Appeal from the Superior Court of the District of Columbia, (CF3-9519-06) (Hon. James E. Boasberg, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID, FISHER and BLACKBURNE-RIGSBY, Associate Judges.
A jury found appellant, Michael K. Teal, guilty of the lesser-included offense of assault with a dangerous weapon,*fn1 and carrying a dangerous weapon.*fn2 He claims, in essence, that the trial court violated his constitutional right to present a defense by failing to find that aspects of the prosecutor's conversations with a potential defense witness caused her to change her mind about providing negative reputation testimony concerning her nephew, the complaining witness and the main government witness against him. We conclude that the record is inadequate for the resolution of the fundamental constitutional issue presented on appeal. Hence, we remand this case to the trial court for (1) factual findings and conclusions concerning whether the government substantially interfered with Ms. Good's decision to testify about her nephew's reputation for untruthfulness and (2) if warranted, a new trial.
During Mr. Teal's trial, the government presented the testimony of complaining witness, Robert B. Wilson, as well as that of officers of the United States Secret Service Uniformed Division who were involved in the investigation of Mr. Wilson's complaint of armed robbery. Mr. Wilson testified that around 3:30 a.m. on May 13, 2006, he left the Bravo Club, located near Connecticut Avenue and K Street, in the Northwest quadrant of the District of Columbia. A tall, dark Black man with a bony face (later identified as Mr. Teal) approached him on 17th Street and asked for spare change. Mr. Wilson pretended to be drunk and denied having any change. The man soon pointed a pocket knife (with about a four inch blade) in the direction of Mr. Wilson's abdomen and said "[h]e wasn't messing around." Mr. Wilson pulled out his wallet but ran into the street instead of giving the man any money. The man walked away and Mr. Wilson decided to follow him and to try to find a police officer. When the man saw him, he again pulled out his knife and took steps toward Mr. Wilson, but the man put the knife away and said he "was just joking, or playing." Upon seeing two other men who appeared to be drunk, Mr. Wilson warned them that a man had just pulled a knife on him, and he continued to follow the man. After approaching "a guy" whose head was resting on a plastic bag, the man reached into his clothing, "grabbed something and stuck it in the bag." Mr. Wilson saw a police car and informed the officer (identified as Officer Ryan Monteiro) that a man "had just pulled a knife on [him]."
Officer Monteiro, who was on routine patrol in the area where the assault occurred on May 13, 2006, testified that Mr. Wilson had approached him to complain that "an individual (to whom he pointed) had attempted to rob him at knifepoint." Officer Monteiro drove near Mr. Teal and waited for backup assistance. Three officers responded, including Sergeant Steve Porter who assisted with the handcuffing of Mr. Teal. Officer Monteiro observed a "7-inch folding knife . . . on the sidewalk, approximately 3-4 feet from [Mr. Teal]," and he observed a homeless man "on the far side of the sidewalk." Mr. Wilson identified the knife as the one used in the alleged robbery.*fn3 Sergeant Porter did not notice the knife on the sidewalk as he assisted in restraining Mr. Teal, but he heard Mr. Wilson say that Mr. Teal "tried to hide the knife." Mr. Wilson pointed to a bag and Sergeant Porter watched as the homeless person "reached into the bag, grabbed the knife and laid it on the sidewalk."*fn4 The knife was closed.*fn5
The defense presented the testimony of Madeleine Outman, an intern investigator for the defense, for the purpose of casting doubt on Sergeant Porter's testimony about the knife. Ms. Outman did not take notes during her interview with Sergeant Porter, but she prepared a memorandum the following day for defense counsel. She was asked on cross-examination, "Didn't you actually say in your memo . . . that the statement regarding the knife seemed to have been made simultaneously or after the homeless individual had taken the knife and placed it on the sidewalk?" She answered: "Yes. That's what Sergeant Porter indicated." The defense also called Officer Monteiro who agreed that none of the written police reports about the incident contain a statement from Mr. Wilson that the assailant put a knife in the homeless person's bag.*fn6
Mr. Teal essentially argues that the prosecutor improperly told a potential defense witness, the aunt of Mr. Wilson (Natalie Good) who was expected to testify about her nephew's reputation for untruthfulness, that (a) "[Mr.] Wilson would learn of her testimony," and (b) Mr. Teal had been convicted twice in the past for armed robbery. He asserts that the prosecutor's comments caused Ms. Good to decline to testify and hence violated his constitutional right to present a defense guaranteed by "the Sixth Amendment's Compulsory Process Clause" and by the Fifth Amendment Due Process Clause. He further contends that "the loss of [Ms. Good's] testimony was not harmless," and that the case should be remanded to the trial court for a determination of whether the prosecutor's conversation with Ms. Good was the reason for her decision not to testify.
The government contends that Mr. Teal failed to make a record in the trial court after the trial judge "explicitly asked to hear about any threatening or intimidating statements that the government may have made to [Ms.] Good." The government further maintains that "[d]efense counsel never established (1) how [Ms.] Good's testimony had changed at the time of trial or (2) that her testimony ever was admissible." Consequently, the government argues, because the trial court determined "that the government's contact with [Ms. Good] was not improper," and Mr. Teal failed to make his record, he cannot demonstrate prejudice and no remand is necessary.
We first review the record regarding the proposed defense testimony of Ms. Good. On October 24, 2006, prior to opening statements, defense counsel alerted the trial court, ex parte, that it planned to call "a witness who knows the complainant, and she has indicated . . . that she will not be in the same vicinity as [Mr. Wilson]" because "[s]he is afraid of him." The trial judge asserted that the matter would be revisited. At the beginning of the day on October 25, 2006, the trial court inquired generally about the scheduling of the witness, and alerted defense counsel that it "want[ed] to hear what the proffer is, at the end of the day, if [defense counsel] wish[ed] to have [the witness] called." The matter was broached again on the morning of October 26, 2006. Defense counsel notified the trial court (1) about a conversation between the prosecutor and Ms. Good, including the prosecutor's statement that Mr. Teal had two prior convictions for armed robbery and that "[Mr. Wilson] would hear about her testimony and what she said"; and (2) that Ms. Good had denied her earlier statement to the defense that Mr. Wilson "did not have a reputation for truthfulness."*fn7
Defense counsel moved to dismiss the case.
The prosecutor expressed outrage at the suggestion that he had intimidated the witness, and he insisted that he spoke to Ms. Good only for the purpose of "find[ing] out . . . [Ms. Good's] basis in fact . . . for having an opinion as to the reputation for truthfulness and veracity of Mr. Wilson," and that Ms. Good "told [the prosecutor] she had not discussed with anyone [Mr. Wilson's] truthfulness and veracity issues. She had no problem with that [and] [i]t's clear she was not going to be a witness in this case." The prosecutor acknowledged telling Ms. Good that "Mr. Wilson would learn" about her statements, and he explained that he would have to discuss her testimony with Mr. Wilson in order to determine whether there was any proper response or rebuttal. He also informed her that "Mr. Wilson, at this point, thinks she still lives in Florida, and [he] would make . . . absolutely sure [sic] that [he] would not disabuse him of that fact [to prevent him from] think[ing] ...