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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CF-136
KENNETH FURR, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF3-16581-11)
(Hon. Russell F. Canan, Trial Judge)
(Argued March 17, 2015 Decided April 13, 2017)
Fleming Terrell, Public Defender Service, with whom James Klein and
Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.
James M Perez, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, Chrisellen R. Kolb, Lara Worm, and Natalia Medina, Assistant United
States Attorneys, were on the brief, for appellee.
Before GLICKMAN and BECKWITH, Associate Judges, and PRYOR,* Senior
Judge.
*
Senior Judge King was assigned to this case originally. Following his
retirement on November 23, 2016, Senior Judge Pryor was assigned to take his
place on the division. Judge Pryor has listened to the recording of the oral
argument.
2
Opinion for the court by Associate Judge GLICKMAN.
Opinion by Associate Judge BECKWITH, concurring in part and concurring in
the judgment, at page 20.
GLICKMAN, Associate Judge: Kenneth Furr appeals his conviction for
assault with a dangerous weapon (“ADW”).1 He contends the trial court erred by
excluding testimony about an internal Metropolitan Police Department (“MPD”)
investigation that reportedly vindicated an officer whose testimony contradicted
the complaining witness. In addition, Furr claims the trial court plainly erred by
failing to intervene sua sponte when the prosecutor impugned that officer in her
rebuttal argument. We conclude these claims lack merit and affirm Furr’s ADW
conviction.
I.
The criminal charges in this case arose from appellant’s activities in the pre-
dawn hours of August 26, 2011. Appellant, a police officer, was off duty at the
time. In a CVS pharmacy at 400 Massachusetts Avenue, N.W., he encountered
1
D.C. Code § 22-402 (2012 Repl.).
3
“Chloe,” a transgender female, and solicited her for sex.2 She rebuffed him.
Appellant then became embroiled in an altercation with Chloe’s friend, a man
named Wallace Patterson. MPD Officer Edward Stewart, who moonlighted at the
CVS as a private security guard, interrupted the two men and asked appellant to
leave the premises. Appellant went to his car, which was parked nearby.
A few minutes later, Patterson left the CVS. He was accompanied by a man
whom he identified at trial as Calvin Hogue. As they walked past appellant’s car,
Patterson testified, appellant rolled down his window and shouted at him.
Patterson challenged appellant to step out of his car. According to Patterson,
appellant responded by retrieving a gun from the glove compartment and pointing
it at Patterson. Appellant did not tell Patterson he was a police officer. This
alleged conduct was the basis for appellant’s ADW conviction.
Patterson and Hogue returned to the CVS. They were met by Officer
Stewart, who testified that he had stepped outside the store to “make sure
everything was okay.” Patterson stated that appellant “had a gun.”3 Stewart asked
2
Appellant was found guilty of solicitation for prostitution based on this
conduct. He does not contest that conviction in this appeal.
3
The trial court admitted this statement not for its truth, but for the non-
hearsay purpose of explaining Officer Stewart’s subsequent actions.
4
him whether he saw it. Here the two witnesses’ accounts diverged. Patterson
testified he told Stewart that appellant had pointed the gun at him. He expected
Stewart to “do his job” by effecting appellant’s arrest. Stewart, however, testified
that he “tr[ied] to ascertain how [Patterson] knew [appellant] had a gun, whether he
actually saw the weapon, whether the weapon was displayed, just any – what color
the weapon was, anything, but . . . [Patterson] wouldn’t give [him] that
information, and he continued to walk away.” Stewart insisted that he “never
received a report of a man pointing a gun.” This conflict in the testimony
generated the principal issue before us in this appeal.
After speaking with Patterson, Officer Stewart approached appellant’s car
and called for police backup, telling the dispatcher that a citizen had reported
encountering “an individual that’s armed.” Appellant exited his car and
immediately identified himself as a police officer. Feeling “relieved,” as he put it
at trial, Stewart cancelled his request for backup. The two officers chatted for a
few minutes before Stewart returned to the CVS. Stewart saw no gun in plain view
and did not ask appellant whether he had a gun or what had just happened between
him and Patterson. Patterson, who drove back to the CVS a little later with some
companions, testified that he realized the security guard “didn’t do his job”
because he evidently had not summoned the police to arrest appellant. The
5
prosecutor’s echo of this statement in rebuttal is the subject of appellant’s second
claim on appeal.
Patterson and his friends eventually located appellant and pursued him as he
attempted to drive off and evade them. In a violent denouement several blocks
from the CVS on Pierce Street, appellant – who did indeed have a gun – fired his
weapon at his pursuers’ car, which then crashed into appellant’s own vehicle.
Appellant continued shooting after the collision. Patterson fled as police arrived
on the scene. Appellant faced additional assault charges arising from the shooting
on Pierce Street, but he was acquitted of them at trial based on his claim of self-
defense. Thus, the only conviction at issue in this appeal is the one for ADW
based on appellant’s actions outside the CVS.
II.
