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05/19/92 JOSE MITCHELL v. UNITED STATES

DISTRICT OF COLUMBIA COURT OF APPEALS


May 19, 1992

JOSE MITCHELL, APPELLANT
v.
UNITED STATES, APPELLEE

Appeal from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Trial Judge).

Before Rogers, Chief Judge, and Schwelb and King, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge : Appellant Jose Mitchell appeals his conviction by a jury of first degree murder while armed, D.C. Code §§ 22-2401, -3202 (1989 Repl.), and carrying a pistol without a license, id. § 22-3202, on the ground of four claims of error. He contends that the trial Judge erred by (1) denying a motion to order a psychiatric examination of a key government witness; (2) denying a motion to suppress the murder weapon; (3) admitting other crimes evidence of four handguns in and around the car in which appellant was arrested eight days after the murder; and (4) denying defense requests to instruct the jury on the use of prior consistent statements, perjurer's testimony, and accomplice testimony. Except for the third and fourth claims, we find his contentions unpersuasive, and as to the third and fourth claim, we hold that any errors were harmless. Accordingly, we affirm.

I

The murder of William Johnson arose as a result of a fight over drug turf. On November 11, 1988, Arnez Olden was selling drugs for appellant in the 1300 block of S Street, N.W., when the decedent protested that this was his area. As their verbal exchange continued, Olden saw appellant put on gloves and shoot three times at the decedent. Curtis Edwards also saw a man with Olden shoot the decedent, and subsequently identified appellant as the shooter from a photo array. After hearing gun shots, another man, Cornelius Scott, saw Olden and appellant run from the scene. Yvonne Young also saw appellant and Olden run, and she saw appellant put a gun in his holster immediately after the shots were fired. *fn1 Deborah Morse saw the decedent talking with Olden and appellant immediately before the shooting. Among other government witnesses, Vincent Easley claimed that appellant had admitted the next day that he had killed the decedent and had showed him the murder weapon, and that appellant had put the murder weapon under the rear seat of his (Easley's) car. *fn2

Appellant presented no evidence in his defense but attempted through cross-examination and closing argument to suggest that Easley had shot the decedent. The jury found appellant guilty of first degree murder and carrying a pistol without a license.

II

In a pre-trial motion to compel a psychiatric examination of Arnez Olden, appellant alleged that Olden had been hospitalized at Saint Elizabeths Hospital on eleven occasions since 1982 and suffers from paranoid schizophrenia. The motion stated that because Olden had released his medical records to the defense, his privacy interest was minimal. Before trial, defense counsel proffered to the trial Judge that, based on the medical records, Olden had a history of auditory and visual hallucinations and paranoid delusions, was receiving medication for this condition, and that appellant had retained an expert to examine Olden. Thereafter, the trial Judge explored Olden's competency to testify by hearing testimony from Olden on two occasions and by examining his medical records.

The first time Olden testified at the competency hearing he claimed that he was not able to testify at appellant's trial. He explained that he had not received his monthly shot of prolixin to prevent him from hallucinating, and that he had smoked PCP and had been hallucinating "a little" on the day of the shooting. To the government's surprise, Olden claimed that he had not seen appellant on the date of the shooting. He also claimed that "voices" had told him to implicate appellant when he had appeared before the grand jury. Stating that he had a record of "hallucinating schizophrenia," and that his doctor had told him that he was not capable of testifying, Olden informed the Judge that all he remembered was that he was selling cocaine with a man named Mike. *fn3

At this point, the trial Judge suggested that Olden was experiencing the reality of testifying against appellant, who was sitting in front of him, and did not want to be a snitch. Defense counsel objected that the Judge's Conclusion was without support in the record, and suggested that "clearly, the most likely alternative explanation is that he's incompetent." When the Judge confronted Olden with the possibility of being prosecuted for perjury and the suggestion that his hearing voices was "nonsense," Olden denied that it was nonsense, saying it was in his records that he had "been hearing voices ever since 1982 up to 1989." *fn4

