Appeal from the Superior Court of the District of Columbia (F-5980-98) (Hon. Patricia A. Wynn, Trial Judge)
Before Farrell, Ruiz, and Glickman, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Concurring opinion by Associate Judge RUIZ at page 21.
Appellant was found guilty by a jury of felony murder while armed and related offenses arising from the shooting death of Samuel Yun during an attempted robbery of Mr. Yun at his liquor store in Northeast Washington, D.C. Appellant's principal argument on appeal is that the trial court committed constitutional error by refusing to allow defense-proposed measures to be taken to correct testimony by a government witness which the prosecutor admitted at trial had been false. We hold, considering all of the circumstances, that the course chosen by the court to correct the false testimony -- permitting cross-examination of a police detective which contradicted the witness's testimony on the points -- was sufficient to neutralize the falsehoods, and that there is no reasonable possibility that the jury's verdict rested on the court's failure to take additional corrective measures. See United States v. Bagley, 473 U.S. 667, 678-79 & n.9 (1985) (citing Chapman v. California, 386 U.S. 18 (1967)). Because we reject as well appellant's other arguments for reversal, we affirm the judgments of conviction except for the necessary vacatur of convictions for lesser-included or supernumerary offenses. *fn1
At mid-morning on August 3, 1998, Chong Yun, the co-owner of a liquor store at 1806 D Street, N.E., was tending to the business while her husband Samuel went to the bank. A woman later identified as Lorraine Jackson entered the store and bought a 12-pack of Corona beer, asking Mrs. Yun to hand her the beer by opening the door of the plexiglass cage inside which Mrs. Yun was working. Mrs. Yun instead slid the beer through the counter turntable, and Ms. Jackson left the store carrying it. But she returned moments later and asked to buy a "bumper" case of larger beer bottles. Mrs. Yun refused to sell her the beer, in part because doing so would have required her to open the door of the plexiglass cage. Ms. Jackson left the sto re a seco nd time.
Samuel Yun returned from the bank a short time later, at which point Ms. Jackson reentered the store and purchased the bumper case of beer from him. He opened the cage door so she could retrieve the case, but after leaving the store once again, Ms. Jackson returned and asked Mr. Yun to carry the case for her to a store next door. He agreed. Mrs. Yun did not see her husband re-enter the store, but was alerted to the fact that he had done so when she heard a "banging" noise that caused her to look up from the lottery machine she was operating. She moved toward the cash register and saw a large man holding Mr. Yun down. The assailant was "a little heavy set" and "fatter than the average person," and wore a "light gray sweatshirt" with "[s]ome kind of hood . . . cover[ ing his] entire head." He had a gun in his hand. Although Mrs. Yun could not see his face, she heard him tell Mr. Yun, "Open the door, open the door!" As Mrs. Yun fumbled to open the cage door she heard a gunshot. Mr. Yun had been shot in the head with a handgun; he subsequently died from the wound. Mrs. Yun could not identify appellant as the shooter from an array of photographs, but identified Ms. Jackson from an array as the woman who had attempted to buy beer, and appellant from another array as a person who had robbed the store four or five years earlier and had been barred from the store as a result. *fn2
Other witnesses tied appellant directly or circumstantially to the shooting. Herbert Russell, a forty-one year old resident of the neighborhood who had known appellant since appellant was in elementary school, saw him riding his bicycle near the Yuns' liquor store at around 8:30 on the morning of August 3. As the two exchanged greetings, Russell noticed that despite the hot weather that morning appellant wore a gray "hoodie, sweat pants, tennis shoes" and "cotton gloves." Russell left the scene but returned an hour later to cash a check at the liquor store. Approaching the store, he saw appellant standing near a public telephone talking with Ms. Jackson, whom Russell also knew. Russell cashed the check and left the scene again, but returned at about 10:00 a.m. to buy snacks and money orders. When he was two feet from the door of the liquor store, he heard an argument inside during which Mr. Yun said "don't do that, don't do that" and appellant -- whose voice Russell recognized -- responded "shut up, shut up." Russell then heard a gunshot and began running away. As he did so he turned around and saw Ms. Jackson run out of the store yelling "help, help, help," followed by appellant who was still clad in "sweat pants[,] tennis shoes, the hoody," and gloves.
