Pitt v. United States

220 A.3d 951

Antwon D. PITT, Appellant,

v.UNITED STATES, Appellee.

No. 16-CF-1134

District of Columbia Court of Appeals.

Argued December 4, 2018

Decided December 5, 2019

Stefanie Schneider, Public Defender Service, with whom Samia Fam and Alice Wang, Public Defender Service, were on the brief, for appellant.

Daniel J. Lenerz, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, Elizabeth Trosman, Nicholas P. Coleman, and Sarah D. McClellan, Assistant United States Attorneys, were on the brief, for appellee.

Before Fisher and Easterly, Associate Judges, and Ferren, Senior Judge.

Dissenting opinion by Associate Judge EASTERLY at page 972

Ferren, Senior Judge:

Appellant Antwon Pitt was convicted of raping D.B. while burglarizing her home on October 13, 2015.¹ He argues on appeal that the trial court committed two reversible errors. First, appellant, who testified in his own behalf, challenges the trial court's ruling that permitted the government to cross-examine him about another untried burglary he committed a week earlier, on October 6, 2015 – allegedly impermissible evidence of propensity to burglarize.² Second, appellant challenges the trial court's dismissal of Juror 5 due to her observable illness after the court received a note that an unidentified juror had questioned whether a rape had occurred. Finding no abuse of discretion, we affirm appellant's convictions.

I. Other Crimes Evidence

"It is essential, ... to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth."³ Prosecutors may cross-examine as to both "the facts asserted by the defendant in testimony" and the "reasonably related ... inferences ... drawn from the direct testimony."⁴ Moreover, "we recognize that the evaluation and weighing of evidence for relevance and potential prejudice is quintessentially a discretionary function of the trial court, and we owe a great degree of deference to its decision." ⁵

Thus, we review the trial court's determinations defining the extent and scope of the prosecution's cross-examination of appellant's testimony for abuse of discretion.⁶

A. Testimony and Objections at Trial

1. The Government's Evidence

D.B. testified for the government that, on October 13, 2015, she was working from her apartment in Southeast Washington and "forgot to lock [the] door that day." Shortly after 2 p.m. she discovered a man in her front hallway, "6'3 to 6'5" tall, "black, maybe medium to dark skin tone," with "short natural hair," wearing a "light to medium gray" T-shirt "with a logo" or "geometric shapes" over another "short sleeve" shirt and "gray denim" pants.

The man said that he was there looking for someone and asked if her husband was home or coming back soon. D.B. replied that her husband was not home, and the man then grabbed her by the "throat, very, very tightly and very, very hard," covered her mouth, and pushed her down the hallway to her bedroom. D.B. attempted to remove the man's fuzzy gloves, hooking her finger inside of one of the gloves before her attacker removed her hand. Overpowered and threatened with death for resisting, D.B. realized that the man was raping her, and she demanded that he put on a condom. He did so and resumed the rape. D.B.'s rapist left with her cell phone, checks belonging to her husband, and cash.

D.B. immediately e-mailed her husband and then other family members, a neighbor, and finally her boss, who was first to respond and call the police. D.B. was taken to the hospital where she was examined and treated for rape, damage to her throat, broken facial bones, and other injuries.

Around the time of the burglary and rape, a neighbor smoking in the alley behind D.B.'s building saw a man exit with a backpack and head toward Independence Avenue. Appellant was viewed by surveillance cameras on Independence Avenue and in the Metrorail System.

Late that night, law enforcement personnel traced D.B.'s cellphone to a gas station in Maryland, where appellant was recognized by his description and an image from the surveillance cameras. After a struggle, flight, and continued resistance, appellant was arrested. D.B.'s cellphone was found in appellant's pants while the checks belonging to her husband, as well as fuzzy gloves, were recovered from his backpack, along with other items.

An expert witness testified for the government that appellant's DNA was found in the gloves, and that D.B.'s DNA was found on three finger tips and the inside cuff of one of the gloves. On cross-examination, defense counsel elicited the expert's testimony about DNA "transference" from one surface to another.