The second time Olden testified at the competency hearing he recounted a very different story. This occurred when the prosecutor advised the Judge the following day that Olden wanted to testify. Olden's counsel repeated his concerns about his client's competency, and the Judge recalled Olden to testify. This time Olden claimed that he wanted to change his testimony because he had heard that there was a contract out on him, and that upon seeing other witnesses going to the lawyer's office he thought that they were going to change their testimony, thereby putting him "under the gun." He proceeded to deny having heard voices when he was before the grand jury, or that he had heard them the previous day or was currently hearing them, or had heard them on the date of the shooting (although he admitted that he had tested one of appellant's cocaine rocks about an hour before the shooting, while otherwise claiming that he had not had any PCP since before July 21, 1988, months earlier). He then described how appellant had shot the decedent. On cross-examination Olden said that he had been using PCP and some crack since 1982, and that he had used PCP laced with crack the previous day in order to relax. He maintained that he had been telling the truth to the grand jury and lying the previous day, and that upon hearing the trial Judge's reference to a ten year punishment for perjury, he had decided not to take the rap for anyone. He denied that taking medication and PCP affected his memory or perception, and he explained that the only reason he had acted as he had the previous day was because there was a contract out on him. *fn5 Olden and the trial Judge then engaged in an extended colloquy. *fn6

When the trial Judge inquired whether defense counsel would agree to an immediate forensic screening of Olden by an expert, defense counsel objected, maintaining that an expert's independent examination was necessary. *fn7 The trial Judge disagreed, noting that he had five inches of medical records on Olden and he was not going to order anything more than a forensic screening. Defense counsel then proffered that the defense expert was of the view that a lay person asking a series of narrative questions would not adequately determine Olden's competency as a witness. The Judge concluded, however, that "based on what I have heard and what I have seen," he was "completely confident of [Olden's] competency. . . ." The trial Judge decided that a forensic screening was unnecessary because the witness was nothing more than a "run-of-the-mill drug abuser." Observing that trial Judges become, to some degree, lay experts in the field of competency as a result of taking guilty pleas, the Judge stated that he had experienced no problems in communicating with Olden, that he had examined the medical records, and that he "basically a fellow who has been a long-time PCP abuser." *fn8

It is well settled in this jurisdiction that the decision whether or not to order a psychiatric examination of a witness to determine his or her competency is a matter within the trial Judge's sound discretion. Collins v. United States , 491 A.2d 480, 484 (D.C. 1985), cert. denied , 475 U.S. 1124 (1986); Hilton v. United States , 435 A.2d 383, 387 (D.C. 1981); Rogers v. United States , 419 A.2d 977, 980 (D.C. 1980); Ledbetter v. United States , 350 A.2d 379, 380 (D.C. 1976). Because such an examination has the potential to impinge upon a witness' right to privacy, there is a presumption against ordering one. See, e.g. Hilton, supra , 435 A.2d at 387. The trial Judge "must weigh the potential evidentiary advantage of the examination against the dangers of unwarranted invasion of privacy posed by such examination," in order to determine whether or not a psychiatric examination should be ordered. Id. The trial Judge's ruling on a witness' competency will not be disturbed unless the record provides "unmistakable evidence that the trial court's impressions are defective." Id. at 388; see also Vereen v. United States , 587 A.2d 456, 457 (D.C. 1991); Collins, supra , 491 A.2d at 484.

Consistent with our standard of review, we note first, that the record shows, contrary to appellant's contention, that the trial Judge understood the standard that was to be applied in determining whether or not Olden was competent to testify. At the close of the competency hearing, the trial Judge recapped the proceedings and found that "we continued with the examination of Mr. Olden on August 22, whereupon he testified and showed no problems whatsoever with respect to memory about his illness and memory about this incident, his perceptions and so on." *fn9 See Hilton, (supra) , 435 A.2d at 387 ("competency depends upon witness' capacity to observe, remember, and narrate as well as an understanding of the duty to tell the truth").

Second, this is not a case in which the witness admitted experiencing hallucinations or premonitions while testifying at the competency hearing. See Vereen, supra , 587 A.2d at 458. *fn10 Short of such "ongoing manifestations," id. , the court has not held that a history of psychiatric problems, or even a current diagnosis of mental illness, is sufficient to overcome the presumption against compelling a psychiatric examination of a witness. See Collins, supra , 491 at A.2d at 484; Hilton, supra , 435 A.2d at 387.

