Appeal from the Superior Court of the District of Columbia (CF3-21120-06) (Hon. Herbert B. Dixon, Jr., Trial Judge)
The opinion of the court was delivered by: Belson, Senior Judge:
Before RUIZ and FISHER, Associate Judges, and BELSON, Senior Judge.
Opinion for the court by Senior Judge BELSON.
Concurring opinion by Associate Judge RUIZ, at p. 25.
Appellant Herbert Evans challenges his conviction for aggravated assault while armed (AAWA),*fn1 arguing that the trial court abused its discretion in declining to grant a mistrial or, in the alternative, in declining to give a curative instruction, to deal with a comment the government made in its opening statement about evidence that was not later adduced at trial. Specifically, appellant argues that the government's mention in its opening of a false exculpatory statement appellant made to police induced the defense to promise the jury in its opening that it would hear a later exculpatory statement also made by the appellant. Then, when the government received an adverse evidentiary ruling, prompting it to abandon the attempt to enter the first statement, the appellant was left with no way to enter the second statement, and therefore, had effectively broken a promise to the jury because of the actions of the prosecution. For the reasons set forth below, we find that the court did not abuse its discretion in declining to grant a mistrial or give the requested instruction.
A jury convicted appellant Herbert Evans of aggravated assault while armed (AAWA), following a trial before the Honorable Herbert Dixon of the Superior Court. Evans had been charged by indictment with AAWA, assault with intent to kill while armed (AWIKWA),*fn2 and carrying a dangerous weapon outside the home or business (CDW).*fn3 The jury acquitted him of CDW and AWIKWA. He was sentenced to eighty-four months in prison, to be followed by five years of supervised release. This timely appeal followed.
The case arose out of the appellant's stabbing of Steven Boyd several times during a fight on the corner of Olive and Quarles Streets, Northeast, on September 23, 2006. The witnesses for the government at trial included Boyd and Barbara Bowens, a witness to the fight, Boyd's mother Lula Crenshaw, Officer Jason Newman, and Detective John Bevilacqua. Testifying for the defense were James Taylor, who witnessed the fight, and Barbara Bowens' brother Joe Bowens, who was present at the scene but did not witness the fight. The appellant pled self-defense. He chose not to testify in his own defense.
The evidence showed that Boyd approached Evans on the street, upset with Evans for allegedly making sexual advances on a female friend of both. As appellant admits, it was "undisputed that Mr. Evans stabbed Mr. Boyd several times." What was disputed was who started the fight and exactly what happened during it. Boyd's testimony was that after some heated remarks, he began to walk away and Evans stabbed him in the back, continuing to stab Boyd until Boyd told him, "man, I had enough."*fn4 Barbara Bowens testified that she saw that the men appeared angry, and then "both of them just started fighting." She could not tell who threw the first punch. She testified that at some point, "[Boyd] was actually getting the best of [Evans] and somehow [Evans] overpowered [Boyd] and [Boyd] went down to the ground. That's when [Evans] started stabbing [Boyd]." Mr. Taylor testified that after he heard Boyd and Evans arguing, he saw Boyd throw the first punch. It appeared to Taylor that Boyd "was winning" the fight; Boyd "was getting in more punches, throwing more punches than the other man." Once they were on the ground, he saw Evans stab Boyd in the back with the knife. None of the witnesses testified to seeing Boyd with a knife or other weapon at any time.
