APPEAL FROM THE SUPERIOR COURT, WARREN R. KING, TRIAL JUDGE, AND STEPHEN G. MILLIKEN, MOTIONS JUDGE. [718 A2d Page 138]
Before Farrell and Ruiz, Associate Judges, and Belson, Senior
The opinion of the court was delivered by: Belson, Senior Judge:
Following a jury trial, appellant was convicted of assault with a dangerous weapon *fn1 as a lesser-included offense of assault with intent to kill while armed, *fn1 possession of a firearm during a crime of violence, *fn1 possession of an unregistered firearm, *fn1 and unlawful possession of ammunition. *fn1 Appellant then filed a motion and a supplemental motion, pursuant to D.C.Code § 23-110 (1996), claiming ineffective assistance of counsel. The motion was denied following a hearing. In this consolidated appeal, appellant challenges his convictions and the denial of his ineffective assistance of counsel claim.
Appellant argues that (1) the trial court erred in allowing the prosecutor, over objection, to cross-examine appellant about his pre- and post-Miranda *fn2 silence regarding alibi; (2) the trial court erred by instructing the jury, over objection, on assault with a dangerous weapon as a lesser-included offense of the charged offense of assault with intent to kill; and (3) the trial court abused its discretion by denying appellant's motion to vacate the convictions, pursuant to D.C.Code § 23-110, for ineffective assistance of counsel at several key junctures during the trial. Holding that the trial court committed prejudicial error by allowing the prosecutor to draw and argue negative inferences from appellant's post-Miranda silence, we reverse and remand for a new trial.
At the time of the incident at issue in this appeal, complainant Tawauna Wiley, appellant Maurice Alexander and appellant's wife Andrea, who is complainant's sister, lived together in a house they jointly owned, along with complainant's twelve-year-old son Charles. Complainant's older son, John Wiggins, was also staying at the house on a temporary basis until his apartment was ready for occupancy, and complainant's boyfriend, Chester Anderson, had been living at the house sporadically. Complainant had known appellant for approximately ten years. The relationship between appellant and complainant, though, had been strained since the summer of 1988.
At trial, complainant Wiley testified that as she was preparing dinner in the kitchen of [718 A2d Page 139]
the house on the evening of April 12, 1989, she saw appellant enter the kitchen and close the door. Ms. Wiley then found herself on the floor, heard a noise behind her ear and felt a stinging sensation in her face. She pushed Mr. Alexander away, ran upstairs, took her younger son Charles into her bedroom, and instructed him to lock the door and call the police. Complainant told the police dispatcher that "Maurice Alexander" had assaulted her. After the police and paramedics had arrived, Ms. Wiley saw appellant standing in the hallway. Mr. Alexander said, "Oh, my God, what happened"?, and Wiley screamed, "Get him away from me; get him away from me." Following the incident, Wiley was taken to Washington Hospital Center where she was treated for a gunshot wound.
Wiley also testified that the previous day she had seen Alexander and her older son John standing outside of her room at 6:30 a.m. She remembered that her son had said that "nobody is going to pull a gun on me." Wiley grabbed her son and pulled him into her bedroom, thereby ending the incident.
Metropolitan Police Department Officer Thomas Cole testified that he responded to a radio run, and upon arrival at approximately 7:30 p.m., saw appellant walking toward the house. Alexander wanted to know if there was a problem in the house and he identified himself as a resident. Alexander gave the front door key to Metropolitan Police Department Officer Gerald Dixon, who unlocked the door. The officers told appellant to wait outside, then they entered the house, followed a blood trail upstairs, and found complainant Wiley in an excited state. The officers tried to calm her down, but when she saw Alexander, who had entered the house and was standing behind the officers, she began screaming, "He shot me," and pointing at appellant.
Officer Cole questioned Alexander, who then showed the officer a gun under the bed in his bedroom. No fingerprints were recovered from the gun, but Metropolitan Police Department Sergeant Hogue testified that he detected that the gun had an odor as if it had been recently fired. Subsequently, Alexander was taken to a police precinct and formally placed under arrest, after which he signed an acknowledgment of having been read his Miranda rights. He declined to answer questions.
The defense presented Officer Dixon, who testified that he arrived at the house about the same time as Officer Cole, and saw appellant going up the stairs to the house. The defense also called appellant's neighbors, who supported his contention that he was not at home at the time of the shooting. One of the neighbors also testified as to Alexander's reputation for truth and non-violence. William Welch, an expert in firearms identification and fingerprinting, testified that it was not possible to link bullet fragments depicted in Ms. Wiley's x-rays with any particular gun, and that the "sniff test" performed by Officer Hogue was an unreliable indicator of whether the gun had been recently fired.
Helleen Allen testified that she had been discussing work-related problems with appellant away from the house at the time of the shooting. She was questioned about why she had not alerted the police to this fact previously.
Appellant Alexander testified on his own behalf. He contended that he was not at the house at the time of the shooting, but rather was with Ms. Allen. Alexander stated that he was stopping off at home to pick up some flyers to distribute when he ran into the police and first learned of the shooting. The prosecutor questioned him about his silence as to alibi on the night of his arrest.
Alexander also described the difficulties between himself and complainant's older son. He explained that he had discovered a gun and drugs belonging to complainant's son John in the attic of the house. Alexander hid the gun and discarded the drugs. He testified that on the morning before the incident, he had a confrontation with John, who was searching for the contraband. The government asked Alexander why he did not mention the discovery of the drugs and gun to Ms. Wiley or to Juan Rivera, the godfather of John, who had visited the house and had spoken with Alexander and John as a peace-maker after the contraband was discovered. [718 A2d Page 140]
Appellant first contends that the trial court erred by permitting the government to question him about his failure to mention his alibi to the police the night he was arrested. The government responds by arguing that the prosecutor's comments were limited to Alexander's silence before he was read his Miranda rights and, in the alternative, that to the extent there was error it was harmless in light of the government's strong case.
During the government's cross-examination of Alexander, the following colloquy took place:
[PROSECUTOR]: I thought it better to come to the bench just to touch on this one matter before I got into it. It's my understanding that night, Your Honor, that he mentioned about the flyers, that's why he was home. And he never mentioned having been with Ms. Allen that night to the police, and I'd like to get into that, if I can. But I thought I ought to come to the Court first.
THE COURT: Any reason why he can't —
[DEFENSE COUNSEL]: Well, any discussion with all of these people, it seems to me that what he didn't say, might not have said. He didn't tell the police about that incident with John —
THE COURT: If that's the only basis for your objection, I don't see any reason why [the prosecutor] can't get into it. So, I'll allow it.
Q Now, you knew at the time that he was talking with you that [complainant] had just accused you of doing the shooting, had [sic] you not?
Q Det. Witherspoon never asked you what you were doing from the time you left work until you got to the house?
Q But yet he asked you about the flyers?
A One of them asked me about flyers. . . .
Q Did you tell them that that's why you were home early, was to pick up some flyers?
A Yeah, Yeah. Well, I — yeah, I'm pretty sure I told somebody that. I don't know which one.
Q But you never told them about Ms. Allen, did you?
A They never asked about Ms. Allen or asked me.
Q You're being accused of shooting somebody in the head, you're allegedly with ...