March 16, 1993
LEWIS LYONS, APPELLANT
UNITED STATES, APPELLEE
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 the fact that he did not tell his friends immediately after the shooting that he had shot Harris in self-defense. *fn9
Because appellant testified that he had shot Harris in self-defense, he admitted at trial that he had been present at the scene of the shooting. On cross-examination, the prosecutor attempted to impeach appellant with a prior inconsistent statement. After defense counsel's objection, the prosecutor proffered that appellant initially had told police he had not been in Georgetown on the night of the shooting. Defense counsel responded that the government had never disclosed that statement to the defense, despite the government's obligation to do so under Super. Ct. Crim. R. 16, and despite the fact that this was appellant's second trial. Although the trial court expressed concern over whether the government had failed to meet its obligations under Rule 16, at that time it refrained from making a clear ruling on defense counsel's objection.
Soon thereafter, the prosecutor again attempted to impeach appellant with his alleged statement to the police. Defense counsel again objected, but this time the trial court overruled the objection. When the prosecutor again posed the impeaching question, defense counsel objected and this time moved for a mistrial. At that point the trial court ruled preliminarily that the prosecutor could not go into that line of questioning until he could prove the government had previously disclosed the prior inconsistent statement to the defense.
The next day, the prosecutor admitted that the government had not disclosed the alleged oral statement, even though he now had a police officer who would testify that appellant had initially denied being in Georgetown that night. This time the trial court ruled:
I think the defense is correct. Clearly the statement should have been turned over. That's number one. Number two, clearly it is not just disadvantageous but extremely prejudicial in that it is an outright denial of even being in Georgetown. I can't guess as to what the defense strategy would have been if they had known about the statement.
After the court's ruling, the prosecutor promised that he would "stay away from" questions intended to impeach appellant's trial testimony on the ground that appellant had initially denied being in Georgetown. Despite that promise, however, the prosecutor attempted to impeach appellant yet one more time with the same statement, whereupon the trial court sustained appellant's objection yet again.
The government must disclose, upon defense request -- as the defense requested in this case -- the substance of any oral statement of the defendant in response to interrogation by any person the defendant knows is a government agent. Rosser v. United States, 381 A.2d 598, 604 (D.C. 1977); Super. Ct. Crim. R. 16 (a)(1)(A). After such a request is made, the government has a duty to disclose a defendant's oral statement "in enough detail to minimize the undesirable effects of surprise at trial and otherwise contribute to the fair and efficient administration of criminal Justice." Thomas v. United States, 444 A.2d 952, 953 (D.C. 1982); accord Smith v. United States, 491 A.2d 1144, 1147 (D.C. 1985). "Otherwise, the integrity of the criminal process cannot be preserved." Smith, 491 A.2d at 1147.
Super. Ct. Crim. R. 16 (d)(2) specifically grants the trial court discretion, among other things, to prohibit the prosecutor from using a defendant's statements as a sanction for not complying with 16 (a)(1)(A) or any other part of Rule 16. This was the appropriate sanction chosen by the trial court. The prosecutor unquestionably acted improperly in attempting to use appellant's statement to impeach him without first assuring that someone from the U.S. Attorney's office had previously disclosed it to defense counsel. It was even worse for the prosecutor to attempt to impeach appellant with the statement after the trial court had ruled he could not do so.
Because we reverse and remand for a new trial on other grounds, see Parts III.-V., below, we need not decide whether the prosecutor's misconduct resulted in substantial prejudice requiring reversal. See, e.g., Mitchell v. United States, 569 A.2d 177, 183 n.5 (D.C.), cert. denied, 498 U.S. 986, 111 S. Ct. 521, 112 L. Ed. 2d 532 (1990) (setting forth "substantial prejudice" standard for reviewing claims of prosecutorial misconduct when defendant objected at trial). Furthermore, we leave it to the trial court to decide whether to allow the government to use the statement in a third trial, given the government's noncompliance with Rule 16 and the unexplained initial appearance of the statement sometime between the first trial and the prosecutor's cross-examination of appellant during the second trial. In deciding that issue, the trial court has considerable discretion under Rule 16 (d)(2) to do "as it deems just under the circumstances" in order to preserve the integrity of the criminal adversary process. See Smith, 491 A.2d at 1147; Cotton v. United States, 388 A.2d 865, 869 (D.C. 1978) (listing factors guiding trial court discretion in determining proper sanction, including degree of government bad faith or negligence).
