Appeal from the Superior Court of the District of Columbia (F-1599-99) Hon. Russell F. Canan, Trial Judge.
Before Terry and Farrell, Associate Judges, and Belson, Senior Judge.
Opinion of Associate Judge TERRY, concurring in part and dissenting in part, at page 14.
After a three-week trial, appellant was convicted of first-degree premeditated murder while armed, two counts of first-degree felony murder while armed, armed robbery, assault with a dangerous weapon, armed kidnapping, second-degree theft, and two weapons offenses. On appeal he argues (1) that the trial court erred by instructing the jury that a guilty verdict on the armed robbery charge could be supported in part by a finding that force was used to "take or keep" the property, rather than simply to "take" the property as stated in the Standard Jury Instructions, and (2) that the trial court erred by admitting into evidence certain "prior consistent statements" of three government witnesses. We reject both of these contentions and affirm, except that two of appellant's convictions for murder (of the same victim) must be vacated. We therefore remand the case for partial resentencing, as set forth in part IV of this opinion.
On Saturday evening, January 2, 1999, Che Carpenter and Tanina Ashmon walked out of a liquor store and headed for appellant's apartment at 933 52nd Street, N.E.*fn1 While en route, they encountered appellant as he appeared from behind a building. Appellant told Ms. Ashmon that someone had recently fired a gun at him and that he planned to "get whoever it was that was shooting at him." Appellant then asked Ashmon whether a rifle belonging to Carpenter was still in her apartment, and Ashmon replied that it was. Appellant knew that Carpenter had a rifle that he wanted to sell; indeed, Ashmon had previously told appellant that if he was interested in buying it, "he could come to [her] house and see it . . . ."
The group, which also included appellant's cousin, proceeded to Ashmon's apartment at 927 52nd Street, N.E., to retrieve the rifle. Once inside, appellant again said that someone had shot at him. At that point he picked up the rifle from Ms. Ashmon's lap as she sat on the couch. As appellant was examining the rifle, Carpenter approached and began to explain to him how the rifle worked. Suddenly appellant "cocked it back," pointed the rifle at Carpenter, and ordered him to "get outside." When Ms. Ashmon asked what he was doing, appellant replied that Carpenter, to whom he referred with an obscene epithet, "almost got me killed."*fn2 He also pointed the rifle at Ms. Ashmon, said that he was "serious," and threatened to kill Mr. Carpenter. He then forced Carpenter at gunpoint to back out of the apartment and down a staircase that led outside, despite Carpenter's "pleading for his life" and his insistence that he "[didn't] mean to do nothing to [appellant]."
Ms. Ashmon, who remained in the apartment, testified that after Carpenter and appellant had gone outside, she heard "a lot of gunshots." She then went outside and found Carpenter's body lying in a pool of blood.*fn3 After seeing the body, Ashmon went quickly to a nearby convenience store to find a police officer. Ms. Ashmon initially told the police only that there was a dead body outside her apartment building, giving a false account of the surrounding events. However, approximately three days later, she contacted the police again and informed them of the actual circumstances of the murder.
Appellant contends that the trial court erred by allowing the "near constant admission" of prior consistent statements by three government witnesses.*fn4 He claims that "the prosecutor engaged in a pattern of examination that improperly bootstrapped the witnesses' prior statements in order to improperly bolster their credibility," and that the court abused its discretion by allowing such questioning. He concludes that this abuse requires reversal because of the sheer number of times the government was allowed to ask these questions, the lack of a curative instruction, and the "improper bolstering" which occurred at critical junctures of the government's case.
The government maintains in response that appellant's claim is based on a "deeply flawed interpretation of what constitutes a 'prior consistent statement.'" As the government points out, the prosecutor's questions referred only to earlier testimony elicited at trial, not to prior statements made out of court. Therefore, instead of eliciting prior consistent statements, the prosecutor was merely directing each witness "to his or her earlier testimony from the trial so that he or she could provide a focused response in the manner most helpful to the jury." Accordingly, the government contends that appellant's claim is "an oblique attack upon the form and content of the government's direct examination questions at trial" rather than a challenge to the admission of prior consistent statements. The government also observes that appellant's brief "merely recounts the questions posed by the government at trial" rather than the answers given by the witnesses (emphasis in original). "As such," the government maintains, "there is not even evidence for this court to evaluate on appeal." We agree with the government and reject appellant's argument.
"The rule barring the introduction of prior consistent statements is designed to prevent the jury from learning that a witness has given the same account out of court that he or she gave on the stand." Sherer v. United States, 470 A.2d 732, 740 (D.C. 1983) (emphasis added). The rationale behind this rule is twofold. First, "a witness' having told the same story on more than one occasion has no bearing on the truth of the statement." Id.; accord, Warren v. United States, 436 A.2d 821, 836 (D.C. 1981) ("mere repetition does not imply veracity" (citation omitted)). Second, "the prejudice from wrongly admitted prior consistent statements is that the witness' credibility is unfairly bolstered." Daye v. United States, 733 A.2d 321, 327 (D.C. 1999). However, prior consistent statements may still be admitted to rehabilitate a witness in at least two "exceptional situations," namely, "(1) where the witness has been impeached with a portion of a statement and the rest of the statement contains relevant information that could be used to meet the force of the impeachment, and (2) where there is a charge of recent fabrication." Reed v. United States, 452 A.2d 1173, 1180 (D.C. 1982) (citations omitted).
Turning now to appellant's claim of error, we need not (indeed, we cannot) decide whether the trial court properly admitted prior consistent statements, under the case law summarized above, because the statements on which appellant's argument is based are not properly characterized as prior consistent statements - which are, as Sherer and other cases tell us, statements made out of court, not in court. At no time did the prosecutor ask any witness about a prior statement that was made out of court, and then seek to elicit a similar response to demonstrate that the witness was still saying the same thing. Rather, in all of the many instances of which appellant complains, the prosecutor began each question by drawing the witness' attention to his or her previous trial testimony as a way of alerting the witness to the subject matter of the question. Thus the government is correct when it says that appellant's claim of error is more properly characterized as a challenge to the form of the questions, rather than to the admission of prior consistent statements. Regulating the form of the questioning is a matter within the sound discretion of the trial court. See, e.g., Gardner v. United States, 698 A.2d 990, 998 (D.C. 1997); Sherrod v. United States, 478 A.2d 644, 653 (D.C. 1984). On the record before us, we find no abuse of that discretion. Thus a claim of such abuse, if made, would surely fail.
Appellant contends that the trial court erred in instructing the jury that the crime of robbery would be established if, among other things, appellant "took or kept [Carpenter's rifle] by using force or violence" (emphasis added).*fn5 Appellant points out, and the government acknowledges, that there was no evidence that he used or threatened force when he initially took the rifle from Ms. Ashmon's lap; at that point both Ashmon and Carpenter, standing near her, impliedly consented to appellant's custody of the gun as he inspected it - with Carpenter's help - seemingly with the intent to buy it.*fn6 Thereafter, appellant's argument continues, neither Carpenter nor Ashmon "made any effort or expressed any desire to recover possession of the rifle" (Supp. Br. for App. at 7). The result, he asserts, is that by permitting the jury to equate "take" with "keep" the ...