Before Farrell and Ruiz, Associate Judges, and Newman, Senior Judge.
The opinion of the court was delivered by: Newman, Senior Judge
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeals from the Superior Court of the District of Columbia (Hon. Mary Ellen Abrecht, Trial Judge)
In this appeal of their convictions of second-degree murder while armed, D.C. Code §§ 22-2401, -3202 (1997 Repl.), and related weapons offenses, *fn1 both Dwain Mercer, a.k.a. "Wayne" or "Wayne-Wayne," and Antonio Terrell, a.k.a. "Melvin," contend the trial court erred: (1) in admitting evidence suggesting they were involved in a plot to intimidate witnesses; and (2) in admitting a videotape of a statement of a witness after the witness had been excused. Mercer alone contends that the trial court abused its discretion by denying his severance motion. Terrell alone contends: (1) a violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) ineffective assistance of counsel; and (3) evidentiary insufficiency. Concluding that the trial court abused its discretion in denying Mercer's motion for severance, we reverse his convictions. We affirm Terrell's convictions.
On June 1, 1995, Harvey Jewel and his brother sat outside of their house near the intersection of 46th and Hunt Streets, N.E., in a neighborhood known as Lincoln Heights. Suddenly, at about 7:00 p.m., two men on a bicycle rode past the intersection and opened fire. The shooter, described as a light-skinned African American man with plaited hair, shot in the direction of Jewel, hitting his brother in the leg, and the beer can in Jewel's hand.
Earlier that day, Omar Johnson, a.k.a. "Yappy," a light-skinned African American man with plaited hair, was seen riding on the back of a bicycle on which his friend, Jason Brooks, was also riding. After the shooting, Jason Brooks was found shot to death in an alley near 46th and Hunt Streets. An abandoned bicycle was found not far from the body.
When Lynette Brooks heard of the death of her younger brother, Jason, she immediately went to the hospital to be with her mother, Geraldine Ferrell. Ms. Ferrell had been driven to the hospital by two of Jason's friends, Mercer and Terrell, who were visibly upset by Brooks' death. Both men acted out their anger by kicking and throwing trash cans, and kicking the walls. Mercer and Terrell left the hospital, and were seen in Terrell's blue Cadillac speeding past Ms. Brooks as she drove her mother home.
Meanwhile, Yappy went to the apartment of Robin Motley on Fiftieth Street in Northeast Washington, to have his plaits removed. While he was there, Terrell's blue Cadillac pulled up to a basketball court near Motley's apartment. As Mercer and Terrell got out of their car, they were greeted by Dominic Gibson. At Mercer's request, Gibson retrieved a gun from Yappy. Gibson then asked Yappy to go outside and speak with Mercer and Terrell.
Once Yappy was outside, Mercer and Terrell began to argue with him. During this argument, Mercer was overheard asking, "Well, how could he get shot and nothing happened to you," and "Why you leave him"? After these exchanges, several witnesses testified that they heard shots fired.
After this point, what happened was related in sometimes conflicting accounts. One witness, Catrice Cunningham, testified that she saw two men chase Yappy, shooting at him. Cunningham did not identify the shooters.
Another witness, Linda Washington, testified that she saw Mercer immediately after the shots were fired with a gun in his hand. Washington further testified that she saw a person get out of Terrell's car and shoot Yappy again.
Still another witness, Tamika Jones, testified before a grand jury that she saw Terrell pull out a gun and shoot Yappy. Jones claimed that she then saw Mercer and Terrell get back in the car. Jones further testified before the grand jury that she saw Mercer open the car door to knock Yappy down, and then stand over Yappy's body as he fired more shots into him. At trial, Jones recanted her grand jury testimony, claiming she had pieced together the story "like you put a puzzle together" in order to seek police protection.
After the shooting, Terrell's car drove away. Terrell later stated to his grandmother, Elsie Terrell, that he burned his car so there would be no evidence.
