Appeal from the Superior Court of the District of Columbia (F-2278-02) (Hon. Rafael Diaz, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before RUIZ and GLICKMAN, Associate Judges, and SCHWELB, Senior Judge.
Appellant, Jabari Bishop, appeals a judgment of conviction on a jury verdict finding him guilty of threatening to damage property and do bodily harm. See D.C. Code § 22-1810. He argues that the admission of his mug shot as part of a photo array constituted an abuse of discretion meriting reversal because (1) the government had no demonstrable need to introduce the photo array, (2) the mug shot, by itself, implied that he had a criminal record, and (3) the manner in which the photo array was introduced drew attention to the police source of the photograph and the implication that appellant had a criminal record. Moreover, appellant argues, the trial court's curative instruction compounded the prejudice by informing the jury that appellant had been arrested in the past. We agree that the manner in which the mug shot was presented to the jury was improper. Because we cannot say that in the context of this trial the error was harmless beyond a reasonable doubt, we reverse and remand the case for a new trial.
The Government's Evidence
This prosecution originated from an incident involving the shooting of Jonnie Jackson's car in 2001, and a later incident, in 2002, in which Jackson was personally threatened with bodily harm as well as further damage to his car. At trial, the government relied primarily on the testimony of Jackson and appellant's half-brother, Brian Cabbell.*fn1
Jackson testified that during the early morning hours of August 23, 2001, he heard five or six gunshots coming from the front of his house. When Jackson went to his car in the morning, he saw that all four tires had been flattened and that there were bullet holes in the windshield, hood, and lights.
Jackson had bought his home on Wylie Street in December 2000, a few houses away from appellant's residence. Cabbell testified that he, appellant, Dennis, and a man named "Dion" were together on Wylie Street near Jackson's house when Jackson returned home in his car the night before August 23, 2001. According to Cabbell, when Jackson got out of his car, Dennis said, "Look at this faggy ass," to which appellant replied, "I can't stand his hot ass." According to Cabbell, this meant that appellant did not like Jackson because he had "called the police" to complain about his neighbors.*fn2 Cabell recounted that when Dennis said, "You gotta go get that," referring to a gun that appellant had hidden earlier that night in a "cut" nearby, appellant responded, "Yeah, go get that." Dennis went to retrieve the gun and returned with it. Cabbell testified that appellant directed Dennis to shoot Jackson's car, which he did. The jury acquitted appellant of the charge related to the 2001 shooting of Jackson's car.
The incident underlying the convictions that concern this appeal (threatening to damage property and do bodily harm) occurred several months later, on the evening of March 16, 2002, when Jackson was moving his car from the front of his house to a church parking lot.*fn3 As he was walking home, Jackson testified, a person asked him twice why he parked around the corner. Jackson turned, faced the speaker, and replied that he was parking his car somewhere else "[b]ecause you shot it up once, and I don't want you to shoot it up again." At first, Jackson, who had never spoken directly with appellant before that night, "didn't even know that that was [appellant]." Nonetheless, Jackson "thought he recognized [appellant's] voice, but [I] didn't see him speaking at that time." Jackson recognized appellant moments later, however, because he had "something different about . . . one of his eyes," which Jackson had noticed on a previous occasion as well.*fn4 Jackson testified that appellant then threatened to shoot him and his car: "Well, I know where you park it, bitch, and I'm going to shoot it up again, bitch," adding, "I know where you live. I'm going to shoot you, bitch." Jackson called the police station a few minutes later and spoke with Detective Alfred Austin-Braxton. Jackson told the detective that "Jabari Bishop" had threatened him.
Two days later, Jackson went to the police station. Detective Austin-Braxton showed Jackson a photo array, and Jackson picked appellant's picture as the person who had threatened to shoot him and his car. Jackson's 911 call to Detective Austin-Braxton and the photo array were admitted into evidence.
Appellant's defense was that he did not commit any of the charged crimes, and that it was Dennis, not appellant, who had shot up Jackson's car on August 23, 2001, and threatened Jackson on March 16, 2002. Appellant's prior attorney, Todd Baldwin, Esq., testified that Dennis had admitted to him that he (Dennis) had shot up Jackson's car and threatened to injure Jackson and shoot his car again.*fn5 The defense argued that Jackson was angry about what he considered rowdy and noisy behavior centered in appellant's house on the same block as the home he had recently purchased and had fabricated the accusation he made against appellant. As noted, the jury acquitted appellant of shooting up Jackson's car in August 2001, but it found him guilty of making the threats in March 2002.*fn6
Detective Austin-Braxton testified during direct examination about the identification procedure he conducted when Jackson went to the police station on March 18, 2002. The detective pulled up a photo array on a "live scan" computer and showed it to Jackson, who identified appellant. The prosecutor asked the detective how he composed the array, and the court sua sponte called the parties for a bench conference. The court expressed concern that this line of questioning might lead to testimony about appellant's prior record or prior contact with the police. The court also questioned the relevance of the photo array, since identification did not appear to be a "crucial" issue, and noted that it was the "court's prerogative to pretty much limit this type of information so it doesn't spill into anything that's inappropriate." The court did not at that point limit the testimony concerning the photo array, however, because defense counsel changed the subject and directed the court's attention to another issue of concern.
The prosecutor asked the detective if there was any difference between the copy of the photo array and the array that was shown to Jackson at the police station. Detective Austin-Braxton responded, "On this one, it has the PDID [Police Department Identification] number." Appellant objected to this line of inquiry, and the court sustained the objection. When the prosecutor requested that the judge admit the copy of the photo array, defense counsel objected and moved for a mistrial. Counsel then requested, "as a sanction to the government" for eliciting the reference to the PDID numbers, that the photo array not be admitted into evidence. The trial judge stated:
I'm assuming that the jury doesn't know what a PDID acronym stands for. If they can figure that out, then we may have some difficulty. However, there is that instruction that -- about mug shots that [police] may have of people for reasons other than [a prior arrest]. The court can give such an instruction.
The prosecutor proposed deleting the PDID numbers on the photo array that would be admitted as an exhibit. The court, believing that the "numbers are absolutely meaningless to anyone unless they have information about what they stand for" and that "they may just be innocent numbers," initially rejected the proposal. Defense counsel protested that the photographs in the photo array appeared to be mug shots and asked that they be excluded, or, if admitted, that a limiting instruction be ...