Van Ness v. United States ( 1990 )

After a jury trial, appellant was convicted for distribution of cocaine in violation of D.C. Code § 33-541(a)(1) (1989 Repl.). He contends that the trial court committed reversible error in (1) denying defense counsel the opportunity to cross-examine a government witness regarding his bias, and (2) refusing to order a mistrial or give a requested instruction to mitigate the impact of prosecutorial misconduct. We affirm.

I Appellant first contends that the trial court's restriction of cross-examination resulted in reversible error. He argues that all inquiry was foreclosed "on the crucial subject of bias."¹

The segment of the cross-examination at issue, is as follows:

Q. Good afternoon, officer.

A. Good afternoon.

Q. Now you — You told us on direct examination, and again on cross-examination, that you had been a police officer for about two years — or I should say about a year and a half at the time of March of 1987?

A. That's correct.

Q. And when you became a police officer did you want to become an undercover officer?

MS. BASS: Objection.

THE COURT: Sustained.

MR. BROWN: Your Honor, may we approach the bench?

THE COURT: No, sir, the objection is sustained.

BY MR. BROWN:

Q. Officer Thompson, are you still working as an undercover officer?

MS. BASS: Objection.

THE COURT: Sustained.

BY MR. BROWN:

Q. Officer, your performance is evaluated by your superiors —

MS. BASS: Objection.

THE COURT: Sustained.

MR. BROWN: Your Honor, may we approach the bench?

THE COURT: Yes, sir.

(Thereupon, the witness stepped down from the witness stand, counsel for both parties approached the bench and conferred with the Court, as follows:)

THE COURT: Yes Mr. Brown?

MR. BROWN: Your Honor, the area that I'm attempting to get into is this Officer's bias as an undercover officer to try to make as many arrests as he can. And what I'm trying to get into is that his performance as an officer, evaluation of his performance as an officer is based in, in part, on the number of arrests that result from his undercover buys. My good faith basis for that is testimony from a 5th District vice officer — undercover officer in another case who admitted, during testimony, that one of the bases for evaluation is whether arrests are made on the basis of their undercover operations.

MS. BASS: Your Honor, I'm going to withdraw my objection to the question of whether their evaluations are based on the number of arrests made.

MR. BROWN: As a factor.

THE COURT: Counsel, I want to be careful in avoiding this becoming a free for all. What about the Government's ability to go back into this area on redirect, Mr. Brown?

MR. BROWN: I expect Ms. Bass to ask the Officer at least whether or not his evaluation is based solely on the number of arrests he makes, his answer will be no. But I want to elicit that it is certainly a factor — elicit — as well as — as long as we are up here — that this is part of Operation Clean Sweep.

MS. BASS: Well, I object to that.

MR. BROWN: And one of the things the police try to do in terms of Operation Clean Sweep is make plenty of drug arrests.

THE COURT: Part of my function as a trial judge is to avoid problems that I'm going to have to resolve later on these evidentiary issues. And I think, even in the absence of a Government objection, you are not going to be allowed to go into that, Mr. Brown, because I can see too many problems I'm going to have to resolve later, whether the objection is made by the Government, or by the Court, sua sponte.

MR. BROWN: Your Honor, what about the Operation Clean Sweep issue?

THE COURT: What about it?

MR. BROWN: What I would like to ask the Officer is whether this was part of Operation Clean Sweep. My good faith basis is that it written on the report — (sic)

THE COURT: What comes after that?

MR. BROWN: The question after that, what is Operation Clean Sweep, the Officer will define it. I will ask him whether or not one of the purposes of Operation Clean Sweep is to make a lot of drug arrests.

MS. BASS: I object to that as being irrelevant.

MR. BROWN: Your Honor, it goes directly to the bias of this Officer to think that this Officer's motive to try to make cases against as many people as he possibly can, to make weak cases into stronger cases.

THE COURT: Where do you go after that? Isn't the purpose of Operation Clean Sweep to make a lot of drug arrests?

MR. BROWN: Yes.

THE COURT: Where do you go after that?

MR. BROWN: After that, Your Honor, I go to —

THE COURT: Any further inquiry into this area? I know what you are leading up to, again and you won't get there. I will allow that question, but you are not going to get through the back door, the side door, or any other door, to that same issue that I'm sustaining an objection, about evaluations being based on arrests. So you can approach it from as many different angles as you want, you still will not get there.

MS. BASS: For the record I do object to the Clean Sweep line of questions, I think it is irrelevant.

THE COURT: Okay.

MR. BROWN: Is the Court going to permit me to ask about Operation Clean Sweep?

THE COURT: I just indicated that I will allow you the preliminary questions, but we both know what you are leading to, and you already know what my ruling is going to be once you get to that point. You have made your record, haven't you, Mr. Brown, or do you wish to add more? MR. BROWN: I think I have said what I needed to say.

THE COURT: Thank you.

(Thereupon, the proceedings had at the bench were concluded, counsel returned to their seats at counsel table, and the witness returned to the witness stand and testified further, as follows):

THE COURT: Objection to the last question is sustained. Your next question, Mr. Brown.