As part of appellant's self-defense theory at trial, Dr. Jeffrey Janofsky, an expert in forensic psychiatry, testified that Harris's toxicology report showed that Harris had PCP and alcohol in his bloodstream at the time of his death. Dr. Janofsky stated that because PCP was in Harris's blood, it was affecting Harris's brain at that time, although it was impossible to tell what the exact effect was. The doctor did note that people under the influence of PCP exhibit a wide range of effects, the most common being extreme agitation or even violent and threatening behavior. He also testified that, in general, the drug has a significant effect on a person's judgment. In contrast to the immediate (though uncertain) effects indicated by a positive blood test for PCP, Dr. Janofsky testified on cross-examination that it is "fair to say" someone whose urine tests positive for PCP could have used the drug anywhere up to two weeks before the test.
The government requested permission to question appellant about his use of PCP, arguing that the positive test five days after the incident, coupled with Dr. Janofsky's testimony that PCP remains in the urine for up to two weeks, provided a sufficient evidentiary foundation. The defense objected and proffered that appellant would deny he had used PCP before or on the day of the shooting and that, therefore, there was no basis to allow the jury to infer that appellant was under the influence on the critical day.
Although agreeing with the defense "that there is certainly prejudicial impact from presenting this testimony or this evidence to the jury," the trial court determined that there was a sufficient foundation and that the probative value of such testimony outweighed its prejudice, because one of the main issues in the case was whether appellant or Harris "was the aggressor." The court, however, limited the scope of the prosecutor's questioning and told him to ask his questions in the following order: (1) was appellant under the influence of PCP at the time of the offense? and (2) did appellant test positive for PCP five days later? Only if appellant answered "no" to the second question could the prosecutor attempt to impeach appellant with extrinsic evidence of the drug test.
The prosecutor, however, asked the following series of questions:
Q: Well, Mr. Lyons, you fired the gun; didn't you?
A: Well, my hand was on the trigger, yes it was.
Q: And you purposefully fired the trigger?
A: No, I didn't purposefully fire the trigger.
Q: First of all, Mr. Lyons, you tested positive for PCP on March 17, 1988.
At that point defense counsel objected. The trial court sustained the objection and told the prosecutor to ask the questions in the properly agreed upon order. The prosecutor then asked appellant:
Q: Mr. Lyons, you were under the influence of PCP on March 12, 1988, the day that young man was shot; weren't you?
A: No, I wasn't.
Q: But you did test positive for PCP five days later on March 17, 1988 when you were arrested and brought into court; didn't you?
A: Yes, sir.
Q: Had you used PCP prior, Mr. Lyons, prior to the night of that shooting in a two-week period prior to the night of the shooting?
A: No, I didn't. I had used it about a day or two after this happened.
Q: So you are saying you used PCP after the shooting?
A: Yes, I did. I also -- well, I had used to use about maybe for the last during '87, early '87, I had used it but I had stopped.
The government's questioning of a defendant about his or her illegal drug use in front of the jury is a "highly inflammatory . . . allegation," United States v. Fowler, 151 U.S. App. D.C. 79, 83, 465 F.2d 664, 668 (1972), which may "generate unwarranted prejudice" from the jury, United States v. Sampol, 204 U.S. App. D.C. 349, 395, 636 F.2d 621, 667 (1980), because of " hostility based on the general odium of narcotics use," United States v. Kearney, 136 U.S. App. D.C. 328, 332, 420 F.2d 170, 174 (1969). Because evidence of a defendant's drug use is so prejudicial, such evidence is only admissible for specifically circumscribed purposes. Under no circumstances may evidence of a defendant's drug use be introduced as a general attack on credibility. See United States v. Leonard, 161 U.S. App. D.C . 36, 52, 494 F.2d 955, 971 (1974), cited with approval in Durant v. United States, 551 A.2d 1318, 1326 (D.C. 1988).
