Appeal from the Superior Court of the District of Columbia (F-8562-96) (Hon. Herbert B. Dixon, Jr., Trial Judge)
Before Schwelb, Ruiz, and Washington, Associate Judges.
The opinion of the court was delivered by: Washington, Associate Judge
Argued September 27, 2001
On November 18, 1998, George Foreman III was convicted of first-degree (premeditated) murder while armed, *fn1 possession of a firearm during a crime of violence, *fn2 assault with a dangerous weapon, *fn3 and carrying a pistol without a license. *fn4 His first trial ended in a mistrial when the jury was unable to reach a unanimous verdict on any of the charges. On appeal, Foreman contends that the trial court denied him a fair retrial by allowing the government to improperly introduce additional evidence at his second trial that was unfairly prejudicial. During oral argument, counsel for Foreman characterized the errors complained of as arising from the government's use of "juicy bits of evidence searching for theories of admissibility." Specifically, Foreman argues that the trial court: 1) erred by admitting testimony suggesting that a key witness had been threatened by Foreman's girlfriend, Vanessa Nicholas, allowing the prosecution to bolster the witness' credibility improperly; 2) erroneously admitted a false statement by Ms. Nicholas as an adoptive admission; 3) erred by not providing additional curative relief sua sponte when a detective testified that he was investigating others associated with Foreman's place of employ; 4) committed reversible error when it failed to strike sua sponte testimony concerning additional ammunition; 5) abused its discretion by allowing the government to elicit testimony from a defense witness that she had previously stabbed Foreman; 6) abused its discretion by permitting cross-examination of a witness concerning a letter the witness had written to Foreman; and 7) abused its discretion by allowing the government to use a letter written by Foreman as impermissible character evidence. Foreman contends that the individual and/or cumulative impact of the above enumerated errors warrants reversal. We agree with the latter statement and reverse.
Early in the morning on May 6, 1996, Lewis Davis was shot multiple times and killed at an after-party in the Babylon Night Club, located at 911 F Street, N.W. Sometime just after 1:00 a.m. shots rang out in the nightclub. The crowd panicked and fled. When the police arrived, they found the crowd milling about outside and the dead body of Lewis Davis lying on the floor. An evidence technician was called to the club to process the crime scene. The technician noticed cartridge casings and bullet fragments on the floor of the club in the area where the decedent was lying. The technician recovered eight expended cartridge casings from the club.
The government presented two eyewitnesses to the shooting, Zanita Harris (Harris) and Rodman Lee (Lee). Harris left the club on the night of the shooting and made no reports to the police until early August 1996. At trial, Harris testified that she saw Davis, whom she knew personally, and that she was within a couple of feet of Davis and Foreman when the shots rang out. Similarly, Lee, who testified pursuant to an agreement he reached with the government in connection with his own criminal problems, stated that immediately before the shooting he witnessed a brief exchange between Foreman and Davis, after which Foreman pulled out a black handgun and started firing at Davis. Neither Lee nor Harris came forward immediately and appellant remained at large.
A little over three weeks after the murder, on May 31, in an unrelated shooting at an Exxon Station in Southeast Washington, D.C., Detective Ronnie Hairston, an undercover police officer, followed a Camry as it drove away from the scene of the incident. The detective watched as someone leapt from the Camry, tossed an item into the woods and returned to the vehicle.
Lee, who was present at the Exxon shooting as well, claimed that as he drove away from the shooting he glanced into the Camry and recognized Foreman as the driver. The Camry eluded the police and was later found abandoned. When the police checked the wooded area where the man from the Camry appeared to have thrown something, they found a 9mm handgun. When tested against the casings found in the Babylon Club, the gun was determined to be the same weapon used to kill Davis.
Based on this information the police obtained a search and arrest warrant for Foreman. Detective William Hamann, the lead detective investigating the murder, executed the warrant at the home of Vanessa Nicholas, Foreman's girlfriend. Although Nicholas claimed that Foreman was not there at the time, the police found him coming out of an upstairs bedroom and arrested him. As part of a search of the home, Detective Hamann located two boxes of ammunition under the bed- including Speer Lawman 9mm ammunition, the same brand of ammunition used to kill Davis.
1. Admission of the Threat Evidence
Defense counsel objected to the admission of testimony concerning a conversation Ms. Harris had with Foreman's girlfriend, Vanessa Nicholas, after the murder. The trial court overruled defense counsel's objection and allowed the government to elicit testimony that a conversation took place and that after the conversation Harris was scared. The trial court, however, did not allow the government to elicit the substance of the conversation.