BY MR. BROWN;

Q. Officer Thompson, in March of 1987, specifically on March 21st, 1987, your involvement in the incident that led to this case was part of what is called Operation Clean Sweep, wasn't it?

A. Correct. Q. What is Operation Clean Sweep?

A. Operation Clean Sweep is — Well, the name that they gave it to stop the drug sales in the Washington, D.C. area.

Q. And as part of Operation Clean Sweep your mission on March 21st, 1987, was to make drug arrests, is that correct?

A. That's correct.

Q. And part of your mission, as part of Operation Clean Sweep, was to make as many drug arrests as you could, isn't that correct?

A. I don't know.

Q. You don't know?

A. No.

Q. Were you briefed on Operation Clean Sweep before you went out?

MS. BASS: Objection.

THE COURT: Sustained.

BY MR. BROWN:

Q. Were — Do you know, Officer, whether statistics were being kept about the results of Operation Clean Sweep?

A. No, I do not.

MS. BASS: Objection.

THE COURT: Sustained.

BY MR. BROWN:

Q. Officer Thompson, in your capacity as an undercover officer when you're trying to make illegal drug buys, one of your purposes is to deceive the individuals you are speaking with, isn't that correct?

A. No, not necessarily.

Q. Well, you don't tell them you are a police officer, do you?

A. No, I do not.

Q. And you don't tell them, of course, that you are giving them marked money, is that correct?

A. That's correct. Q. So you try to deceive them, don't you? A. If you put it like that, yes.

Q. And it is in fact your job as an undercover officer to deceive people, isn't it?

MS. BASS: Objection.

THE COURT: Sustained.

(Emphasis added.)

It is apparent from the foregoing excerpts that the cross-examiner asked and received answers to his questions concerning Operation Clean Sweep, e.g., that the mission of Operation Clean Sweep was "to stop the drug sales in the Washington, D.C. area"; and that part of the officer's "mission" was to make drug arrests. In answer to the question whether part of his mission "was to make as many drug arrests as you could," the officer replied, "I don't know." When asked if he knew "whether statistics were being kept about the results of Operation Clean Sweep, he replied he did not know. Further exploration along this line was terminated by the court.

The cross-examiner then by several questions explored with the officer whether in his "capacity as an undercover officer when you're trying to make illegal drug buys, one of your purposes is to deceive the individuals you are speaking with, isn't that correct?" The officer replied "[n]o, not necessarily." But, he then agreed that he did not tell them he is a police officer; and did not tell them he is giving them marked money. At this point, the cross-examiner asked "[s]o you try to deceive them, don't you?" The officer agreed.

The court then terminated the meaningless cross-examination on this particular point, as it should have.

As is seen, appellant availed himself of an opportunity to cross-examine to some degree on his "bias issue." While the trial court might have permitted a limited further examination on the subject, we surely do not perceive prejudicial error. As a matter of fact, the cross-examination on the ethical aspect of undercover investigation, which was a portion of the restricted cross-examination, did not deserve to be taken seriously.

The cross-examination of the officer, including colloquies, consumed eighty-five pages of transcript, which is a considerable cross-examination of an officer on a street-sale-of-drugs charge.

On this record, we conclude the restriction of cross-examination did not result in reversible error.Singletary v. United States, 383 A.2d 1064, 1073 (D.C. 1978).

II. Appellant next contends that the trial court erred by failing to grant a mistrial or give curative instructions to mitigate the impact of prosecutorial misconduct. According to appellant, the prosecutor improperly argued that because appellant identified himself as Charles Jackson when arrested and his legal name is Charles Van Ness, appellant was conscious of his guilt at the time.

Although there was uncontroverted evidence that appellant did not use his legal name when arrested, he contends that there was no evidence that the name he gave was an "alias," or a "false name," as the prosecutor characterized it. Appellant argues that the use of a name other than one's legal name may not evidence criminal activity; a person may be commonly known by another name, or may have experienced a change in family circumstances which will prompt him to adopt a new name. Thus, appellant contends that the prosecutor could not argue that appellant's use of a different name, without more, evidenced a consciousness of guilt.

This court has held that a defendant's use of a name different from his own can support an inference that he was conscious of his guilt. Reavis v. United States, 395 A.2d 75,77 n. 2 (D.C. 1978). Thus, the prosecutor's reference to appellant's use of an "alias" did not constitute prosecutorial misconduct.

Appellant also contends that the trial court abused its discretion when it refused to instruct the jury that use of another name may be consistent with innocent behavior. The judge based his refusal on the fact that the prosecutor's argument regarding the "alias" was supported by the evidence, and on his concern that because the prosecutor's references to the "alias" were brief, a curative instruction would only accentuate any improper inferences. This determination by the trial judge was consistent with that of other courts, which have sometimes discouraged the use of instructions regarding post-crime behavior on the ground that such instructions only accentuate the behavior. See United States v. Telfaire, 152 U.S.App.D.C. 146, 152, 469 F.2d 552, 558 (1972). Thus, the trial court did not err when it refused to grant appellant's request for a curative instruction based on the prosecutor's remarks.

Affirmed.

¹ This is not accurate as there was cross-examination on the matter of Police Department policy to a limited degree, as will appear.