Johnson v. United States

SULLIVAN, Associate Judge,

dissenting:

I respectfully dissent from the opinion of the court. I would hold that the trial court erred in considering potential punishment in assessing appellant’s credibility as a witness and that the error was not harmless under the circumstances. Accordingly, I would reverse appellant’s conviction for possession with intent to distribute heroin and remand for a new trial.

In rendering its decision finding appellant guilty of possession with intent to distribute heroin, the trial court, sua sponte, stated:

I have been sitting here wondering why Mr. Johnson would go to trial in this case and the minute I hear about his prior record I say, uh-huh, he wants to avoid a mandatory minimum.

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I don’t believe we’ve got any real doubt. I think I am entitled to take into account the defendant’s desire to avoid the mandatory minimum sentence in evaluating his credibility. That does not substitute evidence but it does give him a very powerful motivation not to tell the truth on this specific narrow point of intent to distribute.

The government concedes, as it must, that as a general principle, “the jury is to determine guilt or innocence on the evidence before it and should not consider the possibilities of punishment [including mandatory penalties ] in its deliberations.... ” See Brown v. United States, 554 A.2d 1157 , 1160-61 & n. 3 (D.C.1989), and cases cited therein; see also Criminal Jury Instruction for the District of Columbia, No. 2.74 (4th ed. 1993). 1 The government attempts to rationalize and justify the trial court’s use of appellant’s potential punishment, however, by arguing that because the trial court is knowledgeable about the sentencing laws, it is capable of refraining from any improper use of that information. This argument, however, is belied by the trial court’s statements to the contrary: that the prospect of serving a mandatory-minimum sentence provided appellant with a “powerful motivation not to tell the truth,” and that the trial court “was entitled” to take that fact “into account” in assessing appellant’s credibility notwithstanding the fact that the government never asked the trial court to do so. I am aware of no authority and, indeed, neither my colleagues nor the government has cited any authority, to support this position. 2

To the contrary, the Supreme Court has held that trial judges are presumed to “follow their own instructions when they are acting as factfinders.” Harris v. Rivera, 454 *983 U.S. 339, 346 , 102 S.Ct. 460, 464 , 70 L.Ed.2d 530 (1981). For a trial court to consider evidence which a jury could not consider is repugnant to the long-standing principle of law that a trial court, sitting as the finder of fact, and a jury, are bound by the same evidentiary and legal standards. See Turman v. United States, 555 A.2d 1037, 1038 (D.C.1989) (“[Jjust as a jury may only decide a ease based on the facts properly presented to it during trial, so too must a judge, sitting as the trier-of-faet, base his or her determinations solely on the evidence presented in the case at bar.” (citations omitted)); J.D. Hedin Constr. Co. v. F.S. Bowen Elec. Co., 106 U.S.App.D.C. 386 , 388, 273 F.2d 511, 513 (1959) (“The jury must, after all, act only on proper instructions. The judge sitting as trier of the facts must act on a sound legal and evidentiary basis....”); cf. United States v. Palermo, 259 F.2d 872, 882 (3d Cir.1958) (“there is no difference between a trial judge formally instructing the jury as to what he thinks the applicable law to be and, in effect, instructing himself similarly in a non-jury ease”); Wilson v. United States, 250 F.2d 312, 324 (9th Cir.1957) (same), reh’g denied, 254 F.2d 391 (9th Cir.1958).

Having served as a trial judge for a number of years, I am acutely aware that a judge may become aware of inadmissible evidence during the course of a trial. See Moore v. United States, 609 A.2d 1133, 1136 (D.C. 1992). In such circumstances, however, the judge is not at liberty to base rulings on such evidence. Id. (the trial court repeatedly stated that it would not consider hearsay evidence in finding appellants guilty). Rather, the presumption is that a “‘trial judge in deciding a case without a jury, will disregard any inadmissible evidence and any improper argument.’ ” Id. (quoting Singletary v. United States, 519 A.2d 701, 702 (D.C.1987)); see also Harris, supra, 454 U.S. at 346 , 102 S.Ct. at 465 (“In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions”). Regrettably, this did not occur here.

Appellant’s testimony on direct examination that he had two prior convictions for distribution of drugs, and had been sentenced previously under the addict exception, alerted the trial court that he was subject to a mandatory-minimum sentence if convicted. Unquestionably, prior convictions of a defendant can be used by the trier of fact to assess credibility. See D.C.Code § 14-305(b)(1) (1981 and 1992 supp.); 3 Jones v. United States, 579 A.2d 250, 254 (D.C.1990). Moreover, a trier of fact may take into account a defendant’s interest in the outcome of a trial. See White v. United States, 582 A.2d 774, 780 (D.C.1990), rev’d in part on other grounds, 613 A.2d 869 (1992) (en banc). 4 A trier of fact — judge or jury — may not, however, use the potential punishment of a defendant for the purpose of assessing that person’s credibility. See Criminal Jury Instruction for the District of Columbia, No. 2.74, supra note 1; Anderson v. United States, 326 A.2d 807, 811 (D.C.1974) (the “question of possible punishment ... is no concern of the jury”) (quoting Criminal Jury Instruction for the District of Columbia, No. 2.71 (2d ed. 1972)), cert. denied, 420 U.S. 978 , 95 S.Ct. 1405 , 43 L.Ed.2d 659 (1975). In the present case, because “[I] cannot presume that [the trial judge followed the correct legal standard] when the record affirmatively indicates the contrary,” Hightower v. United States, 117 U.S.App.D.C. 43 , 50, 325 F.2d 616, 623 (Fahy, J., dissenting), I would hold that the trial court erred by considering appellant’s potential punishment in concluding that he was not a credible witness.

