Harmless Error: Everyone Knows the Cops Think Your Client 'Did It'

Lawyer tip of the day: If your client is on trial for witness tampering, the jury knows that the cops think your client is guilty.

Should cops conclusively state during testimony that your client "did it?" No. But your client isn't going to get a new trial based on such an outburst. The Ninth Circuit Court of Appeals ruled Monday that a detective's statement during trial that the defendant "did it" was a harmless error.

First, let's turn to the facts of this case.

Seattle police began investigating Devaughn Dorsey for conspiracy to traffic in stolen motor vehicles in 2008. One of the witnesses they interviewed was Martine Fullard, who Dorsey allegedly enlisted to help falsely register a stolen Buick LaCrosse. Fullard was later served with a subpoena to testify before a grand jury

Dorsey knew that Fullard had been served with a grand jury subpoena, and reportedly told one of his co-conspirators, "Man, I got to do something, man." Two days before Fullard's scheduled grand jury appearance, Fullard was cooking in the kitchen of her West Seattle apartment when seven shots were fired into the apartment through a window over the kitchen sink.

Three bullets struck Fullard and one struck her older son. Both survived.

Minutes after the shooting, Dorsey made eight calls to police detectives from his cell phone. Detective Thomas Mooney received the first of Dorsey's calls just after he got the dispatch about the shooting at Fullard's apartment. Dorsey told Mooney that he was "at 23rd and Union" in Seattle and had found a man that Mooney was looking for. The problem with Dorsey's alibi was that cell phone tower records showed that Dorsey was not at 23rd and Union at that time.

There is a dominant cellular tower at 23rd and Union, and Dorsey's cell phone call was not transmitted through that tower that night. Rather, at the time of the shooting, Dorsey's cell phone hit off of a cellular tower almost directly behind Fullard's apartment eight times and hit off of no other cellular tower during that period.

A jury found Dorsey guilty of stolen vehicle trafficking and witness tampering.

Dorsey appealed the witness tampering conviction. One of his claims on appeal was that he was entitled to a new trial because, during cross-examination, Detective Paul Suguro remarked that Dorsey "did it."

The district court immediately told the jury during trial to disregard the comment, and admonished the detective in front of the jurors "in a stern voice, with a disapproving look." Dorsey moved for a mistrial. The district court denied the motion, concluding that Dorsey was not prejudiced by Suguro's comment.

The Ninth Circuit Court of Appeals reviewed the mistrial decision for harmless error, and affirmed the district court. The appellate court noted that the detective's comment was incorrect, but harmless in the context of the entire trial.

Related Resources:

• U.S. v. Dorsey (Ninth Circuit Court of Appeals)
• Caught Witness Tampering? Say Sayonara to Permanent Residency (FindLaw's Second Circuit Blog)
• There Are No 'Harmless Errors' in FDCPA Violations (FindLaw's Eleventh Circuit Blog)