Appeal from the Superior Court of the District of Columbia (F-847-01) (Hon. Frederick H. Weisberg, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Argued October 3, 2007*fn1
Before RUIZ, Associate Judge, and SCHWELB and KING, Senior Judges.
Appellant, Arnell W. Shelton, was found guilty by a jury of assault with intent to kill while armed,*fn2 aggravated assault while armed,*fn3 two counts of possession of a firearm during a crime of violence,*fn4 carrying a pistol without a license,*fn5 and malicious destruction of property.*fn6 Appellant's principal claim is that the trial judge did not allow him to introduce evidence of the fact that the government had withheld exculpatory statements made by the complainant during his first trial,*fn7 evidence that the prosecutor did not disclose until the eve of the second trial. Appellant contends that with that evidence, he could have argued to the jury that in the government's own view the case against appellant was not as strong as the government purported it to be. We agree that the defense should have been permitted to present to the jurors the prosecutor's failure to disclose exculpatory evidence, as required by Brady, and, moreover, to argue that the jury could and should infer from that failure that the government was concerned about the impact of such disclosure on the government's case. Although the exclusion was error, appellant is not entitled to reversal, however, because we conclude that the error was harmless. We therefore affirm.
The government presented evidence that at around 11:00 p.m. on January 14, 2001, Christopher Boyd drove to Melon Street, Southeast, to visit his mother. Boyd stopped in front of her house, where he planned to double-park, and saw his mother standing outside talking to neighbors. Suddenly, a blue "foreign make Toyota" raced up along the left side of Boyd's car. Boyd saw appellant "hanging out the window" of the Toyota, and he soon "was struck by a bullet."*fn8 Boyd testified that he heard the shots and saw the "fire from the gun."*fn9 When Boyd tried to drive away, the car that was carrying appellant continued to stay next to him as he traveled down the street. Boyd eventually escaped by turning down an alley.
Boyd drove himself to Greater Southeast Hospital, and passed out. Boyd testified that he was "in and out of consciousness" while at the hospital, and "didn't really know what was going on at the time." Boyd "remember[ed] waking up and a police officer [was] in front of [him]," but did not remember having a "conscious conversation" with the officer (Officer Edward Woodward). Boyd was soon transferred to the Intensive Care Unit at Washington Hospital Center for emergency treatment.
Two days after the shooting, Boyd was interviewed by Detective James V. Francis at Washington Hospital Center. Detective Francis asked Boyd if he knew the identity of the person who shot him, to which Boyd unhesitatingly responded: "Arnell White Boy shot me." Boyd further stated that he had known "Arnell White Bay" [i.e., appellant] for more than five years, and that appellant was the person who had fired the shots from the front passenger seat of the blue Toyota. Boyd again confirmed appellant's identity when Detective Francis showed him a photo of appellant.
Andrew Durham saw the shooting. He knew appellant and Boyd from the neighborhood, but was not close to either one of them. Durham testified that he saw Boyd "pull up and... talk to some guys in front of his mother's house." A couple of minutes later, a "small little Nissan or Honda,... a small four-door car with tinted windows" drove up beside Boyd's car. Durham heard gunshots and saw that Boyd was being shot as he sat in his car. The shooter's car then continued past Boyd's car, and Durham saw the shooter "lift his head up and look out the window."*fn10 Durham recognized appellant as the shooter. He then watched appellant fire additional shots at Boyd as the two cars drove away.
Boyd and his "play cousin," Myra Ferguson, testified about the events that likely precipitated the shooting.*fn11 In April 2000, about ten months before Boyd was shot, Ferguson had accepted a ride home from appellant, whom she knew from the neighborhood. While they were in the car, appellant tried to kiss and fondle her and to unzip her pants, ripping her underwear in the process. When appellant continued the assault after Ferguson told him to stop, she hit him in the groin, got out of the car, and walked home. Ferguson did not tell anyone about this incident because she was "embarrassed about the whole situation" and "really [didn't] want anyone to know about it."