Following appellant’s arrest, the MPD investigated not only his behavior,
but also the performance of Officer Stewart after he received Patterson’s report of
a gun. The inquiry reportedly concluded that Stewart acted appropriately under the
circumstances. At trial, appellant attempted to present testimony about that inquiry
from the officer who conducted it. Appellant’s primary claim on appeal is that the
trial court abused its discretion by excluding this testimony.
6
A.
To find appellant guilty of an ADW outside the CVS, the jury needed to
believe Patterson’s statement that appellant pointed a gun at him; no other
evidence of the assault was presented.4 But Officer Stewart’s testimony that
Patterson never told him appellant displayed a gun contradicted Patterson and
thereby undercut the credibility of his accusation. The prosecutor tried to deal with
this problem by showing that Stewart’s need to defend his own conduct from
criticism and scrutiny supplied him with a motive to deny having learned that
Patterson saw appellant brandish a gun.
Accordingly, in her direct examination of Stewart, the prosecutor elicited
from him the fact that the MPD had investigated whether he took “appropriate
police action” in response to Patterson’s report. Stewart confirmed that he was “no
longer under investigation” at the time of trial. The prosecutor did not ask him
about the outcome of the investigation. On cross-examination, though, declaring
that he “did not have a complainant, and . . . did not have a crime,” Stewart
testified that the MPD investigation had “exonerated” him.
4
Patterson’s companion Hogue was not called to testify.
7
Defense counsel then sought to inquire into “the reason they said you were
exonerated.” In response to the government’s objection, defense counsel told the
court she wanted the jurors to understand that “the police had decided [Stewart]
was correct” in his judgment of the situation.5 The court sustained the objection to
this line of inquiry, ruling that the defense had established “definitively” that the
investigation had exonerated Stewart and that the reasons articulated for that
determination were inadmissible hearsay.6
On re-direct, the government again brought up the MPD investigation.
Stewart acknowledged that an adverse finding would have subjected him to serious
discipline or possibly termination of his employment. Stewart agreed that when
the investigator interviewed him, he was “essentially trying to establish that no
crime had occurred.” The prosecutor then asked Stewart whether “it was based on
what you told the [investigator] that . . . you were exonerated?” The court
5
As counsel elaborated, “The government brought this [the MPD
investigation of Stewart] up and tried to leave it in the air as if there was something
suspicious about his behavior, and I think the defense is entitled to get out that, in
fact, what he did that night was appropriate. And so the simple – that the
conclusion was that . . . he did not have a complainant and he did not have a crime
and, therefore, he was exonerated.”
6
The court rejected appellant’s argument that the reasons articulated by the
MPD for “exonerating” Stewart were admissible in evidence as an admission of a
party opponent. Appellant has abandoned this argument on appeal.
8
sustained a defense objection to this question, and Stewart did not answer it. The
prosecutor did not pursue the inquiry further and concluded her examination of the
witness.
After a brief recess, however, defense counsel complained that the
prosecutor’s unanswered question inaccurately implied that Stewart was cleared in
the MPD investigation only because of his own self-serving statements. The court
agreed that the question might have conveyed that impression. The prosecutor
stated she had not intended that implication and did not oppose an appropriate
curative measure to dispel it. There ensued a colloquy in which the court and
counsel considered different curative options. The prosecutor initially proposed
that the court strike the question. Defense counsel thought that insufficient and
suggested a stipulation “list[ing] what [the investigation] involved.” The
prosecutor commented that a written stipulation would “draw more attention to it
than is really necessary” and proposed as an alternative that Stewart simply be
recalled to the witness stand to “clarify” that the MPD investigation extended
beyond his statement. Defense counsel expressed no objection to that alternative
solution. (Counsel did not disagree with the prosecutor’s reservation about a
stipulation or continue to press for one.) The court was satisfied that “it’s just fair
to get out that there was more than just [Stewart’s] say-so that exonerated him.”
9
Accordingly, cautioning that “we’re not going to get into all the subsidiary facts
that went into it,” the court elected to allow the prosecutor to recall Stewart to the
stand and ask him whether there were “other components” to the MPD
investigation besides his own interview “and whether other witness statements
were reviewed as well.”7 Stewart confirmed there were. The prosecutor accepted
the witness’s answer and moved on. Defense counsel raised no objections to this
procedure and appeared satisfied with the prosecutor’s question and the witness’s
answer. She did not request that Stewart be allowed to provide any additional or
more specific information about the breadth of the investigation.
Later in the trial, however, the defense called MPD Lieutenant John Haines
to the stand. When Haines identified himself as the officer who had investigated
Officer Stewart’s “alleged misconduct,” the government objected and the court
asked for a proffer of the witness’s testimony. Defense counsel responded that
Haines would testify about “what things he considered” in the investigation (but
without repeating what “anyone said,” which counsel conceded would be hearsay)
7
Before it decided to permit this inquiry, the court inquired whether Stewart
knew about the other parts of the investigation. The prosecutor represented that
Stewart did know what else was considered because he had received the final
report of the investigation. The court then reviewed the investigation report to
confirm what Stewart knew. Defense counsel, who previously sought to ask
Stewart to testify about the articulated reasons for his exoneration, did not dispute
that Stewart knew what had been considered in addition to his own statement.