Detective Bevilacqua, the lead detective on the case, testified that he and other officers followed a trail of blood from the scene of the assault back to appellant's apartment. Once there, they knocked on the door, which appellant opened, bandages on a hand and a knee, and clad only in underwear. He also testified at a motion hearing the week before trial, but not at the trial, that when he asked appellant how he had sustained his injuries, appellant said he had been "jumped" on Kenilworth Avenue. At that point, the detective asked appellant if he would come down to the police station to answer some questions about an assault. Appellant agreed and, after dressing, accompanied Bevilacqua to the Sixth District police station. At the station, appellant was asked again how he had sustained his injuries and initially responded again that he had been jumped on Kenilworth Avenue. The officers at the station told appellant that a person had been stabbed at the corner of Olive and Quarles Streets, and that a trail of blood led directly from the scene to appellant's home. They also informed him that they could not exclude the possibility that the assailant had acted in self-defense. At that point, appellant admitted to being involved in the assault and stated that he acted in self-defense.*fn5
The appellant's lone assignment of error relates to the manner in which the court dealt with a comment made by the government during its opening statement about a piece of evidence that the government subsequently elected not to present. During his opening statement, after summarizing the evidence of the attack the government intended to introduce, counsel for the government stated, "When the detectives asked [Evans] what happened to you, he said I was jumped by some guys over on Kenilworth Avenue. Well, you will hear that he was not jumped by some guys over on Kenilworth Avenue. You will hear that he injured himself as he was attacking Steven Boyd." Apparently apprehending that the jury might think Evans had fabricated his self-defense claim for trial, counsel for the defense included the following in his opening statement:
Yes, he did tell [the police] at first the story about being jumped on Kenilworth Avenue. Folks, he had just stabbed a man. He didn't know the law of self defense. But, you will hear that as soon as the police told him about what had happened with [Boyd], since the police said look, we got this man here stabbed, Mr. Evans told them what happened. He told them that [Boyd] jumped him. He told them that [Boyd] sliced his hand and he told them that he did stab [Boyd]. He admitted it. He said that I was defending myself.
Significantly, the defense counsel then went on to make numerous detailed remarks, not contained in Evans' statements to the police, about what happened during the fight from Evans' perspective. These statements included that Boyd was "high on Crack cocaine, drunk on alcohol and filled with rage," that Boyd "[came] right after Mr. Evans and he [was] ranting at Mr. Evans," that Boyd "pull[ed] out a knife," and that appellant "put up his hands to defend himself," that Boyd "slash[ed] [Evans'] hand from knuckle to wrist," that Boyd "hurl[ed Evans] to the ground," causing appellant to "grind [his knee] into the pavement," and that Boyd did "not stop" there; he "[came] right down on top of him swinging, punching[,] pummeling Mr. Evans," until Evans "finally [took] that knife and he [swung] it." Defense counsel also made several statements about what Evans was thinking during the fight, such as "[appellant knew] that that man [was] not going to stop," "Mr. Evans [knew] he ha[d] to do something or this man [would] kill him," and "he [was] shocked."
Prior to presenting Detective Bevilacqua's testimony, the government requested a ruling from the court on whether it could enter into evidence Evans' statement at his apartment without opening the door to the admission of the later statement at the police station, which included appellant's claim of self-defense. The defense argued that the rule of completeness should allow the defense to introduce the subsequent statement if the government introduced the earlier statement. After a bench conference, the court agreed with the defense. Following this ruling, the government stated that it would elect not to introduce the earlier statement. The defense moved for a mistrial, arguing that the prosecutor's promise to introduce the first statement had induced it to mention the "complete statement" in its opening, which "is now weighing in the minds of the jury." The court denied the motion.
The defense again moved for a mistrial following the government's case-in-chief. It restated its theory of why the appellant was prejudiced:
The Government opened on that he just said he got jumped. I think that the Government will still benefit because that will be left lingering in the minds of the jury number one that he gave a false defense to the police. But, also, that we promised something and essentially took on a burden at that point . . . and we have not fulfilled that.
The government argued that the defense voluntarily assumed the burden of proving the later statement: "Essentially, both parties have now made statements in opening that apparently will not be borne out by the testimony at trial. Both parties gambled. You take the risk." The court once again denied the motion, finding no "misconduct." At the close of evidence, the defense requested a curative instruction "along the lines of . . . the [m]issing [e]vidence [i]nstruction." The instruction would have informed the jury that the defendant's statement at the police station was evidence "that only the government can introduce" and that the jury could infer from the choice not to introduce it that it "would have been harmful to the [g]overnment." The court denied this request also. The defense did not offer any written request for instruction tailored to the circumstances of the case.
No mention of the initial statement appellant made at his home or the subsequent statement he made at the police station was made during the closing argument of either party.
Before closing arguments, the court gave the standard instructions that the jury "may consider only the evidence properly admitted in this trial," and "the statements and the arguments of the lawyers are not evidence." Directly before the government's closing, the court reiterated that "the statements of counsel are not evidence." These admonitions were actually the second and third such instructions the jury received to this effect: immediately after the jury was impaneled, it was instructed that counsel would have "the option to make opening statements," and that if counsel chose to give them, the jury should keep in ...