# O'CONNOR v. United States > District of Columbia Court of Appeals · February 13, 1979 · 399 A.2d 21 URL: https://www.frixlaw.com/law-library/cases/9700128 ## Case - **Full name:** Benjamin P. O’CONNOR, Appellant, v. UNITED STATES, Appellee - **Court:** District of Columbia Court of Appeals - **Decided:** February 13, 1979 - **Citations:** 399 A.2d 21; 1979 D.C. App. LEXIS 337 - **Precedential status:** Published - **Opinion:** Concurring in part by Ferren - **Judges:** Kelly, Kern, Ferren - **Cited by:** 56 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9700128 ## How later opinions describe it (automated extraction) - noting that the doctrine of transferred intent "provides that when a defendant purposely attempts to kill one person but by mistake or accident kills another, the felonious intent of the defendant will be transferred from the intended victim to the actual, unintended victim” - concluding that the doctrine of transferred intent is part of the law of the District of Columbia and approving its application in a first-degree murder case - stating that the doctrine of transferred intent is part of the law in the District of Columbia - recognizing the transferred intent doctrine as part of our common law - applying doctrine of transferred intent derived from English common law adopted by Maryland in 1776 ## Opinion text FERREN, Associate Judge, concurring in part and dissenting in part: I concur in Parts I and III of the court’s opinion but dissent from Part II. I would hold that the trial court erred in denying the defense request for a continuance. This is a first-degree murder case; appellant O’Connor faced life imprisonment. At trial, the defense presented the testimony of three witnesses and identified five more who were temporarily unavailable. At 4:30 p. m. on a Friday, the court over objection rested the defense case because of a failure to produce the remaining witnesses. The record demonstrates that the court did so without giving defense counsel an adequate opportunity to be heard. Moreover, the court denied the continuance knowing that (1) the court or prison system was responsible for the failure to produce one subpoenaed defense witness imprisoned at Lorton, (2) the trial, in any event, had to be carried over to Monday morning for closing arguments, instructions, and jury deliberation, and (3) according to defense counsel’s proffer, the testimony of all five witnesses would require no more than an hour. I agree that appellant should have been more diligent in bringing defense witnesses to court, but when all the facts are weighed, I believe that the trial court’s ruling violated appellant’s rights. I would therefore remand the case to the trial court, in order for appellant to proffer what the testimony of the absent defense witnesses would have been, and for the trial court to issue findings and conclusions, reviewable by this court, as to whether that testimony might have affected the outcome, warranting a new trial. I At approximately 2:30 p.m. on Friday, May 14, 1976, the third day of trial, the *30 defense came to an unexpected halt after three of its witnesses had testified. There were to be five other defense witnesses, but only one was in the courtroom, James McKinney, an original codefendant whose case had been severed. McKinney would not immediately take the stand, however, because his attorney was not present — a precaution necessary because of anticipated Fifth Amendment problems. Defense counsel had subpoenaed three of his other four witnesses. 1 Unfortunately, one of these witnesses, who was on a “comeup” order from Lorton — and had been present the first two days of trial — had hot been brought to court the third day (for reasons not apparent of record). The other two did not appear because defense counsel, anticipating a more slowly paced trial, apparently had informed them that they would not be needed on Friday. He had tried but failed to reach them during the luncheon recess. Defense counsel asked the court for “an hour or so” to try to contact McKinney’s attorney and the other defense witnesses. The court at first said “no," then agreed to a “short recess” after reminding defense counsel that he had “announced ready” and thereby had assumed responsibility for having his witnesses present. The court offered to do its best to help find McKinney’s counsel, but added that “we are finishing all the evidence in this case today.” Court reconvened at approximately 4:30 p.m. Because the trial judge had been unable to reach McKinney’s attorney, she had arranged for another lawyer to counsel McKinney during the recess. The lawyer informed the court, when trial resumed, that although McKinney wanted to testify, he wished his own lawyer there to advise him. Defense counsel agreed that McKinney could not properly be ordered to testify, absent his own lawyer. At that point, defense counsel informed the court that his five witnesses would require, altogether, approximately one more hour of testimony. The court replied, “Well, they are not here. You announced ready and we are ready for them and we shall proceed.” The court then asked, “Who is your next witness?” Defense counsel identified “Aaron Little” (who had been in the car with appellant and McKinney at the time of arrest) “Mr. Harrington, the owner of the bar” (where a skirmish had occurred between appellant and another just before the shooting). “Paul James, a police officer,” and “Joseph Chañe, he is not here. He was not brought up from yesterday. He