10
and about “what conclusion he reached.” This testimony was necessary, counsel
stated, because Stewart, in his testimony, “was basically guessing about the things
that were considered,” while Haines “knows what was actually considered.”8 The
government disputed the relevance and admissibility of Haines’s testimony and
argued that Stewart himself had corrected any misimpression that the MPD
investigation considered only his account.
The court agreed with the government’s objections and ruled that Haines’s
proffered testimony would not be relevant and that “whatever relevance this
witness’s testimony might have . . . is substantially outweighed by the potential for
prejudice and misleading the jury [and] confusing the issues.”
B.
“We review a trial court’s decision to admit or exclude evidence for abuse of
discretion. An evidentiary ruling by a trial judge on the relevancy of a particular
item is a highly discretionary decision that will be upset on appeal only upon a
8
Defense counsel’s assertion that Stewart was “guessing” was contrary to
what the court earlier had been told about Stewart’s knowledge. See supra, note 7.
11
showing of grave abuse.”9 In addition, “[t]hat the evidence may be minimally
relevant does not end our analysis. The trial judge has the discretion to exclude
relevant evidence if its probative value is substantially outweighed by the danger
of unfair prejudice.”10 We recognize that “the evaluation and weighing of
evidence for . . . potential prejudice is quintessentially a discretionary function of
the trial court, and we owe a great degree of deference to its decision.”11 In
reviewing such rulings, “we must be mindful of context” and recognize that the
trial court “virtually always is in the better position to assess the admissibility of
the evidence in the context of the particular case before it.”12
For the following reasons, we conclude that the trial court in this case
exercised its discretion carefully and appropriately, and certainly did not abuse its
discretion, by excluding the proffered testimony of Lieutenant Haines.
9
Riddick v. United States, 995 A.2d 212, 216 (D.C. 2010) (internal
quotation marks and citations omitted).
10
Foreman v. United States, 792 A.2d 1043, 1049 (D.C. 2002) (citing
Mercer v. United States, 724 A.2d 1176, 1184 (D.C. 1998)); see also FED. R. EVID.
403.
11
Foreman, 792 A.2d at 1049 (internal quotation marks omitted).
12
Johnson v. United States, 960 A.2d 281, 294-95 (D.C. 2008) (internal
quotation marks omitted).
12
First, Lieutenant Haines’s investigation of Officer Stewart was relevant and
admissible at this trial for one purpose only: to show the existence of a motive for
Stewart to deny that Patterson told him appellant displayed a gun. Only the fact
that an investigation was pursued, with potential adverse consequences for Stewart,
was probative of this motive; not what evidence Haines considered, how
thoroughly he conducted his investigation, or what conclusions he reached.
Haines’s findings regarding what Stewart was told and whether he properly
performed his duties as a police officer in response to that information were not
admissible in evidence to prove those facts because they were based on hearsay
rather than Haines’s personal knowledge of what happened.13 Testimony about the
information on which Haines based his conclusions would likewise have been
inadmissible hearsay. Indeed, for the same reason, Stewart’s own testimony that
he was “exonerated” by Lieutenant Haines’s inquiry was not admissible to prove
he acted appropriately; rather, it was only permissible for the jury to hear about
13
See, e.g., Young v. United States, 63 A.3d 1033, 1044 (D.C. 2013) (“An
out-of-court statement offered in evidence to prove the truth of the matter asserted
is hearsay whether the statement is quoted verbatim or conveyed only in substance;
whether it is relayed explicitly or merely implied; whether the declarant is
identified or not.”) (footnote omitted); Evans-Reid v. District of Columbia, 930
A.2d 930, 944 (D.C. 2007) (“Statements in a police report which are based on what
the officer was told by others are just as much hearsay as if stated on the witness
stand by the officer himself. Likewise inadmissible are conclusions and
conjectures by the officer as to fault or lack of fault[.]”).
13
Stewart’s vindication as a precautionary measure to ensure that the jury did not
draw an adverse inference from the mere fact that Stewart had been under
investigation.14
Second, it would not have been appropriate to admit Haines’s testimony
under the “curative admissibility” doctrine to allay prejudice to appellant’s defense
from the prosecutor’s implication that Stewart’s exoneration was based solely on
his own statement. The doctrine of curative admissibility “provides that in certain
circumstances [one party] may inquire into evidence otherwise inadmissible, but
only after [the other party] has ‘opened the door’ with regard to this evidence.”15
Trial judges are enjoined to exercise caution and restraint before relying on the
curative admissibility rationale, because “[t]he doctrine of curative admissibility is
one dangerously prone to overuse,” and the idea that the one side might “open the
door,” is often oversimplified.16 “Opening the door is one thing. But what comes
14
See, e.g., Howard v. United States, 978 A.2d 1202, 1211 (D.C. 2009). It
would have been advisable for the court to instruct the jury accordingly.
