Appeal from the Superior Court of the District of Columbia (F-2779-02) Hon. Frederick H. Weisberg, Trial Judge.
The opinion of the court was delivered by: Glickman, Associate Judge
Before FARRELL and GLICKMAN, Associate Judges, and FERREN, Senior Judge.
Antonio Matthews was convicted after a trial by jury of armed carjacking, armed robbery (in connection with the taking of a purse belonging to the victim of the carjacking), unauthorized use of a vehicle, two counts of possession of a firearm during a crime of violence (PFCV), and carrying a dangerous weapon (CDW). Matthews's principal contention on appeal is that the trial court abused its discretion by allowing the government, over his objection, to impeach one of his alibi witnesses with her failure to furnish her exculpating information to law enforcement authorities before trial. Matthews also contends that his two PFCV convictions merge with each other and with his CDW conviction. We conclude that the error, if any, in permitting improper cross-examination of the alibi witness was harmless, and that the two PFCV convictions merge with each other but not with the CDW conviction. We therefore affirm the judgment on appeal, except that we remand for the trial court to vacate one of the duplicative PFCV convictions.
At approximately 9:40 p.m. on the evening of May 2, 2002, three armed individuals accosted Lakisha Johnson on the street and forced her to relinquish the keys to her Chevy Tahoe truck parked nearby. The robbers, two men and a woman, entered the truck and were about to drive off when Ms. Johnson asked them for her purse, which she had left in the vehicle behind the passenger seat. One of the men started to hand the purse to her, but the second man directed him not to do so. The robbers then drove off with the purse.
Police stopped the truck the following day and arrested its three occupants, one of whom, sitting in a passenger seat, was appellant Matthews. At the police station a day later, Ms. Johnson identified Matthews from a photo array as the man who had held a gun to her head, snatched the car keys from her hand, and drove off in her vehicle. Ms. Johnson also made an in-court identification of Matthews at trial. According to Ms. Johnson, it was Matthews who told the other male robber not to give her back her purse.
Matthews presented an alibi defense at trial, relying on the testimony of his grandmother, aunt, and cousin that he was at home with them throughout the evening of May 2, 2002. The alibi witnesses particularly recollected receiving a telephone call that evening from Akina Jackson, the girlfriend of Matthews's brother. As Geraldine Clark, Matthews's grandmother, explained it, Ms. Jackson was at Columbia Hospital, having just given birth, and the family was waiting for her call to see if she was coming home that evening. In her call, which the witnesses described as having lasted about an hour, Ms. Jackson reportedly said that she and the baby, who had been born prematurely, had to stay in the hospital until the next day, i.e., May 3, 2002.
In rebuttal, the government called Akina Jackson herself. Ms. Jackson testified that she actually gave birth on April 29 (which the government corroborated with the baby's birth certificate), and that she left the hospital on May 1, 2002.
Matthews's grandmother, Ms. Clark, was the first alibi witness to testify at trial. At the beginning of Ms. Clark's cross-examination, the prosecutor sought leave of court to impeach her with her failure, when she attended Matthews's May 7 pretrial detention hearing, to tell the police or the prosecutor that she could furnish an alibi for her grandson. Balancing considerations of prejudice and probative value, the trial judge declined to allow mention of Matthews's pretrial detention but otherwise permitted the prosecutor, over defense objection,*fn1 to pursue the impeachment. In the ensuing cross-examination, Ms. Clark acknowledged that, while she was in court with Matthews for a hearing in this case on May 7, she did not take the opportunity to tell the police or the prosecutor that Matthews was home with her on the night of May 2. However, she testified, "I told Ms. Williams -- his attorney." The prosecutor did not challenge or explore that answer. Ms. Clark reiterated it on redirect, adding that she told Ms. Williams about her grandson's alibi "after he got locked up and they appointed her to be his lawyer." The matter was not mentioned again during the trial.*fn2
"Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted." Jenkins v. Anderson, 447 U.S. 231, 239 (1980). Silence in those circumstances is akin to a prior inconsistent statement. Applying that principle, this and other courts have held it proper for the trial court to allow cross-examination of a defense witness about his or her prior failure to bring an alibi or other exculpatory information to the attention of law enforcement. Cain v. United States, 532 A.2d 1001, 1006 (D.C. 1987) ("[S]uch questioning amounts to no more and no less than testing the credibility of the witness."); accord, Morris v. United States, 622 A.2d 1116, 1125 (D.C. 1993). See generally Milton Roberts, Annotation, Impeachment of Defense Witness in Criminal Case by Showing Witness' Prior Silence or Failure or Refusal to Testify, 20 A.L.R. 4th 245, § 9 (1983).
However, such cross-examination "is permissible only where the circumstances are such that the witness' normal and natural course of conduct would have been to go to the authorities and furnish the exculpatory information." Alexander v. United States, 718 A.2d 137, 143 (D.C. 1998).*fn3 Typically, this threshold is viewed as depending primarily on the existence of a close relationship between the witness and the defendant. Davis, supra footnote 3, 686 A.2d at 1089-90; see, e.g., Cain, 532 A.2d at 1006 (questioning held "especially" probative of credibility where witness and defendant were father and son and lived together).
Ms. Clark's relationship with Matthews was undeniably close enough to satisfy the foundational prerequisites for her impeachment. Her "normal and natural course of conduct," Alexander, supra, surely would have been to report her exculpating information immediately in order to prevent Matthews from being prosecuted (and, even more pressingly, to secure his release from incarceration). There was, however, a countervailing consideration here for the trial court to ponder before permitting the inquiry into Ms. Clark's silence. Although she was present when her grandson was arrested, Ms. Clark evidently did not learn that he was charged with crimes that were committed on the evening of May 2 until later, after Matthews was appointed counsel. It was only then that she would have had reason to know that she could furnish an alibi for him.*fn4 Our case law has embraced the view that, where the witness knows that the defendant is represented by counsel, "no inference [of fabricated testimony] can be drawn" from the alibi witness's failure to inform the authorities of the information in her possession, because the witness "might reasonably presume that it was sufficient for him to relate his knowledge to the attorney retained or appointed to represent [the] defendant." Alexander, 718 A.2d at 143 (quoting United States v. Young, 150 U.S. App. D.C. 98, 102, 463 F.2d 934, 938 (1972)).*fn5 In other words, once the alibi witness has furnished her exculpatory information to defense counsel (as Ms. Clark allegedly did here), it arguably can no longer be maintained that ...