Thompson v. United States, No. 10–CF–401.

45 A.3d 688

Adrian Tyrell THOMPSON, Appellant,

v.UNITED STATES, Appellee.

No. 10–CF–401.

District of Columbia Court of Appeals.

Argued March 22, 2012.

Decided June 14, 2012.

Lee R. Goebes, Public Defender Service, argued the cause for appellant. James Klein, Public Defender Service, and Corinne Beckwith, Public Defender Service at the time, were on the brief for appellant.

Kristina L. Ament, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III, Elizabeth Trosman, Erik M. Kenerson, and Ann K.H. Simon, Assistant United States Attorneys, were on the brief, for appellee.

Before FISHER and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.

FISHER, Associate Judge:

Following a jury trial, appellant Adrian Thompson was convicted of carrying a pistol without a license,¹ possession of an unregistered firearm,² and unlawful possession of ammunition.³ On appeal, he claims that his due process rights were violated because the prosecution discovered, during trial, that its witness at the preliminary hearing had testified incorrectly but failed to disclose that fact until after appellant had called the witness in his defense. Concluding that the trial court did not abuse its discretion in denying appellant's motion for a mistrial, we affirm.

I. Factual and Procedural Background

On February 17, 2009, a Metropolitan Police Department bicycle unit was on patrol when appellant Adrian Thompson, who was riding a bicycle in their direction, made what appeared to the officers to be an evasive turn into an alley to avoid contact with the police. Officer Greg Nagurka followed appellant into the alley and saw him toss a shiny silver object over a wrought iron fence into the front yard of a house. Upon investigation, Officer Nagurka discovered a silver .38 caliber revolver lying in the front yard in the same area where he had seen appellant throw the object.

At a jury trial in December 2009, defense counsel attempted to impeach Officer Nagurka by calling his supervising officer, Sergeant Evans, as a witness. Evans had not seen how the gun got into the front yard. However, three days after appellant's arrest, Sergeant Evans had testified at the preliminary hearing. There, he recounted that Officer Nagurka had told him that appellant had slid the firearm underneath the fence. Nevertheless, when called by the defense at trial, Evans testified that Nagurka “stated that the defendant had thrown the—a silver object over a fence into the yard....” Surprised by this testimony, defense counsel impeached Evans with the transcript of the preliminary hearing. The sergeant's prior testimony was admitted as substantive evidence.

On cross-examination by the prosecutor, Sergeant Evans explained that his testimony at the preliminary hearing had been a mistake. At the time, he had been preparing for trial in another case of gun possession stemming from an arrest made by the same bicycle unit, and he had mistakenly testified about the facts of that case instead.

During a sidebar conference, the prosecutor revealed that his curiosity had been piqued on the previous day when defense counsel seemed to be laying the foundation for later impeachment. After court had recessed for the day, he spoke with the two officers to determine why defense counsel had questioned Officer Nagurka about whether he “told Sergeant Evans ... that Mr. Thompson put the gun underneath the fence.” Although Officer Nagurka denied having made that statement, he suggested that Sergeant Evans might have been thinking of another case in which a gun had been slid underneath a fence. The prosecutor then found the policepaperwork from that other case and showed it to Evans, who realized that he had testified about the wrong case at the preliminary hearing.

At the end of Sergeant Evans' testimony, appellant moved for a mistrial. He complained that the government had discovered that Evans had “testified in a prior proceeding and that that testimony was not about this case,” but it did not disclose that fact to defense counsel. When the court asked what counsel would have done differently if she had known this information sooner, counsel stated: “I may not have called that witness....” The court denied the request for a mistrial, finding that defense counsel had “made ample use” of Sergeant Evans' inconsistent testimony and that the sergeant's explanation for the inconsistency was not “overly persuasive.” The court also was skeptical that defense counsel would have chosen not to call Sergeant Evans.

