Before Schwelb, Reid, and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Appeal from the Superior Court of the District of Columbia Criminal Division
(Hon. Harold L. Cushenberry Jr., Trial Judge)
(Argued November 23, 1999 Decided May 25, 2000)
Appellant Kevin Clayborne was convicted after a jury trial of second degree murder while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license. He contends that the trial court erred (1) in allowing the government to insinuate bias without sufficient foundation during cross- examination of a key defense witness and in closing argument; and (2) in allowing the government to rebut his testimony on cross-examination concerning a collateral matter by calling the decedent's sister to testify in the government's rebuttal case. Finding no reversible error, we affirm Clayborne's convictions.
On February 1, 1996, Artis "Petey" Burns died from a gunshot wound to the head that was inflicted shortly after midnight on January 7, 1996, in the vicinity of Eaton Road in the Barry Farms section of Southeast Washington, D.C. The government's theory at trial was that Kevin "K.K." Clayborne shot Burns in retaliation for Burns' participation in the murder of Clayborne's friend, Joseph Freeman, the previous night.
The government called two eyewitnesses to the events immediately surrounding the shooting, Tanisha Williams and Robert White. Tanisha Williams was in an upstairs bedroom in the house of her mother, Kirsten Williams, when she looked out the window and saw Burns standing out front by a mailbox. Williams testified that she saw two men approach Burns, one of whom she recognized as "K.K.," i.e. Clayborne, whom she knew. She did not recognize the other man. Williams stated that as Burns backed away from the two men, she saw K.K. reach out and fire several shots at him. Burns fell and the two men fled the scene.
Robert White testified that he was on his way to Kirsten Williams' house on Eaton Road when he saw two men emerge from an alley and approach Burns on the street. White stated that he could not identify the two men because they had on hoods and their backs were to him. Burns and the two men walked into an alley, and White lost sight of them. Moments later, as White was standing at the threshold of Williams' house, he heard gunshots from the alley.
Burns was able to crawl to a neighbor's house, where White, Tanisha Williams and several other bystanders attempted to help him. One of the bystanders, Clarence Aull, asked Burns who shot him. White and Williams both testified that Burns, spitting blood and struggling to speak, managed to answer that "K.K." shot him.
Clayborne challenged the accounts given by Williams and White on multiple fronts. Williams and White contradicted each other in the details of their descriptions of the events leading up to and following Burns' shooting. Moreover, when the police first interviewed Williams and White, neither witness mentioned seeing Clayborne or hearing Burns identify Clayborne as his assailant. White did not report that he had heard Burns name "K.K." as the shooter until four months had elapsed. Williams likewise delayed in furnishing that critical piece of information, and she repeatedly told the police that she did not see the face of the man who shot Burns. Only after Williams learned that Clayborne was a suspect, and a homicide detective visited her at the homeless shelter where she was living and promised to help her obtain a Housing and Urban Development "Section 8" housing certificate if she would cooperate, did Williams say that, in fact, she did see who shot Burns. Only then did she identify Clayborne as the shooter. Twelve days later Williams received the housing certificate, which allowed her to move into a two-bedroom, $834-a-month apartment for free.
In trying to discredit Williams and White, the defense also focused on their testimony that Burns said "K.K." when Clarence Aull asked Burns who shot him. Medical evidence, including the fact that Burns' jaw was fractured and bullet fragments had lodged in his tongue and soft palate, raised questions about Burns' ability to say anything. Burns' treating physician, a trauma surgery expert, testified that in his professional opinion, Burns could not have talked and breathed at the same time because of all the blood in his mouth and throat. MPD Officer Craig Royal, the first police officer on the scene, testified that when he asked Burns two or three times who shot him, Burns did not answer. Officer Royal never heard Burns say that "K.K." or Clayborne shot him.
The defense also called Clarence Aull to testify. Aull was a friend of both Burns and Clayborne. Aull testified that he asked Burns twice who shot him, but - contrary to the testimony of White and Williams - Burns was unable to answer. Aull testified that Burns' friend Marcus, also on the scene following Burns' shooting, asked as well, and he too received no response. Aull denied that Burns named "K.K." as his assailant.
Clayborne himself testified, declaring that Burns was his friend and that he had nothing to do with his murder. Clayborne acknowledged that in early January 1996 he was distressed over the recent murder of his friend Freeman, but he stated that he had not heard that Burns was implicated in that crime. Clayborne acknowledged that he could not say where he was when Burns was shot. He testified, however, that a month or two had passed between the shooting and when he first heard rumors that he was involved.
The issues raised in this appeal concern, first, the government's cross-examination of Aull for bias; second, the government's rebuttal argument to the jury based on that cross-examination; and third, the government's presentation of Burns' sister Katrice Green as a rebuttal witness. We discuss each of those issues in turn.
Cross-examination of Clarence Aull for Bias
In cross-examining Aull, the government sought to discredit his testimony that Burns did not identify Clayborne by establishing that Aull had a strong motive not to be known as a "snitch." As evidence bearing on this motive, the government elicited that Aull had had several friends in addition to Burns who had been murdered; that Aull himself had been shot on two separate occasions; and that Aull never identified his own assailants, impliedly because he feared the consequences of snitching. Clayborne contends that the trial court erred in allowing the government to elicit this testimony, because the government never proffered a basis for believing either that the murders of Aull's friends would prompt Aull to lie, or that Aull was lying when he said he could not identify his own assailants. Absent such a basis, Clayborne argues, the evidence was irrelevant, and the trial court abused its discretion in admitting it and thereafter in allowing the government to draw prejudicial inferences from this evidence in argument.
The prosecutor began his cross-examination for bias by eliciting the fact that several ("like 6 or 7") of Aull's friends in the Barry Farms neighborhood had been killed. *fn1 Defense counsel objected to this area of questioning on relevance grounds. The trial court overruled the objection, deeming the questioning "simply essential bias cross-examination" because it bore on why Aull might not want to incriminate his friend Clayborne. *fn2 The prosecutor then asked Aull, "And yet you're not able to say who the killers were in any of those cases, are you?" Defense counsel immediately objected to this question, the court sustained the objection, and Aull did not answer it. *fn3 The prosecutor next asked Aull about the occasions on which he himself had been shot. Defense counsel objected to this examination, again on relevance grounds, but the trial court ruled that it was relevant (without explaining why). The court accordingly permitted the prosecutor to elicit that Aull was shot in his shoulder in November of 1995 and in his hip or thigh in January of 1996, and that one of these incidents occurred in Barry Farms and both occurred in Southeast Washington, D.C.
The prosecutor then proceeded with the following examination, to which defense counsel did not object:
Q. And you're not able to, to say who did either of those shootings, are you?
Q. And you realized that if you did see who did that, you did tell the police you'd have to go ...