Appeal from the Superior Court of the District of Columbia; (Hon. Gladys Kessler, Trial Judge)
Before Rogers, Chief Judge, and Ferren and Wagner, Associate Judges. Opinion for the court by Associate Judge Ferren. Opinion by Associate Judge Wagner, Concurring in part and Dissenting in part.
The opinion of the court was delivered by: Ferren
FERREN, Associate Judge : A jury convicted appellant of first degree murder while armed, D.C. Code §§ 22-2401, -3202 (1989 & 1991 Supp.), assault with intent to kill while armed, id. at §§ 22-501, -3202, assault with a dangerous weapon, id. at § 22-502, and carrying a pistol without a license, id. at 22-3204. Appellant contends the trial court erred when it (1) permitted the government to cross-examine him about his positive urine test for PCP administered five days after the shooting and (2) allowed, under the spontaneous utterance exception to the hearsay rule, the testimony of a police officer who recounted a government eyewitness's lengthy statement to the officer. Appellant also alleges three instances of prosecutorial misconduct, arguing that the government improperly impeached him with his post-arrest silence, his pre-arrest silence, and a prior inconsistent statement the government failed to disclose to the defense before trial. While we address appellant's three claims of improper impeachment and agree with appellant on two of them, we need not assess the prejudice from these improprieties because we reverse appellant's convictions on the first two grounds and remand for a new trial. *fn1
Lionel Harris was shot and killed on March 12, 1988. At trial, appellant admitted he had shot Harris but maintained he had shot him in self-defense. Appellant's first trial ended in a mistrial because the jury was unable to reach a unanimous verdict.
On the afternoon of March 12, Harris and his friend, Kent Jones, drove out to Hains Point, where they each drank three beers and had a half pint of cognac. Then they drove to the parking lot of Peoples Drug in Georgetown, parked, and walked down Wisconsin Avenue. After eating and placing a phone call, the two walked by a record store in which Jones saw Carlette Watkins, whom Jones recognized from junior high school. According to Jones's testimony, after he and Harris entered the store, he approached Watkins and said, "Hi, how you doing?" When Watkins did not respond, Jones asked her if she remembered him, and she replied she did not. Jones testified that appellant, standing three or four feet away, gave him "a mean look," at which point Jones suggested to Harris that they leave. They walked back to the drugstore parking lot.
According to Jones, as he and Harris were standing in the lot urinating, appellant and Watkins walked into the lot and passed them. As Appellant walked over to his car, Watkins said, "Don't do it, don't do it." At the car, appellant pulled out something long and silver that he stuffed into his pants. After Watkins sat down in the car, appellant approached Jones and Harris, and Jones said, "I know her, I was just speaking to her and that's all."
Appellant responded, "No, no you don't know her," and fired a shot at Jones from fifteen to twenty feet away. The bullet missed. Appellant ran over to the driver's side of Harris's car, where Harris was sitting, and began hitting Harris in the face with the gun. At that point Jones ran out of the lot to get help but bumped into a man later identified as appellant's friend, Ivan Jones ("Whitey"). Kent Jones said Whitey tried to grab him and punched him in the side of the head. When Kent Jones returned to the parking lot a few minutes later, he found Harris lying and bleeding on a nearby sidewalk. Jones claimed that neither he nor Harris had a gun that night and that he had never seen Harris with a gun.
The government also called Whitey as a witness. He testified that, after leaving the record store, he had heard a noise "like a firecracker." As he walked to the lot he bumped into a man (Jones) who was running. When Whitey reached the lot he saw appellant and Harris fighting. Whitey tried to break it up, appellant pushed him away, Whitey continued to the car, and appellant followed soon thereafter. Appellant did not tell him or Watkins what had happened, but a few days later appellant told Whitey that Harris had "disrespected girlfriend."
Jonathan Maxson also testified for the government. He said that he was sitting in his car in the drugstore parking lot when he heard a gunshot. Two men ran in front of his car, one of whom -- later identified as appellant -- had a gun. Appellant pointed the gun at Maxson, who accelerated his car to hit him. When appellant jumped out of the way, Maxson drove off to find a policeman. When the police arrived on the scene, Harris was lying on the sidewalk, dead.
Appellant Lyons testified in his own defense, claiming that he had shot Harris in self-defense. Appellant said that he, Watkins, and Whitey had gone into the record store so that Whitey could buy a tape. As appellant and Whitey were waiting at the front counter, Whitey informed appellant that two men were bothering Watkins at the rear of the store. When appellant walked over to Watkins, she told him that Jones and Harris had been following her around. By that time Jones and Harris were leaving the store. After a few minutes, Lyons saw Whitey at the counter purchasing his tape, so he and Watkins decided to head for their car, which was parked in the Peoples Drug parking lot.