A rational person may, however, suffer from a mental illness that adversely affacts his or her ability to perceive, and under some circumstances it will be important for the trial Judge to have the assistance of expert guidance. See Vereen, supra , 587 A.2d at 458. *fn11 The court has warned that a trial Judge may lack the qualities of perception and analysis of one trained in the medical profession for diagnosing and evaluating mental illness. Cf. Hunter v. United States , 548 A.2d 806, 811 (D.C. 1988) (mental retardation; withdrawal of guilty plea) (citing United States v. Mastbers , 176 U.S. App. D.C. 242, 249 & nn. 49-50, 539 F.2d 721, 728 & nn. 49-50). At the same time, the court has acknowledged the relevance of a trial Judge's experience in deciding whether or not a witness is able accurately to perceive, recall, and relate purported facts and testify truthfully. See Veren, supra , 587 A.2d at 457; Hilton, supra , 435 A.2d at 387. Indeed, our decision to entrust the determination of competency to the trial Judge's discretion arises from the absence of precise standards to guide the trial Judge's weighing of the potential evidentiary advantage against the danger of unwarranted invasion of personal privacy. See Ledbetter, supra , 350 A.2d at 380. Consequently, before this court will reverse a trial Judge's determination that a witness is competent to testify, there must be "unmistakable evidence that the trial court's impressions are defective." Hilton, supra , 435 A.2d at 388. We conclude that no such defect exists here.

The trial Judge had the benefit of medical records on Olden's mental condition. In other words, the records provided the Judge with the benefit of expert medical analysis of Olden's mental condition. The trial Judge reviewed the witness' medical records and concluded that, as the medical records show, Olden's mental condition had been identified as tied to his drug usage. *fn12 Further, the medical records indicated that Olden was able to ignore the voices he heard when he was indulging in his illegal drug use.

The Judge also engaged in a lengthy voir dire of Olden, with generous opportunity for both counsel to examine the witness. On the basis of that vior dire the Judge found that Olden was capable of providing a rational explanation of his conduct and of the events relating to the murder. These findings are supported by the record and are not clearly erroneous. The witness did not claim at the time of voir dire that he was experiencing hallucinations, as was the case in Vereen, supra , 587 A.2d at 458. His counsel's information about the views of the witness' case worker was vague at best. Counsel did not state that Olden claimed to be experiencing hallucinations at that time. Further, the medical records suggest that the attempted suicide, see note 3, (supra) , occurred in 1986.

Accordingly, the question is whether the defense proffered sufficient other evidence to overcome the presumption against compelling an examination of the witness. In addition to the long medical history, there was the unusual conduct of the witness during the first day he testified at the competency hearing. Olden was not only unable at one point to engage in a meaningful colloquy with the trial Judge, but he rocked in the witness chair, cursed, referred to his need for his "sack," and was apparently ready to risk a perjury prosecution. Counsel for the witness also advised the Judge, before Olden's second appearance as a witness at his competency hearing, of his concerns about his client's competency. There also was the fact that the witness had not received his monthly medication, which was designed to avert hallucinations.

On the other hand, on the second day, the witness engaged in a lengthy colloquy with the trial Judge and offered an apparently cogent explanation for his behavior the previous day. See Ledbetter, supra , 350 A.2d at 380. Olden's explanation of his drug use presented the Judge with the picture of a man who used drugs from time to time but was apparently able to forego drug use for extended periods. Such abstention was confirmed by the medical records. *fn13 Further, the witness claimed that he had been in a drug treatment program for five months, since March 19, 1989. He also offered a lucid explanation of what had happened on the date of the shooting, see Collins, supra , 491 A.2d at 485; Hilton, supra , 435 A.2d at 358, and his explanation was corroborated by proffers from the prosecution.

In determining whether an examination of Olden was necessary, the Judge properly weighed the potential adversarial advantage to appellant against Olden's privacy interests. See Hilton, supra , 435 A.2d at 387. The Judge noted that the defense wanted an expert to examine Olden in order to be in a position "to present expert testimony of any sort to try to detract from the apparently devastating testimony that Mr. Olden is about to present against the defendant." Although the government had other witnesses to the shooting, Olden was its best witness because he alone was present at the scene and knew appellant by name. Even with evidence from the government's other witnesses, the Judge could properly conclude that, from the defense perspective, Olden was a critical witness for the government.

