Appeal from the Superior Court of the District of Columbia; (Hon. Robert A. Shuker, Trial Judge)
Before Rogers, Chief Judge, and Terry, Associate Judge, and Belson,* Senior Judge. Opinion for the court by Senior Judge Belson. Dissenting opinion by Chief Judge Rogers.
The opinion of the court was delivered by: Belson
BELSON, Senior Judge: A jury found appellant Lavelle N. Hawkins not guilty of assault with intent to murder while armed, *fn1 D.C. Code §§ 22-503, -3202 (1989), but guilty of the lesser included offense of assault with a dangerous weapon, id. § 22-502. On appeal, Hawkins contends that the trial Judge abused his discretion in denying a motion for mistrial after the prosecutor placed a prejudicial allegation before the jury without a good faith basis while examining a government witness, and that the prosecutor, under the guise of impeaching a government witness, improperly substituted the witness' grand jury testimony for the far less inculpatory testimony the witness gave at trial. We affirm.
In the early morning of Saturday, June 11, 1988, Mr. Willis Gooding, also known as "Puffy," began his trip to visit a friend at the Lorton Correctional Facility. Mr. Gooding was dressed as a female. While Gooding waited at a bus stop on Benning Road, Northeast, Washington, D.C., appellant Hawkins along with three other individuals drove by in a blue convertible rental car. *fn2 Gooding, who knew Hawkins from the neighborhood, asked for a ride downtown to board a transfer bus to Lorton. Gooding got in the back seat of the car. Hawkins, instead of driving downtown, drove around the corner to Phelps Vocational School. No one discussed why they were going to Phelps.
Upon arrival at the school, everyone got out of the car. Gooding and co-defendant Revels proceeded to go down a stairway which lead to one of the school's buildings. Gooding then performed a sexual act with Revels for which Gooding asked and received ten dollars from Revels. Gooding testified that he had performed this same sexual act with both Hawkins and Revels at least twice in the preceding year.
As Gooding approached the top of the steps, Hawkins asked to have the same sexual act performed on him. Gooding refused because he was concerned that he would miss the bus to the Lorton Correctional Facility. Hawkins then asked Revels for a gun, took it, pointed it at Gooding, and pulled the trigger. The gun clicked but did not fire. Hawkins pulled the trigger a second time; this time the gun fired and the bullet entered Gooding's left nostril, causing serious injury.
Hawkins and his three companions jumped into the rental car, which was parked a few feet from the steps. Gooding leaned over toward the car but Hawkins drove away. Gooding then proceeded to walk from behind the school where other persons came to his assistance. Investigation by the Metropolitan Police led to the arrest and indictment of Hawkins and Revels.
At trial, the prosecutor called as a witness Stephen Weaver, one of Hawkins' companions in the rental car the morning of the incident. The prosecutor sought to have Weaver declared a hostile witness on the ground that it had been necessary to have him arrested to ensure his presence at trial. The trial Judge reserved his determination regarding Weaver's hostility. *fn3
Weaver had testified before the grand jury prior to Hawkins indictment. Although his testimony at trial corresponded with his grand jury testimony in some respects, his responses to certain questions gave a version of the incident that differed sharply from his previous testimony.
Weaver testified at trial that he, along with Hawkins and Hawkins' co-defendant, James Eric Revels, and Perry Edon, had been riding around in a rental car all night. Weaver then stated that he knew someone named "Puffy" and that the first time they saw him the following morning was behind Phelps Vocational School. The prosecutor claimed surprise. Hawkins' counsel initially asserted that there was lack of foundation, but after a colloquy with the Judge stated:
MS. GRAY: If the Court is inclined to allow him to do this I would ask that he now allow him to continue in a leading manner with all questions.
The trial Judge responded that it was necessary to proceed question-by-question in "a surprise scenario" and then permitted the prosecutor to impeach Weaver with his grand jury testimony in which he stated that they first saw Gooding on Benning Road near a barber shop.
Weaver then stated that they drove into the driveway of Phelps school and saw "Puffy" there with a man. The prosecutor claimed surprise for a second time and impeached Weaver with his grand jury testimony that he and his friends were at the barber shop when they saw "Puffy" across the street and took him in their car behind Phelps school. At the time of this impeachment, counsel for Hawkins was granted a continuing objection which, she later clarified, was based upon lack of foundation and materiality.
The third claim of surprise arose when the prosecutor asked Weaver whether he had gone near any of the buildings at Phelps. Weaver replied that no one got out of the car. The trial Judge viewed the prosecutor's assertion of surprise as legitimate and permitted him to impeach Weaver's trial testimony with his grand jury testimony. During a bench conference it was agreed upon by all parties that the prosecutor would impeach Weaver with his grand jury testimony on this point. *fn4 The following exchange then took place between the prosecutor and Weaver:
Q. Mr. Weaver, did there come a time when everyone got out of the car?
Q. And after everyone got out of the car did there come a time when Erick Revels and Puffy engaged in some form of a sex act?
. And did that act take place close to or nearby one of the buildings in Phelps' complex?
A. The first question you asked me I answered no.
Q. I'm asking you this specific ...