15
Mercer, 724 A.2d at 1192 (quoting United States v. Young, 470 U.S. 1, 11
(1985)).
16
Id. (quoting United States v. McClain, 440 F.2d 241, 244 (D.C. Cir.
1971)).
14
through the door is another. Everything cannot come through the door.”17 Rather,
“[i]ntroduction of otherwise inadmissible evidence under shield of this doctrine is
permitted ‘only to the extent necessary to remove any unfair prejudice which might
otherwise have ensued from the original evidence.’”18 In the present case, there
was no such necessity, for the posited implication of the prosecutor’s question was
not unfairly prejudicial and, in any event, Haines’s testimony was not required to
correct it. Hence the doctrine of curative admissibility was inapplicable.
The posited harmful implication of the prosecutor’s question was that the
only evidence Lieutenant Haines considered in “exonerating” Officer Stewart was
Stewart’s own, presumably self-serving, statement. Even if the jury drew this
implication, however, it would not have resulted in unfair prejudice to appellant.
The jury simply would have inferred that Haines did not conduct a thorough
investigation, and accordingly the jury would have discounted the probative value
of Haines’s “exoneration” of Stewart and considered it only as establishing that the
MPD investigation did not result in a finding of misconduct on Stewart’s part. But
as we have explained above, that was exactly what the jury was supposed to do
17
Id.
18
Id. (quoting United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir.
1971)).
15
anyway, because Haines’s findings were based on inadmissible hearsay. Appellant
was not entitled to have the jury consider them for their truth. Thus, even if the
prosecutor’s implication led the jury to treat the MPD investigation of Stewart as
unreliable, and to attach no probative weight to his exoneration, appellant suffered
no unfair prejudice.
Furthermore, even assuming the prosecutor’s implication was not innocuous,
Haines’s proffered testimony was not necessary to dispel the potential harm. The
court took other reasonable curative measures. At the outset of the trial, the court
had instructed the jury that it “may only consider the evidence properly admitted
during the trial,” which the court identified specifically as exhibits and sworn
testimony. The court further explained that when it sustained an objection to a
question, the jury “[was] not to guess or speculate as to what the witness might
have said [b]ecause . . . under the law . . . the question is inappropriate.” The
record provides no reason to think the jury disregarded these admonitions when the
court sustained appellant’s objection to the question the prosecutor put to Stewart.
“In the absence of any good reason to suppose otherwise, we presume the jury
followed the court’s direction.”19
19
Muir v. District of Columbia, 129 A.3d 265, 275 (D.C. 2016).
16
Beyond that, with appellant’s consent, and after careful and thoughtful
consideration of the proposed alternatives,20 the court settled on a suitable
evidentiary “cure”: having the government recall Stewart to the witness stand,
following the conclusion of its redirect examination and a recess, for the specific
purpose of testifying that “other components,” including “other witness
statements,” were considered in the MPD investigation of his conduct. The
prosecutor elicited this testimony and did not attempt to challenge it. There was no
suggestion of any kind that the prosecutor disagreed with it or that the jury had any
reason to disbelieve it. On the contrary, to the jury it undoubtedly appeared that
the prosecutor was being allowed to introduce testimony deemed to be important
and truthful.21 Appellant had no objection to this curative procedure and identified
no deficiency in its implementation.22 It was entirely reasonable for the trial court
to conclude, as it did, that Stewart’s testimony sufficed to remove any unfair
20
It is noteworthy that defense counsel did not propose calling Lieutenant
Haines when the court was considering the curative options.
21
Moreover, there was nothing implausible about Stewart’s testimony. At
trial the jury received other evidence bearing on Stewart’s conduct that Lieutenant
Haines might have considered – for example, not only testimony of witnesses, but
contemporaneous video surveillance footage of the street outside the CVS which
showed Patterson’s encounter with appellant.
22
Later in the trial, when appellant proffered Lieutenant Haines’s testimony,
defense counsel asserted that Stewart was “basically guessing” about what Haines
had considered in the investigation. Neither Stewart’s actual testimony nor
(continued…)
17
prejudice from the prosecutor’s earlier question and that nothing further needed to
be done.
It also was entirely reasonable for the court to conclude that any possible
relevance of Haines’s proffered testimony was substantially outweighed by “the
potential for prejudice and misleading the jury, confusing the issues.” The
proffered testimony would have been unfairly prejudicial to the prosecution and
misleading to the jury because it would have exacerbated the risk that the jury
would treat Haines’s “exoneration” of Stewart as a reason to credit Stewart and
find that Patterson did not tell him appellant brandished a gun. A further risk was
that the proffered testimony would lead to a mini-trial over the adequacy and
fairness of Haines’s investigation of Stewart and the reasonableness of his
conclusions, which was not and should not have been the jury’s focus. The trial
court’s recognition and consideration of these dangers demonstrates that it
carefully exercised its discretion in excluding Haines’s testimony even if that
testimony had some minimal relevance or might have been permitted as an
additional curative measure.
