Appeal from the Superior Court of the District of Columbia; (Hon. Steffen W. Graae, Trial Judge)
Before Rogers, Chief Judge, and Steadman and Sullivan, Associate Judges.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge: Appellant, Michael Henderson, appeals from his conviction by a jury of second-degree murder while armed, D.C. Code §§ 22-2403, 22-3202 (Repl. 1989 & Supp. 1993), on the ground that under the rule of completeness the trial Judge erred by permitting the government to introduce a small portion of the audiotaped statement that appellant gave to the police after his arrest while precluding the defense from introducing additional portions. Appellant also contends that his conviction must be reversed because the prosecutor improperly argued to the jury that appellant's consultation with counsel and subsequent failure to explain to his friends where he was on the night of the murder demonstrated guilt. In light of the government's theory at trial, these claims of error are related. We hold that the trial Judge erred in excluding omitted portions of appellant's statement. We further hold that the resulting prejudice was compounded by the error that occurred when the prosecutor argued to the jury that appellant's failure, after consultation with counsel, to explain where he was on the night of the murder demonstrated guilt. Accordingly, we reverse and remand for a new trial.
Because there were no witnesses to the murder and the physical evidence was inconclusive, the government's case against appellant, who was indicted for first-degree murder while armed, was based on circumstantial evidence. The government emphasized the relationships between appellant and the decedent, Cheryl Ashton Henderson, his estranged wife, and appellant and his roommates. The government's theory was that appellant had murdered Cheryl Henderson after he had picked her up from work on the night of June 23, 1987, and that his motive was either unrequited love or the hope of collecting $20,000 from her life insurance policy.
The government's evidence established that appellant, Cheryl Henderson, and many of the witnesses had known each other for years, and many were related, as they were all from Montross, Virginia. Appellant and Cheryl Henderson had married in 1985, but they separated when Cheryl Henderson left appellant at the end of 1986, moving from Montross to the District of Columbia. Shortly thereafter, appellant moved to the District, where he secured construction work and lived in an apartment with his uncle and his work supervisor. In the meantime, Cheryl Henderson was living with her boyfriend, Ronnie Bankhead, and his mother. Appellant and his wife saw each other occasionally, and once attempted a brief reconciliation.
On the day of her murder, June 23, 1987, Cheryl Henderson signed into work at 4:00 p.m. for her usual four-to-midnight shift. She was last seen by her supervisor at 7:45 p.m. when she left for her usual 8:00 to 9:00 p.m. dinner break. *fn1 The next morning, June 24, 1987, Cheryl Henderson's body was discovered at the bottom of a hill behind a church. According to the medical examiner, she bled to death as a result of multiple (45 to 48) stab wounds; phencyclidine (PCP) was found in her system. Two ten-year old girls had heard a woman scream on the hill behind the church around 10 p.m. on June 23. On June 24, the police went to appellant's apartment and spoke with his uncle, Glenn Henderson. A detective examined appellant's car for physical evidence but found nothing incriminating except, possibly, a car that looked as if it had been recently cleaned.
The only physical evidence possibly tying appellant to Cheryl Henderson's murder was a purple hat that was recovered approximately twenty-five feet from her body. *fn2 An expert witness testified that two hairs recovered from the hat were indistinguishable from hairs that were taken from a known sample of appellant's hair, and that none of the hairs removed from the hat could have come from Cheryl Henderson. Several witnesses testified that appellant wore a similar hat with a particular yellow sweatsuit, although each witness who remembered seeing appellant in a hat on the day of Cheryl Henderson's murder testified that appellant had been wearing a black Adidas cap. *fn3
The government also presented evidence of appellant's activities on June 23 and 24 in order to show his consciousness of guilt. During June 1987, appellant was living with Charles Tate (his work supervisor) and Glenn Henderson (his uncle) in Oxon Hill, Maryland. On the day of the murder, appellant did not report to work, later explaining to Charles Tate that he was unable to make it to work because the oil light in his car had gone on. Appellant's uncle Glenn was at the apartment from approximately 3 p.m. to 6 p.m., and appellant told him during that time that he had planned to take his car to the shop that day to be fixed. When Glenn returned to the apartment around 7:45 p.m., appellant was not in the apartment and his car was not where he usually parked it. *fn4
The next time appellant was placed in the apartment was around 10:45 p.m., June 23. *fn5 At 4:30 a.m. June 24, Charles Tate woke appellant for work, and appellant asked for a ride to work. Tate mentioned that he would be driving to Montross after work and appellant agreed to ride with him. According to Charles Tate, appellant slept during the rides to work and Montross, claiming that he had had a "rough night" the night before.
The two men arrived in Montross around 4:45 p.m. on June 24. *fn6 According to Charles Tate, Allen Henderson, appellant's father, said to his son, "you know, you're going to be the prime suspect. . . . Where were you last night?" Tate testified that appellant responded that he had been at home, which Tate immediately disputed (although conceding that no time frame was mentioned). Appellant then stated that he had been out "messing around." Concerned that his son might be a suspect, Allen Henderson took appellant to see an attorney named Lynn Brownley. *fn7
The government also offered evidence that appellant had taken out a $20,000 life insurance policy on his wife shortly before they separated and that he had signed her name to the policy. *fn8
Finally, the jury heard portions of an audiotaped statement that appellant had given to the police after he was arrested. In one portion of the statement heard by the jury appellant told the police (in the presence of an Assistant United States Attorney and defense counsel) that during the evening of June 23 he had been talking to Carla Boykin and her brother. The government called Carla Boykin as a witness and she denied that she had ever had a personal, lengthy conversation with appellant at any time, although she admitted knowing appellant and visiting appellant's uncle, Glenn Henderson, at the apartment where appellant lived. On cross-examination she also admitted that she did not remember what she was doing on June 23, 1987. The jury also heard other portions of appellant's audiotaped statement where he stated that he had last seen Cheryl Henderson in Montross on the weekend before she was murdered and that he personally had not filed an income tax return for 1986.
Appellant presented several witnesses but he did not testify. *fn9 The jury, after sending two notes stating that it was unable to reach a verdict, found appellant guilty of the lesser-included offense of second-degree murder while armed.
Appellant contends that the trial Judge erred, under the rule of completeness, in permitting the government to introduce selective portions of appellant's audiotaped statement, which was played for the jury, while declining defense counsel's request ...