# Harris v. United States

> District of Columbia Court of Appeals · May 12, 1981 · 430 A.2d 536

URL: https://www.frixlaw.com/law-library/cases/9760269

## Case

- **Full name:** John HARRIS, Appellant, v. UNITED STATES, Appellee; Robert Lee COSBY, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** May 12, 1981
- **Citations:** 430 A.2d 536; 1981 D.C. App. LEXIS 280
- **Precedential status:** Published
- **Opinion:** Concurring in part by Newman
- **Judges:** Newman, Gallagher, Harris
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9760269

## Opinion text

NEWMAN, Chief Judge,
dissenting in part and concurring in part:
I dissent because I believe that the missing witness instruction was unwarranted with respect to either the Reverend or Conrad “Combread” Harris. In the case of appellant Cosby, because Cosby’s credibility was critical to his case, and because the missing witness instruction tended to undercut his credibility, the verdict of the trial court should, in my opinion, be reversed and the case remanded for a new trial. With respect to appellant Harris, as there was substantial independent evidence to support the conviction of possession, I conclude that the missing witness instruction, although erroneously given, was harmless. I agree with my colleagues that the prosecutorial misconduct in this case did not rise to the level of prejudice mandating reversal, and therefore concur in the affirmance of appellant Harris’ conviction.
Appellant Cosby argued at trial that this was a case of mistaken identity. He testified that he had not been acquainted with appellant Harris prior to his arrest in this case, and that on July 18, 1978, he was in the neighborhood of Twelfth and T Streets to discuss painting the front of the church at that location with a Reverend of the church.
Cosby’s argument of misidentification was buttressed by the discrepancy between Detective Thomas’ description of the person with whom he had negotiated the sale, which description he gave to the detectives who executed the arrest, and Cosby’s own appearance. After making his purchase Thomas drove to a prearranged post where he described the Dilaudid seller to Black and Swope as five feet nine inches tall, weighing one hundred forty-five pounds, and wearing blue slacks and a plaid or print shirt with pink in it, without any mention of the seller’s race. Appellant Harris later testified that he had received money from a slim man whose height he estimated at five feet nine or ten inches and whose weight he guessed to be one hundred fifty or one hundred sixty pounds. He stated positively that he had not received money from appellant Cosby. Cosby, by contrast, is five feet four inches tall. He weighed one hundred twenty-one pounds at the time of the trial, and testified that at the time of the incident in question he had weighed only one hundred fourteen or one hundred fifteen pounds. On the day of the arrest he wore blue slacks and a blue plaid shirt with dark brown checks.
Prior to trial Cosby attempted to locate the Reverend to testify in his behalf. He knew neither the Reverend’s name, nor his home address or telephone number. He tried without success to reach the Reverend by telephoning a number at the church which continually rang busy. He passed the church on a number of occasions but did not knock because the church door was locked and the Reverend’s car, which he knew by sight, was not in the vicinity.
“[I]f a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.” Graves v. United States, 150 U.S. 118, 121 , 14 S.Ct. 40, 41 , 37 L.Ed. 1021 (1893). This rule endures in the District of Columbia, where it is expressed to jurors in the form of the “missing witness instruction.” 1 See, e. g., Cooper v. United States, D.C.App., 415 A.2d 528, 533 (1980); Dent v. United States, D.C.App., 404 A.2d 165, 169 (1979); Coombs v. United States, D.C.App., 399 A.2d 1313, 1316 (1979). As we observed in Dent v. United States, supra at 170-71, the practical effect of the missing witness instruction, which allows the jury to draw an inference adverse to a party from the absence of evidence, is to *545 create evidence from non-evidence. Unlike other evidence, though, as the inference is permitted only because of the absence of specific testimonial evidence, “the circumstances bearing on the import of this non-evidence are unlikely to come out at trial.” Givens v. United States, D.C.App., 385 A.2d 24, 26 (1978). Inherent in the use of the missing witness instruction is thus the danger that the adverse inference “may add a fictitious weight to one side of the case, for example, by giving the missing witness undeserved significance.” Dent v. United States, supra at 171. See also Cooper v. United States, supra at 533.
To curtail this and other potentially prejudicial ramifications of the missing witness doctrine, 2 courts carefully restrict application of the doctrine “to situations where it is ‘peculiarly within’ the party’s ‘power to produce’ the witness and where, as well, the witness’ testimony ‘would elucidate the transaction.’ ” Wynn v. United States, 130 U.S.App.D.C. 60, 64 , 397 F.2d 621, 625 (1967) (footnotes omitted); accord, Cooper v. United States, supra at 533; Dent v. United States, supra at 169-70. As the majority correctly notes, the factual determination of whether these prerequisites are met is entrusted in the first instance to the trial court. “Consequently, the trial court has considerable latitude in determining ‘whether from all the circumstances an inference of unfavorable testimony from an absent witness is a natural and reasonable one.’ ” Shelton v. United States, D.C.App., 388 A.2d 859, 863 (1978) (quoting Burgess v. United States, 142 U.S.App.D.C. 198 , 206 & n.11, 440 F.2d 226 , 234 & n.11 (1970) (per Fahy, Senior Circuit Judge, with two circuit judges concurring in the result)). The “considerable latitude” allowed the trial court in making this determination is not, however, without limit. We have regularly scrutinized the rulings of trial courts with respect to the missing witness doctrine to ascertain whether there has been an abuse of discretion. See, e. g., Cooper v. United States, supra at 534; Coombs v. United States, supra at 1317-18; Shelton v. United States, supra at 865.