As to Olden's privacy interest, *fn14 see id. (describing nature of privacy interest as the potential harassment resulting from the examination or the likelihood that the witness may be deterred from coming forward), no suggestion was made that Olden was willing to undergo a psychiatric examination. Indeed, Olden's claim that he was competent and his explanation for his peculiar behavior on the first day of his competency hearing suggest the contrary. See Collins, supra , 491 A.2d at 484 (citing Ledbetter, supra , 350 A.2d at 380).

The "red flag," United States v. Crosby , 149 U.S. App. D.C. 306, 307, 462 F.2d 1201, 1202 (1972), of repeated hospital commitments presented by the defense proffer merited careful consideration by the Judge, and it was appropriate for the trial Judge to conduct a lengthy examination, by counsel and the court, of the witness on voir dire . Hilton, supra , 435 A.2d at 388. The Judge could also properly take into account the fact that the witness had undergone a series of mental commitments and be skeptical, in view of the information in the medical records about the nature of that illness, that further expert evidence would provide additional insight. Cf. Collins, supra , 491 A.2d at 484.

In light of the foregoing circumstances, we conclude that there is no "unmistakable evidence that the trial court's impressions are defective." Hilton, supra , 435 A.2d at 388. The Judge's finding, even after only the first day of Olden's testimony, that Olden's conduct was explained by the reality he faced of testifying against appellant, was further buttressed by the second day of testimony and the Judge's review of the medical records. After the second day, having reviewed Olden's medical records and having heard his revised testimony over the course of several hours, the Judge had reason to conclude that Olden's problems were primarily those of a drug user who generally was able to handle himself day by day, and that he was competent to testify. Collins, supra , 491 A.2d at 484 (absent clear error, cannot change trial court's balancing, citing Ledbetter, supra , 350 A.2d at 380). Olden knew where he was and did not present the incomprehensible type of statements that could have caused the Judge to conclude that he did not understand what was going on. See, e.g., Vereen, supra , 587 A.2d at 458.

Despite the fact that aspects of Olden's testimony may not always have been entirely clear, see Hilton, supra , 435 A.2d at 385, the trial Judge's impressions of the nature of Olden's problems -- both his mental problems and the practical problems facing a man testifying against a drug distributor who had told him to forget what he had seen and had put out a contract on him and the other government witnesses -- were supported by the evidence. See Ledbetter, supra , 350 A.2d at 380. Appellant contends that the trial Judge's Conclusion that Olden was nothing more than a drug abuser was clearly erroneous, but the Judge's statement to this effect cannot properly be viewed as suggesting that the Judge improperly discounted the fact that Olden had also been diagnosed as suffering from schizophrenia, paranoid type. Were we to find an abuse of discretion by the trial Judge in denying appellant's motion to compel a psychiatric examination of Olden, notwithstanding the information in the medical records and the evidence at the extended voir dire of the witness, then the presumption against such an examination would be significantly undermined in today's environment, where illegal drug use is prevalent and testimony offered by either side at a criminal trial will often involve witnesses who are or have been drug users.

Accordingly, we find on this record no abuse of discretion by the trial Judge in denying appellant's motion.

III

Appellant also contends that the trial Judge erred in denying his motion to suppress the handguns found at the time of his arrest, eight days after the murder. We disagree with respect to three of the weapons. As to the fourth, we conclude that any error was harmless.

Corporal Robert Simpson of the Prince Georges County (Maryland) Police Department testified that, as he and another uniformed police officer drove into the parking lot of an apartment complex en route to a domestic violence call, he noticed a legally parked car in which the occupants ducked into their seats upon seeing the police vehicle. Officer Simpson observed the car "rock slightly." He parked the police vehicle in front of the other parked car, blocking its egress. He turned on his high intensity headlights and got out of his vehicle with his gun at his side. Appellant then got out of the parked car, made a throwing motion with his hands, and put his hands up in the air. Officer Simpson patted down appellant, and he ordered the rear seat passengers out of the car and patted them down, too. Another officer patted down the man in the driver's seat and found a small caliber firearm in his jacket. The police subsequently found a .38 caliber pistol in the grass and two nine millimeter semi-automatic weapons under the rear seat of the car. Officer Simpson testified that he believed, on the basis of the ducking motions of the occupants of the vehicle and the high incidence of homicides and stolen vehicles in the neighborhood, that the occupants of the car may have been trying to steal the car.

