Appeals from the Superior Court of the District of Columbia; (Hon. Michael L. Rankin, Trial Judge)
Before Ferren and Sullivan, Associate Judges, and Pryor, Senior Judge. Opinion for the court by Senior Judge Pryor. Concurring and Dissenting opinion by Associate Judge Ferren.
The opinion of the court was delivered by: Pryor
PRYOR, Senior Judge : Appellants, who were co-defendants in a joint trial, were convicted of second-degree murder while armed, in violation of D.C. Code §§ 22-2403, -3202 (1989 Repl.). Both appellants Walker and Abney moved repeatedly, prior to and during the trial, for severance pursuant to Super. Ct. Crim. R. 14, on grounds that their defenses to the charges were irreconcilable.
In addition to their severance claims, each appellant individually claims that the trial court abused its discretion in denying their other respective motions. Appellant Abney, individually, claims that the trial court erred in excluding evidence that would have benefitted his case. Specifically, Abney claims that a government witness would have testified that following the stabbing of the victim, Abney told this witness that he did not know that Smith had been stabbed, and that he would avenge the stabbing by retaliation against Walker. The trial court excluded the statement because it would have bolstered a "frivolous" basis for a motion for severance.
Walker, individually, claims that the trial court erred by denying his motion for a mistrial on grounds that the government failed to substantiate a representation made in its opening statement. Specifically, in its opening statement, the government stated that it would produce a witness who would testify that following the stabbing, Walker admitted to this witness that he had stabbed Smith. This witness was not produced, however, and at the Conclusion of the government's case, Walker moved for a mistrial. The trial court denied appellant's motion, reasoning that the prosecutor did not make the representation in bad faith, the remark was not critical to the government's otherwise strong case, and based on the trial court's instruction to the jury that such a statement was not evidence in the case. Walker appeals from the trial court's ruling.
Finding no abuse of discretion, we affirm.
A. The Government's Evidence.
According to the government's evidence, during the early morning hours of July 7, 1990, Andre Abney held his brother, John Smith, while Broadus Walker stabbed Smith with a nail file six times. Smith died as a result of wounds inflicted during this attack, which occurred in the front yard of the Abney home. The government's case rested on the testimony of five eyewitnesses to the murder, a medical examiner, and two officers of the Metropolitan Police Department ("MPP").
Jacqueline Whittaker, appellant Walker's girlfriend, testified that on July 6, 1990, the day before the murder, she had seen Walker in the possession of a nail file. After midnight, Whittaker and Walker drove to the Abney house to deliver some food to Myron Carter, the brother of Whittaker's cousin, who was staying at the Abney house. From the car, Whittaker saw Smith, Walker and Abney on the porch. Whittaker testified that Smith took a swing at Walker and missed, after which Abney grabbed Smith in the mid-chest area and held his hands down. As Abney held Smith, Walker made straight in and out hitting motions to Smith's stomach. Whittaker did not see an object in Walker's hand, nor did she see Abney hit Smith in the stomach, although she did see Abney hit Smith once in the head. Following the fight, Walker returned to the car, and while driving, Whittaker informed Walker that she saw a police car turn around as if it would pull them over. At this point, Whittaker testified that she saw Walker throw the same object that she had seen earlier that day out of the car window. The police searched the area around the car for a knife or similar object, but did not recover one.
Gerald Bean, the twelve-year-old brother of Myron Carter, also testified that he had seen Walker with a fingernail file on July 6, 1990. Bean was staying overnight at the Abney house on July 7, 1990, and witnessed the incident. Bean, who watched the fight from a downstairs window and then from the front door, testified that Walker threw the first punch and hit Smith in the face. At that Point, Abney came outside and held Smith so that he could not move his hands, while Walker hit him in the stomach three to five times. Bean did not see a knife in Walker's hand.
Angelic Elliott, a sixteen-year-old cousin of Abney and Smith, testified that she saw Walker threaten Smith with a knife that looked like a fingernail file in the kitchen of the Abney house prior to the fight. From the upstairs bedroom window, Elliott saw Walker swing at Smith as Smith walked out of the door of the house. Abney grabbed Smith and held his arms so that Smith could not move them. Walker then made hitting motions to Smith's chest, but she did not see an object in Walker's hand. Elliott testified that Smith then collapsed and Walker kicked him in the front part of his body. Abney then hit Smith in the back of the head, but he did not hit him in the stomach. Elliott further testified that she never saw an object in Abney's hand.
