Appeal from the Superior Court of the District of Columbia (F-1996-02) (Hon. Harold L. Cushenberry, Jr., Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before WASHINGTON, Chief Judge, and KRAMER and THOMPSON, Associate Judges.
Appellant Darryl Woodard, who was convicted of conspiracy to commit assault with a dangerous weapon, argues that the trial court committed reversible error by allowing the prosecutor to improperly suggest in his rebuttal argument that two witnesses changed their testimony because they feared appellant. We hold that the prosecutor's comments were improper as to one witness and that the trial court abused its discretion by allowing the comments. We conclude, however, that the comments did not constitute a Due Process violation and that the error was harmless.
This case stems from the October 9, 2002, shooting of Michael Cary and Ebony Byrd, for which appellant and Edward McCoy were charged with conspiracy to assault another person with a firearm, assault with intent to kill while armed ("AWIKWA"), assault with a dangerous weapon ("ADW"), aggravated assault while armed ("AAWA"), destruction of property, carrying a pistol without a license ("CPWL"), possession of an unregistered firearm ("UF"), unlawful possession of ammunition ("UA"), and three counts of possession of a firearm during a crime of violence ("PFCOV"). Appellant and McCoy were tried in a jury trial before Judge Russell Canan in February 2003. The jury found appellant guilty of conspiracy and ADW and found McCoy guilty of conspiracy, two counts of ADW, AAWA, CPWL, UA, three counts of PFCOV, and misdemeanor destruction of property. Appellant and McCoy appealed to this court. We affirmed McCoy's convictions, but reversed appellant's convictions due to the erroneous introduction of his improperly obtained confession. See United States v. McCoy, 890 A.2d 204 (D.C. 2006).
Thereafter, appellant was retried alone in a jury trial before Judge Harold Cushenberry. The following evidence was presented at that trial. On the night of March 1, 2002, Cary and Byrd went to a club with friends, where they encountered appellant, who was also with friends. A fight broke out between Cary and his friends and appellant and his friends, which was broken up by club security personnel. Later, when the club closed, Cary and Byrd went to the parking lot and saw appellant get into a Volvo with three other men. Cary and Byrd got into Cary's car and began to drive home, but soon observed that the Volvo was following them. As Cary drove through the Third Street tunnel, a bullet entered the driver's side window of his car. The Volvo pulled alongside the driver's side, and Cary could see appellant in the passenger seat firing at him and another man firing out of the sunroof. Byrd, unlike Cary, testified that she saw appellant firing out of the sunroof.
Cary was hit by four bullets and continued to drive until he lost consciousness, at which point Byrd climbed over him into the driver's seat and drove to the hospital. At the hospital, Byrd told police that she knew the man she had seen shooting because his sister lives across the street from her.*fn1 Byrd was shown a photo array from which she identified appellant as the person she had seen shooting. Cary told the police that he knew the shooter as "DJ" and selected a photograph of appellant from a photo array.
At the 2003 trial, Cary and Byrd testified that they did not see appellant with a gun, though Cary testified that he saw McCoy shooting out of the sunroof. At the 2006 trial, both witnesses were impeached with their earlier testimony. When Cary was asked why he previously testified that he did not know if appellant shot him, he replied, "I don't know."When asked about her previous testimony, Byrd testified "I didn't want to tell you nothing because I felt threatened for my life so I didn't say -- I was told not to say nothing. My mother told me don't say nothing."
In defense counsel's closing argument, she noted that Byrd explained her previous testimony by saying, "that's what my mother told me, and I also felt threatened. We didn't hear anything to substantiate that. There was nothing with reference to the fact that she had been threatened. We submit to you that that just doesn't make sense." In the prosecutor's rebuttal argument, he explained the testimony of Cary and Byrd as follows:
At [the first proceeding] . . . they held back information. And why did they do so? Well, they both gave you their explanations, and I'll leave it to that. But think about it. A court proceeding where they have to face the person that they're identifying as the shooter, the fact that they would hold back at that time. Use your common sense. You can understand what's going on here. You know what's going on. . ..
But then, they come here, and finally they have gotten past those concerns; they have gotten past those reasons that they held back their testimony, and they told you what they had told the police from the beginning.
Defense counsel objected to this argument, but the trial court overruled the objection. The jury found appellant guilty of ...