Evidence of a defendant's drug use is admissible when the government has established that it is relevant to the defendant's recollection or perception of eve nts surrounding the crime. See Durant, 551 A.2d at 1326-27. Under this rationale, however, the government may cross-examine a defendant regarding his or her drug use only after it first establishes an evidentiary foundation that the defendant was using drugs "at the time of the incident." Rogers v. United States, 419 A.2d 977, 981 (D.C. 1980); see Durant, 551 A.2d at 1326-28; cf. Smith v. United States, 315 A.2d 163, 168 (D.C.) (trial court did not err in excluding expert testimony regarding effect of drug on ability to see because party attempting to introduce testimony failed to establish witness had been under influence of drug on day in question), cert. denied, 419 U.S. 896 (1974). *fn10
The government argues that its cross-examination of appellant concerning his drug test was admissible both to impeach appellant's recollection and perception of events and to prove appellant's behavior and state of mind at the time he killed Harris, i.e., to show that he was on PCP at the time of the incident and that he was as likely as Harris to have been the aggressor. In this way, the government hoped to neutralize appellant's theory of self-defense based in part on the medical evidence that Harris had PCP in his bloodstream at the time of death. As the prosecutor put it in his closing argument:
So, ladies and gentlemen, what we have in the PCP arena is a wash. There is nothing that you can conclude from that evidence that tells you really anything about Lionel Harris' behavior, or I submit that tells you anything about Mr. Lyons' behavior on that night.
Both appellant and the government point us to Durant for guidance. In Durant, the government proffered a lab report indicating the detection of an unspecified amount of PCP in the defendant's urine on the day after the offense, along with evidence that the defendant had acted in a "bizarre" manner immediately after the incident. 551 A.2d at 1321, 1327. The trial Judge allowed the government to cross-examine the defendant on his use of PCP "for the purpose of testing his ability to remember the events surrounding the charged offense [assault with intent to rob]." 551 A.2d 1318, at 1321. In ascertaining the correct evidentiary principle to apply, this court reasoned that, although it would be permissible for the government to offer extrinsic evidence of a drug test to impeach a defendant's denial of being under the influence of drugs at the time of the offense, the government must first establish a sufficient evidentiary foundation that the defendant was in fact under the influence of drugs at the relevant time. See id. 551 A.2d 1318, at 1326 (citing Rogers, 419 A.2d at 981). We reversed in Durant, concluding that
the government's proffer of lab reports indicating an unspecified quantity of PCP in [defendant's] urine and no PCP in his bloodstream was inadequate, in view of [defendant's] unrebutted proffer and his denial of use on the date of the offense, to establish that was under the influence of PCP at the time of the offense. See United States v. Leonard, 161 U.S. App. D.C. 36, 52, 494 F.2d 955, 971 (1974). Hence, the evidence of his PCP use at some undetermined time prior to the events in question was not probative of impaired perception and memory and did not provide a sufficient evidentiary foundation for use as extrinsic impeachment evidence.
The government argues that Durant is different from this case because, in Durant, the issue was strictly impeachment of the defendant's memory and perception with extrinsic evidence, while here the prosecutor never introduced the positive urine test. We find the government's logic unpersuasive. The prejudice -- as the trial court recognized in this case -- was that the jury found out about appellant's illegal drug use and therefore might have drawn an impermissible inference that appellant was a "bad" person who probably committed the crime or was lying about it. Cf. Thompson v. United States, 546 A.2d 414, 424 (D.C. 1988) (explaining that danger of "other crimes" evidence is that it may prejudice jury against defendant). That the jury learned of appellant's PCP use through his own testimony on cross-examination rather than through extrinsic evidence is a distinction without meaning in this case.
The government also argues that the drug test, along with Dr. Janofsky's testimony that someone whose urine tests positive for PCP could have used the drug anywhere up to two weeks before the test, provide a sufficient evidentiary foundation under Durant to allow the prosecutor's questioning of appellant about his positive drug test. We disagree. The test under Durant is whether the government has proffered a sufficient evidentiary foundation that the defendant was "in fact under the influence of drugs at the relevant time." Durant, 551 A.2d at 1326. Dr. Janofsky's general statement and the positive urine test five days after the shooting do not tend to show that appellant was "in fact under the influence of drugs" when he shot and killed Harris. The jury could only speculate whether appellant had ingested the PCP eight days before, one day before, or three days after the incident, and would have to further speculate as to the effect the PCP might have had -- if ingested before the shooting -- on appellant's behavior at the relevant time. *fn11
we are persuaded that the evidence adduced by the government [expert's general statement that PCP stays in the urine up to two weeks and appellant's positive urine test for PCP several days after the incident] provided too slim a reed to support a Conclusion that was under the influence of PCP at the time of those events, or had consumed PCP at such time as it would have been reasonable for the jury to infer that the PCP was affecting [appellant's] behavior or ability to perceive and recall events.
