APPEAL FROM THE SUPERIOR COURT, DISTRICT OF COLUMBIA, REGGIE B. WALTON, J.
Before Steadman and Ruiz, Associate Judges, and Newman,
The opinion of the court was delivered by: Newman, Senior Judge:
Following a jury trial, Darryl Jones was convicted of attempt to commit robbery while armed and felony murder while armed. On appeal, he contends that the application to his case of an evidentiary rule passed subsequent to the crime for which he was tried, but prior to his trial, violated the Ex Post Facto Clause of the United States Constitution. We affirm.
On April 1, 1994, James Alexander was stabbed to death during an attempted robbery. Although other witnesses observed a man fitting Jones' description chasing the victim and later fleeing the scene of the crime, only one witness, Katrina Holloway, was an eyewitness to the murder itself. Under oath before the Grand Jury, Ms. Holloway testified that she was walking with [719 A2d Page 93]
Jones just before the murder occurred and saw him stab the victim. Jones was charged with attempted robbery while armed, felony murder while armed, and premeditated murder while armed.
At Jones' trial, Ms. Holloway denied knowing or remembering anything substantive about the events of the evening of the murder. She directly contradicted her testimony before the Grand Jury by denying that she saw Jones stab the victim. The government, over Jones' objections, sought to admit Ms. Holloway's Grand Jury testimony into evidence. The trial judge admitted the evidence, and pursuant to D.C.Code § 14-102(b) (1995 Repl.), instructed the jury that they could consider the Grand Jury testimony both for purposes of impeachment and as substantive evidence. At the close of the government's case, the trial judge dismissed the first-degree premeditated murder count on Jones' motion for judgment of acquittal. He was convicted of attempted robbery while armed and felony murder while armed.
Jones contends that the admission of Ms. Holloway's Grand Jury testimony as substantive evidence violated the Ex Post Facto Clause of the Constitution. *fn1 At the time the crimes with which Jones was charged were committed, prior inconsistent statements made under oath were admissible at trial only for impeachment purposes. See D.C.Code § 14-102(b) (1981); Gordon v. United States, 466 A.2d 1226 (1983). Prior to Jones' trial, D.C.Code § 14-102 was amended. *fn1 Under the amended statute, certain of a witness's prior inconsistent statements are admissible as substantive evidence. D.C.Code § 14-102(b) (1995 Repl.). *fn1 Jones argues that the retroactive application of this new law changed the evidence law to his disadvantage and therefore violated the Ex Post Facto Clause of the Constitution. We review this constitutional law question de novo. See Littlejohn v. United States, 705 A.2d 1077, 1082 (D.C. 1997).
The United States Constitution prohibits the imposition of "ex post facto" laws. U.S. CONST. art. I, §§ 9, 10. Although literally translated the phrase "ex post facto" refers to any law passed "after the fact," the Supreme Court has long adhered to a more narrow interpretation of the phrase:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). As the Court in cases following Calder made clear, however, the phrase "legal rules of evidence" "was not intended to prohibit the application of new evidentiary rules in trials for crimes committed before the changes." Collins v. Youngblood, 497 U.S. 37, 43 n. 3, 110 S.Ct. 2715, [719 A2d Page 94]
111 L.Ed.2d 30 (1990). The retroactive application of those procedural or evidentiary changes that "leave[ ] untouched the nature of the crime and the amount or degree of proof essential to conviction" does not violate the Ex Post Facto Clause. Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 28 L.Ed. 262 (1884). The Court recently quoted favorably the formulation set forth in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925), in which the reference to "legal rules of evidence" was omitted:
It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available ...