Criminal Law Blog

The Prosecutor Is Allowed To Argue That The Police Officer “Didn’t Do His Job”


Furr v. United States 
(decided April 13, 2017)

Players: Associate Judges Glickman & Beckwith, Senior Judge Pryor. Opinion by Judge Glickman. Judge Beckwith concurring in part and concurring in the judgment. PDS for Mr. Furr. Trial Judge: Russell F. Canan.

Facts: Mr. Furr, an off-duty police officer, propositioned a woman at CVS. The woman said no, and her friend, Wallace Patterson, intervened. Another off-duty police officer, Edward Stewart, was moonlighting as a private security guard at the CVS. He witnessed the dust up between Patterson and Mr. Furr, and asked Mr. Furr to leave.

Outside, Patterson and another friend walked past Mr. Furr’s car. Patterson testified that as they walked by, Mr. Furr rolled down his window and shouted at him. Patterson told Mr. Furr to get out of the car, at which point, Mr. Furr pulled a gun from his glove compartment and pointed it at Patterson.

Patterson went back to the CVS and told Officer Stewart that Mr. Furr had a gun. Stewart approached Mr. Furr’s car and called for back-up. Upon seeing Stewart approach, Mr. Furr got out of his car and told Stewart that he was a police officer too. Relieved, Stewart cancelled the request for back-up. Stewart testified at trial that Patterson never told him Mr. Furr pointed a gun at him.

The night ended with a car chase/crash and a one-way shoot-out. Mr. Furr faced a bunch of charges as a result, and he was acquitted of most of them. The only charge now at issue was the assault with a dangerous weapon count that Mr. Furr was convicted of for pointing a gun at Patterson.

The dispute on appeal revolves around MPD’s investigation into Officer Stewart’s conduct that night. The investigation concluded that Officer Stewart acted appropriately. Nevertheless, at trial, the prosecutor elicited from Stewart that MPD investigated whether he took “appropriate police action” that night. The prosecutor did not ask about the investigation’s outcome. On cross-examination, Stewart testified that the MPD investigation “exonerated him.” The defense wanted to inquire further about why he was exonerated so that the jury would understand that MPD found that Stewart properly exercised his judgment, but the government objected. The court sustained the objection, ruling that the reasons for the exoneration were inadmissible hearsay.

The prosecutor on redirect again brought up the MPD investigation. Stewart acknowledged that an adverse finding would have subjected him to serious consequences, and agreed that when the investigator interviewed him, he was 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,” to which the defense objected. The trial court sustained the objection before Stewart answered.

After a brief recess, 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 trial court agreed that the question may have left that impression. The prosecutor suggested that the court strike the question, but defense counsel argued that would not cure the prejudice and proposed a stipulation listing what the investigation involved. The prosecutor did not like that idea, and proposed that Stewart be recalled to clarify what the investigation included beyond his statement. The court agreed with this solution, and allowed the government to recall Stewart to ask “whether there were other components to the MPD investigation besides his own interview.” Stewart confirmed that there were.

Later in the trial, the defense called MPD Lieutenant John Haines—the officer who investigated Stewart’s conduct. The government objected and the court asked the defense for a proffer of his testimony. Counsel responded that Haines would testify about what things he considered during the investigation without going into what anyone said, and would testify about the conclusion he reached. The government disputed the relevance and admissibility of the testimony, arguing that Stewart himself corrected any misimpression that the investigation considered only his account of events. The trial court agreed with the government and refused Haines’s testimony.

At the very end of the trial, the prosecutor asserted in her rebuttal closing argument that Officer Stewart “didn’t do his job” that night despite the fact that he was exonerated of any wrongdoing.

Issue 1: Did the trial court abuse its discretion by excluding Lieutenant Haines’s testimony?

Holding 1: No. The DCCA reasoned that Lieutenant Haines’s investigation of Officer Stewart was relevant and admissible for one purpose: “to show the existence of a motive for Stewart to deny that Patterson told him appellant had a gun.” Because of this, only the fact that an investigation was pursued was probative of Stewart’s motive; not what evidence was considered during the investigation, how thoroughly it was conducted, or the conclusions that were reached.

The DCCA went on to state that Haines’ testimony would not have been appropriate 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 Court concluded that the “posited implication of the prosecutor’s question was not unfairly prejudicial, and in any event, Haines’ testimony was not required to correct it.”

The DCCA noted that the trial court “after careful and thoughtful consideration of proposed alternatives,” “settled on a suitable evidentiary cure: having the government recall Stewart to the witness stand” to testify that there were “other components” to the MPD investigation. According to the DCCA, it “was entirely reasonable for the court to conclude that any possible relevance of Haines’ proffered testimony was substantially outweighed by the potential for prejudice and misleading the jury . . . because it would have exacerbated the risk that the jury would treat Haines’ exoneration of Stewart as a reason to credit Stewart and find that Patterson did not tell him appellant brandished a gun.”

In sum, the DCCA concluded that the trial court correctly exercised its discretion by excluding the proffered testimony of Lieutenant Haines.

Issue 2: Did the trial court plainly err by permitting the prosecutor to comment in rebuttal argument that Officer Stewart “didn’t do his job?”

Holding 2: No. The DCCA considered this argument “unobjectionable because it was a 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.”

Of Note: Judge Beckwith wrote a separate opinion concurring in part and concurring in the judgment. Judge Beckwith agreed that the trial court did not abuse its discretion by excluding Lieutenant Haines’s proffered testimony. Judge Beckwith took issue with, however, the panel’s discussion of the curative admissibility doctrine and the notion that the trial court would have abused its discretion by admitting the testimony under that doctrine. As Judge Beckwith put it, “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 misconduct.” Judge Beckwith explained that the jury may have concluded from the line of questioning that Officer Stewart “acquired evidenced that Mr. Furr had pointed a gun at Mr. Patterson yet had failed to act.” Given this possibility, Judge Beckwith opined that “the trial court could have admitted the testimony under the curative-admissibility doctrine to remedy the misimpression created by the government’s question . . . and to mitigate whatever remaining unfair prejudice had resulted from the government’s initial questioning about the investigation.”

Judge Beckwith also disagreed with the majority’s conclusion that the prosecutor’s rebuttal comment that Officer Stewart “didn’t do his job” was “unobjectionable” given that MPD exonerated Officer Stewart. Understanding this fact, Judge Beckwith opined that the trial court would have been within its discretion to sustain an objection to the argument. DH

Read full opinion here