Appeal from the Superior Court of the District of Columbia; Hon. Truman A. Morrison, III, Trial Judge
As Correct July 15, 1992. Rehearing Granted July 15, 1992,
Rogers, Chief Judge, and Ferren and Farrell, Associates Judges.
The opinion of the court was delivered by: Farrell
Appellant was found guilty by a jury of assault with a dangerous weapon (D.C. Code § 22-502 (1989)) and several weapons offenses. On appeal, his primary contention is that the government's failure to disclose a statement discoverable under Super. Ct. Crim. R. 16(a)(1)(A) (1990) until after its case-in-chief substantially prejudiced his defense of self-defense to the assault charge. The trial Judge was troubled by this issue but declined to set aside the verdicts on a post-trial motion for new trial because he concluded that appellant had not demonstrated sufficient prejudice from the nondisclosure. Mindful of the deference we accord such determinations by the trial Judge, we nevertheless hold that the nondisclosure violated Rule 16 and caused prejudice to appellant sufficient to require a new trial. We also hold that the evidence was insufficient to support appellant's conviction for carrying a pistol without a license, but reject his remaining contentions.
According to the government's evidence, on February 7, 1989, Maurice Williams and Roger Goodson, both eighth grade students, entered the Davis Market on Georgia Avenue while returning to school from lunch. Williams began playing with a wind-up toy, and appellant, who owned the store, told him to stop. When Williams refused, appellant told him a second time to put the toy down and ordered him out of the store. A scuffle ensued as appellant grabbed Williams by the back of the collar and belt and pushed him out the door.
Williams stood by a tree in front of the store while Goodson paid appellant for some candy. When Goodson joined him, Williams asked Goodson to give him a bottle, then himself picked up a bottle from the ground and held it. Appellant, who was standing in the doorway of the store, told Williams he was going to shoot him; Williams therefore threw the bottle "towards the wall" beside the door, attempting to scare appellant. Williams and Goodson then turned to run away, but Williams, after having run a few steps, heard a gunshot and realized that appellant had shot him. He turned and saw appellant standing in the doorway with a small handgun in his hand. Williams, according to his testimony, did not have a gun in his possession and did not put his hand in his pocket after he threw the bottle. He ran home and his mother called the police. Later, at the hospital, a bullet was removed from his back which had entered from the right side and crossed to the left side of the back without exiting.
Appellant's primary defense was self-defense. He testified that during the eleven years he operated the Davis Market he had been held up at gunpoint at least six times and shot at twice; the most recent holdup was four days before the present events. *fn1 On the February 7 occasion, Williams and Goodson came into the store and began picking up merchandise, tossing it in the air, and demanding of appellant "is there anything free" and "can I have some money." After telling them repeatedly to leave the merchandise alone, he ordered them out of the store. When they twice refused, he came out from behind the counter to eject them from the store; as he did so he saw what appeared to be the bulge of a handgun in Williams' right pants pocket. He grabbed Williams and pushed him outside the door.
While standing next to a tree box a few feet from the store entrance, Williams picked up a large soda bottle and threw it at appellant's head, but appellant closed the door, using it as a shield, and the bottle shattered against the plexiglas door. Appellant reopened the door and immediately saw Williams appear to be pulling a gun from his right pants pocket. "Scared to death," he yelled to Williams to stop pulling the gun, but Williams continued until appellant could see the "dark part of the handgun handle." Appellant then pulled his own handgun from his pocket and, as he saw "part of handle . . . part of the chamber of [Williams'] gun," fired a shot which struck Williams, who then ran away with Goodson.
Appellant's defense, in sum, was that he shot Williams in fear that that latter was about to shoot him, in a manner appellant was only too familiar with from experience. Both Williams and Goodson, by contrast, denied that Williams had carried a gun.
Appellant's main contention on appeal is that the government's failure to disclose a statement he had made to police officers at the scene until after completion of the government's case-in-chief violated Super. Ct. Crim. R. 16 and resulted in serious prejudice to his claim of self-defense. To analyze this contention, we first set forth the facts pertaining to the nondisclosure, inquire next whether the statement fell within the prosecution's duty of disclosure under Rule 16 (a point disputed by the government), and then consider the trial Judge's refusal to grant a new trial because of his belief that appellant had shown insufficient prejudice.
On July 25, 1989, counsel for appellant conducted a discovery conference with an Assistant United States Attorney and requested all oral and written statements made by appellant producible under Rule 16 (a)(1)(A). *fn2 As relevant here, the government furnished counsel with three statements: (1) a copy of the tape of a 911 telephone call made by appellant to the police department moments after the shooting on February 7, 1989, in which he exclaimed that two men had just tried to "kill" him but did not state that the weapon was a gun; (2) audio and transcribed versions of appellant's recorded statements made to Detective Brown at the police station later on February 7, in which he repeatedly claimed to have seen what appeared to be the outline or bulge of a gun in Williams' pocket as Williams began pulling his hand from the pocket; and (3) audio and transcribed versions of appellant's grand jury testimony in which he similarly explained that he had seen the "bulge" of a gun in Williams' right pants pocket and that he had fired a shot after Williams refused his command not to pull his hand from the pocket.
In keeping with the latter two statements but embellishing slightly the claim that appellant saw the bulge or shape of a gun in Williams' pocket, appellant's counsel announced in opening statement at trial that appellant would testify that he repeatedly told Williams to stop reaching into his pocket but that Williams did not stop. Instead he appeared to be removing a gun from his pocket: "Mr. Yoon will tell you that he saw what appeared to be the butt end of something metal, and he shot. Mr. Williams then ran away." After the government rested and shortly before the defense was to begin its case, appellant's counsel told the court that the prosecutor had informed him that morning, for the first time, of an additional oral statement made by appellant to other officers who had responded to the scene of the shooting. The prosecutor confirmed the existence of this statement, made "after the police officers went to the scene and asked and had a conversation with him about what happened." According to the prosecutor, in this statement "Mr. Yoon did not mention anything about a gun being in the possession of either of these young men." The prosecutor regretted the belated ...