954); United States v. Rosenburg, 195 F.2d 583 (2d Cir.), cert. denied, 344 U.S. 838, 73 S. Ct. 20, 97 L. Ed. 652, rehearing denied, 344 U.S. 889, 73 S. Ct. 134, 97 L. Ed. 687 (1952). See generally 30 Am.Jur.2d, Evidence § 1103. Thus once the evidence had been admitted without objection, the jury was free to consider it for whatever it was worth, and the trial court would have no occasion to weigh the need for a limiting instruction later, at least in the absence of a direct attempt by counsel to correct some oversight occurring when the evidence was admitted.

I am of course aware that this court has discretion to notice "plain or fundamental defects or errors affecting substantial rights . . . although they were not brought to the attention of the trial court." Harris, supra, 437 F.2d at 691. See Fed. R. Crim. P. Rule 52(b). However, in a situation where evidence is admitted without objection for two purposes, only one of which is susceptible to a hearsay objection, and the most the defendant would be entitled to is a limiting instruction, I cannot conclude that this is "plain error" or has affected "substantial rights."

Concerning the prosecutor's reference to appellant's "background," the majority opinion points out, "(t)here is no evidence on the record that could have supplied content to the word 'background.' No prior arrests or convictions were introduced (and) . . . defense counsel stated in summation (without contradiction) that the defendant 'was a young man with no prior record.' " Majority Op., supra, at slip page ---, --- U.S.App.D.C. ---, --- F.2d ---. This is merely another way of saying that the comment was completely devoid of any meaning as applied to this case. The remark was clearly uncalled for, as was the comment on the accused taking the stand in his own behalf, but there is nothing in the record to indicate that either comment resulted in any demonstrable prejudice.

Furthermore, the reaction of trial counsel to developments in the course of a trial is frequently a good bellweather as to whether any circumstance is unreasonably prejudicial. He has the feel of the case and knows first hand the courtroom climate. Moreover, standard trial practice generally requires counsel to object at trial so that the prejudice, if any, can be corrected on the spot and society spared the unnecessary cost and uncertainty of a second trial. This is particularly true as to matters that could be corrected by jury instructions:

No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

Fed. R. Crim. P., Rule 30. Both of the comments by the prosecutor that appellant points to for the first time on appeal could have been corrected by instructions to the jury immediately following the prosecutor's argument, but experienced trial counsel saw no reason to object thereto. The failure to object is thus further evidence that the comments were merely fleeting remarks which did not significantly prejudice the jury in any way.

When we consider that the absence of any demonstrable prejudice, as shown above, is combined with the strong, positive identification of the accused robber by the victim himself within a few minutes of the crime and about two blocks from the scene, affirmance of the conviction is clearly called for. I accordingly respectfully dissent to the needless reversal and remand of this case.