Appeals from the Superior Court of the District of Columbia (F13098-92) (Hon. Frederick H. Weisberg, Trial Judge)
Before Schwelb, Ruiz, and Glickman, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
On November 3, 1993, a jury found Raymond Benn guilty of felony murder while armed, D.C. Code §§ 22-2401, -3202 (1981), *fn1 and of related kidnapping, assault and weapons charges, in connection with the armed kidnapping and the shooting death of Charles "Sean" Williams on December 1, 1992. Benn filed a timely notice of appeal. The appeal was held in abeyance to permit Benn to file a motion for a new trial, which he did on February 14, 1997, alleging Brady violations. *fn2 On November 11, 1998, following an evidentiary hearing, the trial judge denied the motion for a new trial. Benn again appealed, and the two appeals were consolidated.
On appeal, Benn contends, inter alia, that the trial judge erred by declining to permit Benn's attorney to recall to the stand Benn's mother, who had been present in the courtroom, in violation of the rule on witnesses, while her son was testifying. Counsel proposed to call the mother to corroborate Benn's testimony that, on advice of counsel, Benn and his mother had not discussed Benn's case and, in particular, his alibi defense.
We agree that Benn's mother should have been allowed to testify, and that the trial court's error in declining to permit her to do so was not harmless. Accordingly, we reverse.
The government's evidence at trial established that two individuals forcibly brought the decedent, Charles Williams, to the apartment of his fiancée, April Mahoney, in southeast Washington, D.C., on the evening of December 1, 1992. After searching for money, the two men forced the decedent out of the house and into a waiting car. Early the next morning, the decedent's body was found on a dark and deserted path behind an elementary school. He had been shot several times at close range.
The government's theory at trial was that this homicide was perpetrated by the men who were last seen with Williams, and that it was prompted by Williams' failure to resolve an unspecified debt. The prosecution presented identification testimony from individuals who were in the apartment - all members of the Mahoney family - to the effect that Benn was one of the men who accompanied Williams to the Mahoneys' home. The defense was alibi. Benn's mother, Mrs. Diane Thomas, testified that Benn was at her house in Wheaton, Maryland, on the night Williams was killed. Benn took the stand on his own behalf and testified to the same effect.
The government's case consisted of the identification of Raymond Benn by five witnesses as the taller of the two individuals who had accompanied the decedent to April Mahoney's apartment. All of the identification witnesses were members of the Mahoney family, and none of them had any prior acquaintance with either of the two men who were with Williams. There was no physical evidence connecting Benn to the homicide, and the defendant did not implicate himself in the killing when questioned by the police. The prosecution presented no evidence that Benn had a motive to kill Williams.
The government witnesses testified that, at the time of his death, Williams was living with April Mahoney and her family in the Mahoneys' apartment. In the evening of December 1, 1992, Williams left the apartment with his friend, Victor Blassingame. Approximately one hour later, some time between 8:30 and 9:00 p.m., Williams returned with two men - one tall and one short. At trial, five members of the Mahoney family described the events that followed. *fn3
According to the prosecution witnesses, Williams entered the apartment with the two men and walked into April Mahoney's bedroom. Despite the cold weather, he was wearing only a t-shirt, and he was bleeding from a cut on his head. When the three men arrived, April Mahoney, her nephew Darrin Mahoney, and her baby were all seated in the bedroom. The tall man, wearing glasses, held Williams by the back of his clothes. The short man had placed a pair of child's panties over his head, and Marcelle Mahoney saw the butt of a handgun in the short man's hand. Williams approached the bed and lifted the mattress, apparently in search of something, but he did not find anything. The three men then left the bedroom.
Willie Mae Mahoney confronted the two men with Williams. She told them: "I'm not going to have no violence, and don't disrespect my home." The taller man assured Mrs. Mahoney that no disrespect was intended. Mrs. Mahoney asked Williams if he was O.K., and Williams turned to look at her. Williams did not respond, but according to Mrs. Mahoney, he looked "just pitiful." The tall individual said: "He's all right. He has to settle a debt." The witnesses testified that Williams was then "yanked" or "yoked" out of the apartment through the front door.