is in custody in Lorton, Virginia.” Neither Chañe nor James had been identified in earlier trial testimony. The court thereupon said, “Very well sir. I guess you have to rest, and I guess you must rest, you have called all of your witnesses. They have not appeared.” Immediately thereafter the following colloquy took place: Mr. Farquhar: Well, your Honor, I think the Court could continue the matter until Monday. The Court: Mr. Farquhar, you have told me that, several times, and I have told you that the Court cannot continue the case until Monday. Mr. Farquhar: Well, certainly, we can start earlier. The Court: As I said, I have already ruled, we cannot continue it. Mr. Farquhar: May I have objection to the rule and state the reasons why? The Court: You may not. I have given you all the time you need to state why you want it. I am certainly not going to let you make comments on my ruling. Mr. Farquhar: Well, your Honor, I think I am entitled to state— The Court: You may not comment on my ruling. I don’t know any attorney who has the right to comment on a ruling. I have given you an opportunity to be heard. You have made that argument approximately three times and every time I have told you I am not going to wait for you witnesses. *31 Mr. Farquhar: Your Honor, earlier, I was not arguing to the Court. The law, I think there is law in this area — I was making requests of the Court. The Court: Mr. Farquhar, if there was law in the area, you could have argued the law. I am not going to have you comment on my ruling. I ruled on what you presented to me. All right. That’s what I ruled on, what you presented to me. You are not the Court of Appeals. Mr. Farquhar: I understand that. The Court: All right. So you are not going to comment on my ruling. I have ruled on what you presented to me. Mr. Farquhar: May I argue the law? The Court: No, you may not, sir. You may not, because I have already ruled on what you argued to me. * * * * * * The Court: You may not comment on anything further as it relates to the witnesses. II Appellant argues that the trial court abused its discretion in resting the defense case, over objection, rather than granting a weekend continuance. His arguments are both procedural and substantive. He maintains, first, that he was denied due process because the court rested his case without giving counsel an opportunity to be heard on the request for a continuance. Second, as to the merits, appellant claims that the court abused its discretion in that the murder trial, in any event, had to be carried over to Monday for closing arguments, jury instructions, and jury deliberation; the court was aware that the testimony of all five remaining witnesses would not require more than approximately one hour; and at 4:30 p. m. when the court ruled on the continuance request, the court knew such a continuance would not waste time, for in lieu of further testimony on Friday the court could (and did) profitably discuss jury instructions with counsel. I agree with appellant’s two basic arguments and will take them up sequentially— first, the alleged denial of a right to be heard. A. The trial court has broad discretion in ruling on a defendant’s motion for continuance. Ungar v. Sarafite, 376 U.S. 575, 589 , 84 S.Ct. 841, 849 , 11 L.Ed.2d 921, 929 (1964). On the other hand, the denial of a continuance may reach an unconstitutional dimension. See id.; Shirley v. North Carolina, 528 F.2d 819, 822 (4th Cir. 1975) (conviction reversed for denial of a continuance to obtain testimony of a critical defense witness). 2 In any event, for proper exercise of discretion in ruling on a request for continuance to obtain defense witnesses, the court must be willing to listen to counsel’s reasons for the request. See Johnson v. United States, D.C.App., 398 A.2d 354 at 365 (1979). 3 As the Supreme Court has stated: There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. [Ungar v. Sarafite, supra, 376 U.S. at 589 , 84 S.Ct. at 850 (emphasis added).] The significance of the trial court’s taking time to listen carefully to counsel’s reasons is highlighted not only by the constitutional gloss on the issue, see Ungar, supra; note 2 *32 supra, but also by the fact that the United States Court of Appeals for the District of Columbia Circuit has specified criteria to assist the court in determining, in this context, whether a continuance “is reasonably necessary for a just determination of the cause,” Neufield v. United States, 73 App.D.C. 174, 179 , 118 F.2d 375, 380 (1941), cert. denied, 315 U.S. 798 , 62 S.Ct. 580 , 86 L.Ed. 1199 (1942): If the continuance is sought for the purpose of securing the attendance of witnesses, it must be shown who they are, what their testimony will be, that it will be relevant under the issues in the case and competent, that the witnesses can probably be obtained if the continuance is granted, and that due diligence has been used to obtain their attendance for the trial as set. See Holt v. United States, D.C.App., 381 A.2d 1388, 1391 (1978); United States v. Uptain, 531 F.2d 1281, 1286-87 (5th Cir. 1976). In the present case, the record indicates that the trial court, before ruling on the continuance, refused to permit defense counsel to explain how material the witnesses were to appellant’s case. Counsel never had a realistic opportunity to make a proffer under the Ungar-Neufield criteria. Thus, the court ruled without making an effort to achieve an informed judgment. More specifically, when counsel and court found themselves