2. Appellant's Direct Examination

Appellant elected to testify that his cousin, Delonte, had driven him into the District of Columbia from Bowie and dropped him off to visit a friend with plans to head back to Maryland to visit appellant's brother that afternoon. Meeting back up with Delonte an hour later, appellant discovered that his cousin had lent the car to a friend. According to appellant, they were walking to the Stadium Armory Metro when they came to D.B.'s building, and his cousin said, "I got a man that live in this building right here. Wait right here." Appellant claims that he waited by the adjacent alley smoking marijuana while his cousin entered the building. Appellant testified that twenty minutes later his cousin left the building, said something to someone appellant could not see, met appellant in the alley, handed appellant a cellphone and checks, told him to sell the items as he "had done [on] previous transactions with him before," then said something had come up and abruptly headed off in a different direction.

Appellant admitted that he then exited the alley to Independence Avenue where he first appeared on the surveillance footage introduced in evidence putting on his jacket, took the Metro from Stadium Armory to Suitland, was unable to get in touch with his brother, and returned to Gallery Place to try (unsuccessfully) to sell "some of the stuff" he had received from his cousin before heading back toward Bowie. Appellant further testified that he had used his gloves to wipe his finger prints off D.B.'s cellphone after using it to call his brother so that it could not be traced back to him, as he was on probation for robbery and assaulting a police officer in 2013. He also acknowledged two misdemeanor convictions for weapon possession and failure-to-appear in 2013 as well as an earlier assault conviction in Georgia when he was seventeen. Finally, appellant stressed that he had used gloves to handle the stolen property and explained that his fight and flight reactions when law enforcement officers caught up with him were due, in part, to the fact that he "was currently on probation." (Appellant's pretrial report, not before the jury, states that he had most recently been released on probation from federal custody for his 2013 robbery and assault convictions on July 29, 2015.)

3. Cross-Examination of Appellant

The government then asked the trial court, outside the presence of the jury, for permission to present physical evidence of the October 6, 2015, burglary, found alongside D.B.'s husband's checks from the October 13 rape and burglary, as well as appellant's fuzzy gloves. The prosecutor argued that the defense had "completely opened the door" to cross-examination about the October 6 burglary and "the rest of the property that [appellant] had on him" to rebut "the suggestion that [appellant] acted as the middleman in these types of transactions." Thus began a lengthy midtrial discussion among the court, the prosecutor, and defense counsel that resulted in a full-day hearing (with the jury excused) about what legal theory supported admission of the October 6 burglary.

Initially, defense counsel observed that, to demonstrate appellant was not a mere fence – that he also stole property – the government could cross-examine him about his admitted robbery conviction, whereas evidence of the October 6 burglary would be highly prejudicial and unnecessary. Focusing, next, on specific exceptions to the traditional bar against admission of other crimes evidence, defense counsel stressed that the October 6 burglary involved appellant's going into a woman's bedroom and taking her phone while she slept – a scenario showing that the October 6 burglary was too different from the October 13 rape and burglary to be admissible as identity evidence.⁷

The court then turned the discussion to whether the October 6 burglary could be used, instead, to impeach appellant's testimony and how far the government "should be able to" go to "complete [that] impeachment." Defense counsel replied that any inquiry into that burglary should be limited to asking whether, on October 13, appellant had "other stolen property" on him. According to counsel, only if appellant answered "yes" but denied stealing the property should the issue of proving his alleged October 6 thefts "extrinsically" arise. The court agreed that this was an appropriate starting point, but asked for additional argument before ruling on what questions the government would be allowed to ask.

Defense counsel responded that night with a written objection arguing that appellant had not "open[ed] himself to impeachment with propensity evidence simply by testifying." Nor, wrote counsel, was the October 6 burglary admissible as "identity" evidence, as there was "no shared distinctive signature" creating the required similarity of the October 6 and 13 crimes. The next morning, defense counsel renewed appellant's general objection to any question about the October 6 burglary, arguing that it is never "proper impeachment to use propensity evidence" or "to prove it up substantively" or "extrinsically."

Disagreeing with defense counsel's "repeated characterization" of the issue as "propensity" rather than relying on October 6 evidence...