We have previously considered significant the relationship between the party and the missing witness with respect to whom the doctrine is invoked. We have said:
The availability of a witness to any party “must be judged ‘practically as well as physically.’ ” United States v. Young, 150 U.S.App.D.C. 98 , 106, 463 F.2d 934, 942 (1972), quoting Stewart v. United States, 135 U.S.App.D.C. 274 , 279, 418 F.2d 1110, 1115 (1969). The court in Young also commented that “whether a person is to be regarded as equally available to both sides may depend not only on physical availability but on his ‘relationship’ to the parties.” Id. 150 U.S.App.D.C. at 106, 463 F.2d at 942 . [Hale v. United States, D.C.App., 361 A.2d 212, 216 (1976).]
In Hale v. United States, the appellant had “identified the [missing] witness as his girl friend, thus establishing a close relationship between the parties.” Id. The appellant in Hale was accused of assault with a dangerous weapon and of carrying a pistol without a license. The missing witness had previously testified before a grand jury that the appellant had shot the complainant in self-defense. On these facts the “inference of unfavorable testimony [was found] a natural and reasonable one,” id. (quoting United States v. Young, supra at 107, 463 F.2d at 943 ), and the giving of the missing witness instruction was not error. The contrast between Hale and the instant case is apparent. Here, the relationship between appellant Cosby and the Reverend, whose name, address, and telephone number Cosby did not know, was remote at best.
Furthermore, if there is evidence in the record to indicate that a party has made a bona fide effort to locate a witness, the missing witness instruction should not be given. Shelton v. United States, supra at 865. Such an effort may be neither exhaus *546 tive nor successful, and yet may suffice to remove the spectre of the missing witness doctrine. In Nowlin v. United States, D.C.App., 382 A.2d 9 (1978), the government had been aware of the existence of a witness for a substantial period of time, but “did not attempt to locate him until one day before trial, and then only by a scan of correctional institutions in the Washington area.”' Id. at 13 . In Nowlin we held that where “the last name of the witness was not certain, his address was unknown, and the government exhausted the only lead it had as to his whereabouts,” the court had properly refused to give the missing witness instruction. Id.
Evidence in the record indicates that Cosby’s efforts to locate the Reverend were at least as extensive as the government’s efforts to locate the missing witness in Nowlin v. United States, supra. As discussed above, by use of the missing witness instruction the weight of the evidence is potentially distorted; evidence is created from non-evidence; and thus, where the instruction is given to the defendant’s detriment, the cornerstone of the common law, the presumption of innocence, may be jeopardized. The trial court erred in finding that the Reverend was peculiarly within Cosby’s power to produce.
Moreover, the Reverend could not have elucidated the transaction at issue. The issue in the case was whether appellant Cosby, acting as a “juggler,” had possessed narcotics. No evidence was adduced or argument made that the Reverend had any connection with or knowledge of the alleged drug trafficking. If called to testify, the Reverend could at most have testified to a reason for Cosby’s presence in the neighborhood of Twelfth and T Streets at the time of the arrest. Cosby’s presence at the scene was not controverted.
“Not every absent but producible witness who can be held to have some knowledge of the facts need by reason of Graves be made the subject of the ‘presumption.’ ” Burgess v. United States, supra at 205, 440 F.2d at 233 (footnote omitted). The jury may be permitted to infer that a missing witness, if called, would give testimony disadvantageous to the defendant, solely when both prongs of the missing witness test are met: “(1) ... the witness [must be] peculiarly within the power of the party to produce, and (2) ... the witness’ testimony [must be] likely to elucidate the transaction in issue. If either condition is not present then ‘[b]oth comment by counsel and instruction by the judge ... is prohibited.’ ” Dent v. United States, supra at 169-70 (quoting Conyers v. United States, D.C.App., 309 A.2d 309, 312-13 (1973)). In Dyson v. United States, D.C.App., 418 A.2d 127 (1980), where the testimony of the appellant’s friends “[a]t most ... could only have corroborated his testimony that he was with them at that time,” id. at 131 , and would have shed no light on whether or not the appellant had committed the breaking and entering of which he was accused, we held that the prosecutor’s remarks to the jury on the appellant’s failure to call those witnesses to testify were “improper as they permitted the jury to draw the erroneous inference that the missing witnesses’ testimony would elucidate the transaction.” Id. Dyson, I submit, is essentially indistinguishable from the instant case: the Reverend stood in a position in relation to Cosby, with respect to his inability to elucidate the transaction, identical to the position of the appellant’s friends in Dyson .
