Appeals from the Superior Court of the District of Columbia (F-7829-93) (Hon. Truman A. Morrison, III, Trial Judge)
Before Wagner, Chief Judge, and Farrell and Ruiz, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Concurring opinion by Associate Judge Farrell. Dissenting opinion by Chief Judge Wagner.
After a jury found him guilty of armed robbery *fn1 and first-degree felony murder while armed, *fn2 appellant received concurrent sentences of incarceration of fifteen years to life for armed robbery and thirty years to life for felony murder while armed, *fn3 concurrent with any other sentences. *fn4
Appellant contends in his direct appeal that the prosecutor's rebuttal argument was improper and that the resulting prejudice requires reversal of his convictions. In his appeal from the trial court's denial of his post-trial claim that his counsel was constitutionally ineffective, appellant contends that counsel precipitated the introduction of an extremely damaging eyewitness identification and failed to object to either the introduction of graphic color autopsy photographs of the murder victim, or, more importantly, the prosecutor's use of those photographs in conjunction with improper statements during rebuttal argument.
We agree with the trial court that the prosecutor's conduct in needlessly displaying gory photographs of the decedent coupled with his charged contemporaneous statements to the jury during rebuttal argument was improper, and that defense counsel should have objected. We also conclude that defense counsel's questioning introduced an identification of appellant as the shooter, which had been excluded by agreement in limine, that significantly strengthened the government's case, constituting ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). We therefore reverse and remand for a new trial. *fn5
Kevin McGill, who also participated in the crime, was the central government witness at trial. He had entered a plea of guilty to second-degree murder while armed, and as part of his plea agreement, agreed to testify against appellant.
McGill testified that on the morning of July 9, 1993, appellant pulled up to a recreation center in a gray Honda Accord and told McGill that he had a "sweet" place to rob, and asked McGill if he wanted in on the robbery. McGill agreed. They drove to The Corner Market, a convenience store at 1499 Howard Road, SE, owned by Henry Choi. That morning Kwang Ahn, a friend of Choi, had gone to the store to meet Choi for a game of golf. Ahn helped serve customers while they waited for Choi's wife to come to the store so they could leave for their golf game.
McGill testified that he went into the store first, followed by appellant, who was carrying a shotgun. Two customers were in the store at the time, both of whom saw appellant with the gun, but they continued making their purchases. McGill got into the line as if to make a purchase. As customers were still in the store, McGill assumed the robbery was called off and began to walk out. McGill then heard a "pop," turned, and saw Ahn holding his stomach and falling to the floor while appellant stood three to four feet from where Ahn had fallen. *fn6 McGill did not actually see appellant fire the gun because his back was turned and he was almost to the door when it went off. According to McGill, appellant told him that he shot Ahn because he tried to grab the gun away from him.
The two men then ran to the cash registers which were located behind bullet-proof glass at the back of the store. Appellant pointed the gun at Choi while McGill took approximately $500 from the till. McGill left the store, followed by appellant, and the two got into the Honda and drove up the hill and over to Bowen Road. They divided the $500 and parted. McGill testified that he drove the Honda after the robbery, but gave a confusing account of who had driven to the store originally and who had the keys to the car.
McGill told the police detectives investigating the case that the gun used in the murder, the "neighborhood gun," was stored in a rooming house on Bowen Road where appellant "hung out." McGill admitted that he was quite familiar with the gun, knew where it was stored, and had held, carried, and fired it before the robbery. Based on McGill's information, the police obtained a warrant and recovered the shotgun from a kitchen cabinet at the rooming house. McGill identified the shotgun as the one appellant used in the robbery. Evidence retrieved from the shotgun was "consistent" with a round of live ammunition and shotgun wadding found at the crime scene as well as shotgun pellets recovered from the decedent's body during the autopsy. No fingerprints were recovered, however, and no scientific or technical evidence conclusively linked the shotgun found in the rooming house to the gun used in the crime.
Choi testified at trial that he was in the back of the store on the telephone with his wife when he noticed a customer come into the store and heard the boom of a shotgun. He then saw the gun pointed at him and two men running toward him who took money out of two cash registers. As they left, Choi followed them out of the back part of the store and he saw his friend on the floor. After he called 911, Choi ran outside the store in time to see a car pulling away and heading up the hill.
Choi further testified at trial that he would not recognize the individuals who robbed his store and shot his friend, but gave a general description: both men were black, the man who held the gun had shoulders that were "a little bit broad" hair a "little bit" long, and weighed more; the other was shorter and had narrower shoulders.
Michael Walker, who had lived across the street from the store for about twelve years, testified that from his house he could see the front door of Choi's store. On the morning of the robbery, he was on the telephone in an upstairs room at the front of the house and noticed that the store was busy, but that eventually traffic slowed down. He saw a brown-skinned, male teenager of medium build standing in front of the store who "kept turning around [and] looking back and forth," which made Walker suspicious. The young man looked into the store, then walked around the corner out of view, and returned carrying what appeared to be a rifle. Walker called 911 to report a robbery in progress, and while still on the phone, heard a "boom" and told the operator that he thought someone had been shot. A few seconds later, Walker saw two black teenagers run from the store; the one who had carried the gun into the store ran out first, but without the gun, and the other followed carrying the gun Walker had previously seen. The two ran around the corner of the building, and soon after, Walker saw a Honda with tinted windows speeding out of the store parking lot and making a right hand turn on Howard Road. Walker could not identify the two men.
