Murphy v. United States

SCHWELB, Associate Judge,

concurring in part, dissenting in part, and concurring in the judgment:

Under the majority’s curious interpretation of Thompson v. United States, 546 A.2d 414 (D.C.1988), Graves v. United States, 515 A.2d 1136 (D.C.1986), and related cases, the prosecution may not introduce other crimes evidence to prove intent to distribute unless the defendant has previously disputed the existence of the proscribed intent, no matter what the defendant’s subsequent plans may be. Once the evidence has been excluded, my colleagues would apparently permit the defense to change course and to attack the government’s case in closing argument on the ground that the evidence of intent is insufficient. In other words, the majority would allow the defense to manipulate the record before the jury by first securing the exclusion of evidence on the theory that intent is not contested and then contesting the sufficiency of the proof of intent in the artificially constricted record which it has contrived to obtain. Because, in my view, this scenario countenances something akin to the “sandbagging” of the prosecution, see Coreas v. United States, 565 A.2d 594, 600 n. 8 (D.C.1989), and permits the defense to “ambush” the government contrary to our express warning in Thompson, 546 A.2d at 424 & n. 17,1 respectfully but emphatically dissent from Part II of the majority opinion, which holds that Judge Kramer committed error by admitting “other crimes” evidence on an issue which my colleagues say was not then a contested one. As I agree with the majority that if error was committed — and in my opinion it was not— then the judge’s instructions and the verdict of the jury on the PWID 1 count rendered it harmless, I concur in the judgment of affirmance.

I

I note at the outset that, since all members of the division agree that any error in receiving the proof of the earlier sale was harmless, the discussion in Part II of the *441majority opinion is unnecessary to our disposition of this appeal. Murphy’s conviction could have been — and in my opinion should have been — affirmed in a conventional memorandum opinion and judgment (MOJ) which would have said, as so many of our unpublished opinions do, that if any error occurred,2 which we do not decide, then it was harmless. The question whether Thompson and Graves ought to be extended to support the doctrine now embraced by the majority might profitably have been deferred to a day when its resolution would have affected the result. Since my colleagues have elected, unnecessarily in my view, to address the point, I must explicate my reasons for disagreeing with their analysis.

II

In my opinion, Judge Kramer’s resolution of the problem of “intent as a contested issue” was consistent with Graves and correctly anticipated our decision in Thompson, which was decided after Murphy’s trial.3 The judge initially and quite properly declined to admit the other crimes evidence, preferring to defer her decision until she could make a more informed assessment of the record as it developed. When defense counsel disclosed that Murphy would offer no evidence unless the testimony about the prior sale was admitted, Judge Kramer inquired whether counsel proposed to contest the issue of intent to distribute in his closing argument. No commitment was forthcoming with respect to counsel’s intention, and Judge Kramer obviously did not wish to skew the case by allowing the defense to ambush the prosecution. Accordingly, the judge drew the most rational inference from the state of the record as it then existed — namely, that intent would be contested — and therefore admitted the evidence of Murphy’s prior sale. Subject to the caveat in Part IV of this opinion, I believe that this is precisely what the judge should have done.

It is instructive to compare the present case with Thompson, on which the majority opinion relies so heavily. In that case, twenty-seven tin foils of PCP and marijuana, packaged for sale, were found under the passenger seat of an automobile in which Thompson was riding. Thompson’s defense was simple — the drugs were not his. In fact, Thompson testified that he had never possessed the drugs or even seen them. Since he denied any knowledge of the contraband, he was in no position to testify as to the intent with which somebody else possessed it. Under these circumstances, intent was not, nor could it be, an issue in any significant or meaningful sense. Accordingly, we held that evidence of a prior sale was not admissible for the purpose of showing intent to distribute. We noted that the court’s approach

fully protects the legitimate interests of the prosecution and at the same time prevents the premature reception of devastatingly prejudicial evidence in cases in which it may subsequently appear that its admission was unnecessary.

546 A.2d at 424. We also made it clear that the purpose of our ruling was “to avoid undue prejudice, not to ambush the prosecution.” Id., at 424 n. 17.

In the present case, on the other hand, the dilaudid pill which was the subject of the PWID charge was recovered from Murphy’s glove.4 It would have been next to impossible for Murphy to dispute the possession element of PWID. As we said in *442Thompson in discussing the posture of Thompson’s codefendant Copeland:

Eight tin foil packets were found on Copeland’s person, and he was therefore in no realistic position to deny that he was in possession of the contraband. The issue which he could contest (at least more plausibly than Thompson could in light of the testimony regarding the twenty-seven tin foils) was whether the drugs were for personal use or for distribution. Evidence (if the government had any) that Copeland had distributed drugs on other occasions, though prejudicial, would have been relevant to the central issue in his case, and could have logically rebutted his defense.

Id. at 422.

Only one dilaudid pill was found on Murphy, compared with the eight tin foils which were in Copeland’s possession. A contention that proof of intent to distribute was lacking in relation to the pill in Murphy’s glove was arguably even more plausible than a comparable defense would have been for Copeland. Under these circumstances, when Murphy’s counsel declined to take the issue of intent out of the case, Judge Kramer’s only reasonable recourse was to conclude that intent to distribute would be contested and to rule accordingly with respect to the admissibility of the evidence of the earlier sale.