Valdez Hall had approached the liquor store at about 9:55 a.m. on August 3 to play the lottery. Nearby he saw "someone riding a bicycle, [who] had on a coat, a hood, glasses and gloves," a sight that m ade Hall uneasy because "it didn't make . . . sense . . . when it's 90 something degrees . . . [to wear] all those clothes." H all recognized Ms. Jackson as she tried to buy beer in the manner described by Mrs. Yun; Jackson would periodically leave the store and talk with appellant, whom Hall also recognized from the neighborhood. *fn3 Minutes later Hall saw appellant "standing in front of the store on the bike," and as Hall walked away from the store he heard the bike fall over and saw appellant entering the store. He heard a gunshot, and then saw appellant "running by," his hood down and sunglasses gone. At trial Hall was impeached with his successive failures to select appellant's photograph from arrays; he claimed he had been too frightened to do so, but that eventually he had identified appellant as the shooter after being made to "feel more secure" by a police detective.
Other neighborhood residents furnished corroborative testimony. Hazel Evans, although unable to identify appellant, recalled seeing a "thick[ly]" built man in a "gray sweat-shirt and hood" standing by a phone booth near the liquor store that morning; he was looking around the corner and appeared to be putting on gloves. Soon afterward, Evans heard a gunshot and saw the man in the gray sweatshirt leave the liquor store and walk around the corner. Rudolph Lindsey had approached the liquor store at around 8:30 a.m. to use the phone booth outside. He saw a bicycle "leaning on the phone" with a "towel wrapped around it"; a man who appeared to be the owner of the bike was using the phone and wore "a sweatshirt with a hood on it pulled tight." Unable to use the phone, Lindsey left and returned a few minutes later to see the hooded man still at the phone booth, although seemingly not talking on the phone. *fn4
In a post-arrest statement to the police, appellant admitted that "he had been riding his bike" on the day of the murder, and, when shown a photograph of the bicycle recovered from the scene, conceded that it "was his bike but it didn't have all that stuff," including the towel wrapped around it. He further acknowledged having used the pay phone near the liquor store that morning, but insisted that he had been at the home of his girl friend, Gina King, at the time of the shooting.
In addition to his alibi defense (elicited only through portions of his statement to the police), appellant defended on the theory that Lorraine Jackson's son, Anthony Shank, had in fact been the person who tried to rob Mr. Yun and shot him. Appellant's principal argument on appeal arises from answers given by the government's witness Herbert Russell on cross-examination that was designed to establish that Russell was afraid of Anthony Shank, and so had falsely named appellant as the assailant instead. Appellant argues that Russell gave perjured answers to questions about his fear of Shank, and that the prosecutor, while conceding the falsity of the answers, combined with the trial court to leave uncorrected before the jury the false impression the answers created. We set forth the relevant facts and then discuss them in light of the governing legal principles.
Through cross-examination of Russell and testimony of a defense investigator, appellant sought to establish that Russell knew the real identity of Mr. Yun's shooter but had shifted the blame to appellant out of fear of Shank. Thus, Russell was asked whether: he had related to the defense investigator that he had named Shank as the shooter to his cousin, Earl Hoes; he had told the grand jury he had seen an unidentified man leave the store after the shooting along with Ms. Jackson's niece; and he had similarly told the investigator of seeing a man with "really dark skin" -- the color of Shank's skin -- follow appellant out of the liquor store. Appellant's counsel then asked Russell if he believed Shank had shot another man named "Blue" on a separate occasion. When Russell answered no, counsel asked him if he had not told police Detective Hamann in an earlier interview that Shank had shot Blue and that "Shank and those guys were . . . armed to the teeth." Russell denied that he had told Hamann either fact, and denied that he was afraid of Shank.
When cross-examination of Russell was finished, the prosecutor told the court out of the jury's presence that Russell had been surprised by the questions about the shooting of Blue and was, the prosecutor believed, "extremely fearful," because "Shank is dangerous and so are the other gentlemen who deal drugs and shoot each other down there . . . at 18th and D." Having just consulted with Detective Hamann, the prosecutor stated that Russell's statements to Hamann linking Shank to the shooting of Blue had been "provided [to the detective] in confidence"as part of an unrelated investigation. Although the prosecutor asked to have the questioning about the shooting of Blue stricken from the record as irrelevant, the trial court ruled that the questions were permissible as going to Russell's possible fear of Shank and his motive to deflect blame from him.
Detective Hamann was later called by the government to testify about witness identifications. On cross-examination, appellant's counsel turned to the previous interview Hamann had had with Russell and asked if Russell had not told him that Shank "shot Blue sometime ago in the area of 18th and D." The prosecutor renewed his objection to this line of questioning, explaining again that Russell had denied making the statements to Hamann out of "fear for safety" -- that, indeed, Russell had been "instructed a prior time by someone other than me to do that publicly." The ...