Appeal from the Superior Court of the District of Columbia; (Hon. Robert A. Shuker, Trial Judge)
Before Rogers, Chief Judge, and Terry and Steadman, Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: This case arose from two incidents in which appellant Waldron and two co-defendants were involved in shooting attacks on a rival drug dealer in an apparent turf battle. *fn1 A jury acquitted the co-defendants of all charges and found Waldron guilty of assault with a dangerous weapon *fn2 and carrying a pistol without a license, *fn3 but only in connection with the first of the two shootings. On appeal Waldron raises two claims of error. First, he argues that the trial court erred in denying his motion to sever the trial of the two incidents. Second, he challenges rulings by the trial court which permitted the government to impeach two of its own witnesses after claiming surprise. With respect to one of the two witnesses, we hold that the court erred in allowing the impeachment and that this error was not harmless. Accordingly, we reverse Waldron's convictions. *fn4
In the summer of 1988 David Julian was selling crack cocaine in the 1500 block of First Street, S.W. He frequently conducted such sales from an apartment building at 1500 First Street, and his sellers included Pat Washington and her two teenaged daughters, Tracey and Stacey, who also lived in that building. On the afternoon of July 14, Tracey Washington, then nearly eighteen, was approached by Darryl Hines, who said to her, "Tell your Jamaican boy friend we are going to get him." *fn5 Tracey relayed this warning to Julian, who later drove with Tracey's mother, Pat Washington, to suburban Maryland and returned with a .38 caliber pistol.
Later that evening Pat Washington and Julian were walking down First Street when Waldron, standing in the street, yelled an obscene comment to Julian. The two men exchanged hostile words, and then both drew guns and began shooting at each other. Waldron shot at Julian "four or five" times and then turned and ran away, chased by Julian. Close behind them was Darryl Hines, who also fired at Julian. Julian sustained two bullet wounds, and Pat Washington was also wounded when a bullet grazed her leg.
After being released from the hospital, Julian went back to selling cocaine in the 1500 block of First Street. Tracey Washington testified that on August 27 she was in a nearby park when she overheard Tyrone Hopkins say to Waldron, "Come on, man, you know what we got to do." Tracey then left the park, and soon thereafter, while standing on the porch of her apartment building, she heard shots and saw two men, whom she identified as Waldron and Hines, shooting at Julian. She testified that she recognized Waldron because he was wearing the same shirt she had seen on him earlier that evening. Stacey Washington also testified that she saw Waldron shoot at Julian. Julian, who was unarmed, suffered multiple gun-shot wounds in the abdomen, neck, and thigh in this second shooting.
Waldron contends that the trial court committed reversible error when it permitted the government to impeach two of its own witnesses, Glennette Williams and Angela Paylor, after claiming surprise. We hold that the trial court erred in both instances because on neither occasion did the "surprise" testimony affirmatively damage the government's case. The government argues that the court did not err, or, alternatively, that if it did, both errors were harmless. We agree with the government that sustaining the claim of surprise as to Paylor was harmless error. We conclude, however, that Waldron was prejudiced by the impeachment of Williams, and on that ground we reverse his convictions.
Our case law interpreting the surprise statute, D.C. Code § 14-102 (1989), *fn6 makes clear that "a party may impeach its own witness only if it has been taken by surprise by the witness' testimony and can demonstrate affirmative damage to its case. . . . Affirmative damage is sustained when the witness' testimony has tended to injure or destroy the party's case." Hawkins v. United States, 606 A.2d 753, 758 (D.C. 1992) (citations omitted and emphasis added). Prior statements by the witness "can be used only to neutralize affirmative harm, and not 'to supply the anticipated testimony.'" Jefferson v. United States, 558 A.2d 298, 301 (citations omitted), modified on other grounds, 571 A.2d 178 (D.C. 1989), cert. denied, 493 U.S. 1032, 110 S.Ct. 748, 107 L.Ed.2d 765 (1990). "The trial court exercises broad discretion in determining whether a party can impeach its own witness, and this court will disturb a trial court's finding of surprise only if the ruling is without any rational basis, i.e., a very deferential standard of abuse of discretion." Hawkins v. United States, supra, 606 A.2d at 759 (citations omitted).
The first claim of surprise came during Glennette Williams' testimony about the July shooting. Asked by the prosecutor whether Waldron or Julian fired first, Williams responded that she did not know. At a bench conference which followed, the prosecutor told the court that this testimony was a surprise because she had previously spoken with Williams on several occasions, and Williams had always said that she saw Waldron shoot first. *fn7 Over the objection of Waldron's counsel, the court ruled that Williams' testimony constituted affirmative harm to the government's case because it went "to the heart of whether or not was acting in self-defense."
When direct examination resumed, the prosecutor asked the following questions:
Q. As to the question, Miss Williams, of who shot first, you say you don't recall now?
A. Well, really it seemed like Eric pulled his first, though. It really seemed like ...