Ill

An alternative reading of the majority opinion is that, in my colleagues’ view, no matter how strong the indications were that specific intent would become an issue, Judge Kramer could not admit other crimes evidence until the defense had actually made it one. If counsel actually did so during closing argument, however, then this secondary reading of the majority opinion would permit the trial judge to admit relevant evidence of other crimes, provided that she did not find it more prejudicial than probative.5 This scenario would avoid the problem of ambush, but it would surely be impracticable and, indeed, counter-productive. If the judge were required to defer admission of such evidence until the probability that the defense would contest intent to distribute had become a certainty, it would be necessary to reopen the record, allow the prosecution to introduce new evidence, and presumably permit a second round of closing arguments. Quite aside from the obvious tension between such a duplicative procedure and principles of “good judicial husbandry,” United States v. Dogan, 314 F.2d 767, 772 (5th Cir.1963), this approach would unduly highlight the other crimes evidence to the defendant’s palpable prejudice.

It is surely far more efficient, and a great deal more fair, to permit the judge, after deferring her decision as to admission of other crimes evidence until the latest practicable moment prior to closing argument, to make an appropriate inquiry of defense counsel and then to factor into her decision counsel’s response or lack of response. I recognize, of course, that at least at the pretrial stage, the judge has no inherent authority, in the absence of an applicable statute or rule of court, to require an attorney to disclose his client’s defense. Bowman v. United States, 412 A.2d 10, 12 (D.C.1980) (per curiam). Defense counsel is therefore free to decline to make the disclosure, and the defendant cannot be precluded from arguing a defense upon the ground that he did not disclose it.

To avoid the admission of other crimes evidence bearing on intent, however, defendants have been required to “affirmatively take the issue of intent out of the case.” United States v. Williams, 577 F.2d 188, 191 (2d Cir.), cert. denied, 439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978). Indeed, counsel’s indication that the defense would not “actively” contest the issue has been held to be insufficient. United States v. Holman, 680 F.2d 1340, 1349 (11th Cir.1982). While I would not go as far as the court did in Holman, especially in cases like Thompson in which the defense is essentially “I never had the drugs and I *443therefore don’t know what the possessor intended,” see Thompson, supra, 546 A.2d at 423; cf. Landrum v. United States, 559 A.2d 1323, 1328 n. 11 (D.C.1989) (formal stipulation unnecessary), the question whether the defense is taking the issue out of the case is at least a relevant one, and a judge who wishes to make an informed and conscientious decision must surely ask it.6 It was not error for Judge Kramer to do so.

IV

I am troubled by an issue not discussed by the majority, namely, whether the other crimes evidence was relevant at all as to the intent with which Murphy possessed the pill which was recovered from his glove. As we noted in Thompson,

[wjhere evidence of prior crimes can become probative with respect to intent only after an inference of predisposition has been drawn, the argument for admission is at its weakest, for the distinction between intent and predisposition then becomes ephemeral.

546 A.2d at 421. It is difficult to see how proof that Murphy sold a dilaudid pill to an undercover officer in November 1985 tends to show that he intended to distribute a different pill in February 1986, unless the jury is to draw the impermissible inference that the earlier incident demonstrates a predisposition to sell again.7 In our discussion in Thompson of the circumstances of Thompson’s codefendant Copeland quoted at p. 16 of this dissent, on the other hand, we intimated that such evidence might be admissible where intent was genuinely contested. Since I agree with my colleagues that, even if there was error in admitting proof of the prior sale, that error was harmless, I find it unnecessary in this case to attempt to resolve the question of relevancy or to address the relationship here between intent and predisposition.

V

This court’s decision in Thompson was designed to assure fairness to the defendant by protecting him from the admission of basically irrelevant and highly prejudicial evidence in circumstances where intent was not meaningfully contested. In my opinion, my colleagues’ approach would unfairly preclude the government from introducing relevant evidence where intent is meaningfully contested. It is for this reason that I respectfully dissent from Part II of the majority opinion.

. Among those who prosecute, defend or adjudicate in the drug wars, PWID is a colloquial abbreviation of possession with intent to distribute.

. Since the disposition I contemplate would not have included a finding of error of law (or of lack of such error), but would have pretermitted the issue, the requirement in our IOP § VIII(D)(6) (1985) that we publish opinions in which we find error of law would not in my view have been applicable. See majority opinion at 439 n. 8.

. Indeed, Judge Kramer’s handling of the matter is so close to the procedure envisaged in Thompson that she might be accused of what Professor Paul Freund used to call the tort of anticipatory plagiarism.

.When Murphy eventually took the stand, he admitted that he possessed the pill, claiming to have purchased it for his own personal use. He denied any intent to distribute it. His testimony confirmed what Judge Kramer had anticipated — possession of the pill being more or less incontestable, Murphy’s only meaningfu (and ultimately successful) recourse was to contest the intent to distribute prong of PWID.

. Footnote 7 of the majority opinion suggests that this is not what the majority had in mind, but the point is not expressly disclaimed by my colleagues.

. Before admitting "other crimes" evidence, the judge is required to weigh its probative value against its prejudicial effect. Thompson, supra, 546 A.2d at 428. I do not see how the judge could have done this without inquiring whether intent to distribute was contested.

. Since the government adduced evidence that on the same day officers recovered a pill from his glove, Murphy had sold another pill, the "need” to introduce the evidence of an event which occurred three months earlier was not at its apogee.