(continued…)
anything else in the record supports that assertion, and there is no reason the jury
would have thought Stewart was “guessing.” And for the reasons we have already
given, the fact that Haines may have known what information he considered better
than Stewart did was irrelevant.
18
In sum, by excluding the proffered testimony of Lieutenant Haines, “[t]he
trial court merely prevented counsel from introducing an irrelevant, collateral, and
potentially prejudicial issue into the trial.”23 We hold that the court did not at all
abuse its discretion in so doing, let alone “gravely” abuse it.
III.
Appellant also claims the trial court plainly erred by permitting the
prosecutor to comment in rebuttal argument that Officer Stewart “didn’t do his
job.” Appellant contends this remark was improper because the prosecutor knew
the MPD had thoroughly investigated Stewart and “concluded the opposite,” viz.,
that Stewart was “doing his job” when he ceased his investigation of the report of
23
Grayton v. United States, 745 A.2d 274, 281 (D.C. 2000). The
concurrence errs in stating that Howard v. United States, 978 A.2d 1202 (D.C.
2009), approved testimony “similar to” the testimony from Lieutenant Haines
proffered by appellant in this case. Post at 28-29; see also post at 24 (stating that
“[t]his court approved similar – and much more extensive – testimony in
Howard”). Howard did not approve testimony about the nature of the MPD
investigation such as appellant sought to present in this case. The testimony about
an MPD investigation at issue in Howard “was limited to clarifying that the police
department routinely conducted such investigations . . . and that the investigation
concluded that the use of force in this instance was justified.” Id. at 1211. Nor is it
accurate to characterize the testimony in Howard regarding the police investigation
as “much more extensive” than in this case. Like the trial court in Howard, the
court here allowed testimony as to the conclusion of the investigation. The only
additional testimony in Howard was that the investigation was routine (a fact
neither party in this case sought to elicit).
19
a man with a gun upon ascertaining the man was a police officer. Appellant
further contends the remark was improper because it was the prosecutor’s
expression of her personal opinion about Stewart’s professional conduct.
We reject both contentions. Appellant did not object when the prosecutor
argued as follows:
Officer Stewart told you he got a report of a man with a
gun, and the moment that this man told him, I’m a police
officer, he ceased investigation . . . . He had reported a
gun . . . [I s]ubmit to you that [Officer Stewart’s]
testimony was colored by that. He didn’t do his job
because if he would have done his job, the rest of the
night wouldn’t have happened.
We consider the argument unobjectionable because it was fair comment on
Stewart’s failure to investigate appellant’s encounter with Patterson and his
possible testimonial bias resulting from the MPD’s investigation of that failure.24
Lieutenant Haines’s opinion that Stewart did his job properly was neither
admissible evidence of that fact nor binding on the government in any way; it thus
did not preclude the government from arguing otherwise based on the admissible
24
See Irick v. United States, 565 A.2d 26, 36 (D.C. 1989) (“[T]he key
inquiry is whether the attorney is commenting on the evidence, which he may do,
or expressing a personal opinion, which is taboo. A comment will be within the
acceptable range as long as it is in the general nature of argument, and not an
outright expression of opinion.” (emphasis in original)).
20
evidence at trial.25
IV.
The trial court did not abuse its discretion by excluding the proffered
testimony of Lieutenant Haines or plainly err by not intervening in the
government’s rebuttal argument. Appellant’s conviction for ADW is hereby
Affirmed.
BECKWITH, Associate Judge, concurring in part and concurring in the
judgment: I concur in the judgment and in the court’s holding that the trial court
did not abuse its broad discretion in excluding Lieutenant Haines’s testimony about
the “exoneration” of Officer Stewart, because I agree that the trial court had, with
the arguable acquiescence of Mr. Furr’s counsel, already furnished a remedy for
25
Of course, appellant’s failure to object confines us to review for plain
error, which requires him to show “egregious” prosecutorial misconduct that “so
clearly prejudiced his substantial rights as to jeopardize the fairness and integrity
of his trial.” Id. at 32. Appellant does not come close to making such a showing.
The record does not bear out the court’s characterization of defense
counsel as having “consent[ed]” to the trial court’s remedy. Ante at 16. Both Mr.
Furr and the prosecutor proposed remedies for the prosecutor’s problematic
unanswered question. The trial court ultimately went with one of the prosecutor’s
(continued…)
21
the prejudice stemming from the government’s questions about the misconduct
investigation and could properly have concluded that further testimony on the
matter would significantly risk “misleading the jury [and] confusing the issues.”
Ante at 17. I write separately to express my disagreement with the court’s
suggestion that the trial court would have abused its discretion had it gone the
other way and allowed Lt. Haines’s testimony under the curative-admissibility
doctrine.26 Ante at 13–15.