at 4:30 on Friday afternoon with no more defense witnesses, and defense counsel requested — for the first time — a continuance until Monday, the court responded, “I have told you that the Court cannot continue the case until Monday . . . . As I said, I have already ruled, we cannot continue it” (emphasis added). When counsel asked if he could “have objection to the rule and state the reasons why,” the court replied, “You may not. I have given you all the time you need, to state why you want it. I am certainly not going to let you make comments on my ruling” (emphasis added). After reading the transcript, I have concluded that the trial judge’s 4:30 announcement that she (1) had “already ruled” on the defense request, having (2) given counsel “all the time” he needed to state why he wanted a continuance, was inaccurate. Although the judge did say, as early as 2:30 p. m., that “we are finishing all the evidence in this case today,” that statement was not in response to a request for a weekend continuance; nor was it announced as a legal ruling. The statement was expressed, as I read it — or, more importantly, as defense counsel reasonably would have understood it — as a strongly-felt aspiration. Moreover, by giving defense counsel, at that point, a two-hour recess to look for McKinney’s lawyer with the court’s active assistance, the trial court implied agreement with appellant’s legal position that his right to present witnesses was paramount, despite the court’s reluctance to permit a recess. The court did not implicitly put the defense on notice that the gavel would fall, closing its case, if counsel did not produce McKinney’s lawyer or another witness when court reconvened. Thus, when trial resumed at 4:30, the court had not “already ruled.”» In fact, the court could not have done so, for according to the record defense counsel did not make his first request for a weekend continuance until after court had reconvened at approximately 4:30. Nor did the trial judge, before she ruled (soon after 4:30), give defense counsel a realistic opportunity to make a proffer as to the materiality of the five missing witnesses under the Ungar-Neufield criteria. At 2:30, when the court had said that “we are finishing all the evidence in the case today,” the focus was on finding McKinney’s lawyer during a short recess, not on what other witnesses would say or on a request for a weekend continuance. Later at 4:30, when the judge asked counsel for the names of the missing defense witnesses, there was no indication that counsel, in briefly responding to the question as literally asked, was foregoing his only opportunity to make an Ungar-Neufield proffer. Counsel, of course, knew that the court did not want to delay the case — in fact, that the court very *33 much wanted to complete all testimony on Friday. But as I read the record, counsel had no reason to anticipate that the court would rest the defense case without permitting him to speak about the significance of his absent witnesses. I conclude that the trial court precipitously — and thus improperly — turned what had been a joint effort with counsel to find McKinney’s lawyer into a summary denial of the request for continuance, without affording counsel an opportunity to be heard. B. Now to the merits. One can argue that because defense counsel apparently told some of his subpoenaed witnesses they need not appear on Friday, any proffer would have been irrelevant, given the admitted failure to meet the last Neufield criterion for a continuance; i. e., “that due diligence has been used to obtain their attendance for the trial as set.” Id. 73 App. D.C. at 179 , 118 F.2d at 380 . This argument has force but is not conclusive, for appellant was not alone responsible for the failure of all witnesses to appear. By failing to effect a comeup order for witness Chañe, the court and prison systems must share responsibility for any lack of diligence. Because Chañe had been present for two days of trial pursuant to such an order (issued in response to appellant’s subpoena), the defense had no reason to expect Chane’s absence the third day — and cannot be faulted for it. But even more to the point, the question of appellant’s diligence is not determinative. Even an admitted failure to satisfy the fifth Neufield criterion does not preclude the trial and appellate courts from considering other facts, for the Neufield criteria — while providing a helpful guide-are not the only criteria. Nor do they reflect the “minimum” showing required (as the majority has argued). 4 Over 20 years after the circuit court’s decision in Neufield, supra, the Supreme Court stressed in Un-gar, supra that “[tjhere are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process,” id. 376 U.S. at 589 , 84 S.Ct. at 850 ; the trial court must consider all the circumstances before ruling. In my judgment, despite appellant’s obvious responsibility for failing to have witnesses present, the trial court should have perceived other relevant facts and weighed them together with appellant’s questionable diligence before ruling on the requested continuance. See Johnson v. United States, supra, at 365. The following considerations stand out: First, even without a formal Ungar-Neu-field proffer, the court had to be aware from the government’s case that some of the defense witnesses appeared to be material. At least two of them, McKinney and Little, had been with appellant when he was arrested shortly after the incident, and Harrington had been at