Durant, 551 A.2d at 1328 (emphasis added). The trial court erred in allowing the government to question appellant about the drug test.
Appellant next argues that the trial court erred when it allowed the testimony of Officer Roy Brown under the exception to the hearsay rule known, alternatively, as excited utterance, spontaneous utterance, or spontaneous exclamation. Using three pages of his own notes he wrote months after he had spoken with Jones, Officer Brown recounted in 685 words a statement he testified Kent Jones had made to him just after the shooting. *fn12
What constitutes a spontaneous utterance depends on the particular facts of each case. Price v. United States, 545 A.2d 1219, 1225-26 (D.C. 1988). There are, however, three requirements for admission of an out-of-court statement under this exception to the hearsay rule:
(1) the occurrence of a startling event which causes a state of nervous excitement or physical shock in the declarant, (2) a declaration made within a reasonably short period of time after the occurrence so as to assure that the declarant did not reflect upon the event and possibly fabricate [or premeditate] a statement, and (3) circumstances, which in their totality suggest spontaneity and sincerity of the remark.
Id. at 1226 (quotations omitted); accord Alston v. United States, 462 A.2d 1122, 1126-27 (D.C. 1983); Nicholson v. United States, 368 A.2d 561, 564 (D.C. 1977). If any of these three requirements is not met, an out-of-court statement does not have sufficient reliability for admission as an exception to the hearsay rule. The ultimate question, therefore, is whether the statement, as reported at trial, *fn13 was "a spontaneous reaction to the exciting event" rather than "the result of reflective thought." E. CLEARY, MCCORMICK ON EVIDENCE, § 297 at 856 (3d ed. 1984), cited with approval in Price, 545 A.2d at 1227.
Nicholson provides a classic example of an out-of-court statement that meets the requirements of spontaneity. Someone asked the victim of a stabbing what had happened. Her last statement before dying -- as repeated at trial -- consisted of three words which, according to the government, identified her assailant: "Irene, Irene, Irene." Nicholson, 368 A.2d 561, at 564. As another example, In James v. United States, 580 A.2d 636 (D.C. 1990), this court remanded for the trial court to revisit its evidentiary ruling as to whether the declarant's four word statement, "Keith shot at Ben," was spontaneous in light of the declarant's earlier statements. 580 A.2d 636, at 645-46.
In Price, the declarant was the defendant's girlfriend, who, shortly after the victim had been shot by the defendant, spoke with the victim's brother on the telephone. In response to his questioning, the defendant's girlfriend kept repeating, "I didn't know he was going to do that" and gave the name of the defendant as the shooter. 545 A.2d at 1221. In Young v. United States, 391 A.2d 248, 250 (D.C. 1978), the decedent had stated to police officers on the scene of his stabbing that "Big Junior" had stabbed him and had asked an officer to "Give me your gun and I'll go get him" and to "Just bandage me up so I can go and kill him." This court concluded that the declarant's statements "were not made under the impetus of reflection." Id.
In contrast to the above cited cases and others we have examined, in this case Officer Brown did not just repeat discrete words or sentences uttered by the declarant. Instead, the officer related in his own words all the information Jones gave him during the officer's interview of Jones about the incident. In so doing, Officer Brown -- relying on three pages of his own notes -- gave a detailed blow-by-blow chronological narrative of Jones's account of events from the moment Jones and Harris entered the record store through Jones's reaction after the shooting. Although we do not question the officer's good motives in trying to reconstruct as accurately as possible Jones's statement to him, the officer's testimony is in fact his own account of what Jones told him during a lengthy police interview.