At trial and on appeal, the government contends that appellant lacks standing to object to the admission of the four handguns found at the time of his arrest. Rakas v. Illinois , 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978), the Supreme Court held that passengers in a car had no legitimate expectation of privacy in the glove compartment or under the seat of a car in which they were merely passengers and asserted neither a property nor a possessory interest in the car or the property seized. Id. at 148-49; accord Rawlings v. Kentucky , 448 U.S. 98, 105, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980) (no legitimate expectation of privacy in another's purse where defendant did not seek access to purse and had no right to exclude others from access to purse). *fn15 At trial, appellant never disputed the evidence of the car's ownership, nor did he offer other evidence regarding his legal expectation of privacy in the car. Accordingly, we hold that appellant lacked standing to object on Fourth Amendment grounds to the admission into evidence of the three guns found in the car at the time of his arrest.

As to the fourth handgun found in the grass after appellant was seen to toss something as he got out of the car, we conclude that appellant has standing to object to the admission of the officer's testimony about this weapon. See Rakas v. Illinois, supra , 439 U.S. at 130; id. at 150-51 (Powell, J., Concurring) (passenger in a car may object to his own seizure and seek to suppress the fruit of that seizure); see also In re T.T.C. , 583 A.2d 986, 990 (D.C. 1990). The seizure issue *fn16 and the issue of whether the officer had articulable suspicion to seize appellant *fn17 both raise serious questions that we need not decide, however, because we conclude that the admission of the discarded gun was harmless. Chapman v. California , 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). The government's witnesses, in addition to Olden, placed appellant at the scene of the shooting with Olden and with a gun. They also identified appellant as the man who had fired at the decedent. Moreover, the handgun was not the murder weapon, which was in evidence. Under these circumstances, the evidence that appellant was found with a handgun eight days after the murder was harmless beyond a reasonable doubt.

IV

Although appellant lacked standing to contest the admission into evidence of three weapons on Fourth Amendment grounds, he has also posed a challenge on substantive evidentiary grounds. He contends that the trial Judge erred by admitting "other crimes" evidence of the four handguns found in and around the car when appellant was arrested eight days after the murder. *fn18 We agree that the trial Judge erred in admitting this portion of Officer Simpson's testimony, but we conclude that once the murder weapon itself was in evidence, the prejudice arising from admission of evidence about the three other handguns was harmless; the evidence showed that the murder weapon was found nearest to Easley, the man who, according to the defense, had killed the decedent.

Prior to trial the prosecutor informed the trial Judge of her intention to introduce evidence of the circumstances surrounding the discovery of the murder weapon. Appellant objected, arguing that aside from the murder weapon, evidence about the three other handguns -- the .38 caliber handgun that appellant had tossed away upon getting out of the car, the second handgun found under the rear seat, and the handgun found in the driver's possession -- had no connection to the murder charges and was inadmissible under Drew v. United States , 118 U.S. App. D.C. 11, 331 F.2d 85 (1964). The trial Judge overruled the objection reasoning that although the evidence was prejudicial, the testimony about the three handguns (other than the murder weapon) was not other crimes evidence but "simply a chain in the circumstantial evidence," and relevant evidence that was admissible under Toliver v. United States , 468 A.2d 958 (D.C. 1983).

There was no Drew, supra , exception for admitting the three guns (other than the murder weapon). *fn19 Appellant possessed a .38 caliber weapon at the time of his arrest eight days after the murder, and was in the company of three other people, each of whom possessed a handgun, including the murder weapon. That appellant was illegally armed when arrested, or that he was in the company of other illegally armed men when he was arrested, was minimally relevant to whether he committed the murder with which he was charged. The circumstances of his arrest did not show motive, intent, identification, a common plan, or absence of mistake or accident, nor illuminate any other relevant issue. Thus, the evidence was inadmissible under Drew . The evidence of the three handguns (other than the murder weapon) had little probative value, which was outweighed by its prejudicial effect.