II. Legal Analysis

A. The Government's Obligation to Correct False Testimony

Consistent with the Due Process Clause, the government “may not knowingly use false evidence, including false testimony, to obtain a tainted conviction,” nor may it allow such testimony, though not solicited by the government, “to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); see also Woodall v. United States, 842 A.2d 690, 696 (D.C.2004) (“ ‘A prosecutor may not knowingly ... permit evidence, known to be false [or misleading], to go uncorrected’ before the trier of fact.”). A conviction obtained by the knowing use of false testimony is “fundamentally unfair,” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and undermines public faith in the integrity of judicial proceedings.⁴

Requiring the government to correct false testimony serves to uphold the “truth-seeking function of the trial process,” id. at 104, by “ensur [ing] [that the] jury is not misled by falsehoods,” Woodall, 842 A.2d at 697 (citing United States v. Meinster, 619 F.2d 1041, 1044 (4th Cir.1980)). Thus, although this doctrine protects a defendant's due process right to a fair trial, it does so in a particular manner—by providing the fact-finder (whether a judge or jury) with truthful testimony.

The government claims that it fulfilled its obligations in this case because it “did not allow [Sergeant Evans' testimony] to go ‘uncorrected’ at trial.” Rather, Sergeant Evans testified truthfully on both direct and cross-examination and was impeached by the defense with his mistaken testimony. The jury was therefore presented with a full explanation of the contradiction between Officer Nagurka's trial testimony and the preliminary hearing testimony of Sergeant Evans—including Sergeant Evans' account of why his testimony had changed—and could weigh that information during its deliberations. See United States v. Thomas, 987 F.2d 1298, 1301 (7th Cir.1993) (“[T]he court allowed the government ... to lay all of [the witness's] relevant testimony—both favorable and unfavorable—before the jury. Far from being a violation of due process, this is precisely how the trial process is supposed to work.”).

Emphasizing that Napue requires the government to correct false testimony “when it appears,” 360 U.S. at 269, 79 S.Ct. 1173, appellant contends that the government had an affirmative duty to immediately disclose the falsity to defense counsel (before the jury heard the evidence) so that she could make informed decisions regarding defense strategy. See also Miller v. United States, 14 A.3d 1094, 1107–08 (D.C.2011) (stressing that, in Brady⁵ context, “the Constitution requires that disclosure be made at such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case.... Prosecutorial resort to a strategy of ‘delay and conquer[ ]’ ... is not acceptable.”) (citations and quotation marks omitted).

Appellant places important limitations on his own argument. He “is not suggesting that the government generally must disclose how it is planning on rehabilitating witnesses friendly to its side or how it intends to explain discrepancies in statements witnesses have made.” Moreover, “the government generally does not need to disclose how it intends to meet the force of a witness called by the defense....” “And he has not argued that the Due Process Clause imposes some generalized duty on the United States to disclose inculpatory evidence....” “When, however, the government realizes that sworn testimony its witness provided at an earlier hearing simply was false, and where the falsity is important in the case, the Due Process Clause requires disclosure.”

By waiting until the defense had called Sergeant Evans and relied on the inaccurate testimony, appellant asserts, “the government was able to capitalize on its failure to make timely correction of the false testimony” by “unambiguously explain[ing] away the apparent, but actually non-existent, conflict between Evans's preliminary hearing testimony and Officer Greg Nagurka's trial testimony.” Appellant claims that the government's “ambush” violated its duty to refrain from striking “foul” blows, Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), and prevented the defense from making strategic decisions based on an accurate record.⁶See also Scipio v. State, 928 So.2d 1138, 1145 (Fla.2006) (“[T]he policy of avoiding trial by ambush or surprise has even greater application in the criminal context, where the stakes are much higher and the obligation of the State to see that justice is done is much greater than that of the private litigants in a civil dispute.”).⁷

There is much force to appellant's argument. We think it evident, and the government conceded at oral argument, that if the prosecutor had discovered the witness's mistake upon leaving the preliminary hearing, he would have had an obligation to immediately inform the court and defense counsel of the erroneous testimony so that the magistrate judge could have revisited her finding of probable cause and the attendant detention decision.⁸ If that had happened in this case, appellant would have learned of the error long before trial and would have been able to use this information when making decisions about trial strategy.

Here,...