Plummer v. United States
Plummer v. United States
Opinion of the Court
Michael Plummer appeals from his conviction of first-degree, premeditated murder while armed,
FACTUAL SUMMARY
The government’s evidence
On July 2, 1996, at approximately 11:00 p.m., in the unit block of 0 Street, N.W., Washington, D.C., sixteen-year-old Dennis Hines was shot twice, at close range, in the head and back. He subsequently died from those gunshot wounds.
After Dennis Hines’s death, rumors began circulating that appellant, also a sixteen-year-old young man from a nearby neighborhood, had been the shooter. In January of 1997, six months after the shooting, the police arrested appellant. He was indicted on first-degree murder and related weapons offenses in August of that year after three eyewitnesses testified before the grand jury and identified appellant as the shooter. When appellant was first brought to trial, in February of 1998, the government presented the testimony of three eyewitnesses; the testimony of Calvin Gaither, the best friend of the murder victim and a government informant, who claimed that appellant had confessed to killing Dennis Hines; and the testimony of William “Jeff’ Mitchell, a neighborhood resident whose daughter, Tia, had been killed shortly after Dennis Hines, and who had testified at the grand jury, but subsequently recanted at trial, that appellant had apologized for setting off the cycle of violence that resulted in the death of his friend Tia. The government also presented the medical examiner, who testified that two shots had been fired causing four wounds to Dennis Hines’s head, ear, shoulder and ribs. Although police recovered a bullet, there was no physical evidence linking appellant to the shooting. After deliberating for three days, the jury deadlocked on all counts.
In June of 1998, appellant was tried before a second jury and a different judge. This trial featured the same three eyewitnesses, informant and medical testimony presented in the first trial, but did not include Jeff Mitchell. The evidence demonstrated that before he was shot, Dennis Hines had been sitting in front of 18-A O Street, N.W., between 1st Street and North Capitol Street, speaking with Natalie Burks, Nichole Burks, and Larry Morgan.
Larry Morgan testified
Following the shooting, neither Natalie Burks, her daughter, Nichole, nor Larry Morgan informed the police of what they had witnessed. One year later, in July, 1997, they were subpoenaed to appear before the grand jury, at which time Detective Timothy Doughty met individually with each one. Natalie and Nichole Burks identified appellant from an array of photographs of young men. Larry Morgan told Detective Doughty that he knew the shooter as “Michael Plummer,’’and also identified appellant'from an array of photographs.
Testimony of Calvin Gaither
Calvin Gaither, a convicted felon and local drug dealer who had been a good friend of Dennis Hines, testified that the previous summer appellant had confessed to him in the D.C. Jail to shooting Dennis Hines, by apologizing for “what he had done” and by saying that he “had acted too fast.” Gaither further testified that appellant asked if they could “squash the beef,” apparently referring to a feud between the Sursum Corda neighborhood and the 1st and 0 Street neighborhood.
Q Mr. Gaither, when you told Mr. Plum-mer “Yeah, we lost one; you lost one, let’s just squash the beef,” what did you mean by that?
A That they lost a close friend and we lost a close Mend so we didn’t need nobody else to get kill.
Q Who was the close friend that you all lost?
A Little Dennis.
Q And who was the close Mend that they lost?
A A girl named Tia.
Q Now I should ask just to clarify, did Little Dennis have anything to do with killing Tia?
A No, he got killed first.
Q How would you — did you continue to talk to Mr. Plummer or was that just a one-time talk?
A No, we became all right, you know, Mends you could say.
Q Okay. You became Mendly even though you guys were sort of on the opposite side of things?
A Yeah.
Cross-Examination of Appellant
Appellant denied shooting Dennis Hines and stated that he was not in the area of 1st and 0 Streets, N.W., on the evening of July 2,1996, although he could not remember where he was or what he was doing at that time. He said he had no relationship with Calvin Gaither, testified that he never discussed his case with him and, to the contrary, asked Gaither to stop trying to ask appellant about his pending case. He also testified that he never suggested to Gaither that they “squash the beef,” nor did he know what that phrase meant.
On cross-examination, the government asked appellant if he was familiar with the “Sursum Corda area,” and the “1st and 0 Street area” — the areas where the prosecutor had told the judge that the two gangs were located. Asked whether he had “friends” in the Sursum Corda area, appellant testified that he never had any problems with the folks from the area of 1st and 0 Streets, N.W. Appellant was asked whether he knew Tia Mitchell, and he said that he did. The prosecutor then asked whether appellant had talked to her father, Jeff Mitchell, “about the fact that Tia got killed because you had smoked Little Dennis [Hines] two nights earlier, didn’t you?” Appellant denied making such comments. The government never called Mr. Mitchell to substantiate the remark.