Such an elastic use of the spontaneous utterance exception would swallow the rule against out-of-court statements anytime the police interview an upset witness to a startling event. Although the exception allows the police to repeat discrete statements by an eyewitness, it does not permit the police to state on the stand what is, in effect, an independent account of the declarant's testimony at trial.
We conclude that the officer's 685-word report of his interview with Jones was not the in-court repeating of a declarant's "remark," Price, 545 A.2d at 1226, constituting a "spontaneous reaction to the exciting event." E. CLEARY, MCCORMICK ON EVIDENCE, § 297 at 856. The totality of the circumstances -- including the chronological narrative form of Officer Brown's in-court report of Jones's lengthy statement to the police -- show a lack of spontaneity. See Nicholson, 368 A.2d at 564. We therefore conclude that the trial court's decision to admit Jones's declaration through Officer Brown's testimony was clearly erroneous.
Having found the trial court erred in making two discretionary evidentiary rulings, see Parts III. and IV. above, we now ask whether the two errors combined are "of a magnitude to require reversal." Johnson v. United States, 398 A.2d 354, 366 (D.C. 1979) (italics omitted). In so doing, we "weigh the severity of the error against the importance of the determination in the whole proceeding and the possibility for prejudice as a result." Id. at 367. We conclude that the errors had "a possibly substantial impact upon the outcome," id. at 366, requiring reversal.
First, the trial court's error in allowing the government to question appellant about his positive urine test for PCP placed him in a no-win situation. On the one hand, if he had denied the drug test, the trial court would have allowed the government to impeach his veracity with the lab report. On the other hand, because he admitted he had used PCP, the jury heard both the government's accusatory question and appellant's own admission that he had used illegal drugs close to the time he shot and killed Harris. As the trial court observed, "there is certainly prejudicial impact" when the government questions a defendant about his or her drug use in front of the jury.
The court's ruling also opened the door for the prosecutor to go one step further in closing argument by telling the jurors that it was up to them to decide whether appellant had been under the influence of PCP at the time of the shooting:
You also know that Lewis Lyons, when he was arrested four or five days later, he had PCP in his system, too. Now, of course, Mr. Lyons was able to get on the stand and testify that he did not use that before this crime occurred, that he used it after the crime occurred. But, I submit to you that is something for you to decide.
If you decide -- you can decide whether or not Mr. Lyons is telling you the truth about that, and if he had used it before the event, do you think he would get up on the witness stand and tell you that he was under the influence of PCP when this crime occurred?
So what you got is evidence of both people [appellant and the deceased] having PCP in their systems at a time that is very close to when this occurred. And you know what? That doesn't tell you anything. . . .
So, ladies and gentlemen, what we have in the PCP arena is a wash.
Because the government did not establish that PCP was in fact in appellant's system at the time of the shooting, it was not entitled to that "wash." Thus, the trial court's error allowed the government to neutralize by unfair means an important part of appellant's self-defense theory: his claim that Harris was the aggressor, supported by the toxicology report showing that Harris had PCP in his bloodstream at the time of death and Dr. Janofsky's expert testimony explaining that evidence. See supra note 9. Moreover, the court's error allowed the jury to misuse the expert's testimony about the effects of PCP in assessing appellant's own behavior, without probative evidence that appellant was under the influence of PCP at the time of the shooting.
Second, as a result of the trial court's error in permitting the government to introduce Officer Brown's testimony reporting Kent Jones's account of what happened under the spontaneous utterance exception to the hearsay rule, the prosecutor was able to highlight the officer's testimony in his closing argument:
Equally as important as what Ivan Jones said to corroborate Kent Jones is Officer Roy Brown. Ladies and gentlemen, you heard Officer Brown testify as to what Kent Jones told him in his cruiser that same night within half an hour, an hour at the most, of when the shooting occurred, of what Kent Jones told him after Kent Jones had come back to the scene and seen his close friend dying, bleeding on the sidewalk.
Ladies and gentlemen, that corroborates Kent Jones because it tells you that what he told you up here on the witness stand was exactly what he told the police right there on the scene . . . .
Doesn't that provide important corroboration for Kent Jones? Doesn't that tell you that what he has told you on the witness stand is telling you the truth?
Thus, the prosecutor effectively used Officer Brown's 685-word account of what Jones told him as a prior consistent statement both to bolster Jones's credibility and to corroborate Jones's testimony.
