Ali v. United States

ROGERS, Associate Judge,

concurring:

I agree with the findings of error and that, of appellant’s three primary assertions of error, one requires reversal. The erroneous admission of evidence offered by the prosecutor to show a common scheme or plan, that appellant had sexually molested the complainant’s younger sister, substantially prejudiced appellant.

The trial court, and the government, relied on the common scheme or plan exception under Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964), for the admission of evidence relating to the complainant’s sister. This exception is inapplicable in the absence of a showing that the incidents involving the sister had a definite and inextricable relationship to the incidents involving the complainant. See Hackney v. United States, 389 A.2d 1336, 1345 (D.C.1978) (coverup scheme), cert. denied, 439 U.S. 1132 (1979); Davis v. United States, 367 A.2d 1254, 1262-63 (D.C.1976) (offenses committed independently without unitary goal), cert. denied, 434 U.S. 847, 98 *317S.Ct. 154, 54 L.Ed.2d 114 (1977).1 The government, by failing to argue before the trial court, as it does on appeal, that an alternative theory for the admission of the evidence was to show appellant’s predisposition, denied appellant an opportunity to object,2 and left the jury without proper instruction on the limited use of this evidence had the trial court admitted it on this alternative theory. Contrary to the limited common scheme or plan purpose for which the evidence was admitted, the prosecutor argued, moreover, that appellant was guilty of taking indecent liberties with the complainant because of what he had done not only to her but to her sister. Thus, the presumed prejudice from the erroneous admission of other crimes evidence, Tinsley v. United States, 368 A.2d 531, 533 (D.C.1976), to which appellant had objected at trial, becomes manifest.

The same is not true, however, with regard to appellant’s claims of error relating to a second affair and to subornation of perjury. First, with respect to the affair, the record reveals that the prosecutor lacked an adequate basis to inquire about the alleged Shirley Kumar affair. This became especially clear in the government’s rebuttal case, following the denial by appellant’s wife of any knowledge of the affair, Shirley Kumar’s explanation of her relationship with appellant and his wife, and Mr. Kumar’s secondhand information about the affair. In rebuttal, the government presented only the testimony of the complainant’s mother that she had overheard appellant’s girlfriend, Anita, ask Shirley Kumar if she was having an affair with appellant. Nevertheless, in view of appellant’s admission of his affair with Anita and the nature of the evidence of the second affair, I do not view this to have been reversible error. In closing argument, the prosecutor did not state that appellant had had an affair with Kumar and the trial court instructed the jury that there was “no evidence at all” to support the prosecutor’s question to appellant’s wife (allegedly to show her bias) whether she knew about the second affair and that the testimony was to be “completely” disregarded.3 Smith v. United States, 315 A.2d 163, 167 (D.C.1974) (jury presumed, absent record evidence to the contrary, to follow instructions).

The claim regarding the subornation of witnesses is more problematic simply because of the prejudice inherent in the allegation itself. The trial record reveals that the prosecutor’s questions about appellant’s two purported conversations with his witnesses were not based on an adequate factual predicate. Appellant did not object at trial to the questions about his conversation in the lunchroom. The government’s witness, Detective McGinnis, was unable to testify that appellant had said anything to his witness other than “remember this.” Faced with the denial of appellant’s witness that the hallway incident4 had occurred, and appellant’s testimony that he was un*318able to remember going from table to table in the lunchroom, and the absence of government evidence other than an ambiguous remark, the prosecutor’s comment in closing argument that appellant was “orchestrating witnesses” was without evidentia-ry support and constituted misconduct. However, appellant did not object to these remarks at trial.5 The trial court gave the standard instructions on counsel’s arguments and the jurors’ recollection of the evidence. Viewing the comments in the context of the entire trial, Fornah v. United States, 460 A.2d 556, 560 (D.C.1983), and particularly in view of appellant’s failure to object until appeal, see note 5 and accompanying text, supra; Parks v. United States, 451 A.2d 591, 613 (D.C.1983) (absence of defense objection some evidence that error not viewed as prejudicial), I am unpersuaded that plain error occurred. See Watts v. United States, 362 A.2d 706, 708 (D.C.1976) (en banc).

Accordingly, I join in reversing the conviction because the erroneous admission of other crimes evidence substantially prejudiced appellant and was not harmless.

. Other jurisdictions have reached the same conclusion in factually similar circumstances. See, e.g., Shockley v. States, 585 S.W.2d 645, 652-54 (Tenn.Crim.App.1978); People v. McMillan, 86 Ill.App.3d 208, 41 Ill.Dec. 15, 407 N.E.2d 207 (1980); People v. Martin, 43 Colo.App. 44, 602 P.2d 873 (1979); State v. Eubank, 60 Ohio St.2d 183, 398 N.E.2d 567, 569 (1979).

. Since Drew, supra, this court has not approved the introduction of evidence to show "intent and lustful disposition,” as was done in Dyson v. United States, 97 A.2d 135, 137 (D.C.1953) (between different parties). Cf. Miller v. United States, 93 U.S.App.D.C. 76, 77, 207 F.2d 33, 34 (1953) (between same parties).

. In denying appellant’s motion for a new trial, however, the trial judge changed his view, stating it was not a question of no evidence but of the reliability of Mr. Kumar’s secondhand information about his wife’s affair. Nevertheless the trial judge found that although the testimony was improper, it had not affected the jury’s verdict.

.The prosecutor asked a defense witness, Robbie Paul, whether, while in the hallway outside of the courtroom, he had told another man that appellant had wanted him to say that he, Ali, had been at a particular party. Appellant’s presence at this party was relevant to his ability to establish an alibi for one of the occasions on which the complainant claimed he had molested her.

. Nor did he raise the issue in his motion for a new trial.