Detective Roderick Wheeler of the Metropolitan Police Department testified that appellant was first interviewed on July 13, 1993, four days after the shooting, but was not then a suspect in the killing. The government introduced a written statement that appellant gave to the police on that day. Appellant said that he had seen McGill on the morning of July 9th, but that McGill drove off without speaking to him, and appellant went back to sleep until 11:45 a.m. After he awoke, appellant ran into a friend named "Jeffery" with whom he went "uptown until it was getting dark." When they returned, he heard from people in the neighborhood that someone had been killed.
Detective Wheeler further testified that in the statement appellant acknowledged that he had been in a "tannish-brown" Honda with McGill on previous occasions, but not on the day of the robbery. According to appellant, "every time people see [appellant] or see the car they automatically think I'm with him. People think me and Kevin are the best of friends. We are not the best of friends but I'm just making him think that." During his interview with Wheeler, appellant described the shotgun from the rooming house in detail and admitted having held it before, but claimed never to have shot it. He said that although he did not see McGill with a gun the morning of the shooting, he had in the past seen him with "a shotgun, a nine millimeter, and a .22 caliber rifle." Appellant said he was aware people were saying that he and McGill had something to do with the death of the Korean merchant (referring to Ahn), but he told Wheeler that people just assumed he was in the car with McGill that morning. In his written statement, appellant denied having been present at all during the robbery. He also stated that he noticed that after the robbery, McGill began to act suspiciously, and did not come around the neighborhood as regularly as he had in the past.
Detective Wheeler also testified that, a few days after the robbery, Choi had made a positive identification of appellant and McGill from a photo array. When confronted with the English translation of a statement written by Choi in Korean that the identification was tentative because the robber had longer hair than the man in the picture, Wheeler added that when interviewed, appellant had said that he had "all of [his] hair cut off" a few days after the date of the robbery.
After his arrest, appellant gave a videotaped statement, which was played for the jury. In this statement, appellant said that on the morning of July 9th, McGill invited appellant to go with him to the "shopping center" to rob a store, but that McGill left without him while appellant was taking out the trash. Appellant then jogged over to the shopping center to see what McGill was doing, observed McGill and what appeared to be another person from outside the store, and saw McGill shoot Ahn. He claimed he saw McGill and the other man run out of the store, get into the Honda and drive away. Appellant then ran away from the scene. He again denied any participation in the robbery.
II. Improper Prosecutorial Argument
Appellant claims that during rebuttal argument the prosecutor improperly showed to the jury enlargements of graphic and inflammatory color photographs of Ahn's body lying on the floor of the Corner Market, soaked with blood, without any legitimate purpose. The transcript in this case provides us with the trial court's description of what transpired in the courtroom during the prosecutor's rebuttal. The judge clearly was concerned not only by the gory photographs themselves, but also by the manner in which the prosecutor used them during closing and rebuttal. After instructing the jury, the judge called the lawyers to the bench to discuss an additional instruction in response to the rebuttal argument, giving a description of the prosecutor's conduct:
THE COURT: I have been doing a difficult thing which is that my mind has been on whether or not I should have interrupted [the prosecuting attorney] at one point. I am wondering whether to give an instruction with regard to it. . . .
I was troubled by the number of times that [the prosecutor] picked up the photograph, admittedly there were no objections made in the trial, before the trial, to any of these bloody, gory photographs, and for reasons known only to [defense counsel], and so the jury has seen them many times during the trial.
But [the prosecutor] seemed to be using - I wasn't sure what you were doing with the bloody photographs. For example, the most recent time you used it is you began your rebuttal argument by saying [defense counsel] asked you to render a verdict you can live with and as you said that, no particular probity [sic] with regard to any evidence in this case except to inflame the passion of the jury, you picked up this enlarged photo of the decedent lying in a huge pool of blood on the floor and walked down the jury row displaying it in the face of each of the jurors not making any point about ballistics or distances, or anything else, but presumably asking them to render a verdict that they could live with sort of repeating [defense counsel's] call for them to do that indicating to them by holding up the photograph how could you live with anything other than voting for us, I found it completely inappropriate.
There wasn't any objections, I didn't say anything and you picked the photograph up at least two other occasions, maybe during your argument, and sort of walked about with it for no apparent purposes. (emphasis added).
The court then asked the prosecutor to respond to these observations.
THE COURT: Why did you have to pick [the photograph] up?
THE PROSECUTOR: Well, it is evidence, Your Honor, they are going to see the photographs, and it was -
THE COURT: Yes, they are. So they are entitled to get a good healthy dose of blood during your argument, is that your point?
THE PROSECUTOR: Your Honor, I was showing the photograph because that's what this crime is about. Mr. Aun [sic] was ...