The trial began on Friday, November 15, 1996. One of the witnesses called on the first day of the trial was Catrice Cunningham. After the weekend, Terrell claimed that he was not satisfied with the manner in which his attorney had cross-examined Cunningham. Terrell requested a new attorney be appointed. The trial court denied the request.
During the trial, many witnesses failed to comply with subpoenas, necessitating the use of bench warrants to compel their testimony. During the examination of Dominic Gibson and Linda Washington, on the second day of the trial, the prosecution asked about some of the spectators in the back of the courtroom from Lincoln Heights, and the witnesses' reaction to their presence. Neither Mercer nor Terrell objected.
On the third day of the trial, Mercer's attorney moved for a mistrial, claiming he was prejudiced by the inference that his client was involved in a scheme to intimidate witnesses. The trial Judge denied the motion. Mercer then requested a curative instruction, which was denied.
Later, the prosecution presented the testimony of Tamika Jones. At a bench conference, the prosecution addressed the issue of Jones' admission to the witness protection program. The prosecution represented that Jones had heard that her life had been threatened, and therefore sought police protection. As a result, Jones entered the witness protection program. Jones, however, left the witness protection program after eleven months. The prosecution wanted to introduce this evidence before the jury.
Initially, both Mercer and Terrell objected to the admission of this evidence. The attorney for Terrell, however, wanted to impeach Jones with the fact that she had been paid about $525 per week while in the witness protection program, in addition to having the government cover her housing expenses. The attorney for Mercer did not want any evidence of the witness protection program admitted.
The trial Judge informed both defense counsel that the fact that Jones entered the witness protection program due to fear would be admitted if either pursued the strategy of impeaching Jones over the money she was paid. The attorney for Mercer clearly stated that he would forego the impeachment value of such testimony to avoid any mention of the witness protection program. The attorney for Terrell, however, stated that he would risk the admission of the evidence of the alleged threat to Jones' life in order to impeach Jones. At this point, Mercer moved for a severance. The motion was denied.
Once on the witness stand, Jones recanted her grand jury testimony. The prosecution then proceeded to interrogate Jones further by reading transcripts of her grand jury testimony. It was revealed that before the grand jury, Jones adopted a statement she gave to police in 1995, claiming she had seen both Mercer and Terrell shoot Yappy. The substance of this statement was admitted during Jones' direct examination. Jones, however, claimed that she fabricated the story from bits and pieces that she heard from the street, in order to enter the witness protection program to protect herself and her son.
As Terrell's counsel cross-examined Jones, Jones continually denied that she was motivated to enter the witness protection program because of the money she was paid. Instead, Jones consistently stated that her motive was to protect herself and her son. Jones did reiterate, however, her claim that she lied to the police and the grand jury.
After Jones left the witness stand, the prosecution sought the admission of the videotape of the statement Jones initially gave to the police. The prosecution claimed the videotape was admissible both to impeach Jones, and to show the jury her demeanor when she made the statement. Both Mercer and Terrell objected, claiming they did not have an opportunity to cross-examine Jones on her demeanor in the videotape. The trial Judge overruled the objection, and admitted the videotape.
Appellants contend that the trial court erroneously failed to take remedial measures after the prosecutor asked a series of questions which implied that they had intimidated witnesses. First, however, we are faced with a threshold question that affects our standard of review. The government contends that neither Mercer nor Terrell objected to the allegedly prejudicial questions, thereby requiring this court to apply a "plain error" standard. Mercer and Terrell contend that the motion for a mistrial constituted a contemporaneous objection, as it put the trial Judge on notice of their opposition to the evidence. They contend that this case should be reviewed under an abuse of discretion standard.