“[I]t is clear that a judge sitting without a jury must be reversed if he shows a fundamental misunderstanding of the evidence or of the governing law.” Hightower, supra, 117 U.S.App.D.C. at 46, 325 F.2d at 619 . “[W]here the record shows a prejudicial error of law by the court in reaching the finding, it may be set aside.” Hedin, supra, 106 *984 U.S.App.D.C. at 388 n. 2, 273 F.2d at 513 n. 2. If a trial judge’s “statements and actions indicate that he did not [act on a sound legal and evidentiary basis], correction must follow.” Id. at 388, 273 F.2d at 513 .

In Hill v. United States, 612 A.2d 269 , 278 (D.C.1986), we held that the trial court’s error was harmless and did not require reversal where the trial court’s sua sponte reference to the defendant’s prior convictions did not prejudice the defendant because his credibility was not material to the suppression issue. In the present case, however, credibility was a critical issue. Appellant testified that he was purchasing heroin to support his heroin addiction and claimed that the quantity of drugs seized from him woüld satisfy his addiction for only twenty-four hours. Detective O’Neal testified that appellant was selling drugs, and Officer Stroud testified that the amount, variety, and packaging of the drugs indicated that appellant was a distributor. The trial court candidly acknowledged that the evidence was not “literally clear” whether appellant was buying or selling drugs. In this regard, the trial court stated:

Well, I find this to be a somewhat more troubling case than I expected it to be. For one thing, Mr. Johnson has given a rather plausible explanation as to why he "would be using that kind of pouch and he has come up with an explanation] ] which, if accepted at face value, do[es] explain away a major portion of the Government’s evidence with respect to matters that would support an inference of intent to distribute.

In view of the close call on the question of credibility, the use of the incorrect standard by the trial court in assessing appellant’s credibility “tainted the trial process,” in my view, and constituted reversible error. See Turman, supra, 665 A.2d at 1039. In Tur-man, this court reversed appellant’s conviction because the trial court partially relied on an improper consideration in assessing a witness’s credibility. The trial judge in Tur-man, likewise presiding over a non-jury trial, stated during the trial that he knew a witness to be credible from prior appearances before him in other cases. Id. at 1038. In reversing the conviction, this court held that “it was inappropriate for the court to base its determination on its evaluation of the [witness’] credibility in other eases.” Id. We stated:

It is apparent that the trial court did not rely solely on the officer’s prior court appearances when it determined her to be a credible witness. Nevertheless, a trial court must always be cautious in its language and conduct. To announce to the parties that the court' had previously gained a good impression of a witness’ credibility, and then to proceed to weigh that witness’ credibility in the case at bar without assuring the parties that the previous assessment would play no role in judging the pending case, created an appearance of partiality, if not an implication of actual partiality, which tainted the trial process.

Id. at 1039 (citation omitted) (emphasis added). The persuasive rationale of Turman is applicable in the present case.

Accordingly, I would hold that the trial court’s express use of an incorrect legal standard, i.e., appellant’s potential punishment in assessing his credibility, was not harmless and, thus, appellant’s conviction should be reversed. See id.; but cf. Moore, supra, 609 A.2d at 1136 (no error where judge states on record that he would not consider inadmissible evidence against defendant). In reaching my conclusion, I merely acknowledge precedent of long-standing that a trial judge presiding as factfinder is bound by the same evidentiary and legal standards as a jury. See Turman, supra, 555 A.2d at 1038 ; Hedin, supra, 106 U.S.App.D.C. at 388, 273 F.2d at 513 ; see also Harris, supra, 454 U.S. at 346 , 102 S.Ct. at 464 ; Hightower, supra, 117 U.S.App.D.C. at 46, 325 F.2d at 619 . If a judge sitting as factfinder were allowed to consider information that a jury could not consider, and then factor that forbidden information into the decision-making process, there would hardly exist any incentive for a litigant in pursuit of justice to opt for a non-jury trial.

One additional point made by the majority prompts one last comment by me. In the majority opinion, ante at 981, my colleagues state that “[t]he nature of the punishment *985 faced by the defendant is thus a relevant fact in assessing his motive to he; a potential $10 fine is different from the prospect of a death penalty.” At what measuring point, and under what circumstances, I wonder, will the dollar amount of the fine or the length of a potential sentence determine when a defendant has a motive to he? appellant’s conviction for possession with intent to distribute heroin and remand for a new trial.

Accordingly, I respectfully dissent from the opinion of the court. I would reverse

. Instruction 2.74 states:

The question of possible punishment of the defendant in the event of conviction is no concern of the jury and should not enter into or influence your deliberations in any way. The duty of imposing sentence in the event of conviction rests exclusively upon the Court Land the Court has wide latitude in such matters]. You should weigh the evidence in the case and determine the guilt or innocence of the defendant solely upon the basis of such evidence, without any consideration of the matter of punishment.

. The colloquy during closing argument between the court and counsel showed the trial court’s keen awareness of the proscription against a factfinder’s consideration of punishment. Nevertheless, the trial court proceeded to consider appellant's potential punishment in assessing his credibility. Ante at 981, note 5.

. Section 14 — 305(b)(1) states, in pertinent part:

Except as provided in paragraph (2), for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a criminal offense shall be admitted if offered[]....

. The record is clear that the trial court did not expressly consider the defendant’s convictions in assessing his credibility as a witness. Nor did the trial court state that it considered appellant's interest in the outcome of the case as a factor affecting his credibility.