Appeal from the Superior Court of the District of Columbia; (Hon. Gladys Kessler, Trial Judge)
Before Wagner, Chief Judge,* Ferren** and Terry,*** Associate Judges.
The opinion of the court was delivered by: Wagner
WAGNER, Chief Judge: Following a jury trial, appellant was convicted of one count of first-degree murder while armed (D.C. Code §§ 22-2401, -3202(1989)) and one count of carrying a pistol without a license (CPWL) (D.C. Code § 22-3204 (1989)). Subsequently, the trial court denied without a hearing appellant's motion for a new trial based on a claim of newly discovered evidence. On appeal, appellant argues for reversal on the grounds that the trial court erred in: (1) denying his motion for a new trial; (2) allowing the government to impeach its own witnesses without an adequate foundation or cautionary instructions; (3) failing to instruct the jury adequately on unanimity; (4) allowing the prosecutor to make improper closing and rebuttal arguments; and (5) permitting the government to present a theory of the case substantially at variance with the indictment. We affirm.
Jeffrey Williams died as a result of a gunshot wound to the back and head injuries sustained on December 7, 1987. The events leading to Williams' death began that evening when he went to an apartment building at 529 Lamont Street, N.W. where he encountered co-defendants, Albert Curseen and Everett Baylor, standing in the hallway selling drugs. After some Discussion, Williams agreed to purchase a twenty dollar bag of cocaine. While being shown the drugs, Williams tried to switch a "dummy bag" for one of the seller's bags. Co-defendant Curseen asked Williams, "Why you try to switch up on my boys?" Curseen, Baylor and several other men then began beating Williams about his body and face. Appellant emerged from an apartment in the building and joined in the assault. Someone swung a bat at Williams, and appellant said, "Don't hit him with the bat." Finally, appellant said, "Come on, y'all, leave him alone."
Williams left the building, but he soon returned and attacked one member of the group with a metal rake. Again, some men came out of the apartment, and Williams attempted to retreat. They caught Williams in the alley and beat him again. Curseen went back into the apartment, obtained a gun, and returned to the alley where appellant and co-defendant Baylor urged Curseen to shoot Williams. Curseen attempted to fire the weapon, but failed in his effort because the safety was still on. Curseen fired again, but he missed Williams. Witnesses lost sight of the three when they rounded a corner. There was testimony that a gunshot rang out, and the men who had remained behind ran back into the apartment. When appellant and co-defendant Curseen returned to the apartment, Curseen said, "we shot him, we shot him," and appellant responded, "A.J. , you are a crazy ."
At the time, appellant lived in the apartment, which was the home of five sisters, Sharron Webb, LaDonn, Eyvonne, Raeshawn and LaWann Garris, who were called by the government as witnesses at trial. LaDonn Garris testified that after the shooting she heard appellant say "that he shot the gun." Raeshawn Garris testified that she heard appellant say that he "shot the man." Eyvonne Garris testified that she heard appellant say that "he shot him" (referring to Williams), but she could not remember when appellant made the statement. LaWann Garris testified that several months later, in July or August 1988, she heard appellant admit that he shot Williams. According to her, appellant also said that he would find out who had been "snitching" on him. Raeshawn Garris also testified that while sitting on the porch appellant said that "he killed the man."
Dr. Silvia Comparini, the medical examiner, testified that Williams' body, forehead and arms had bruises and that the back of his left arm was covered almost entirely with blood. Dr. Comparini also described in her testimony the severe damage to Williams' brain, and she concluded that the cause of death was attributable to both the head injuries and the bullet wound, either of which could have been fatal.
Appellant did not call witnesses or testify in his own behalf. He moved into evidence a letter to him from Sharron Webb. He also asked the trial court to take judicial notice that he had been incarcerated from July 29, 1988 until November 29, 1988, a period which covered, in part, the time when LaWann Garris heard appellant admit shooting Williams, according to her testimony.
Appellant argues that the trial court erred in allowing the government to impeach three of its witnesses and in failing to give immediate cautionary instructions following that impeachment. A party may impeach its own witness with prior inconsistent statements if a good faith claim of surprise is made and if affirmative damage to its case results from the testimony. D.C. Code § 14-102 (1989); *fn1 Jefferson v. United States, 558 A.2d 298, 301 (D.C. 1989), cert. denied, 493 U.S. 1032, 107 L. Ed. 2d 765, 110 S. Ct. 748 (1990); Scott v. United States, 412 A.2d 364, 367-68 (D.C. 1980); Davis v. United States, 370 A.2d 1337, 1339 (D.C.), cert. denied, 434 U.S. 853, 54 L. Ed. 2d 123, 98 S. Ct. 168 (1977). The trial court is vested with broad discretion in determining the propriety of impeachment under D.C. Code § 14-102, and unless the ruling has no rational basis, its finding of surprise will not be disturbed. Stewart v. United States, 490 A.2d 619, 624 (D.C. 1985); Parker v. United States, 363 A.2d 975, 977 (D.C. 1976). Having reviewed appellant's claims against the applicable standard, we find no prejudicial error in the trial court's rulings which appellant challenges.
A. Impeachment of Eyvonne Garris
Appellant argues that the trial court erred in allowing the government to impeach its witness, Eyvonne Garris, without first demonstrating surprise or affirmative damage to its case. He also contends that the trial court's limiting instruction following the impeachment of this witness was inadequate. We conclude that even assuming that the foundation for the impeachment was inadequate, there is no basis for reversal because this witness adopted the prior statements as her testimony at trial. See Jones v. United States, 579 A.2d 250, 253 (D.C. 1990); Stewart, supra, 490 A.2d at 625. In any event, the impeachment was harmless under the circumstances. See Waldron v. United States, 613 A.2d 370, 374 (D.C. 1992).
We examine briefly the context in which the impeachment evidence was elicited. Ms. Garris was in the apartment when appellant returned after the shooting, and she was present that summer when appellant admitted the shooting. In an effort to show a basis for impeaching Ms. Garris, the government proffered that she stated prior to trial that she had heard appellant admit killing Williams. At trial Ms. Garris initially testified that she could not distinguish the voice of the person who made the statement among those present on either of two occasions when appellant was among them. However, Ms. Garris later admitted in testimony that she heard appellant say he shot the decedent. *fn2 Thus, she adopted the critical evidence with which the government sought to impeach her. When a witness adopts the prior inconsistent statement, the prior statement may be used as substantive evidence. Jones, supra, 579 A.2d at 253; Stewart, supra, 490 A.2d at 625. Even assuming a proper foundation was lacking, neither the absence of a proper foundation for the impeachment nor the omission of a cautionary instruction is reversible error where, as here, the witness adopts the ...