The government maintains that because appellant claimed that the murder weapon was possessed by someone else in the car -- the murder weapon was found under the rear passenger seat where Easley was sitting -- appellant placed his intent at issue, and therefore the evidence that there were four men with four handguns in the car was admissible to show appellant's constructive possession of the murder weapon. In other words, the government argues, it was necessary to show that appellant was aware of the presence of the other handguns -- the ducking motion observed by the police officer arguably indicated that the four men in the car were trying to hide the four handguns -- in order to rebut any claim by appellant that he was simply a passenger in the car and unaware of the presence of the handguns. However, except as it bore on criminal preDisposition, appellant's awareness of the presence of the handguns in the car eight days after the murder was of minimal probative value to the charged offenses, but was clearly prejudicial. Had the defense made an effort to distance appellant from the murder weapon, moreover, this would have provided a more appropriate occasion for the Judge to reconsider the admissibility of the handguns. See Thompson v. United States , 546 A.2d 414, 424 (D.C. 1988) (court should await Conclusion of defendant's case, when the Judge is in the best position to balance probative value and the government's need against the prejudicial effect).

In addition to the traditional Drew exceptions, see note 19 (supra) , however, other crimes evidence is "'admissible when relevant to explain the immediate circumstances surrounding the offense charged and when its probative value outweighs its prejudicial effect.'" German, supra note 19, 525 A.2d at 607 (quoting Green v. United States , 440 A.2d 1005, 1007 (D.C. 1982)). Evidence of other crimes may also be admissible when the other crimes evidence is "inextricably entwined with the evidence necessary to . . . the crime charged." Lee v. United States , 471 A.2d 683, 686 (D.C. 1984); Toliver, supra , 468 A.2d at 961 (" incidental, uncharged criminal conduct inextricably intertwined with evidence of the charged offense" admissible without cautionary Drew instruction). Our standard of review is for abuse of discretion. German, supra note 19, 525 A.2d at 607.

There was no basis for admission of the three guns under Toliver, supra , 468 A.2d 958. The court has held that Toliver evidence is strictly limited in time and place to the criminal conduct with which the defendant is charged. See Holmes, supra note 19, 580 A.2d at 1266; Williams v. United States , 549 A.2d 328, 333 (D.C. 1988). The evidence of the circumstances of appellant's arrest eight days after the murder was not "inextricably intertwined with the evidence of the charged offense." Toliver, supra , 468 A.2d at 961. Nor was it necessary to explain the circumstances of appellant's arrest in order to clarify the charges for which he was on trial. The government's suggestion that a Toliver analysis should apply at the time of arrest as well as at the time of the crime has no legal foundation and could impair the effectiveness of Drew, supra , 118 U.S. App. D.C. at 15, 331 F.2d at 89.

Nevertheless, we conclude that the admission of Officer Simpson's testimony about the handgun discarded by appellant and the two handguns (other than the murder weapon) found in the car was harmless error. See Harper, supra , note 19, 582 A.2d at 489; Kotteakos v. United States , 328 U.S. 750, 765, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946). Once the murder weapon was in evidence, the other evidence of handgun possession was, by comparison, less prejudicial, particularly in view of the government's evidence of appellant's role in the shooting. Significantly, the admission of evidence that the murder weapon was found nearest to Easley was consistent with appellant's theory that Easley had shot the decedent. Appellant's possession of a different handgun thereby strengthened the suggestion that the murder weapon was not his. Thus, given the overall strength of the government's case, we can say with "fair assurance" that this error did not substantially influence the jury's determination. Kotteakos, supra , 328 U.S. at 765.

V

Finally, appellant contends that the trial Judge erred by denying defense requests to instruct the jury on the limited use of prior consistent statements testimony, perjurer's testimony, and accomplice testimony. *fn20

Appellant maintains that he was prejudiced by the absence of Criminal Jury Instruction 1.06 (prior consistent statements) to guide the jury in its evaluation of Olden's testimony because Olden's prior consistent statements to the grand jury, during his competency hearing, and to the prosecutor implicating appellant in the murder reinforced the credibility of the government's other witnesses. The government concedes, and we agree, that the Judge erred by not instructing the jury on prior consistent statements. The government maintains, nevertheless, that any error was harmless, citing Lucas v. United States , 436 A.2d 1282 (D.C. 1981) (applying Kotteakos, supra , 328 U.S. at 765, standard to failure to give instruction). Olden's testimony that his prior consistent statements represented the truth about who killed the decedent complicates the issue. But the defense objection to the prosecutor's reference during closing argument to Olden's grand jury testimony was sustained, and in view of the government's other evidence of appellant's guilt, we agree that any error was harmless. *fn21

