Before Terry, Farrell, and Reid, Associate Judges
The opinion of the court was delivered by: Farrell, Associate Judge
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Appeal from the Superior Court of the District of Columbia (Hon. Evelyn E. Queen, Trial Judge)
A jury found appellant (Isler) guilty of armed first-degree murder and related offenses for the shooting death of Donald Brown. Against formidable identification testimony, Isler's defense was that a third person, Derrick Twyman, had killed Brown mainly in retaliation for a prior shooting of Twyman by Brown, whereas no reason had been shown for Isler to kill Brown. Attempting to neutralize this defense, the prosecutor called Twyman as a witness in rebuttal, and he testified that he was elsewhere playing basketball at the time of the charged shooting.*fn1 He further stated that he did not know who had shot him on the previous occasion. Nevertheless, outside the jury's presence, he was allowed to exercise his Fifth Amendment privilege with respect to any cross-examination about the prior shooting or his relationship with Brown. Despite that restriction, the prosecutor asked the jury rhetorically in summation if Twyman "sound[ed] to you like a person who was telling the truth when he said he wasn't out there that day [i.e., when Brown was killed]? Did he sound sincere? Did he answer the questions that were asked of him?" And, in light of Twyman's denial that he knew who had shot him, the prosecutor questioned how he could have had a motive to kill Brown.
On appeal Isler contends, as he did below, that the curtailment of his ability to cross-examine Twyman abridged his Sixth Amendment right to confront an important witness against him. We agree, and because we are unable to conclude that the error was harmless beyond a reasonable doubt, we reverse his convictions and remand for a new trial.
Brown was shot repeatedly while in a parking lot of the Linda Pollin Apartments complex at about 8:40 p.m. on August 30, 1993. His girlfriend, Patricia Walden, was with him and saw the shooting, as did two teenage girls, Shanta Dews and Vandora Chappelle, who were together looking out an apartment window at the time. All three witnesses knew Isler and positively identified him as the shooter. Dews did so the first time in a 911 call to the police moments later, and Walden did likewise in an interview with the police shortly thereafter.*fn2 The coincidence of immediate identifications by separate individuals (Dews/Chappelle and Walden) from different vantage points made this a strong government case.*fn3 At the same time, the government could prove no motive for Isler to have shot Brown.
The defense called a purported eyewitness to the shooting, Charles Alexander, who described the shooter as wearing a black hooded sweat shirt and black shorts. Although Alexander did not know the shooter's identity, he stated that he did not see him in the courtroom. Through other witnesses Isler attempted to show that Derrick Twyman might have been the shooter. Kenneth Brooks testified that he had seen Twyman in the Linda Pollin complex near the parking lot in question at about 7:15 on the evening of the shooting. Robin Beckford testified that Twyman and Brown had both been dating Patricia Walden at the same time, and that on one occasion in the early summer of 1993, she had seen Brown shoot Twyman in the ankle in Walden's presence, after which Twyman exclaimed, "The motherfucker shot me and it's because of you, bitch [i.e., Walden] . . . . I'm going to fuck him up." This followed an earlier occasion when Brown had also "started shooting at Derrick." Leatrice Wade likewise testified that Brown had shot Twyman twice and that, on the second occasion, Twyman said that "he['s] going to get that MF [i.e., Brown]." The prosecutor on cross attacked Wade's failure to mention, in an earlier interview with him, the fact that "there was a running feud between Derrick Twyman and Donald Brown."
The government called Twyman as its lone rebuttal witness to explain his whereabouts at the time Brown was killed. Since it was apparent that Twyman would be questioned about the circumstances of the shooting and his prior relationship with Brown,*fn4 the trial Judge summoned an attorney who was representing Twyman in a pending unrelated case. After consulting with Twyman about this case, the attorney stated that Twyman would refuse, on grounds of possible self-incrimination, to answer virtually any question about his activities at the time of the shooting or his past involvement with Brown. The trial Judge, endeavoring to balance the "competing . . . Fifth Amendment [right] of the witness," the "Sixth [A]mendment . . . rights of the accused," and the government's right to offer evidence countering an issue raised by the defense, allowed the parties to question Twyman at length outside the jury's presence and ruled question-by-question on his exercise of the Fifth Amendment privilege. The outcome was that the parties would be allowed to question Twyman about his whereabouts at the time of the shooting, as well as whether he had known Brown and been intimate with Walden. But no questioning would be permitted about the following subjects:
"-- anything to do with "the nature of how [Twyman] knew [Brown] or what he knew about [him]," as well as his feelings about Brown; "-- whether Twyman had ever threatened to injure Brown (or Walden); whether Brown had ever threatened him; and whether they had ever argued during the spring or summer of 1993; "-- anything regarding "the circumstances of the [previous] shooting" or shootings, and whether Twyman had possessed a gun during the months before the shooting of Brown; "-- whether Twyman and Brown had been rival drug dealers; and "-- whether Twyman owned dark sweat clothes, a black cap or dark hood, or a white T-shirt."
Before the jury, Twyman testified on direct that he had been playing basketball at one location, then another, throughout the evening hours of August 30, 1993, but in neither case near the Linda Pollin complex. He also stated that he had been shot in the ankle in June 1993, but claimed he had not seen the person who shot him. When Isler's counsel began cross-examination by asking, "You're willing to answer all my questions?", the trial Judge interrupted, reminded him of her ruling, and instructed the jury as follows:
"I've made certain preliminary rulings relative to Mr. Twyman. Mr. Twyman is here. He had no choice in the matter. Mr. Twyman, like every other citizen of the United States, also has certain Fifth Amendment rights."
In his closing argument, the prosecutor attacked Isler's defense directly, telling the jury that "[i]f you believe that Derrick Twyman killed Donald Brown, then you should find this man not guilty," but that to do so it would have to find that the government's witnesses -- especially Walden -- had lied in accusing Isler.*fn5 He stressed at length the credibility of Dews, Chappelle, and Walden, in contrast to the defense witnesses who, among other things, had come forward only at the eleventh hour to exculpate Isler. He further asked, rhetorically, whether Twyman did not "sound to you like a person who was telling the truth" and had not "answer[ed] the questions that were asked of him?" And he particularly noted that Twyman had said "he didn't know who shot him" on the earlier occasion, "[s]o how can we say he had a motive to kill Donald Brown?" In instructing the jury, the Judge recited the ...