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436 A.2d 821

Warren v. United States

District of Columbia Court of Appeals

Decided October 9, 1981

District of Columbia Court of Appeals · decided 1981-10-09

Relies on Kotteakos v. United States · Harris v. New York · Oregon v. Hass

Good law ✅— No negative treatment on recordhow we know

Decided 1981-10-09

How this case has been cited

Cited by 55 later decisions — most recently September 2017 · most notably Burns v. Clusen (1986), Head v. United States (1982)

2 federal appellate · 51 state decisions — followed in 11 states

3201981199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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KERN, Associate Judge,

¶1concurring:

¶2I agree that the judgment of conviction must be reserved because the trial court erred by allowing the government to present to the jury in its case-in-chief at this retrial of the rape charges some of the contents of the presentence report prepared after the first trial resulted in a guilty verdict. In this material, appellant incriminated himself by admitting to his probation officer that he had had sexual relations with two of the complainants. Such ruling 1 violated the terms of Super.Ct.Cr.R. 32(b)(1),2 and the mandate of the Supreme Court in Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969).3

¶3Since appellant did not testify and his counsel argued to the jury at the second trial that the government had failed to prove that appellant, rather than another, was the perpetrator of the rapes in question, the impact of the court’s erroneous admission into evidence as a part of the prosecution case of this highly-incriminating material from the report was significant.4 Accordingly, I am not persuaded the error was harmless under the Kotteakos test.5 Regretfully, the case must be tried again because the error was substantial.6

¶4. The judge who rendered this ruling on a pretrial motion to exclude by appellant did not preside over the retrial.

¶5. This Rule provides in pertinent part:

The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant had . . . been found guilty.. . .

¶6. The Court stated in relevant part (at 492, 89 S.Ct. at 1136-37):

To permit the ex parte introduction of this sort of material [the contents of the presen-tence report] to the judge who will pronounce the defendant’s guilt or innocence . . . would seriously contravene the rule’s purpose of preventing possible prejudice from premature submission of the presen-tence report. No trial judge, therefore, should examine the report while the jury is deliberating since he may be called upon to give further instructions or answer inquiries from the jury, in which event there would be the possibility of prejudice which Rule 32 intended to avoid. [Emphasis added.]

¶7. Had the prosecution withheld the contents of the presentence report from its case-in-chief and used this material only to impeach appellant, should he have taken the stand, then its admission would seem proper. Hall v. State, 47 Md.App. 590, 597, n.4, 425 A.2d 227, 231-32 n.4 (1981), citing Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), and Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

¶8. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

¶9. I agree with the majority’s treatment of the various other contentions by appellant on appeal, except that I find the trial court’s admission of the hearsay evidence to have been harmless error under the circumstances.

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