The trial Judge did not give a limiting instruction to the jury on either Olden's prior consistent or prior inconsistent statements. Thus, the defense obtained the benefit of having Olden's prior inconsistent statements considered by the jury as substantive evidence. Furthermore, Olden was impeached with his prior inconsistent statements as well as his medical history, drug abuse and prior convictions. Most importantly, the strength of the government's evidence of appellant's guilt -- as a result of the interlocking corroborative testimony of the government's other witnesses, Cornelius Scott, Yvonne Young, and Deborah Morse -- provided substantial corroboration of Olden's testimony. Accordingly, we are satisfied that the Judge's failure to instruct on Olden's prior consistent statements could not have substantially affected the jury.

Similarly, the trial Judge's refusal to give a perjurer's testimony instruction, if error, was not reversible error. *fn22 There was an evidentiary basis for the instruction, and the evidence of Olden's perjury can be viewed as directly supporting appellant's claim that there was a conspiracy to pin the murder on him. But we find no prejudice to appellant. This is not a situation in which the trial Judge failed to instruct on the defense theory of the case. See Graves v. United States , 554 A.2d 1145, 1147 (D.C. 1989). Rather, appellant contends he was prejudiced by the absence of the instruction because "Olden's perjury went to the heart of his credibility." However, the circumstances surrounding Olden's perjury were fully presented to the jury, and the Judge instructed the jury on assessing the credibility of witnesses. *fn23 The nature of the perjury was not subtle, as the defense made certain the jury was aware through cross-examination. Under these circumstances, upon viewing the instructions as a whole, Powell v. United States , 485 A.2d 596, 601 (D.C. 1984), cert. denied, 474 U.S. 981, 88 L. Ed. 2d 339, 106 S. Ct. 420 (1985), we are satisfied that the instructions provided adequate guidance for the jury to evaluate Olden's testimony without the specific perjury instruction, and hence, that no reversible error occurred. United States v. Bowman , 197 U.S. App. D.C. 246, 254, 609 F.2d 12, 20 (1979).

The failure of the trial Judge to give the perjurer's testimony instruction was not error because the instructions sufficiently apprised the jury regarding issues of credibility. See id. , 609 F.2d at 20. Although the arguments of counsel are not the equivalent of an instruction on the law by the court, it is of some note that defense counsel focused the jury's attention during cross-examination and closing argument, respectively, on the need to consider Olden's testimony carefully because he had previously lied in court, and to the police, and because he had a motive to lie in order to protect someone else with whom he had a relationship. The Judge instructed the jury on bias and the interest of a witness. Therefore, viewed as a whole, see Powell, supra , 485 A.2d at 601, the instructions were not deficient. See Bowman, supra , 197 U.S. App. D.C. at 254, 609 F.2d at 20.

Finally, appellant's contention that the trial Judge erred by denying the defense request for the accomplice instruction is meritless. "An accomplice is anyone who knowingly and voluntarily cooperates with, aids, assists, advises, or encourages another person in the commission of a crime, regardless of his degree of participation." CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 2.22. Although there was evidence that Olden witnessed the shooting and left with appellant after the shooting, there was no showing that Olden "knowingly and voluntarily cooperated with, aided, assisted, advised, or encouraged [appellant's] . . . commission of a crime." Id.; cf. Bailey v. United States , 135 U.S. App. D.C. 95, 98-99, 416 F.2d 1110, 1113-14 (1969) (presence, slight prior association, and subsequent flight with principal insufficient basis for aiding and abetting conviction; no evidence that presence designedly encouraged or facilitated principal). At most, there was evidence from Olden that he had accepted a bribe of cocaine from appellant after the shooting and had been told by appellant not to talk. This was not sufficient to require the Judge to give the accomplice instruction. Cf. Sherer v. United States , 470 A.2d 732, 741 (D.C. 1983) (perjurer's instruction not required where Judge gave accomplice instruction when witness admitted he had lied to grand jury), cert. denied, 469 U.S. 931, 83 L. Ed. 2d 262, 105 S. Ct. 325 (1984).

Accordingly, we affirm the judgment of conviction.


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