Bridgett Smith, a thirteen-year-old niece of Abney and Smith, testified that she also heard Walker threaten to "shank" Smith shortly before the fight. Watching the events from the living room window, Bridgett testified that as Smith walked out of the door, Walker "just started stabbing him." Bridgett testified that Abney held Smith's arms while Walker stabbed him three or four times. After Abney let go of Smith, who fell, Walker kicked Smith and fled to the car. Bridgett further testified that she saw a knife in Walker's hand at the time Walker was stabbing Smith. She did not see Abney with a knife, nor did she see Abney hit Smith in the stomach. After this incident, Abney returned inside the house, and in response to questions about what had happened, he referred to Smith having hit him previously with a pole.
The government's final eyewitness was fifteen-year-old Deshaun Smith, who was Bridgett Smith's sister, and the niece of Abney and Smith. Deshaun testified that after Walker entered the house at 1:00 or 2:00 a.m., Smith, who was drunk, told Walker that he had to leave. Deshaun then heard Walker threaten to "shank" Smith. At this point, she saw a weapon in Walker's hand which was partially concealed. Deshaun described it as a one and one-half inch point that was sticking out from his hand. Deshaun testified that as Smith went outside on the porch steps, Walker hit him in the face. Abney then grabbed Smith while Walker proceeded to stab him at least four times.
Deshaun testified that Abney did nothing to prevent Walker from stabbing Smith. According to Deshaun, as Smith was falling, Walker kicked him and then ran off to the car. As Smith was getting up, Abney hit him in the face. Deshaun stated that the entire fight lasted a minute or so.
The government presented, in addition to these eyewitnesses, a licensed medical examiner who had been present for the autopsy performed upon Smith on July 8, 1990. The medical examiner testified that the autopsy revealed six stab wounds, two of which caused visceral injuries to the heart and lungs and internal hemorrhaging, which caused Smith's death. All six wounds appeared to have an upward trajectory into the body, which could have resulted from the victim having been bent or twisted as the assailant struck him with the knife. The medical examiner also testified that the attacking instrument had two sharp edges, and indicated that a nail file would be included as one of the possible weapons.
B. Defendant Walker's Evidence. *fn1
Walker testified in his own defense. He admitted having a nail file in his possession on July 6, 1990, but that he had left it in Carter's car. According to Walker, later that night, he and Abney walked outside the door of the Abney house, followed by Smith who came out and hit Walker. Walker then swung back at Smith, hitting him in the face area. According to Walker, he never punched Smith in the chest or kicked him in the throat.
At this point during the fight, Walker testified that he heard someone yelling from the house to stop fighting "so I just backed off." Walker further testified that Abney began fighting with Smith, and "I just turned around and left." Walker claimed that he returned to the car where Whittaker was waiting. As he approached the car, he testified that Abney had Smith on the ground and was punching him in the face. Walker stated that he did not see a knife in Abney's possession. Contrary to Whittaker's testimony, Walker denied throwing an object out of the car on the night in question.
C. Defendant Abney's Evidence.
Diane Abney, appellant's twenty-year-old sister, testified that Walker entered the house around midnight on the night in question. Smith came upstairs from the basement and told Walker to leave the house, to which Walker "pulled out this little knife and said, 'I'll shank you.'" Walker then went outside, and as he tried to open the screen door, Smith slammed it in Walker's face. Diane Abney then went upstairs to take a shower when she heard Angelic Elliott scream, which caused her to run to an upstairs window. She saw Abney holding Smith, who was leaning down, in his grasp. She saw "a little shiny part" in Walker's hand, which caused her to run downstairs, where she saw Walker jump in a car and pull off. Abney was left standing beside Smith who was leaning over.
Smith and Abney then entered the house; Abney had no blood on him, but Smith bled on the floor and proceeded downstairs. Someone had asked Abney why he did it, to which Abney responded that ...