APPEAL FROM THE SUPERIOR COURT, HAROLD L. CUSHENBERRY, J.
Before Terry and Farrell, Associate Judges, and Greene,
Associate Judge of the Superior Court of the District of
[fn*] Judge Henry F. Greene was designated as part of this division
pursuant to D.C.Code § 11-707(a) (1995).
The opinion of the court was delivered by: Farrell, Associate Judge.
Appellants were each found guilty of first-degree murder arising from the shooting death of Arminita Coates, assault with intent to kill while armed arising from the shooting of Michael Johnson, and related offenses including conspiracy. The government's evidence reasonably permitted a conclusion by the jury that appellants, acting in concert, shot Johnson and Coates (Johnson's girlfriend) in retaliation for Johnson's having shot and killed Carlos Jordan the night before. Carlos Jordan was appellant Eiley Jordan's brother.
Appellants raise a variety of issues on appeal, only one of which requires extended discussion. *fn1 Appellants Jordan and Reed [722 A2d Page 1258]
contend that the trial judge erroneously refused to let them (1) question the witness Anthony Hunter to attempt to establish facts suggesting that Hunter and not Reed had been one of the shooters; and (2) argue Hunter's culpability to the jury. Applying the test of Winfield v. United States, 676 A.2d 1 (D.C. 1996) (en banc) (Winfield II), we agree that the judge unduly limited exploration and argument of Hunter's potential complicity in place of Reed. We also hold, however, that the error was not prejudicial enough to warrant reversal because there is no realistic possibility that the prohibited line of inquiry and argument would have changed the verdict.
Three eyewitnesses identified Reed as one of two gunmen (Reed and Walker) who entered a house in Southeast Washington on the morning of June 10, 1992, and shot Coates and Johnson. Reed entered first, according to two of the eyewitnesses, and in reply to a question by Coates gave his name as "Tony" and asked if Mike (Johnson) was there. Coates went upstairs to get Johnson, followed by Reed. Seconds later Reed shot Johnson. Gregory Cooley, who was upstairs at the time, ran downstairs to get Coates's son and take refuge with him in the bathroom, where he joined Lillian Cooley (Gregory's sister) and Nicole Dinkins. All three heard additional shots. When Dinkins left the bathroom and peeked out into the front room, she saw a second man, Walker, "fooling" with a handgun. Minutes later Coates's body was found on the floor between the dining room and a bedroom; she had been shot multiple times. *fn2 Johnson survived his wounds, *fn2 but Coates did not.
A fourth government witness testified to the antecedent events. Richard Jackson stated that late in the night of June 9, 1992, Carlos Jordan and Michael Johnson had been fighting. After Jordan hit Johnson with a bottle, Johnson retrieved a gun and began chasing Jordan while firing at him. Jordan was later found shot to death. The next morning Reed, Walker and Eiley Jordan asked Jackson where Johnson was staying, then ushered him into a car to lead them there. When they arrived in the vicinity of Coates's house, Reed and Walker left the car while Jordan, who had been driving, stayed in the car. Jackson left the area on foot. On the way to the house Reed had stated, "[I]f it was me that got shot, Carlos would have went for me so that's why I'm going."
Neither the Cooleys nor Dinkins had known Reed before. Nevertheless, all three identified Reed from photographs or a lineup, or both, as the man who had identified himself as "Tony" and had gone upstairs looking for Johnson. In addition Dinkins, although not asked initially to make an in-court identification, approached an FBI agent after her testimony and told him that she recognized both Reed and Walker at trial as the intruders in the house. She was recalled to the stand and identified both men as the shooters.
Anthony Hunter was called as a witness by Reed and was questioned by appellant Jordan as well. He admitted that he was nicknamed "Tony" and was a friend of Carlos Jordan. Hunter had been "on the streets" one night in June 1992 (he could not remember the date) "when an individual was firing a weapon at Carlos," though he said he could not identify the shooter since he had been on drugs at the time. Hunter also knew Michael Johnson and admitted that he had been "protecting Carlos Jordan from Michael Johnson." *fn3 Appellant Jordan's counsel [722 A2d Page 1259]
asked Hunter if he remembered "going to look for Michael Johnson in mid 1992." When Hunter answered "no" counsel asked if he recalled testifying before a grand jury in October 1993. Hunter answered "no" and the prosecutor objected to further questioning along this line. Asked for a proffer of the relevance of the grand jury testimony, counsel stated:
There were questions [at trial] about this witness being out and seeing someone shooting at Carlos Jordan [on] June 9th, 1992. . . . And the grand jury testimony of this person which occurred October 1, 1993, well, he is . . . no longer under the influence of PCP[,] that he went looking, this witness went looking for Michael Johnson that night in connection with the incident.
The judge inquired, "He went looking for Michael Johnson?", to which counsel replied, apparently quoting from the grand jury testimony: "I [Hunter] found out because we went looking for him, referring to Michael Johnson, and we didn't find him." Counsel again proffered that Hunter, "in his grand jury a year and a half after his [sic] events[,] said he went looking for Michael Johnson after he sees Michael Johnson going to shoot or shoot[ing] at Carlos Jordan." The judge asked, "Where does he say he went to look for him, the next day, that very night?", and counsel responded, "That night was the . . . time period ...