Frederick v. United States ( 1984 )

FERREN, Associate Judge,

dissenting:

Appellant contends that, at the second trial, the prosecutor misrepresented the testimony of appellant’s alibi witnesses, principally David Vanerson, at the first trial, in an attempt to create for the jury a false appearance of inconsistency. As to Vaner-son, I agree with appellant. Because the credibility of appellant’s alibi was a central issue in the case, the prosecutor’s misrepresentation may have infected the verdict. Therefore, I respectfully dissent.

In cross-examining Vanerson, the prosecutor repeatedly asked him, over defense objection, whether he had not testified at the first trial that he had learned of the robbery for the first time two weeks before the trial. In fact, Yanerson’s testimony on that point at the first trial was as follows:

[DEFENSE COUNSEL]: Is there any other reason that you remember January 6, a Tuesday?

[VANERSON]: Yes.

[DEFENSE COUNSEL]: What was that?

[VANERSON]: Well, I discussed it — I say I discussed it.

[DEFENSE COUNSEL]: I’m sorry.

[VANERSON]: Say I discussed it about the 6th, about where I was at.

[DEFENSE COUNSEL]: You discussed it with who?

[VANERSON]: With Ben, and you, and several other people.

[DEFENSE COUNSEL]: At length?

[VANERSON]: Yes.

[DEFENSE COUNSEL]: Several times?

[VANERSON]: Uh-huh.

[DEFENSE COUNSEL]: Okay. Has that been in the last couple of weeks?

[VANERSON]: Yes, it was.

[DEFENSE COUNSEL]: Was that in preparation for this trial?

[VANERSON]: Yes, it was.

Vanerson, therefore,.did not testify specifically as to when he first learned of the robbery; rather, he testified that one reason why he recalled the events of January 6 was that he had discussed them shortly before the first trial.

Nonetheless, the prosecutor repeatedly attacked Vanerson’s credibility by insisting that he once had testified that he had first learned of the robbery shortly before the first trial. After Vanerson testified that he had discussed the incident with appellant in January or February, the following colloquy took place:

[THE PROSECUTOR]: Now, the last time you testified in this trial was in October, isn’t that true, sir, that you said the first time(you learned anything about this was two weeks before the trial?

[VANERSON]: It’s possible.

The prosecutor then asked Vanerson if he had testified under oath and had intended to be truthful at the first trial. He replied that he had. She then asked him which version of events was the true one — the one he had given at the first trial, or the one he was giving now. Vanerson, obviously taking as true the prosecutor’s version of his testimony at the first trial, then testified that his testimony at the first trial had been a result of confusion, and that he had thought that he was telling the truth then. The prosecutor again asked him:

[PROSECUTOR]: So, when you testified the last time that it wasn’t two or three days after the incident, but, indeed it was in October 1981, were you telling the jury the truth?

[VANERSON]: Yes, I thought I was at that particular time.

[PROSECUTOR]: What has changed to cause you today to say ...

At this point, defense counsel objected and asked that the prosecutor be required to impeach the witness with his prior testimony. Counsel specifically objected to the prosecutor’s mischaracterization of Vaner-son’s earlier testimony. The court, however, overruled the objection, saying, “I thought he admitted to that fact.” Defense counsel indicated disagreement, but the court repeated, “I thought he did.” The prosecutor then proceeded to question Van-erson for the third time on the same point, as follows:

[PROSECUTOR]: When you testified in October 1981, did you tell the members of the jury that the first time you learned about this case was a couple of weeks before the trial in October?

[VANERSON]: I guess I did. If you said I did—

[PROSECUTOR]: No, I am not telling you, I am asking you.

[VANERSON]:. I don’t recall.

The prosecutor then reviewed with the witness the first-trial testimony quoted above, and he agreed that this had been his testimony. Then, for the fourth time, the prosecutor asked Yanerson:

[PROSECUTOR]: ... [S]o, at the last trial you did testify, didn’t you, that the first time you discussed this was right before the trial?

Defense counsel again objected and was overruled. Vanerson responded:

[YANERSON]: Yes, if that’s what I said.

[PROSECUTOR]: But that’s your recollection?

[VANERSON]: Yes.

The prosecutor then asked Vanerson which of the two versions of events was true. Vanerson at first responded that both were true, then realizing both could not be true, reaffirmed that he had discussed the incident with appellant a few days after it happened.

Again over defense objection that the prosecutor was mischaracterizing the testimony, the prosecutor asked Vanerson for the fifth time:

[PROSECUTOR]: So, when you testified the last time that you hadn’t talked about this offense a couple of days after it happened, but, indeed just two weeks before the trial started that wasn’t so?

And Vanerson again replied that it was not. This persistent mischaracterization of the first trial testimony could hardly fail to impair the credibility of the witness.

Whether to reverse for prosecutorial misconduct is determined by balancing the gravity of the misconduct, the directness of its relationship to guilt or innocence, and the effect of corrective instructions, if any, against the weight of the evidence of appellant’s guilt. Villacres v. United States, 357 A.2d 423 (D.C.App.1976). Here, the prosecutor repeatedly presented the witness with a misleading characterization of his testimony at the first trial, in a manner calculated to raise doubts about his credibility. The witness, testifying eight months after the first trial, apparently relied on the accuracy of the prosecutor’s characterization, since his own recollection of his earlier testimony was hazy. If Vanerson’s testimony at the second trial that he had spoken to appellant shortly after his arrest was truthful, Vanerson might well be puzzled as to why he would have testified to the contrary at the first trial. However, confronted with what he took to be the prosecutor’s assertion that he had done so, he was constrained to say that his earlier testimony had not been truthful.

The credibility of appellant’s alibi witnesses was central to this case. Therefore, any impairment of that credibility bore directly on the question of guilt or innocence. While the government presented a strong case, appellant also presented several witnesses to establish his alibi. As we have not the opportunity to observe the demean- or of the witnesses, it is difficult to evaluate with any precision the persuasiveness of appellant’s defense. But there is some reason for thinking that the evidence as a whole was not overwhelmingly against appellant. The first trial, at which substantially the same evidence was presented, resulted in hung jury. The jury at the second trial deliberated for two days and at one point indicated to the court that it could not agree on a verdict. Because the jury obviously found this to be a close case, the doubt cast on Vanerson’s credibility by the prosecutor’s improper questions may well have affected the outcome. To allow the government license to distort testimony at the first trial in order to impair the credibility of defense witnesses at a second trial would virtually guarantee conviction at the second trial in any case where the credibility of defense witnesses is crucial. Such a result is intolerable.