The essential problem with the court’s analysis on this point is that it fails to
fully account for the prejudice to Mr. Furr resulting from the prosecutor’s
questions about the investigation into Officer Stewart’s possible misconduct. As
the court acknowledges, Officer Stewart’s testimony that Mr. Patterson did not
report Mr. Furr pointing a gun at him was critical to Mr. Furr’s defense. Ante at 6.
(continued…)
proposed remedies, and although Mr. Furr’s counsel did not explicitly voice
opposition at that time, neither did she affirmatively consent.
This issue is a collateral one, as the question properly before us is whether
the trial court abused its discretion in excluding the evidence, not the very different
question—different because a “decision-maker exercising discretion has the ability
to choose from a range of permissible conclusions”—whether it would have
abused its discretion had it admitted the evidence. Johnson v. United States, 398
A.2d 354, 361 (D.C. 1979); see id. at 362 (“[T]he appellate court, in its review
capacity, does not render its own decision of what judgment is most wise under the
circumstances presented.”). Because it is the focus of the court’s analysis,
however, see ante at 13–15, the issue warrants discussion.
22
And this testimony was impeached when the prosecutor elicited testimony from
Officer Stewart that “as a result of [his] encounter with [Mr. Furr], [he was] . . .
under investigations [sic] with the Metropolitan Police Department.” The
testimony suggested that Officer Stewart had a motive to falsely deny—both to the
MPD investigators and in court—that Mr. Patterson had reported Mr. Furr pointing
at a gun at him. Had the MPD investigators concluded that such a report had been
made, Officer Stewart’s undisputed failure to take action could have resulted in
discipline.
In addition to this impeachment theory, which the government did not
develop in its direct questioning of Officer Stewart, there is another conclusion the
jury may have taken away from this line of questioning. The testimony about the
misconduct investigation suggested that Officer Stewart may have committed
misconduct—that is, that he had acquired evidence that Mr. Furr had pointed a gun
at Mr. Patterson yet had failed to act. The trial court recognized this latter
Only on redirect—after the defense had asked Officer Stewart about the
“exoneration” and after a bench conference on the appropriate scope of testimony
about the misconduct investigation—did the prosecutor elicit testimony that when
Officer Stewart made his statement to the MPD investigators, his goal was
“essentially . . . to establish that no crime [had] occurred.” The prosecutor at that
time had Officer Stewart explain the possible disciplinary consequences to him of
a finding of misconduct.
23
implication, noting in a bench conference that “the government brought it out as if
[Officer Stewart] had done something wrong.”
The impeachment use of the testimony about the misconduct investigation
involves a proper inference. This court has repeatedly held that evidence that a
witness is or was under investigation is admissible if probative of the witness’s
motive to testify falsely or at least shade his or her testimony. See, e.g., Smith v.
United States, 26 A.3d 248, 261 (D.C. 2011). But the non-impeachment use of the
testimony as evidence that Officer Stewart engaged in misconduct relies on an
improper inference. The fact that a person is under investigation is, like the fact
that a person has been accused, arrested, or charged with a crime, not reliable
evidence that the person committed misconduct and runs the risk of being given
undue weight by the jury. Cf. 1 Christopher B. Mueller & Laird C. Kirkpatrick,
Federal Evidence § 4:31 (4th ed. 2016) (“Evidence of prior arrests or charges
If this were not so, there would be no defensible basis for precluding
testimony about the result of the investigation and we would therefore have to
conclude that the trial court erred in excluding Lt. Haines’s testimony. To the
extent that evidence that a person is or was under investigation is competent
evidence that the person has committed misconduct, the outcome of the
investigation should also be considered competent evidence on this point, as it is
even more reliable—absent reason to believe that the investigation was bungled or
corrupted.
24
should not itself be admitted . . . [because] neither one is sufficiently probative on
the basic question whether . . . any . . . underlying act occurred.”).
Mr. Furr did not seek to have the testimony about Officer Stewart’s
misconduct investigation excluded as unfairly prejudicial or request that the trial
court give a limiting instruction. Instead, he sought to blunt the prejudicial effect
of the testimony by eliciting testimony from Officer Stewart on cross-examination
that he had been “exonerated.” The government did not object to this testimony,
but had it done so, the trial court could properly have overruled the objection under
the doctrine of “curative admissibility” or “opening the door.” Howard v. United
States, 978 A.2d 1202, 1210 (D.C. 2009); Gordon v. United States, 783 A.2d 575,
586–87 (D.C. 2001); see also 1 Mueller & Kirkpatrick, supra, § 1:12 (explaining
that even the proper admission of evidence “may open the door to counterproof
that would otherwise be excludable under various doctrines”). This is because the
testimony about Officer Stewart’s exoneration went no further than was “necessary
to remove any unfair[ly] prejudic[ial]” implication of Officer Stewart’s earlier
testimony that he was suspected of wrongdoing in connection with this case.
United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir. 1971) (citation omitted).