According to appellant, Jones and Harris harassed him and Watkins as they made their way to the car. After Watkins had gotten into the car, Jones and Harris continued to swear at them. Appellant then approached the two. An argument developed, and Harris came toward appellant with a gun. Appellant was able to knock the gun to the ground. He and Harris went for it, appellant got to it first, and, as Harris came toward him, appellant fired one shot, which hit Harris. After Harris fell to the ground, appellant ran back to his car and fired a shot at another car that he believed was coming at him. Appellant jumped out of the way of the car. By this time Whitey had returned to the lot; he helped appellant back to his car. Appellant drove home, and, after realizing he still had the gun, he threw the gun down a sewer.
Carlette Watkins, for the defense, testified that she had not seen a gun in appellant's car that day and that appellant had not shown her a gun that night. When she and appellant left the record store and entered the parking lot, Jones and Harris smiled at her and "wriggled their penises." She and appellant kept walking to their car as Jones and Harris repeatedly called her a "bitch." After appellant unlocked the car door for Watkins, she believed he was mad enough to start a fight with them. He left the car and approached Jones and Harris with only his keys in his hand. As the three men argued, Watkins turned on the radio loudly enough so that she could not hear them. The car was facing the wall so Watkins could not see or hear anything. When appellant returned to the car with Whitey a few minutes later, he was quiet and refused to tell her what had happened.
Several days later, after he heard from his parents that the police were looking for him, appellant turned himself in to the police. One day after his arrest and five days after the shooting, appellant's urine tested positive for PCP.
We first address appellant's three complaints of prosecutorial misconduct. Initially, we conclude that appellant's complaint that the prosecutor commented on his post- Miranda *fn2 silence in violation of Doyle v. Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976) has no merit. *fn3 His other two complaints of misconduct, however -- the prosecutor's impeachment of appellant both with his pre-arrest silence and a prior inconsistent statement the government failed to disclose to the defense before trial -- have merit.
On cross-examination, the prosecutor -- over objection that was immediately overruled in each instance -- repeatedly asked appellant why he did not tell his friends, Watkins and Whitey, in the car immediately after the shooting that he had acted in self-defense (as he had testified on direct) when they asked "what happened." Appellant replied he was "scared to death." The prosecutor then highlighted in closing argument appellant's failure to explain to his friends what had happened, reflecting a proffered inconsistency with his later self-defense testimony at trial. The government argues that such impeachment by "omission" was proper under our line of cases beginning with Hill v. United States, 404 A.2d 525, 531 (D.C. 1979) (per curiam), cert. denied, 444 U.S. 1085, 62 L. Ed. 2d 770, 100 S. Ct. 1042 (1980). We disagree. Although it is appropriate to give a prosecutor leeway to inquire into a testifying defendant's state of mind surrounding an incident for which the defendant has claimed self-defense, we conclude that, in this case, the trial court erred in allowing the government, over objection, to impeach appellant with his failure to tell his friends his version of events immediately after the shooting and to explain to them that he had acted in self-defense.
In Hill the defendant, claiming self-defense, testified at trial that he had heard gunshots and that the decedent had come running toward him carrying a pistol. Hill, 404 A.2d at 531. In his statement to the police after receiving his Miranda *fn4 warnings, however, he had failed to mention these two exculpatory facts. The prosecutor impeached the defendant with his failure to mention such important details when he voluntarily told the police, soon after arrest, what had happened. On appeal, he claimed that the prosecutor had "unconstitutionally impeached his testimony by calling attention to his post-arrest silence." Hill, 404 A.2d at 529 (footnote omitted).
Distinguishing Doyle, supra, and United States v. Hale, 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133 (1975), this court held that if the trial court, in the exercise of its discretion in determining admissibility of impeachment evidence, finds that a defendant's voluntary pretrial statement "'fails to mention a material circumstance'" which the defendant mentions at trial but which also "'would have been natural to mention in the prior statement,'" the prior statement constitutes a prior inconsistent statement which the government may use to impeach the defendant at trial. Hill, 404 A.2d at 531 (quoting E. CLEARY, MCCORMICK ON EVIDENCE, § 835 at 68 (2d ed. 1972)); accord Martin v. United States, 452 A.2d 360, 363 (D.C. 1982); see also Outlaw v. United States, 604 A.2d 873, 879 (D.C. 1992). More specifically, Hill requires the following three-part test for admissibility of an omission as a prior inconsistent statement:
 The pretrial statement to be admissible for impeachment purposes should purport to address the facts surrounding the commission of the alleged offense.  The prosecutor . . . must apprise the trial court of the omitted facts to be relied upon as showing inconsistency and  the court must consider whether such facts are sufficiently material that the failure to have mentioned them amounts to inconsistency.
Hill, 404 A.2d at 531 (bracketed numbers added).
Thus, absent a threshold trial court finding of a material inconsistency, a defendant's pretrial failure to state a fact that he or she later states at trial "may not have the probative value which would allow its admission at trial for impeachment purposes." Martin, 452 A.2d at 363. Once the trial court finds a material omission and allows the government to use it to impeach the defendant, however, the jury may then consider the inconsistency in judging the defendant's credibility.