The witness testified that the conversation with Foreman's girlfriend was the reason that she contacted the police about the shooting, after remaining silent for nearly three months. Ms. Harris stated that she contacted the police because she could not figure out "why she and [Foreman's girlfriend] had the conversation." The witness stated that "she was scared and did not know what else to do." Foreman contends that the trial court abused its discretion by admitting testimony explaining why the witness came forward after waiting three months because the probative value of the testimony was substantially outweighed by its prejudice.
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence. Super. Ct. R. Evid. 401; Jones v. United States, 739 A.2d 348, 351 (D.C. 1999); Punch v. United States, 377 A.2d 1353, 1358 (D.C. 1977); Fowell v. Wood, 62 A.2d 636, 637 (D.C. 1948). "For evidence to be relevant, it must be "related logically to the fact that it is offered to prove, . . . the fact sought to be established by the evidence must be material . . . and the evidence must be adequately probative of the fact it tends to establish." Jones, supra, 739 A.2d at 350 (internal citations omitted). A trial court's evidentiary ruling concerning the relevance of evidence rests within the discretion of the trial court and will be upset only upon a showing of abuse. Id. (citing Blakney v. United States, 653 A.2d 365, 368 (D.C. 1995)).
"Generally, evidence showing the bias or motivation of a witness may be relevant in assessing the witness' credibility." Mercer v. United States, 724 A.2d 1176, 1184 (D.C. 1999) (citing Springer v. United States, 388 A.2d 846, 855 (D.C. 1978)). The court in Thomas v. United States, 86 F.3d 647 (7th Cir. 1996), reviewed the probative value of such evidence and noted that evidence of bias and motivation are relevant in limited circumstances. Id. at 653-54 (cited with approval in Mercer, supra, 724 A.2d at 1184). "For example, threat evidence can be relevant to explain a witness' inconsistent statements, delay in testifying, or even courtroom demeanor indicating intimidation." Id. In such situations, the evidence of threats is necessary to account for the specific behavior of a witness that, if unexplained, could damage a party's case.
In this case, the government tendered the evidence "simply to explain the delayed reporting." The evidence, however, did not explain the delay: Ms. Harris' delay occurred well before she was approached by Foreman's girlfriend, not after. The evidence simply explained why the witness did come forward, a point with minimal relevance. The lack of relevance is more significant when, as in this case, defense counsel was not questioning Ms. Harris' delay. The government asserts that this distinction draws too fine a line. However, such a fine line must be drawn when admitting inflammatory evidence that may have substantial prejudicial effect.
That the evidence may be minimally relevant does not end our analysis. The trial judge has the discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Mercer, supra, 724 A.2d at 1184 (citing Johnson v. United States, 683 A.2d 1087, 1090 (D.C. 1996)) (en banc); see also Fed R. Evid. 403. "Evidence of threats is subject to the same Rule 403 balancing test as other relevant evidence." Thomas, supra, 86 F.3d at 653-54 (quoting United States v. Qamar, 671 F.2d 732, 736 (2nd Cir. 1982)). "We recognize that the evaluation and weighing of evidence for . . . potential prejudice is quintessentially a discretionary function of the trial court, and we owe a great degree of deference to its decision." Jones v. United States, 739 A.2d 348, 351 (D.C. 1999) (quoting Johnson v. United States, 683 A.2d 1087, 1095 (D.C. 1996)).
"Unfair prejudice . . . means an undue tendency to suggest decisions on an improper basis, commonly, though not necessarily, an emotional one." Fed. R. Evid. 403 advisory committee's note; see also Old Chief v. United States, 519 U.S. 172 (1997). Our case law instructs the trial court to be cautious in the admission of potentially inflammatory evidence. Frank v. United States, 104 U.S. App. D.C. 384, 262 F.2d 695 (1958); *fn5 District of Columbia v. Cooper, 483 A.2d 317 (D.C. 1984). *fn6
In the present case, Foreman relies on this court's opinions in Carpenter v. United States, 635 A.2d 1289 (D.C. 1993) and Mercer v. United States, 724 A.2d 1176 (D.C. 1999), to support his argument that the admission of testimony concerning the witness' fear was improperly admitted. Both cases stand for the general proposition that if the trial court admits evidence of threats solely to attack the general credibility of the witness, such admission is an abuse of discretion. Carpenter, supra, 635 A.2d at 1294; Mercer, supra, 724 A.2d at 1184; *fn7 see also McClellan v. United States, 706 A.2d 542, 551 (D.C. 1997).
This court has expressed concern about evidence of fear and/or intimidation of witnesses. "[E]vidence concerning a witness' fear tends to be prejudicial because it suggests the witness fears reprisal at the hands of the defendant or his associates if she testifies." Mercer, supra,724 A.2d at 1184 (quoting McClellan v. United States, 706 A.2d 542, 551 (D.C. 1997)). Unless such evidence is closely tied and probative as to a particular defendant, or ...