Before Terry, Schwelb, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Robert I. Richter, Trial Judge)
(Argued May 19, 1998 Decided August 24, 2000)
Appellant Parker was convicted of first-degree felony murder while armed, first-degree premeditated murder while armed, attempted robbery while armed, assault with a dangerous weapon, possession of a firearm during the commission of a crime of violence, and carrying a pistol without a license. On appeal he contends (1) that the trial court erred in denying his motion for a mistrial based on allegations of juror and witness intimidation; (2) that the court, in violation of his Sixth Amendment rights, limited his cross- and recross-examination of two witnesses; (3) that the prosecutor made improper and prejudicial remarks during her opening statement and closing argument; and (4) that several of his convictions merge. The government does not contest the merger claim. We affirm the convictions on the merits and remand for resentencing.
A. The Government's Evidence
On the evening of April 30, 1993, Darrick Wilson and his cousin, Eric Robinson, both in their teens, *fn1 met at the home of Wilson's grandparents to watch television and drink beer. Later in the evening, they decided to go to a carry-out and get something to eat. Because the carry-out was crowded when they got there, they went instead to visit a friend who lived nearby. The friend was not at home, however, so they headed back to Wilson's grandparents' house, taking a short cut through a courtyard behind an apartment building.
As they crossed the courtyard, they saw two men coming toward them from a darkened stairwell. One of the men yelled, "Who is this? Come here. Hold up." When the cousins began to walk faster, one of the approaching men called out, "Don't move," and then, "Who is this, Darrick?" Hearing his name, Darrick Wilson stopped to look at the person who was calling him and saw that it was Thurman Parker, whom he had known for several years *fn2 and had just seen a few days earlier. Robinson stopped also and stood behind Wilson.
As Parker approached, he was holding a gun in his left hand and pointing it at Wilson's abdomen. *fn3 Parker said, "Don't move, don't move," and stuck his right hand halfway into Wilson's pocket. *fn4 At the same time, the second man made an obscene threat. Afraid that he was going to be shot, Wilson immediately turned around to run. As soon as he turned, Wilson heard gunshots and then felt a "thumping . . . burning" pain in his right leg. Without falling, and without looking back, Wilson ran toward his grandparents' house. As he was running, Wilson heard nine or ten more gunshots from what sounded like a single gun.
When Wilson reached his grandparents' home, he told his grandmother that he and Eric Robinson had just been shot. *fn5 Wilson then left the house and headed for a nearby apartment building where his friend Arvel Williams lived. As he neared the building, however, he collapsed on the front steps and called out to Williams for help. When Williams came outside, Wilson told him that he and Robinson had just been shot by Thurman Parker, whom Williams also knew from the neighborhood. Williams told Wilson not to move and went to call the police and an ambulance.
A few minutes later, an ambulance arrived and took Wilson to Howard University Hospital, where he spoke with Homicide Detective Mary Lanauze. Wilson told the detective that Thurman Parker had shot him. *fn6 While still at the hospital, Wilson's mother told him that Eric Robinson was dead. *fn7 The following afternoon, after he was released from the hospital, Wilson went to the police station, where he spoke with Detective Lanauze and two other officers. Again he told the police that Thurman Parker was the gunman. Wilson then selected Parker's picture from a spread of photographs shown to him by the police.
On cross-examination, Wilson acknowledged that before the shooting he and Robinson had each consumed three twelve-ounce cans of beer. Wilson denied telling Donald Gatling that it was too dark in the courtyard to see who shot him, denied accusing "Reds" as the person who shot him, and denied telling Robinson's father, a couple of days after the incident, that he did not know who had shot his son.
At the conclusion of defense counsel's cross-examination, the prosecutor said she would like to ask Wilson about Donald Gatling. In addition, outside the presence of the jury, the prosecutor informed the court that Mr. Gatling had been making collect calls from the jail to Mr. Wilson. The following exchange ensued:
Mr. Jones [defense counsel]: He [Gatling] will be here. You can talk to him.
Ms. Polin [the prosecutor]: I don't want to talk to him. I want to redirect my witness and bring that out. . . . Just the fact that he's in jail, he's making collect calls, he's saying all sorts of things to him [Wilson]. I'd like to bring that out on redirect.
Wilson then testified on redirect that Donald Gatling had called him from jail fourteen or fifteen times, beginning about three months before the trial began. Gatling repeatedly told Wilson not to go to court and testify against Parker, but rather to "settle it with [Parker] on the street." The night before Wilson came to testify, Gatling called his house twice, but Wilson would not speak with him. Wilson also said he was nervous about testifying.
After redirect, defense counsel said he had "a couple of questions." The court called both counsel to the bench, where the ...