Before Farrell, Reid, and Glickman, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Appeals from the Superior Court of the District of Columbia (Hon. Arthur L. Burnett, Sr., Trial Judge) (Hon. A. Franklin Burgess, Jr., Trial Judge)
In this appeal from appellants' joint murder convictions arising from the shooting death of Ronald Thomas, the primary issue concerns the trial court's exclusion of evidence proffered by Battle to show that another person so closely resembling him that he had been mistaken for Battle committed a similar (non-fatal) shooting two weeks before the murder with one of the same pistols used in the murder. After originally charging Battle with the earlier assault, the government dismissed the charge when records appeared to show that Battle had been confined at the Oak Hill juvenile detention center at the time of the shooting. We agree with Battle that the trial court erred in excluding evidence of the earlier shooting, which was relevant under "reverse Drew/Winfield" principles established by our cases. We remand the record for additional inquiry and findings by the trial court to aid us in considering the effect of the error on the jury's conviction of Battle. As to appellant Tatum, we find no basis on which to reverse any of his convictions.
On the evening of December 7, 1993, three men dressed in black surrounded Ronald Thomas' car parked on I Street, N.E., and together fired numerous pistol shots into the car, killing Thomas. Three eyewitnesses, neighborhood girls aged 13 to 17 at the time, all identified appellant Battle as one of the shooters. The first witness, Arnita Smith, had known Battle and co-appellant Tatum "for a long time," having gone to junior high school with them and sometimes seen them together at school. On the night in question, Smith was walking up I Street with Eva Mack and Kentoura Donaldson when she saw Battle "walk up to the car and just start shooting at [Thomas]." Battle, Tatum, and an unknown third young man had positioned themselves on three sides of the car. All three fired shots at the car but Battle, standing on the street side of the parked car, had fired first: he "pull[ed] the gun out and just start[ed] shooting." *fn1 Smith was certain that Battle was one of the shooters.
Kentoura Donaldson likewise testified that she was with Smith and Mack on December 7 when she saw Battle, Tatum, and a third "boy place [themselves] around [Thomas's] car, one . . . on the passenger's side, one . . . on the driver's side, and one . . . in the back." (Before this, Donaldson had heard another young man standing nearby ask Battle, "[W]hat's up, Shannon?") The three began shooting at the car at the same time. When Kentoura turned and started running away, she heard the shots continue and then saw the shooters run away through an alley. She recognized Battle because she had known him since elementary school. She would see him and Tatum "[s]tanding around . . . [d]own by [the] Langston [neighborhood]"; "[t]hey would be together all the time." Asked whether she had seen Battle's face during the shooting, she answered: "You could see him. You know it was him." *fn2
Eva Mack, the third eyewitness, was standing with the other girls in an alley off I Street when she saw some "boys . . . [s]hooting at [Thomas's] car." She recognized Battle as one of them because she had "know[n] him from [her] sister" for two years; she had seen him "a couple of times" including once "[w]hen he was trying to talk to [her] sister." She had also seen Battle and Tatum together. Although a third man was near the car at the time of the shooting, Mack saw only Battle and Tatum firing at the car. Her back had originally been turned to the car, but when she heard the first shot she turned around and "saw Shannon's face." She "g[o]t a good look at him that night" and was sure he was one of the shooters.
One of the guns used in the murder was a Glock nine millimeter pistol. Ten days after the shooting police stopped a car in which Battle was a passenger and found that pistol in his waistband. Tatum was also a passenger in the car. A month and half later, police recovered another pistol used in the shooting from a duffle bag on the rear floor of a car in which Battle was riding as a back seat passenger. It was stipulated to the jury that a week before the murder Tatum had been in possession of both of these handguns.
II. The Reverse-Drew/Winfield Issue
Battle's defense was alibi and thus misidentification. Before trial, he moved to admit evidence of another shooting that had taken place on November 25, 1993, two weeks before the charged homicide. Battle had apparently been identified by the victim of that (non-fatal) shooting from a photo array as the assailant, and the government had charged Battle with the assault. (The criminal complaint in that case named the victim only as "John Doe.") It later dismissed the charge, however, when an examination of the records at the Oak Hill juvenile facility appeared to show that Battle has been confined there on November 25. *fn3 Besides what Battle thus alleged was his misidentification as someone closely resembling him, the government had established that one of the same guns later used to shoot Ronald Thomas had been used to shoot "John Doe." On the basis of these similarities and the fact that the shootings were separated by only two weeks and took place within a few blocks of each other, Battle sought to introduce proof of the earlier shooting as "reverse Drew" evidence to raise a reasonable doubt whether he - rather than the unknown assailant on November 25 - had shot Thomas. Battle also requested discovery of the identity of "John Doe" and all information the government had about the circumstances of that shooting.
At a hearing on the motion, Battle renewed his request for discovery and admission at trial of the November 25 misidentification. In response, the prosecutor stated that "the paper trail" had indeed indicated that Battle had been at Oak Hill at the time of the November shooting, so that the government had dismissed that charge against him after concluding "it could not prove its case beyond a reasonable doubt." The prosecutor asserted, however, that the Oak Hill custody records "were in complete disarray" according to a detective who had reviewed them, and that an examination of daily passes from the facility to see if Battle had been issued one for November 25 was impossible "because they were in boxes all over the floor." *fn4 As to the identification of Battle, the prosecutor stated that "John Doe" had been "reinterviewed and has stated that his initial identification [of Battle] was correct."
In a written memorandum and order, the trial judge (Burnett, J.) denied the motion to admit evidence of the earlier ...