This court approved similar—and much more extensive—testimony in
Howard, 978 A.2d 1202. In that case, the defendant sought to impeach a police
25
officer by asking on cross-examination whether there had ever been “an internal
police investigation regarding the use of force against” the defendant. Id. at 1206.
The officer responded that there had been a “standard internal investigation.” Id.
On redirect, the trial court allowed the prosecutor to elicit testimony from the
officer “about the ‘standard procedure’ followed in police use-of-force
investigations,” which included “the fact that such investigations occur as a matter
of course,” that he “was not a subject of the investigation,” and that “the
investigation concluded that the use of force was justified.” Id. In rejecting the
defendant’s claim on appeal that this testimony was improper, this court explained
that “[b]ecause defense counsel elicited testimony on the subject in the first
instance during his cross-examination . . . , the government was entitled on redirect
to dispel any potential prejudice . . . .” Id. at 1211; see also id. (“When the
government elicits testimony on a subject during redirect examination that the
defense brought up during cross-examination, the defendant cannot well complain
of being prejudiced by a situation which he created . . . .” (internal quotation
marks, brackets, and citation omitted)). That reasoning would apply in the present
case with even stronger force, in light of Mr. Furr’s constitutional right to present a
complete defense. Cf. Williams v. United States, 642 A.2d 1317, 1322 (D.C. 1994)
(explaining that the “right [of a defendant] to question a government witness about
a current adversarial relation to law enforcement enjoys constitutional protection”
26
but that the government does not have a similar right to probe whether a witness is
“fired by anti-government hostility” as a result of such an “adversarial relation”).
Thus, Officer Stewart’s testimony about the “exoneration” was wholly
appropriate under the curative-admissibility doctrine. On redirect, however, the
prosecutor partially undermined this curative testimony, asking Officer Stewart
whether he agreed that “it was based on what [he] told the lieutenant that . . . [he
was] exonerated.” The trial court sustained an objection to this question, yet both
of the parties and the trial court recognized that the unanswered question implied
that the Officer Stewart’s exoneration was based exclusively or primarily on his
own statement. As the court summarizes, the parties and the trial court discussed
The trial court recognized the prejudicial nature of the unanswered
question and the need for a cure. This court, however, asserts that at most the
unanswered question “would have [caused the jury to] infer[] that [Lt.] Haines did
not conduct a thorough investigation, . . . discount[] the probative value of [Lt.]
Haines’s ‘exoneration’ of [Officer] Stewart[,] and consider[] it only as establishing
that the MPD investigation did not result in a finding of misconduct on [Officer]
Stewart’s part.” Ante at 14. The court contends that “that was exactly what the
jury was supposed to do anyway” and that Mr. Furr “was not entitled to have . . .
the jury consider [the finding of no misconduct] for [its] truth.” Ante at 14–15.
Thus, the court concludes, Mr. Furr was not entitled to rely on the curative-
admissibility doctrine.
The court’s analysis fails to account for the fact that the initial testimony
about the investigation implied that the MPD had good reason to believe that
Officer Stewart had engaged in misconduct. The jury could reasonably have
thought that the MPD would not have initiated an investigation unless it had
suspected wrongdoing, especially given the absence of testimony about the
(continued…)
27
several options to rectify this false impression, and the trial court ultimately
decided that Officer Stewart should be asked whether any “other components”
besides his own statement were considered in the investigation. Ante at 8–9; see
also supra note 1. In making this determination, the trial court was implicitly
relying on the curative-admissibility doctrine: Officer Stewart’s testimony about
whether the investigation considered factors other than his own statement would
not have been admissible had the government not opened the door by asking about
the investigation and by undermining the defense’s earlier curative efforts. The
trial court noted, in fact, that the government “asked the question which . . . did
raise the issue that somehow it was [Officer Stewart’s] statement alone which
constituted why his lieutenant exonerated him.”
(continued…)
relevant MPD policies. The trial court could have found that the testimony by
Officer Stewart that he was ultimately “exonerated” by the MPD—without
testimony about the investigation’s thoroughness or the evidentiary standard
applied—was insufficient to defeat such an inference. And even if the trial court
thought that the testimony had initially been sufficient in this regard, the trial court
could have found that the testimony had been rendered impotent by the
unanswered question implying that the investigation had been a sham—that the
MPD investigators had perfunctorily cleared Officer Stewart upon consideration of
his own self-serving statement. I therefore see no persuasive reason to disagree
with the trial court’s assessment that a further cure was required, especially given
that the trial court is, as this court acknowledges, “virtually always in [a] better
position [than this court] to assess the admissibility of . . . evidence in the context
of the particular case before it.” Ante at 11 (quoting Johnson v. United States, 960
A.2d 281, 294–95 (D.C. 2008)).