A couple of weeks later, Boyd learned of appellant's sexual assault when appellant talked about it at a party. Boyd eventually told Ferguson's brother, Derrick, about the incident. Derrick was upset and decided to look for appellant. Derrick Ferguson soon found appellant standing outside on Newcomb Street and confronted him, accompanied by his sister and Boyd. Derrick and appellant started fighting. Appellant then ran inside a building, at which point Derrick Ferguson began "busting [appellant's] car windows out of his car." Neither Boyd nor Myra Ferguson helped damage appellant's car.
Officer Edward Woodward, who had been one of the first officers on the scene after the January 2001 shooting, testified on behalf of appellant at trial. Officer Woodward had also interviewed Boyd at Greater Southeast Hospital approximately 45 minutes after the shooting. During that interview, Boyd did not tell the officer that he had seen or recognized who shot him. Officer Woodward could not remember Boyd's "exact words, if he said I don't know or I didn't see or all's I saw was... someone shoot at me from a from a dark-colored car." Officer Woodward also asked Boyd "if he had a beef with [appellant] earlier in the summer."*fn12 According to Officer Woodward, Boyd responded that there had been a dispute and that it pertained to "an unwanted sexual advance on one of [Boyd's] cousins." Boyd did not, however, state that appellant had also been the one who shot him. Officer Woodward further testified that Boyd "appeared to be in pain, scared, kind of unsure of what was going to happen to him" during the interview.
Appellant presented an alibi defense through the testimony of his wife, Sharia Shelton, who said that appellant had been with her and their seven-month-old daughter watching TV on that Sunday night -- a "family day" at their home -- when the shooting took place. The prosecutor cross-examined Ms. Shelton and sought to impeach her as biased, because she had refused to tell the prosecutor in the first trial about the alibi after he had called her for any information that could exonerate her husband.
The prosecutor argued in closing that appellant wanted "revenge" because "Christopher Boyd caused him to be shamed and publicly humiliated." The government's theory was that appellant viewed Boyd as the instigator, "set[ting] into motion th[e] chain of events," that led Derrick Ferguson to beat appellant and bash his car in public.
Neither before nor during appellant's first trial, see note 6, supra, was defense counsel informed that Boyd had failed to identify appellant as the shooter when he was questioned at the hospital, and that Officer Woodward had brought up the "beef" Boyd had with appellant several months earlier. Indeed, this information was not disclosed until the eve of the second trial, by Assistant United States Attorney ("AUSA") Wanda Dixon, who had replaced AUSA Andrew Kline, the prosecutor who represented the United States during the first trial. Defense counsel informed the trial court of the late disclosure, argued that it was a Brady violation,*fn13 and requested that the case be dismissed. Upon being apprised of the situation, the trial court provided the parties with "a chance to find out... as much as [possible]" about "where this information [came] from, when it came to the United States Attorney's Office, why it wasn't disclosed earlier."
The following day, the trial judge questioned the prosecutor:
The Court: But I still don't understand why [defense counsel] did not get [this information] before we went to trial the first time.
Prosecutor: Your Honor, it was [the former prosecutor's] position that the information was not exculpatory.
The Court: Do you want to explain his rationale (indiscernible)?....
Prosecutor: My understanding is that [the former prosecutor's] position was based on the thought that there was a reason for the witness to respond in that way. The reason being that the witness was in pain. He had just been taken to the hospital. He was on a gurney, staff attending to him, etc. Your Honor, and if I may also approach the bench ex parte, I have something else I can tell the Court. (Ex parte bench conference with the Government attorney, Ms. Dixon, which was indiscernible.)*fn14
The Court: When I said I don't get the first thing, what I meant was [that] given the prosecutor's obligations under Brady v. Maryland, I don't see how a prosecutor who states that if a witness says I don't know who shot me or I didn't see who shot me or all I saw was a dark car, who's later going to come into court and say Arnell Shelton shot me, I ...