April Mahoney's brother, William Mahoney, followed the three men outside. He saw the two strangers place Williams in a dark-colored automobile, and then the car sped away. While her brother was outside, April Mahoney called the police and reported the events that she had just observed. All five witnesses acknowledged at trial that prior to December 1, 1992, they had never seen either of the two men who had accompanied the decedent to the Mahoneys' apartment.
Williams' body was discovered near the elementary school between 3:00 and 4:00 a.m. The decedent was clad in a t-shirt, and he was not wearing a coat. There was duct tape around his wrists and mouth. The police found forty-five dollars in currency sticking out of Williams' pants pocket. Near the body, a crime scene search officer recovered four live rounds of 9 millimeter ammunition and one 9 millimeter shell casing. The medical examiner found that Williams had been shot several times and that he had died as a result of gunshot wounds.
Officers subsequently showed each of the five Mahoneys a photo spread that included a photograph of Benn. All five selected Benn's photo, but the identifications were less than overwhelming. Darrin Mahoney told the police that Benn's photograph "looks like the person" or "looks like the tall guy." April Mahoney stated that "he looks like the guy." Willie Mae Mahoney told the officers that Benn's photograph resembled the tall person "if his face was slimmer." Marcelle Mahoney commented that the photograph "looks like the person." Three of the witnesses, when viewing the photo array, asserted that they were "95% sure" that the man in the photograph was the taller of the two individuals who had come to the Mahoney apartment with the decedent. The trial judge was "struck by the fact that all [the witnesses] use ninety-five." At trial, all of the Mahoneys positively identified Benn in the courtroom, although several made statements that arguably cast doubt on their identifications. *fn4
Based on the Mahoneys' responses to the photo spread, an arrest warrant for Benn was prepared and executed. Following his arrest, Benn spoke to homicide detectives and provided them with an oral statement. He asserted, as he did at trial, that he was at his mother's home on the night of the murder. Benn was never placed in a line-up, and the second suspect who was with Williams on the night of his death was never identified or apprehended.
The defense theory of the case was that Benn was not involved in the homicide. Benn's mother, Mrs. Thomas, and Benn himself both testified that Benn was at his mother's home in Wheaton, Maryland, on December 1, 1992. Mrs. Thomas, an employee of the Department of Energy, recalled the date because it was her birthday, and because Benn had given her a teddy bear that night as a birthday present. The prosecutor's cross-examination focused on Mrs. Thomas' lack of knowledge of her son's whereabouts during the time that Mrs. Thomas was sleeping. *fn5 Mrs. Thomas was not asked whether she had discussed the alibi with her son.
Benn testified on his own behalf. He claimed that on December 1, 1992, he had spent the night at his mother's house. He remembered the date because it was his mother's birthday, and because he had given her a teddy bear that evening as a gift. Benn stated that he did not leave his mother's house after she went to bed and that he woke up there the next day. He denied that he had killed Williams or that he had entered the Mahoneys' home. Benn further testified that there were no unfriendly feelings between him and the decedent and that Williams did not owe him any money. Benn also testified that he did not wear glasses. *fn6
D. The inquiry into whether Benn and his mother discussed the alibi.
The bulk of the prosecutor's cross-examination of Benn consisted of questions that moved chronologically through the government's version of the events leading up to the homicide. Benn repeatedly denied any involvement in the offense, but he acknowledged that, as the defendant, he had an interest in the outcome of the case. The prosecutor then turned to the primary theme of his cross-examination, namely, that Benn must have coordinated his alibi with his mother. The prosecutor asked:
Q: You talked to your mother about the case, right?
Q: You mean to tell me that the lady that just testified before you, who[ ] you say is your mother, you never talked ...