the scene of an arguably material, preliminary event (the skirmish at the bar). Second, it was clear to everyone, once court reconvened at 4:30, that the case would have to be continued to Monday morning for closing argument, instructions to the jury, and submission of the case. Third, counsel had advised the court that the witnesses’ testimony would take no more than one hour. Fourth, appellant was on trial for first-degree murder. When these facts are added to the court and prison systems’ responsibility for the failure of one defense witness (Chañe) to appear, I find error. The additional amount of time required to complete the defense case on Monday morning would impose a minimal burden on the court system and the prosecution (which had completed its case-in-chief and did not object), compared to the burden on a defendant, facing life imprisonment, who is denied the opportunity to present his complete case. See United *34 States v. Haldeman, supra 181 U.S.App.D.C. at 306, 559 F.2d at 83. 5 There is an air of unreality about what happened here. As already indicated, the only relevant time period came after 4:30. The trial judge, by granting a recess from 2:30 to 4:30, in effect had acknowledged the validity of the defense request for a recess during that earlier period. It is not unknown for trial courts to adjourn at or soon after 4:30; in fact, the trial judge here noted that she had intended to adjourn at 4:00 p. m. on a previous day of trial. Thus, by resting the defense case at 4:30, over objection, while continuing the case until Monday morning for closing argument and jury instructions, the trial judge in effect was penalizing appellant, without notice, for a failure to obtain witnesses during that earlier, two-hour period, not because of a loss of court time after 4:30. I do not believe the court can impose such a penalty consistent with due process. C. Because we do not know what the defense proffer under Ungar, supra and Neufield, supra would have been, we cannot tell whether the trial court’s ruling was — or was not — harmless error. See Johnson, supra, slip op. at 20-22. Thus, we cannot properly reverse the conviction and remand for a new trial. The most appropriate relief would be to remand for a defense proffer and trial court findings and conclusions based on Ungar and Neufield . The trial court should then reach a conclusion as to whether the testimony, as proffered, might have affected the outcome, thereby warranting a new trial — the kind of test utilized in evaluating the impact of requested but suppressed Brady or Jencks Act material. See United States v. Agurs, 427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976) (Brady); Goldberg v. United States, 425 U.S. 94 , 96 S.Ct. 1338 , 47 L.Ed.2d 603 (1976) (Jencks); Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) (Brady). Were the court to deny a new trial, this court, upon a proper appeal, would then be in a position to consider the merits of appellant’s request for reversal. In summary, I believe that the trial court erred in failing to grant appellant’s request for a continuance — indeed, even to conduct a proper hearing on it. I therefore respectfully dissent. . The fourth was Officer Paul James, who had been present for the government and then dismissed. . A defendant’s interest in presenting the testimony of witnesses “implicates constitutional values, since the Sixth Amendment right to compulsory process is ‘in plain terms the right to present a defense.’ ” United States v. Haldeman, 181 U.S.App.D.C. 254, 306 , 539 F.2d 31, 83 (1976), cert. denied, 431 U.S. 933 , 97 S.Ct. 2641 , 53 L.Ed.2d 250 (1977) (footnote omitted); see Chambers v. Mississippi, 410 U.S. 284, 302 , 92 S.Ct. 754 , 30 L.Ed.2d 773 (1973) (few rights are more fundamental than that of an accused to present witnesses in his own defense); People v. Foy, 32 N.Y.2d 473, 478 , 346 N.Y.S.2d 245, 249 , 299 N.E.2d 664, 667 (1973) (same). . See generally Shankle v. Shankle, 289 N.C. 473 , 223 S.E.2d 380, 386 (1976) (before ruling on a motion for r. continuance, the trial court should be required to hear the evidence pro and con, consider it judicially, and then rule with a view to promoting substantial justice). . Contrary to the majority’s statement that the Neufield criteria set the minimum standard, the United States Court of Appeals for the District of Columbia Circuit recently has stated that “sometimes a continuance will be required even absent a specific proffer as to the nature of the missing evidence. . . . Thus we restate the [Neufield] requirements here as factors bearing on the ultimate question Neufield poses: is a continuance ‘reasonably necessary for a just determination of the cause.’ ” United States v. Haldeman, supra 181 U.S.App.D.C. at 307 n.126, 559 F.2d at 84 n.126 (citation omitted). . As it turned out, no burden at all would have been imposed, for in lieu of further testimony, court and counsel discussed jury instructions after 4:30 on Friday instead of on Monday, thereby freeing time that could have been used for defense testimony on Monday morning. Although this discussion occurred after the trial court had ruled on the request for continuance, and is therefore arguably irrelevant to review of the court’s exercise of discretion, this evidence suggests the strong possibility that the trial judge knew at the time of the ruling that the balance of Friday could be used profitably. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9700128. Public record. Not legal advice.