Appeals from the Superior Court of the District of Columbia (F7123-97) (F7349-97) (Hon. Stephen G. Milliken, Trial Judge)
Before Wagner, Chief Judge, Farrell and Washington, Associate Judges.
The opinion of the court was delivered by: Wagner, Chief Judge
In a joint trial by jury, appellants, Steven Goode and Joseph R. Ebron, were convicted of conspiracy to murder Gregory Epps (D.C. Code § 22-105 (a) (1996)), *fn1 first-degree m urder while armed of Anthony Tate (D.C. Code §§ 22-2401, -3202 (1996)), *fn2 assault with intent to kill while armed of Clarence Settle (D .C. Code §§ 22-501, -3202 (1996)), *fn3 two counts of possession of a firearm during a crime of violence (assault and murder) (D.C. Code § 22-3204 (b) (1996)), *fn4 carrying a pistol without a license (D.C. Code § 22-3204 (a) (1996)) and carrying a dangerous weapon (D.C. Code § 22-3204 (a)). Both appellants argue for reversal on the grounds that the trial court erred in admitting prejudicial evidence consisting of: (1) testimony and argument concerning throat-slashing gestures two spectators made during the testimony of a key witness for the government; (2) improper argument by the prosecutor that a government witness' inability to identify appellants was the result of threats and intimidation that occurred in the courtroom; and (3) irrelevant testimony of a witness that encouraged the jury to speculate that appellants had a drug or gang-related motive for the killing and that unfairly tarnished the character of a key defense witness. Alternatively, if a new trial is not ordered, appellants request remand for an evidentiary hearing to address the government's refusal to produce timely impeachment material in compliance with Giglio v. United States, 405 U.S. 150 (1972). Appellant Ebron also challenges as improper: (1) the admission of evidence concerning shots fired at Bernard Pinckney in the community by an unknown assailant; and (2) the government's impeachment of a witness, Gregory Epps, with information related to his pending first-degree murder trial and his failure to report that he was robbed to the police. Finding no reversible error in Ebron's case, we affirm his convictions. Concluding that appellant Goode was prejudiced unfairly by the improper admission of evidence and argument against him of witness intimidation without any showing that he was linked to the threats, we reverse for a new trial as to Goode.
Clarence Settle testified that on May 24, 1997, while he was on his front porch in Southeast Washington talking with his cousin, Anthony Tate, he heard what sounded like a firecracker. He then saw a man, who was approximately 5'5" tall, weighing about 135 pounds, step from behind a wall and fire a weapon that appeared to be a rifle. Settle said that he then heard what sounded like an automatic weapon firing. Afterwards, Settle, who was hit by bullets in the ankle and thigh, went to check on Tate and found him lying on the front porch suffering head wounds from which he later died. The government's theory was that Tate was the unintended victim of the intended shooting of Gregory Epps by appellants.
Eugene Rogers testified that at the tim e of the shooting, he was sitting in a parked car on the other side of the street drinking alcohol with three other people when he saw two men, one approximately 5'9" tall, and the other shorter, fire shots across the street. Gregory Bean testified that he was barbecuing in his backyard when he saw two men in the alley. After the men left the alley, Rogers heard automatic weapon gunfire and "a couple of blasts" and saw two people run down the alley into a nearby building. Rogers testified that he could not identify the two men, but they were less than 5'10" tall. He had been drinking also.
Bernard Pinckney testified that Ebron and Goode were at his apartment when they planned to shoot Gregory Epps and that Stanley Richardson was there also. A ccording to Pinckney, a woman named Carolyn came to the door and asked for Ebron, and Ebron went outside with her. Ebron returned a few minutes later and told Pinckney and Goode, "He [is] out there, let' s go." Ebron and Goode then left the apartment, but returned about ten minutes later wearing jackets (one a coat, and the other, a sweathood). Pinkney testified that Goode had an AK-47 rifle, and Ebron had what looked like a .32 caliber automatic pistol. He testified that "Little Greg" Epps was the target of the shooting and that Ebron and Goode were the shooters. Pinckney admitted that he had obtained from Rose Brown or her sister a key to the gate behind his building through which the shooters passed before shooting Tate and Settle, but he denied that he opened the gate. *fn5
Rose Brown testified that she saw Goode and Ebron wearing jackets that day, which seemed inappropriate for the weather. She said that they were carrying a gym bag that was about two and one-half feet long with two handles and a strap. Ms. Brown denied opening the gate for Pinckney. She recounted that the year before, Goode and Ebron came up to her and others and asked if they had seen Little Greg out there, and she responded, "Yeah, maybe, I don't know," but explained that she could not remember exactly what she said. She testified that Goode and Ebron then said they were going to kill Epps.
Ebron testified that he and Goode had a troubled relationship with Pinckney, who had become quite angry when Ebron's sister, who had a relationship with Pinckney, moved with the couple's two children to Maryland. He said that neither he nor Goode had anything against Epps and that they had never tried to kill him.
Appellants argue that the trial court erred in allowing the admission of prejudicial and inflammatory evidence. Specifically, they refer to testimony elicited by the prosecutor from the witness Pinckney concerning throat-slashing gestures that two spectators allegedly made while he was testifying. Appellants contend that the requisite foundation for admission of this evidence was not laid, as there was no showing that the gestures were made by appellants or with their k nowledge or authorization. They contend that this evidence and the related argument by the prosecutor jeopardized the fairness of the trial and had a substantial impact on its outcome. The government responds that the evidence was properly admitted.
Further, it contends that appellant G oode did not assert in the trial court that the basis for his objection was an insufficient showing of a connection between him and the spectators or make a claim of unique prejudice, and therefore that a plain error standard applies. We outline first the context in which the testimony occurred and whether the plain error standard applies, before turning to an analysis of the arguments in light of the applicable legal principles.
A. Factual Context for Admission of Threats Evidence
The prosecutor reported during a bench conference that he learned from Mr. Pinckney that a spectator had made a throat-slashing motion while he was testifying and that he recognized that person because he was frequently around Ebron and Goode in the neighborhood. Counsel for Ebron objected, and the court stated that it understood the objection. The court then expressed concern about whether that type of gesture might be intimidating to the jurors and acknowledged that whether the evidence was more prejudicial than probative was an issue. Goode's counsel objected, explaining that the gesture "doesn't necessarily mean that it was because of Mr. Ebron and Mr. Goode." Counsel for Ebron added that neither he nor his intern had seen the spectator's conduct and that such gestures could be misinterpreted. The court responded that defense counsel could call a witness in the defense case.
When Pinckney resumed his testimony before the jury, the prosecutor elicited that Pinckney recognized a person in the gallery who had made a throat-slashing gesture while he was testifying. Pinckney demonstrated the throat-slashing gesture by moving his finger across his neck. The prosecutor asked Pinckney whether he had ever seen the person with either Ebron or Goode, and Pinckney responded that he had. The prosecutor then asked Pinckney how often, and his response was, "he usually be out there every day. I go walk to the store, see him down there, down there hustling, you know." The trial court sustained appellant Ebron's objection and ordered the "hustling" remark to be stricken from the record.
In an effort to refute Pinckney's testimony concerning the spectator's gestures, appellant Ebron called Roshetta Harris as a witness. Ms. Harris testified that during Pinckney's testimony, two young men tried to get her attention, moved to a seat behind her, tapped her on the shoulder and asked for her telephone ...