Appeal from the Superior Court of the District of Columbia. No. F-11180-96. Hon. A. Franklin Burgess, Jr., Trial Judge.
The opinion of the court was delivered by: Ruiz, Associate Judge
Before FARRELL and RUIZ, Associate Judges, and STEADMAN, Senior Judge.*fn1
On June 16, 1997, appellant, Luther "Reds" Fuller, was indicted for first-degree murder while armed and two related weapons charges in connection with the December 28, 1996 shooting of Danny Murray. In his first trial, appellant was acquitted of first-degree murder and the jury deadlocked on the lesser-included offenses (second-degree murder and voluntary manslaughter while armed) and the two weapons charges. A mistrial was declared, and appellant was subsequently retried for second-degree murder while armed and the two weapons offenses. Appellant was convicted of all three charges, and now appeals these convictions, arguing that the trial court erred by failing to allow defense counsel to effectively cross-examine a key government witness, and submitting to the jury during its deliberations a transcript of the appellant's testimony from the first trial which had been read into evidence in the second trial. We find no abuse of discretion in the limits the trial court placed upon the cross-examination. Although we agree with appellant that the trial court should not have submitted the transcript to the jury without first deciding whether there was particular need to do so and without giving a curative instruction, the error was harmless, and we affirm.
On December 28, 1996, at approximately 1:30 p.m., Danny Murray was shot and killed in the vicinity of 601 Virginia Avenue, S.E. Just prior to the shooting, Murray, Willie McPherson, and another person were working on Murray's car in a parking lot at that address. Appellant and his friend Carl "Squirt" Jones approached Murray, and appellant and Murray began to wrestle while Jones sat on a fence nearby. Two eyewitnesses provided different accounts of what happened next. Maurice Murray, Danny Murray's uncle, testified that after a brief scuffle, appellant walked around the corner of a building and returned with a silver handgun, shooting his nephew two to four times before fleeing in the direction from which he had appeared.*fn2 The second witness, McPherson (who was working on the decedent's car), testified that when the fight broke up, appellant walked over to his coat, pulled a pistol from it, and shot Danny Murray. Murray fell to the ground, and appellant walked closer towards him firing "a couple more times" before fleeing the scene.*fn3 McPherson also claimed that Murray got up and ran after being shot, stopping only when McPherson told him to lie down. Despite the differences in their versions of events, both men were unequivocal in their identification of appellant as the shooter. Maurice Murray told the police that "Reds" (appellant's nickname), who was the son of a neighborhood barber, had killed his nephew,*fn4 and McPherson indicated he had no doubt that "Reds" was the shooter.
After the shooting, appellant and Jones fled towards 501 Virginia Avenue, S.E., and Metropolitan Police Department officers arriving on the scene observed them running out of the building at that address a few minutes later. The officers gave chase in a vehicle, pulling up to the two youths, exiting their car, and ordering them to stop. While Jones complied, appellant continued to run until he was eventually caught a short distance away, wearing a bulletproof vest. The murder weapon was not found. Both appellant and Jones were taken back to the crime scene, where Maurice Murray again identified appellant as the shooter without any hesitation.
Other government witnesses corroborated that appellant had killed Murray. Danyell Hunter testified that some time after Christmas in 1996, appellant and Murray had been fighting on the third floor of Murray's apartment building at 601 Virginia Avenue. When the fight was broken up, appellant said he wanted to "finish [it] outside." Hunter saw appellant pull out a silver gun from his right front coat pocket so that Murray could see it. Appellant left, but returned a short time later, calling for Murray to come outside and "finish" the fight. Murray's next door neighbor, Samantha Jefferson, testified that the day before Murray was killed, appellant warned her to stay away from the third floor of Murray's apartment building because he was seeking revenge. LaShauntya Moore, a friend of appellant, testified that he had called her from jail in January of 1997 and confessed that he had shot Murray, but in self-defense. Finally, MPD Officer Michael Jewell testified that he saw appellant at the homicide branch forty-five minutes after his arrest, and that appellant asked him how much time he would get if he were convicted and said that he "shouldn't have gotten up that morning."
Appellant's testimony from the first trial was admitted into evidence and read into the record by the government. During closing argument, the government characterized appellant's explanation of the events -- in which he admitted to being on the scene, but said that Jones was the shooter -- as an attempt to shift his blame to Jones. At the government's request, and over defense objection, a transcript of appellant's testimony from the first trial was provided to the jury before deliberations.
The defense theory of the case was that appellant had been misidentified as the shooter and that it was Jones, not appellant, who had killed Murray. Three MPD officers were recalled to testify concerning the clothing appellant and Jones were wearing on the day of the murder in an attempt to show that Jones had been wearing clothes which matched the description that Maurice Murray had informed the police the shooter was wearing. Appellant's best friend, James Moore, testified that he was present during appellant's conversation with Jefferson and that appellant had not warned her about his seeking revenge against Murray. Although he had testified at his first trial, appellant did not take the stand at the second trial.
Appellant argues that he was not given the opportunity to effectively cross-examine a key government witness, LaShauntya Moore, who testified that, during a phone call she had with appellant while he was in jail pending the first trial, appellant confessed to shooting decedent, claiming he did it in self-defense. He contends that the trial court improperly prevented defense counsel from impeaching Moore by exploring whether she had reasons for fabricating her trial testimony about the phone conversation she said she had with appellant and inquiring about certain inconsistencies between her grand jury and trial testimony. He also claims that the trial court improperly denied in limine the defense's proffer of the testimony of Keith Tate, who would have testified that he, not appellant, was the source of Moore's trial testimony, further impeaching her and ...