In our adversarial system, we place the initiative of objecting to evidence that appears to be contrary to the rules of evidence on the parties, not the Judge. 1 McCormick on Evidence § 52, 200 (4th ed. 1992). "If the administration of the exclusionary rules of evidence is to be fair and workable the Judge must be informed promptly of contentions that evidence should be rejected, and the reasons therefor." Id. "The function of the objection is, first, to signify that there is an issue of law and, secondly, to give notice of the terms of the issue." 1 Wigmore on Evidence § 18, 793 (Tillers rev. 1983). Wigmore describes the proper timing of an objection:
"The general principle governing the time of the objection is that it must be made as soon as the applicability of it is known (or could reasonably have been known) to the opponent, unless some special reason makes a postponement desirable for him and not unfair to the proponent of the evidence. . . . For evidence contained in a specific question, the objection must ordinarily be made as soon as the question is stated and before the answer is given . . . ." Id. § 18, at 796-97.
Appellate courts have reviewed a trial court's decision on the admissibility of evidence under an abuse of discretion standard, even when it is not clear that the defendant made a contemporaneous objection, so long as the trial court ruled on the substance of the objection. See, e.g., United States v. Palmer, 3 F.3d 300, 304 (9th Cir. 1993), cert. denied, 510 U.S. 1138 (1994) (ruling in limine sufficed when unclear if objection was renewed during trial); Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986). An objection may be considered timely, even if not made at the moment a question is asked, so long as the objection gives the trial court an opportunity to instruct the jury properly, or consider a motion for a mistrial. See, e.g., Jackson v. State, 451 So. 2d 458, 461 (Fla. 1984), cert. denied, 488 U.S. 871 (1988); Roban v. State, 384 So. 2d 683, 685 (Fla. Dist. Ct. App.), review denied, 392 So. 2d 1378 (Fla. 1980). To be considered timely, an objection must "permit the court to take appropriate and effective corrective action." Coreas v. United States, 565 A.2d 594, 600 (D.C. 1989) (citations omitted); see also Watts v. United States, 362 A.2d 706, 708 (D.C. 1976) (stating an objection must give the trial court an opportunity to correct any potential defect).
Once an evidentiary issue has been brought to the attention of the Judge, under the continuing objection rule, counsel need not make the same objection when similar evidence is admitted later during the trial:
The repetition of an objection is needless where the same or similar evidence, already duly objected to, is again offered; the prior objection suffices, if the court's ruling has indicated that an objection to such evidence will definitely be overruled.
1 Wigmore, supra, § 18 at 815 (citations omitted). "An objection to evidence, once made and overruled, need not be renewed to the same type of evidence subsequently received." Wilkins v. United States, 582 A.2d 939, 942 n.7 (D.C. 1990). See also McGrier v. United States, 597 A.2d 36, 45 n.14 (D.C. 1991).
Mercer and Terrell challenge the examinations of six witnesses. Defense counsel failed to object to the questioning of the first three of these witnesses. Mercer's counsel only raised the evidentiary issues on the morning of the third day of the trial, moving for a mistrial, saying:
But, in any event, he created in my mind the impression with the jury that there's witness intimidation here by pointing to the folks on that side of the audience.
Those people there had no relevance to this trial, no relevance to her testimony. And I'm suggesting that that gesture, that colloquy, was entirely prejudicial to my client. And I went home and thought about it for awhile, and looked at some case law. That was an inappropriate comment to make in front of that jury, considering the atmosphere of this -- here in the city today.
And I believe that that is grounds for a mistrial, and I would move this Court for a mistrial at this point.
The Judge denied the motion for a mistrial, but indicated her willingness to give a jury instruction. *fn2 Immediately after the trial Judge denied the motion for a mistrial, counsel requested a curative instruction. The trial Judge denied this request as well, despite her stated willingness.
We find that this motion for a mistrial preserved the evidentiary issues for appeal. By virtue of Mercer's counsel's motion for a mistrial, and request for curative instruction, both of which were made while the prosecution was presenting its case in chief, the trial Judge was given the opportunity to instruct the jury regarding the challenged questions. The Judge declined to avail herself of that opportunity. Indeed, the trial Judge ruled on the substance of the motions that had previously been made by both counsel and found that the evidence was admissible. *fn3 Because the Judge did not overrule the motion on the basis of untimeliness, but actually ruled on their substance, and because the motion permitted the Judge to take appropriate corrective action, we will review the evidentiary rulings on an objected to evidence standard of review.