Although substantial circumstantial evidence was adduced at trial indicating that Cosby had been misidentified as the Dilau-did seller, Cosby’s own testimony was the primary evidence arguing in favor of his innocence. The sole evidence tying Cosby to the crime was the testimony of Detective Thomas that Cosby was the “juggler.” The case thus turned largely on credibility.
We have previously held that where the missing witness instruction was erroneously given or the doctrine erroneously argued by the prosecution, and the credibility of the defendant was crucial to his case, the error was prejudicial and mandated reversal. Coombs v. United States, supra at 1318; Haynes v. United States, D.C.App., 318 A.2d 901, 903 (1974). See also Brown v. *547 United States, 134 U.S.App.D.C. 269, 272 , 414 F.2d 1165, 1168 (1969). Since I cannot conclude that the error here was “harmless,” Kotteakos v. United States, 328 U.S. 750, 765 , 66 S.Ct. 1239, 1248 , 90 L.Ed. 1557 (1946), 3 the conviction should be reversed.
Appellant Harris likewise denied involvement in drug trafficking. He testified that approximately a minute before he was arrested he received fifty dollars from someone whose name he did now know, with instructions that he should deliver the money to his brother, Conrad “Cornbread” Harris, and stated that upon receipt thereof he had counted the money and commingled it with his own. He also testified that he was waiting and taking phone messages for his brother when he was arrested. Harris raised a timely objection below, and contends on appeal that the missing witness instruction was improperly given with respect to his brother because Conrad could not have elucidated the transaction at issue.
Harris was charged with and convicted of the possession of narcotics. As in the case of the Reverend, Conrad, if called as a witness, might have been able to corroborate Harris’ testimony as to why he was in the neighborhood. While Conrad might have been able to shed further light on the fifty dollar payment Harris testified he had received prior to the arrest, even here it is unclear that Conrad would thus have elucidated the transaction at issue: due to Harris’ own testimony that upon receipt thereof he had commingled the fifty dollars with other money he possessed at the time, it is purely speculative that the thirty dollars in marked bills later found on Harris’ person were included among the fifty dollars Harris claimed to have received on behalf of Conrad.
As in the case of the Reverend, Conrad’s ability merely to corroborate Harris’ own explanation for his presence in the neighborhood did not justify the giving of the missing witness instruction. Nor was the trial court justified in giving the instruction on the basis of the unsubstantiated possibility that Conrad might have had some knowledge of the transaction at issue through his connection with thirty dollars in marked bills, which may or may not have been included in a fifty dollar payment Harris claimed he received on Conrad’s behalf. In Dent v. United States, supra, we clearly limited the applicability of the missing witness doctrine to those occasions where the testimony of the witness, if called, would be “likely to elucidate the transaction in issue.” Id. at 169-70 (emphasis added). In Coombs v. United States, supra, where the missing witness could at most have elucidated evidence of crimes other than that with which the appellant was charged, 4 we stated: “We have extreme difficulty in concluding that the missing witness doctrine could be invoked under circumstances where the transaction to be elucidated is a totally collateral one.... ” Id. at 1317. In the instant case no evidence was adduced attesting to or indicative of the likelihood that Conrad could have testified even as to the passage of the thirty dollars in marked bills; furthermore, Conrad’s testimony either corroborating Harris’ testimony as to the reasons for his presence in the vicinity of the garage or concerning the passage of the bills would at most have been collateral to the “transaction at issue” — the passage of a Dilaudid tablet from a “holder,” through a “juggler,” to Detective Thomas. Nor is it likely that such testimony would have illuminated the question of whether Harris had *548 possessed narcotics. No evidence suggested that Conrad, if called, would have given testimony unfavorable to Harris. Cf. Hale v. United States, supra (the inference of unfavorable testimony was natural and reasonable where the missing witness had previously given testimony before a grand jury, which testimony had incriminated the appellant). It was error to give the missing witness instruction with respect to Harris’ brother Conrad.
Nevertheless, after a review of the evidence presented against appellant Harris, I conclude that the giving of the missing witness instruction constituted harmless error under Kotteakos v. United States, supra, 328 U.S. at 765 , 66 S.Ct. at 1248 , and therefore concur in the judgment of my colleagues affirming Harris’ conviction.
. For the text of the instruction that was read to the jury in the instant case, see note 5, supra at p. 545 of the majority opinion.
. The ways in which a jury may be misled and the weight of the evidence distorted by use of the missing witness inference are discussed at greater length in Dent v. United States, supra at 170-71.
. The Kotteakos formulation for determining harmless error is as follows:
But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand. [Conyers v. United States, supra at 313-14 (quoting Kotteakos v. United States, supra at 765, 66 S.Ct. at 1248 ).]
. Evidence of the other crimes was admissible in Coombs under Drew v. United States, 118 U.S.App.D.C. 11 , 331 F.2d 85 (1964).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9760269. Public record. Not legal advice.