APPEAL FROM SUPERIOR COURT, REGGIE B. WALTON, J. [707 A2d Page 776]
Before Terry and Steadman, Associate Judges, and Mack, Senior
The opinion of the court was delivered by: Terry, Associate Judge:
Appellant Prophet was convicted of armed first-degree murder (felony murder) *fn1 and armed robbery. *fn1 On appeal we affirmed his conviction on the merits, but vacated the armed robbery conviction because it merged with the felony murder conviction. Prophet v. United States, 602 A.2d 1087 (D.C. 1992) ("Prophet I"). Thereafter Prophet filed in the trial court a motion for new trial based on a claim of newly discovered evidence, which the court denied without a hearing. From that denial Prophet brings this appeal. We find no abuse of discretion and accordingly affirm the trial court's order. [707 A2d Page 777]
On December 11, 1987, shortly before 10:00 a.m., Prophet and his co-defendant Jarrell Allen, along with Anthony Humes and Dennis Kingman, were standing near a public telephone on Martin Luther King Avenue, S.E., when Kendall Merriweather came walking down the street toward them. Merriweather was carrying a large radio of the sort commonly known as a "boom box." As Merriweather passed them, Allen asked Prophet, referring to the radio, "Do you want it?" Prophet replied, "Yeah." Allen started to follow Merriweather, and Prophet followed Allen at a distance. As Allen approached Merriweather, Prophet stopped and waited at a gas station about eighty yards away. Allen, after attempting to take the radio from Merriweather, shot him in the back with a .357 magnum revolver. As Merriweather fell, Allen took the radio and casually walked away through an alley. Prophet met Allen at the other end of the alley, and together the two of them went to the apartment of a friend, Tyrone Wells. The police found them there about five minutes later and placed them both under arrest. The arresting officers also seized the radio, which was in Wells' bedroom. *fn2 Later, in a statement to the police, Prophet admitted that he had seen the revolver in Allen's possession earlier on the day of the shooting.
Both Prophet and Allen were identified by several witnesses, including Anthony Humes, who had known Prophet since elementary school and was also acquainted with Allen. Humes testified at trial that he had heard Allen ask Prophet if he wanted the radio, and that Prophet had said he did and had followed Allen as Allen stalked Merriweather. Another witness, Derrick Richmond, testified that although he did not hear the actual words being spoken, he knew that Allen and Prophet were talking as Merriweather walked past them with the radio because he could see their lips moving.
Prophet's only argument on this appeal is that the trial court abused its discretion when it denied his motion for new trial without a hearing. He contends that the newly discovered evidence *fn3 would probably have led to an acquittal, and cannot be regarded as merely impeaching or cumulative evidence. Prophet also asserts that the court mischaracterized the testimony of a single witness (Humes) about Prophet's affirmative response to Allen's question about the radio, when the court said in its order that Allen's proffered testimony "is contradicted by witnesses who will testify that the defendant told Allen he wanted the victim's stereo."
Super. Ct.Crim. R. 33 authorizes the trial court to grant a motion for new trial "if required in the interest of justice." We have said on many occasions that a ruling on such a motion is within the trial court's discretion and may not be reversed unless that discretion [707 A2d Page 778]
has been abused. See, e.g., Derrington v. United States, 488 A.2d 1314, 1339 (D.C. 1985). A special rule applies when a motion for new trial is based on a claim of newly discovered evidence:
To obtain a new trial because of newly discovered evidence (1) the evidence must have been discovered since the trial; (2) the party seeking the new trial must show diligence in the attempt to procure the newly discovered evidence; (3) the evidence relied on must not be merely cumulative or impeaching; (4) it must be material to the issues involved; and (5) of such nature that in a new trial it would probably produce an acquittal.
Thompson v. United States, 88 U.S.App. D.C. 235, 236, 188 F.2d 652, 653 (1951); accord, e.g., Smith v. United States, 466 A.2d 429, 432-433 (D.C. 1983); Godfrey v. United States, 454 A.2d 293, 299 n. 18 (D.C. 1982); Heard v. United States, 245 A.2d 125, 126 (D.C. 1968) (adopting the five-part Thompson standard). Applying this special rule, we must determine whether the record supports the conclusion reached by the trial court, namely, that the affidavit proffered by appellant was merely impeaching, and was not "so compelling" that it would probably produce an acquittal. See Byers v. United States, 649 A.2d 279, 288 (D.C. 1994). *fn4
A statement by a co-defendant who chose to remain silent during the earlier trial may, in some circumstances, arguably be regarded as newly discovered evidence. This type of evidence, however, warrants close scrutiny because such a co-defendant, after conviction, "has little to fear in attempting to exculpate others involved in the offense by assuming the entire blame." Byers, 649 A.2d at 287 (citation omitted). Thus the trial court must exercise great caution when considering such evidence as "newly discovered," when in fact it existed all along and was unavailable only because a co-defendant, since convicted, previously availed himself of his privilege not to testify. United States v. Jacobs, 475 F.2d 270, 286 n. 33 (2d Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 116, 131, 38 L.Ed.2d 53 (1973). Each case, moreover, must be judged on its own particular facts. Byers, 649 A.2d at 287.
One of the grounds for the trial court's denial of appellant's new trial motion was that, "[a]s applied to this case, Allen's testimony would only contradict the testimony of Anthony Humes, thus making it no more than impeaching evidence." Impeaching evidence is evidence that is relevant only because it undermines or casts doubt on the credibility of a witness. See, e.g., Thompson, supra, 88 U.S.App. D.C. at 236, 188 F.2d at 653 (affirming denial of motion for new trial on the ground that newly discovered evidence of witness' prior convictions would merely impeach his credibility). But in this case, as the government concedes in its brief, "Allen's affidavit proffered substantive evidence and did not merely attack the general ...