In some cases we have concluded that, even though the defendant had made a brief statement to a government official (almost always a police officer), the government failed to meet its burden of showing that it would have been natural for the defendant to have provided the officer with all the details the defendant later provided at trial. See, e.g., Walker v. United States, 402 A.2d 424, 427 (D.C. 1979); Sampson v. United States, 407 A.2d 574, 579 (D.C. 1979) (per curiam); Martin, 452 A.2d 360, at 363-64; Beale v. United States, 465 A.2d 796, 805 (D.C. 1983), cert. denied, 465 U.S. 1030, 79 L. Ed. 2d 694, 104 S. Ct. 1293 (1984); see also Outlaw 604 A.2d at 879. In other cases, we have upheld the trial court's finding of a material omission because it would have been natural for the defendant to note in his or her statement to a police officer the details the defendant later included in trial testimony. See, e.g., Hill, 404 A.2d a t 532; Ford v. United States, 487 A.2d 580, 587 (D.C. 1984); Dixon v. United States, 565 A.2d 72, 79-80 (D.C. 1989).
Under Hill and its progeny, a material fact is "natural to mention" when a person purports to give a complete account of "the facts surrounding the commission of the alleged offense." Hill, 404 A.2d at 531. Moreover, in this court's previous criminal cases involving alleged material omissions and their admissibility for impeachment purposes, with one exception the defendant had made his or her pretrial statement to a police of ficer. *fn5 WIGMORE, on which we relied in Hill, 404 A.2d at 531, lists several categories of cases where courts have found t hat a defendant failed to assert a fact "when it would have been natural to assert it." 3A WIGMORE, EVIDENCE § 1042 at 1056 (Chadbourne rev. 1970) (emphasis deleted). Such cases include those where defendants have made "omissions in legal proceedings to assert what would have been asserted naturally under the circumstances," or "omissions to assert anything, or to speak with such detail or positiveness, when formerly narrating, on the stand or elsewhere, the matter now dealt with [at trial]. Id. at 1056-57 (emphasis in original) (footnotes citing cases omitted); see also, J. STRONG, 1 MCCORMICK ON EVIDENCE § 34, at 114-15 (4th ed. 1992) ("If the former statement fails to mention a material circumstance presently testified to, which it would have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent" for the court to allow impeachment.). In sum, the WIGMORE standard for impeachment by pretrial material omission we adopted in Hill -- and which we have consistently applied in subsequent cases -- requires that the defendant must have made the alleged omission in what appears to have been a complete statement of events surrounding the crime, typically in response to questioning by a police officer. *fn6 Absent such context in which a speaker purports to tell all for a discernible reason, it is too speculative to say it would have been "natural" to state an omitted fact.
There are good reasons for this limitation. For example, in this case immediately after the shooting, neither Watkins nor Whitey accused appellant of shooting Harris; they simply asked appellant "what happened." He declined to tell them, neither admitting nor denying the shooting. He had no obligation or other discernible reason to say anything. In this context, therefore, where appellant had neither been accused of nor admitted the crime -- and he was not purporting to give a complete account of what had happened, as in a statement to the police -- it would not have been "natural" for him to have volunteered a reason why he shot the victim. Indeed as a general proposition, in contexts involving family, friends, or acquaintances, whether it would be "natural" for someone to mention all the details of a crime that he or she later mentions at trial would depend on a myriad of subjective, intangible factors that are not readily discernible given the many possible types of personal relationships -- some close, others not so close. There may be any number of reasons why appellant did not tell his friends details about the shooting -- even friends, as in this case, whom he admittedly trusted. *fn7 For example, he may have been trying to protect his friends by limiting their involvement, a motive wholly unrelated to the issue of his credibility at trial. Or, he may simply have been afraid. To permit a jury to draw an inference of guilt from a suspect's failure to tell friends "what happened" immediately after a shooting would be to permit rank speculation, to the severe prejudice of the accused, without corresponding probative value. See United States v. Hale, 422 U.S. at 176 ("In most circumstances silence is so ambiguous that it is of little probative force."); cf. Jenkins v. Anderson, 447 U.S. 231, 239, 65 L. Ed. 2d 86, 100 S. Ct. 2124 (1980) (In federal courts, "prior silence cannot be used for impeachment where silence is not probative of a defendant's credibility and where prejudice to the defendant might result.").
In contrast to the fact situations in all the cases the government cites in its brief and the additional ones we cite above, appellant in this case declined to answer questions posed by his friends -- not by a police officer or government official -- immediately after the incident and, therefore, at this time did not make any statement at all. *fn8 Appellant merely refused to respond to his friends' general questions of "what happened"; he did not take advantage of a pretrial opportunity to "go on record" to explain to a police officer or someone else what had happened. Nor is there a discernible reason of record why appellant would have been expected to volunteer information even to trusted friends in these circumstances.
We conclude, accordingly, that appellant's nonstatement to his friends fails to meet the foundation requirement of Hill for establishing a material pretrial omission. Thus, there was no impeachable inconsistency between appellant's claim of self-defense at trial and his refusal immediately after the shooting to explain to his friends what had happened. The trial court therefore erred in allowing the prosecutor, over objection, to impeach appellant with ...