1. Testimony about the alleged gang-related motivation behind the murder.
Appellant contends that the trial court erred when it allowed testimony from which the jury could speculate that gang retaliation was the motive for the killing of Dennis Hines on July 2, 1996, and the killing of Tia Mitchell two days later. He argues that even the limited explanation of Gaither’s understanding of the conversation he had with appellant about “squashing the beef’ was irrelevant to the question the jury had to decide— whether it was appellant who killed Dennis Hines. Contending that Gaither’s testimony was unfairly prejudicial because it supplied a motive to an otherwise unexplained murder, appellant argues he is entitled to a new trial.
The trial court’s decisions about admission or exclusion of evidence are reviewed for abuse of discretion. See Mercer v. United States, 724 A.2d 1176, 1182 (D.C. 1999).
Specifically, we have cautioned trial judges to consider carefully before admitting evidence of gang retaliation, and then only after ensuring that the government’s evidence is relevant, necessary and supported by competent evidence. In Mercer, we held that evidence of threats against a witness had the potential for great prejudice against the defendant because “it implied that [the witness] had received some type of threat [from the defendant] regarding her testimony. This type of evidence could very well have aroused the passions of the jury_” Id. at 1186.
In this case, appellant argues that Gaither’s testimony on what he meant by “squashing the beef’ was irrelevant to the issue of appellant’s guilt for the shooting of Dennis Hines, and there also was no need to inform the jury that Dennis Hines had not committed a murder for which appellant was retaliating because the only other killing that had been alluded to — that of Tia Mitchell — occurred two days after Dennis Hines was killed, and could not have been committed by him. Further, he argues, Gaither’s testimony was unfairly prejudicial to the extent it suggested— without substantiation
We need not decide whether allowing the testimony referring to gang violence was error,
2. Cross-examination of appellant on his statements to William Jeffrey Mitchell
Appellant claims that the trial court erroneously permitted the government to cross-examine him, without evi-dentiary foundation, on his statement to Tia Mitchell’s father that he was “sorry” she was killed. Appellant testified that he never confessed to Mr. Mitchell and, at the first trial, Mr. Mitchell recanted under oath his testimony to the grand jury about the appellant’s purported confession that it was his killing of Dennis Hines that led to the retaliatory killing of Tia Mitchell. Moreover, not even the fact that Tia Mitchell was killed — much less who killed her and why — was proven at trial.
We review this questioning for plain error because appellant did not object at trial. See Watts v. United States, 362 A.2d 706, 709 (D.C. 1976). Thus, we will reverse only if the error is obvious and “so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.” Id.
It is impermissible for the government to “manufacture evidence by creating an impression in the minds of the jurors through questions that imply the existence of facts,” unless the factual predicate for the question is “grounded in a good faith belief that those facts are susceptible to proof by competent evidence.” Ali v. United States, 520 A.2d 306, 313 (D.C. 1987). We agree with the government that the prior sworn testimony of Mr. Mitchell before the grand jury sufficed to give it a good faith basis to ask the question. Had the government called Mr. Mitchell, and had he denied that appellant confessed to him, he could have been impeached with his prior sworn testimony. See (Darryl) Jones v. United States, 719 A.2d 92, 93 (D.C. 1998). Moreover, the questioning was limited and the government did not mention appellant’s purported “confession” to Mr. Mitchell in closing argument. Therefore, we hold there was no plain error.
3. Appeal to the emotions and community sentiment and sympathy for decedent’s relatives
Nichole Burks became emotional on the stand and refused to answer
And one of the more important things that Calvin Gaither said was as we kind of developed this — you know, he agreed to squash the beef, right? He said look, you lost one — I’m sorry — Calvin Gaither said you lost one; we lost one. Let’s squash the beef, all right?
During rebuttal, the prosecutor exhorted the jury “as the conscience of the community,” to find appellant guilty:
Mr. Horton [defense counsel] says well, the defendant says he didn’t do it. Folks, when the defendant took the stand, did you expect he was going to get up there and say, yeah, I killed Little Dennis. Of course not. He’s motivated by self-preservation. He doesn’t want to be held accountable. You all as the conscience of the community are the one who has to place responsibility - Defense counsel: May we approach please?
Court: Overruled.
Prosecutor: That’s your job as members of the community.
Appellant contends that the trial court erroneously permitted the government to appeal to the jurors’ emotions by presenting and stressing Nichole Burks’s emotional trial testimony and the fear of gang violence in closing argument. The government argues that the testimony was relevant and the argument a reiteration of facts and circumstances which were already before the jury.
We have said, and repeat, that prosecutorial comments designed to inflame the jury’s emotions and urging them to send messages on behalf of their communities are irrelevant and improper. See Hawthorne v. United States, 476 A.2d 164, 170 (D.C. 1984); Powell v. United States, 455 A.2d 405, 410 (D.C. 1982). When there is improper argument by the prosecutor, the conviction will be reversed if the error rises to the level of substantial prejudice, i.e., unless “we can 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.” Powell, 455 A.2d at 411 (internal quotations omitted). Decisive factors are the gravity of the misconduct, its direct relationship to the issue of innocence or guilt, the effect of corrective instructions, if any, and the weight of the evidence of appellant’s guilt. See Hawthorne, 476 A.2d at 170.