Further, the motion served as a timely objection with regard to the final three witnesses brought to our attention. Mercer's counsel explicitly stated that he objected to questions pertaining to fear, as they implied that the defendants were in some way responsible for intimidating the witnesses. Because the Judge made it clear that she did not think the questions were improper, counsel was under no obligation to renew the objection, as to do so would have proven futile. We therefore review the evidence admitted through all six challenged witnesses on an objected to evidence standard of review.
B. EVIDENCE OF ALLEGED WITNESS INTIMIDATION
Mercer and Terrell challenge the admission of certain evidence, claiming they were unfairly prejudiced. Both appellants claim that the prosecution created an improper inference that Mercer and Terrell were involved in a scheme to intimidate witnesses. The prosecution counters that the evidence was admissible to show the bias and motivation of various government witnesses.
Generally, evidence showing the bias or motivation of a witness may be relevant in assessing the witness' credibility. See Springer v. United States, 388 A.2d 846, 855 (D.C. 1978). That evidence may be relevant, however, does not end the trial court's analysis. See Johns v. United States, 434 A.2d 463, 473 (D.C. 1981). The trial Judge has the discretion to exclude relevant and otherwise admissible evidence "if its probative value is substantially outweighed by the danger of unfair prejudice." (William) Johnson v. United States, 683 A.2d 1087, 1090 (D.C. 1996) (en banc).
"'Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed. R. Evid. 403 advisory committee's note. See also Old Chief v. United States, 519 U.S. 172, 180 (1997); United States v. Doe, 284 U.S. App. D.C. 199, 204, 903 F.2d 16, 21 (1990). "Unfairness may be found in any form of evidence that may cause a jury to base its decision on something other than the established propositions in the case." 2 Jack B. Weinstein and Margaret A. Berger, Weinstein's Federal Evidence § 403.04 [b] (2d ed. 1998).
Federal courts have found appeals to the passions of the jury, such as the presentation of evidence of threats against a witness, to have the potential for great prejudice against the defendant. See, e.g., United States v. Thomas, 86 F.3d 647, 653-54 (7th Cir. 1996); Dudley v. Duckworth, 854 F.2d 967, 970-71 (7th Cir. 1988), cert. denied, 490 U.S. 1011 (1989); United States v. Qamar, 671 F.2d 732, 736 (2d Cir. 1982). The court in Thomas, supra, 86 F.3d at 654, viewed the probative value of such evidence as limited, unless admitted to explain specific behavior of the witness, such as inconsistent statements, delay in testifying, or unusual courtroom demeanor. If the trial court admits evidence of threats solely to go to the general credibility or bias of the witness, such admission has been held to be an abuse of discretion. See id.
Consistent with this view, we have stated that evidence concerning a witness' fear "tends to be prejudicial because it suggests the witness fears reprisal at the hands of the defendant or his associates if she testifies." McClellan v. United States, 706 A.2d 542, 551 (D.C. 1997). Evidence concerning the fear of a witness, however, may be admissible where the witness has given conflicting statements. Id. at 551-52.
Our case law instructs the trial court to be cautious in the admission of potentially inflammatory evidence. A prosecutor may not ask a question that is "totally groundless." McGrier v. United States, 597 A.2d 36, 44 (D.C. 1991) (quoting White v. United States, 297 A.2d 766, 768 n.1 (D.C. 1972)). Rather, the prosecution must have a "well reasoned suspicion." Id. at 44-45 (quoting United States v. Pugh, 141 U.S. App. D.C. 68, 71, 436 F.2d 222, 225 (1970)). This court has admonished prosecutors for probing about an alleged attempt on the part of the defendant to suborn perjury through intimidation, a potentially inflammatory subject, based on little evidence:
It is a generally accepted principle that the government may not attempt to manufacture evidence by creating an impression in the minds of the jurors through questions that imply the existence of facts.
