Before Steadman and Ruiz, Associate Judges, and Newman, Senior Judge.
The opinion of the court was delivered by: Steadman, Associate 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.
Appeal from the Superior Court of the District of Columbia (Hon. Michael L. Rankin, Trial Judge)
Argued September 17, 1999
This appeal reaches us after the retrial of appellant Maurice Proctor resulted in Proctor's conviction for first-degree murder while armed, premeditated, in violation of D.C. Code §§22-2401, -3202.*fn1 The only issue on appeal is a challenge to the trial court's pretrial ruling admitting evidence that a lie detector test -- more precisely put, a test by a computerized voice stress analyzer (CVSA) -- had been administered to the prosecution's main witness. We conclude in the circumstances here that the judgment of conviction must be reversed and the case remanded for a new trial.
At the second trial, the following evidence was presented. Rodney Brown was fatally stabbed five times in the early morning hours in front of a Georgia Avenue Amoco gas station on June 15, 1994. Earlier that day, Brown had been drinking and talking with neighbors and friends in front of appellant Proctor's apartment at 610 Irving Street, the same apartment that housed Rodney Brown's girlfriend Cynthia Williams. Brown participated in several arguments in front of 610 Irving Street that evening. His first altercation was with Cynthia Williams. During the course of the dispute, Brown tossed a beer into Cynthia Williams's face. Subsequently, Roy Williams, Cynthia's brother, admonished Brown for disrespecting Cynthia. That argument escalated into a fistfight during which Roy Williams fell or was pushed down the stairs in front of the apartment and received a gash on his forehead. Thereafter, appellant Proctor arrived on the scene, and, witnessing the squabble, demanded that the parties quiet down so as not to disturb his grandmother, who was in an upstairs apartment. Rodney Brown, still riled, allegedly responded, "F--- your grandmother!"
Later that same evening, Metropolitan Police Officers Brian Gibson and Daniel Hickson were handling a disorderly conduct call on Lamont Street when they observed someone yelling and running down Georgia Avenue. Another individual was pursuing that man on foot, and a blue vehicle appeared to be keeping pace right behind the chase. By the time the officers were able to catch up to the parties, Brown was at the Amoco station, suffering from stab wounds and unable to speak. The blue car was observed parked nearby, with an individual crouching by the passenger door. The crouching individual ran away when the officers attempted to apprehend him. Brown died shortly thereafter.
The defense theory in the case was one of misidentification; the defense argued that Roy Williams was more likely to have been the stabber.
In addition to circumstantial evidence linking Proctor to the owner of the blue car,*fn2 the prosecution offered four eye-witnesses to the Amoco scene: both police officers, Gibson and Hickson; a neighbor, Donald Hymes; and the Amoco station manager on duty that night, Steven Avery. The two officers were unable to make a positive identification of the perpetrator,*fn3 and Donald Hymes was impeached by (1) his associations with the parties; (2) the fact that he had been drinking steadily for about eleven hours on the night in question; and (3) inconsistencies between the testimony he gave in the two trials. Thus, of all prosecution witnesses, Avery was especially significant.
On the scene, Avery initially denied witnessing the stabbing to lead detective Gregory, claiming that he was in the bathroom during the crime. The prosecution issued Avery a subpoena the following day, and he again denied any witnessing of the incident. Then, one day later, after talking with his mother and his employer about the events, he approached the prosecutors himself to "come clean" about his viewing of the incident, and gave a basic description of the suspect as a medium complected black male about six feet tall. He was summoned by detectives again, approximately three weeks later, on July 8, 1994 to view a photo spread. Avery told the detectives he had seen the left side of the perpetrator's face as he fled the scene of the crime. Nonetheless, Avery stated he was unable to identify the perpetrator out of the photo spread shown to him at that time. Several months later, on October 4, 1994, prosecutors approached Avery again and requested that he view the same photo array while under a computerized voice stress analyzer (CVSA). During the three viewings of the photos, required as basic procedure for administration of a CVSA, Avery continued to assert he could identify no one. Detective Gregory then, in Avery's words, "told me the results -- told me basically the last -- they still feel I'm nervous, I'm still holding back information."*fn4 After this suggestion as well as a sympathetic conversation about their shared North Carolina roots, Avery proceeded to look through the photo array a final time. This time, he identified the appellant.
Prior to opening statements in the second trial, the prosecution approached the bench about the admissibility of the CVSA test. During that bench conference, the prosecution observed that at the first trial, the defense had argued that Avery's identification of Proctor was the result of extreme pressure from the prosecutors, who repeatedly challenged Avery's story. As part of this argument, the defense had noted that Avery was shown the same photo spread four times in a single day, and only modified his story about his ability to identify someone on his final viewing. Although the prosecution had sought to introduce ...