As the above-quoted portions of the prosecutor's closing argument reveal, evidence of appellant's positive urine test for PCP and Officer Brown's testimony about what Kent Jones had said were fundamental components of the government's case. Because that evidence went to the heart of the credibility contest between appellant and Jones -- the only witnesses who testified as to what happened in the struggle between appellant and Harris -- it was critical to the jury's decision. We therefore conclude that the trial court's errors "jeopardized the fairness of the proceeding as a whole." Johnson, 398 A.2d at 366. Accordingly, we reverse and remand for a new trial.
Reversed and remanded.
WAGNER, Associate Judge, Concurring in part and Dissenting in part: I concur in the decision of the court reversing appellant's convictions for the reasons set forth in Parts III. through V. of the opinion. However, I respectfully Dissent from Part II. A. of the opinion. In my view, the use of an accused's non-custodial silence as evidence is not restricted to a material omission from what purports to be a complete account of what happened. Rather, an accused's complete silence may also be admitted as evidence where he or she fails to assert a fact under other circumstances where it would have been natural to do so. Jenkins v. Anderson, 447 U.S. 231, 238-39, 65 L. Ed. 2d 86, 100 S. Ct. 2124 (1980); Tucker v. Francis, 723 F.2d 1504, 1510-11 (11th Cir. 1984); State v. Brown, 118 N.J. 595, at 613, 573 A.2d 886, 895 (1990); Skipper v. Commonwealth, 195 Va. 870, at 875, 80 S.E.2d 401, 404 (1954); see also United States v. Kilbourne, 559 F.2d 1263, 1265 (4th Cir.), cert. denied, 434 U.S. 873, 54 L. Ed. 2d 152, 98 S. Ct. 220 (1977); United States v. Hoosier, 542 F.2d 687, 688 (6th Cir. 1976). Under this generally recognized principle, such evidence is considered "an assertion of the nonexistence of the fact" and is regarded prima facie as an inconsistency. Skipper, 195 Va. at 875, 80 S.E.2d at 404 (citing WIGMORE ON EVIDENCE § 1042 at 733 (3d ed.)). This court has sanctioned the admissibility of such evidence as probative on the issue of credibility, inter alia. Ester v. United States, 253 A.2d 537, 538 (D.C. 1969). In Ester, the appellant claimed at trial that he witnessed, rather than participated in, an assault and that he was only running after the assailant when he was mistakenly identified as the perpetrator. Id. We upheld the trial court's decision allowing the prosecutor to question Ester and to argue later about Ester's failure to wait and tell the police prior to arrest that he only witnessed the assault. Id.
A threshold requirement for admissibility in the case of complete silence, as it is with our precedents governing the admissibility of material omissions, *fn1 is whether it can be inferred that a reasonable person similarly situated would have come forward naturally with a statement or response. Brown, supra, 573 A.2d at 895. In my opinion, that question must be answered in the affirmative in this case. Here, there was every reason for one in appellant's position to offer an exculpatory, self-defense explanation to his companions that night when one of them asked him what happened. Appellant had just returned to the car following the shooting with a gun which purportedly he did not have before the shooting. It was then that appellant's girlfriend of six years first asked appellant, in the presence of another trusted friend, what happened. Moreover, both of appellant's companions were material witnesses upon whom he would be expected to rely to support his version of the events that night. Under the circumstances, it would have been natural for appellant to share his self-defense claim with them when his girlfriend asked what happened. Whatever reason appellant might have had for not doing so does not affect the admissibility of the evidence. Of course, an accused is at liberty to offer such explanations at trial. Skipper, (supra) , 195 Va. at 875, 80 S.E.2d at 404; see also Allen v. United States, 603 A.2d 1219, 1223 & n.6 (D.C. 1992) (en banc). *fn2 It is then appropriately left to the jury to determine the plausibility of the subsequently disclosed self-defense claim in light of appellant's conduct immediately after the shooting and any evidence offered in explanation of it. See 603 A.2d 1219, at 1222-23. *fn3 For the foregoing easons, in my view, all the requirements for admissibility were met, and the inferences to be drawn from that evidence were appropriate for consideration by the jury.