Ali v. United States, 520 A.2d 306, 313 (D.C. 1987). See also id. at 315-16. But see Carter v. United States, 614 A.2d 913, 917-18 (D.C. 1992) (holding that a question concerning a general threat from "the streets" and not a specific threat from the defendant was not improper).
Similarly, this court has admonished against engaging in tactics that promote the concept of "guilt by association." See, e.g., Funchess v. United States, 677 A.2d 1019, 1021 (D.C. 1996) (citing 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.6 (c), at 310 (3d ed. 1996)) (stating that companionship with an offender alone is not enough to establish probable cause); Irick v. United States, 565 A.2d 26, 30 (D.C. 1989) ("guilt by association is a very dangerous principle, and . . . inferring culpability from an accused's blood relationship to a wrongdoer is fraught with peril") (footnote omitted); Smith v. United States, 558 A.2d 312, 315 (D.C. 1989) (en banc) (stating reasonable, articulable suspicion cannot be based solely on guilt by association). The admission of evidence whose sole purpose is to connect a defendant to a group of people of questionable character and not relevant to some other factual issue is improper.
Determining whether the probative value of a piece of evidence is substantially outweighed by its unfair prejudice necessarily involves a balancing test. 2 Weinstein, supra, § 403.02 [a]. In so weighing the evidence, the trial Judge should consider the availability of alternative methods or evidence that can prove the same proposition in a manner that is less unfairly prejudicial to the defendant. Old Chief, supra, 519 U.S. at 184. See also Gross v. Black & Decker (U.S.), Inc., 695 F.2d 858, 863 (5th Cir. 1983) (upholding the admission of potentially prejudicial evidence when no other alternative was available); 2 Weinstein, supra, § 403.02 [a].
In reviewing this determination of the trial Judge, "we recognize that the evaluation and weighing of evidence for relevance and potential prejudice is quintessentially a discretionary function of the trial court, and we owe a great degree of deference to its decision." (William) Johnson, supra, 683 A.2d at 1095 (citations omitted). *fn4 A proper exercise of discretion involves a sufficient factual basis and substantial reasoning to support the trial court's decision. (James W.) Johnson v. United States, 398 A.2d 354, 364-65 (D.C. 1979). *fn5 In reviewing a trial court's decision for an abuse of discretion, the appellate court should consider the context in which that decision was made. Id. at 366.
Having discussed the applicable legal principles, we now turn to the facts of this case. Mercer and Terrell challenge the prosecution's questioning of six witnesses. We will examine each challenged witness in turn to assess the propriety of the evidence admitted.
The prosecution presented the testimony of Catrice Cunningham, an eyewitness to the crime. Cunningham looked out of her window on June 1, 1995 to see two people having a conversation near a dark blue car that she knew belonged to Melvin Terrell. She saw two men chase Yappy, shooting at him. While she did not directly identify the shooters, Cunningham did state that Melvin Terrell was at the scene.
The attorney for Terrell then impeached Cunningham with a statement she gave to a defense investigator. *fn6 In that statement, she did not say anything about an argument or a blue car. Nor did Cunningham state that Melvin Terrell was at the scene.
On redirect, the prosecution asked Cunningham about the circumstances surrounding the statement given to the defense investigator:
Q: Ms. Cunningham, can you tell the ladies and gentlemen of the jury what the circumstances were when you were visited by this defense investigator?
A: When I was visited, when he came to see me to take that statement, Melvin's girlfriend was with him and I told [the prosecuting attorney] that I gave him -- I didn't give him quite the exact information that I gave [the prosecuting attorney], but I gave him part of what I knew. It's been three years ago. I mean what is -- how am I supposed to --
Q: Ms. Cunningham, you started off when I asked you the circumstances of your giving that statement, the first thing you said was that the investigator was accompanied by Melvin's girlfriend?
Q: That would be Melvin Terrell's girlfriend?
Q: How did that make you feel when you saw Melvin ...