28
The trial court could just as properly have exercised its discretion to permit
curative testimony by Lt. Haines. Testimony by Lt. Haines about the factors
considered in the investigation would ordinarily have been irrelevant and possibly
also inadmissible on other grounds. But the trial court could have admitted the
testimony under the curative-admissibility doctrine to remedy the misimpression
created by the government’s question about whether Officer Stewart’s exoneration
was based on his own statement and to mitigate whatever remaining unfair
prejudice had resulted from the government’s initial questioning about the
investigation. If Lt. Haines’s testimony were properly circumscribed—limited, for
instance, to listing the factors considered in the investigation—it would not have
gone beyond what was necessary to remedy the prejudice. See Howard, 978 A.2d
6
The court says that “[t]estimony about the information on which [Lt.]
Haines based his conclusions would . . . have been inadmissible hearsay.” Ante at
12. The court does not elaborate on this point or cite relevant authority, and it is
doubtful that the hearsay rule would have been violated unless Lt. Haines had
described the content of the information or the conclusions that he drew from it.
See ante at 12 n.13.
Further, although it was not expressly argued in the trial court, Lt.
Haines’s testimony about the factors considered in the investigation also could
have helped to rebut the government’s legitimate impeachment theory that Officer
Stewart had a motive to lie in order to avoid discipline. If Officer Stewart had
believed that the investigators would be considering evidence from a variety of
sources, his motive to lie would arguably have been diminished because he would
have been aware of a higher likelihood that his lies would be ineffective and of a
possibility that the lies could backfire and be used as an aggravator to justify a
harsher sanction. The real question in assessing Officer Stewart’s motive is what
(continued…)
29
at 1211 (approving testimony similar to that proffered by Mr. Furr in the present
case). Counsel for Mr. Furr did not raise this option during the discussion about
the remedy, however, and the trial court thus had no occasion to afford this
particular remedy at that time.
Instead, based on the trial court’s ruling, the prosecutor elicited the
following testimony from Officer Stewart:
Q. Officer Stewart, were you interviewed as part of your
investigation with regard to your misconduct on August
26, 2011?
A. Yes. That morning, yes.
Q. And are you aware as to whether there were other
components to that investigation, and whether other
witness statements were reviewed, as well?
A. Yes.
(continued…)
Officer Stewart knew, but Lt. Haines’s testimony on the investigation is indirect
evidence of what Officer Stewart knew about it and could have reinforced Officer
Stewart’s testimony on the matter. This is a more attenuated theory of
admissibility than the one set forth in the text above, but it is perhaps sufficient.
The general rule is that “[i]f . . . evidence offered conduces in any reasonable
degree to establish the probability or improbability of the fact in controversy, it
should go to the jury.” Dockery v. United States, 746 A.2d 303, 307 (D.C. 2000)
(quoting Home Ins. Co. v. Weide, 78 U.S. (11 Wall.) 438, 439 (1870)). And
although there would have been a risk that the jury would use this evidence for an
improper purpose, this concern was also present—perhaps to a greater degree—in
the initial testimony elicited by the government about the investigation.
30
Officer Stewart’s responses were arguably not sufficient to remedy the prejudice
generated by the prosecutor’s initial questioning about the investigation and the
prosecutor’s unanswered question about whether Officer Stewart’s exoneration
was based on his own statement. Most importantly, the government laid no
foundation for the latter of these two questions, and it is thus probable that the jury
viewed Officer Stewart’s response that he was “aware” of “other components” as
speculative and self-serving. Given that the cure was arguably deficient, and given
Mr. Furr’s constitutional right to present a defense, the trial court could have
exercised its discretion and granted Mr. Furr’s later request to permit Lt. Haines to
testify. See Howard, 978 A.2d at 1211. Because, however, Mr. Furr’s counsel did
not express any concern about the initial cure with a contemporaneous objection
and because the cure was not wholly ineffectual, I agree with the court that the trial
court did not abuse its discretion in excluding the testimony. See ante at 15–17.
Finally, the court’s resolution of Mr. Furr’s prosecutorial misconduct claim
warrants brief comment. See ante at 18–20. The court correctly holds that the trial
court did not plainly err in declining to respond sua sponte to the prosecutor’s
argument, during rebuttal, that Officer Stewart “didn’t do his job.” The
prosecutor’s argument paraphrased Mr. Patterson’s testimony and thus was a fair
characterization of the trial evidence. But it also contradicted the result of the
MPD investigation into Officer Stewart’s conduct. The defense had sought to have
31
evidence about this investigation admitted following the prosecutor’s initial
questioning on the subject, but the trial court had excluded this evidence at the
government’s request. Given this context, the prosecutor’s argument was not
completely “unobjectionable,” ante at 19, and the trial court would have acted
within its discretion in giving a curative instruction had the defense made a timely
objection. See Williams v. United States, 877 A.2d 125, 129 (D.C. 2005) (“[T]he
prosecution [has a] duty to guard against inviting inferences of fact by a jury
arguably contrary to evidence it has succeeded in having excluded.”).
Notwithstanding the foregoing reservations, I concur in the court’s opinion
in all other respects and concur in the judgment.