Appeal from the Superior Court of the District of Columbia; (Hon. John H. Suda, Trial Judge)
Before Rogers, Chief Judge, Farrell, Associate Judge, and Pryor, Senior Judge.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge: Appellant Maurice W. Morris appeals his convictions *fn1 by a jury on the grounds that (1) the trial Judge erred in allowing an improper missing witness argument and improper comment on appellant's post-arrest silence during cross-examination and closing argument, (2) the trial Judge erred in refusing to admit evidence of other crimes committed by a third person, and (3) appellant's conviction for assault with a dangerous weapon merged with the conviction for attempted robbery while armed. We hold that the government did not make a missing witness argument, and we find no reversible error under the circumstances as a result of the prosecutor's reference to appellant's post-indictment failure to tell others who were present at the shooting to speak with law enforcement authorities. We also hold that the trial Judge did not abuse his discretion in excluding certain evidence of the other crimes of a third person. Accordingly, except for a remand to address the merger of certain convictions, we affirm.
The grand jury returned a nine-count indictment charging appellant with crimes occurring on July 15, 1989. At trial, appellant presented a misidentification defense, admitting that he was at the crime scene but maintaining that the crimes were committed by Maurice Glenmore, who resembled appellant.
Vincent Flythe, the victim of the attempted robbery, testified that on July 15, 1989, he was standing on the corner of 12th and Hamlin Streets, N.E., when three or four masked "boys" ran around the corner, shooting in the air. One of the masked men ran up to Flythe, put a gun to Flythe's stomach, and pulled the trigger three times. Flythe saw sparks and heard a loud popping noise, but was not shot. Someone said, "give us your money." Flythe, claiming they were shooting blanks, told Tony Reed, who was using a public telephone nearby, to run. Flythe ran in one direction and Tony Reed ran in another. Flythe heard Tony Reed scream, ran back, and saw Tony Reed lying on the ground. Tony Reed died later that night of four gunshot wounds.
An eyewitness, Octavia Brown, testified that on July 15, 1989, around 9:30 p.m., she was at 3006 12th Street, N.E. She heard gunshots coming from the direction of the corner of 12th and Hamlin. She looked out the window and saw Tony Reed and Antonio Brox running in one direction while Vincent Flythe ran in another. Three "boys" were shooting at the fleeing men. The "boys" were wearing ski masks, and Ms. Brown could see that two of them had guns and that the third held his hands as if he had a gun, although she could not see his gun. One of the masked men stopped in the middle of the street and "kept shooting" at Tony Reed and Antonio Brox, Tony Reed's cousin. Tony Reed fell to the ground as the shooter continued shooting at Tony Reed's brother, Randy Reed.
Ms. Brown explained that she was able to see the profiles of the two robbers when they removed their masks for about five seconds as Tony Reed was falling, that the masks were still off when Tony Reed's brother Randy arrived on the scene, and that the two men pulled their masks down again immediately when Randy Reed arrived. *fn2 She stated that "it was light enough, because the streetlights were on," although the assailants were not standing under a streetlight. She described the shooter as having "brown skin," with "big ears" and "big lips." The two assailants in the street were "shortish." One of the two assailants in the street pulled on the other one's shoulder, to signal him to leave. The third masked man, whom Ms. Brown described as the tallest of the three, was already running away.
Ms. Brown identified appellant in a photograph array about two days after the shooting and in a videotape of a lineup about two months thereafter. She also identified appellant in court as the shooter who had been standing in the middle of the street. In court, Ms. Brown was also shown photographs of appellant and Maurice Glenmore, who died in January 1990 and who appellant later argued was the real shooter. Ms. Brown admitted that the men in the two photographs looked similar, with big ears and prominent noses and lower lips. She claimed, however, that she could tell the two apart because one man had a darker complexion than the other. *fn3
A second eyewitness, Randy Reed, was the brother of the deceased. He testified that while he was running an errand shortly before the shooting, he saw an old brown and yellow car on 10th Street, N.E., and that upon returning from his errand, he saw the same car again on the corner of 12th and Hamlin. While the car was stopped at a stop sign, Randy Reed saw five black males in the car, and he recognized three of them: Eric Forbes was driving the car, and Cary Jackson ("Mac") and appellant ("Mo Mo") were seated in the backseat. Reed left to run another errand, and when he returned, he was told that there was shooting going on. Randy Reed ran towards his brother Tony as Tony ran towards him.
Randy Reed saw someone standing in the middle of the street, almost directly in front of 3006 12th Street, shooting at his brother Tony Reed. He saw the shooter's face for approximately ten seconds, while standing about four or five car lengths away. He recognized the shooter as appellant, whom he knew as Mo Mo and had seen in the back seat of the brownish-yellow car. Randy Reed was positive that Mo Mo was the shooter; he had seen appellant approximately thirty to fifty times over the preceding year on the street and in clubs. Although he did not remember the robbers putting on or taking off masks, there was something on top of the shooter's head that the shooter pulled down over his face as he ran away. He identified appellant in court and from a videotaped lineup as the shooter. When shown a photograph of Maurice Glenmore, Randy Reed said that Glenmore did not look like appellant because of the former's "facial structures" and smaller head.
Appellant, whose nickname was Mo Mo and who was sixteen at the time of the shooting, testified that on the evening of July 15, 1989, two groups of friends switched cars and he drove off with one group in a tan car, intending to go to a club. Eric Forbes was driving the car, Rico Thomas was the front seat passenger, and appellant, Maurice Glenmore ("Mo"), and Cary Jackson were on the left, center, and right portions of the back seat, respectively. According to appellant, as they passed the corner of 12th and Hamlin Streets, N.E., Glenmore said, "there's Vincent," and that he was going to rob Vincent Flythe to get money for the club's entrance fee. Forbes pulled the car into an alley, and everyone except Forbes got out of the car. Appellant testified that Glenmore, Jackson, and Thomas all had guns and that they put on black ski masks. Appellant saw Glenmore, Jackson, and Thomas walk toward the corner of 12th and Hamlin Streets, as appellant and Forbes waited with the car. Appellant heard shots, saw two people running, and saw Glenmore standing in the street, shooting at one of the running men. Glenmore, Jackson, and Thomas returned to the car and removed their masks. Appellant testified that he never intended to commit a robbery.
William Welch, a defense expert witness, testified that if the cartridge shells and the bullets found on the scene came from the same gun, the gun used was probably either a Stoeger Lueger or a Hi-Standard Sport King. However, he did not know whether the cartridge shells and bullets belonged together, and if not, he opined that approximately thirty-six types of guns could have fired the bullets. *fn4
Appellant also called several friends who testified that they had seen Glenmore with a German Lueger on several occasions in June and July 1989. Indeed, Andy Williams testified that he had not only seen Glenmore with a German Lueger on several occasions in June and July of 1989, but he had actually seen Glenmore shoot someone with the gun. Nathanial Matthews testified that he, too, had seen Glenmore with a Lueger in June 1989, had seen him use the gun to shoot someone, and knew of robberies that Glenmore had committed. Matthews further testified that although he never had any trouble telling them apart because he knew them, appellant and Glenmore "looked just alike": they were the same size, and "the only ...