In Hawthorne, we held that the prosecutor’s arguments substantially prejudiced the appellants because the prosecutor had delivered most of his closing argument in the first person voice of the murder victim and presented himself as if he were the victim. See id. at 173. The court found these tactics to be an “ill-founded rhetori
We agree that the prosecutor should not have highlighted the emotional impact of the testimony during closing argument — particularly with respect to Nichole Burks being “scared to death” — but the jurors had already heard the evidencé and seen the witness themselves. Of greater concern are the prosecutor’s reiteration of Gaither’s testimony implying gang violence and the prosecutor’s improper appeals to “community conscience” during rebuttal argument. On balance, however, we do not think these comments— improper though they were — substantially prejudiced appellant’s case. The prosecutor reiterated the statements Gaither had made about “squashing the beef’ and “we lost one; you lost one,” but did not expressly refer to gang violence as appellant’s motive for killing Dennis Hines. The prosecutor’s rebuttal included two phrases about the jury’s role in the community, but did not request that the jury “send a message.” We view the comments at issue in their context. Considering the significant evidence that appellant was the shooter, we do not believe that these comments substantially prejudiced appellant. See Powell, 455 A.2d at 411.
Affirmed.
. See D.C.Code §§ 22-2401,-3202.
. Possession of a firearm during the commission of a crime of violence or dangerous offense, see D.C.Code § 22-3204(b), and carrying a pistol without a license, see D.C.Code § 22-3202(a).
.Natalie testified that she had "a little" to drink the night of the shooting, about an inch
. Mr. Morgan was murdered prior to appellant's retrial, but testified at appellant’s first trial. The government introduced his prior testimony through a transcript, which was read by a police officer. The jury was told of Mr. Morgan's death, but was instructed not to speculate about how he had died.
. At the first trial, the government attempted to have Gaither explain that the "beef” referred to a purported feud between the two gangs, but the trial judge refused to permit any testimony on the subject.
. Defense counsel objected to the questioning, as Jeff Mitchell had not been called as a witness. In the first trial, the government had called Mr. Mitchell as a witness, and he testified that appellant had been a friend of his daughter, Tia, and that appellant had approached him and told him he was sorry about his daughter's death. Before the grand jury, Mr. Mitchell had previously testified that appellant had confessed to shooting Dennis Hines, but, at trial, he disavowed his grand jury testimony. Instead, he said his grand jury testimony was based on the fact that he had heard rumors of appellant's role in starting the violence that led to his daughter’s death, and that he had wanted someone to
. Appellant characterizes the trial court’s ruling as based on the doctrine of curative admissibility and argues that reliance on that doctrine was in error. The government agrees that the doctrine of curative admissibility was inapplicable in the circumstances presented, but argues that this was not the basis for the trial court’s ruling. Instead, the government argues, the evidence was independently relevant. The doctrine of curative admissibility provides that in certain circumstances the prosecution may inquire into otherwise inadmissible evidence, but only after the defense has "openfed] the door” with regard to this evidence. See Mercer v. United States, 724 A.2d 1176, 1192 (D.C. 1999). Moreover, the doctrine of curative admissibility is limited and' permitted, "only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.” See id. We agree that the doctrine is not applicable to this case, as the defense did not open the door to Gaither's testimony on the subject of "squashing the beef.”
. When the government sought to elicit from Mr. Gaither what he had meant by the phrase, "we lost one, you lost one,” appellant objected on relevance grounds. After colloquy, the prosecutor then withdrew the question. Later, when the government wanted to follow-up on the disputed line of questioning, appellant's counsel voiced his concern stating, "why can’t we just leave it at that ... what's in this man's mind it does [not] seem to me that it much matters ...” The court ruled that "the witness should be permitted to say what he was talking about. Just get it out and leave it at that.” “Appellate courts have reviewed a trial court’s decision on the admissibility of evidence under an abuse of discretion standard, even when it is not clear that the defendant made a contemporaneous objection, so long as the trial court ruled on the substance of the objection.” See Mercer, 724 A.2d at 1182. That is the case here.
. Gaither, who was locked up at the time of both killings, had no personal knowledge and was therefore incompetent to testify about the motivation behind them.
. The government argues that the plain error standard of review applies. In view of our disposition, we need not decide the issue.
. The government presented Dennis Hines's mother who testified, over objection, that after the shooting she ran outside late at night in her night clothes and saw her son lying in the street. Ms. Hines tried to speak to her son, but she said that he could only mumble in response. She identified a picture of her son, which was shown to the jury. The testi
Concurring Opinion
concurring in the judgment:
In my opinion, the inconclusive discussion in the majority opinion of Plummer’s unresolved contentions is unnecessary, since all members of the division agree that any hypothetical error was harmless. Accordingly, I concur in the judgment only.
Reference
- Full Case Name
- Michael PLUMMER, Appellant, v. UNITED STATES, Appellee
- Cited By
- 29 cases
- Status
- Published