Appeal from the Superior Court of the District of Columbia (CF2-22610-07) (Hon. Hiram E. Puig-Lugo, Trial Judge)
The opinion of the court was delivered by: Farrell, Senior Judge:
Before RUIZ and BLACKBURNE-RIGSBY,*fn1 Associate Judges, and FARRELL, Senior Judge.
Shahid Turner appeals from his convictions for assault with a deadly weapon and destruction of property. His main contention on appeal is that the trial judge erroneously permitted the prosecutor, in opening and rebuttal summation, to argue facts concerning Turner's motive to attack the complaining witness that were not supported by the evidence. Although the government contends that the difference between what it concedes were misstatements by the prosecutor and what the evidence fairly allowed the prosecutor to argue was insubstantial, we are not persuaded, and conclude that the trial court's failure to take corrective action was prejudicial error requiring reversal.
Based on the identification of the complaining witness, Edgar Payton, Turner was charged with assault with intent to kill while armed (AWIKWA), possession of a firearm during a crime of violence (PFCV), carrying a pistol without a license (CPWL), unlawful possession of ammunition (UA), possession of an unregistered firearm (UF), and destroying property. The government theorized that Turner had attacked Payton because Payton was interfering in Turner's relationship with Payton's goddaughter, Erica Taylor. The prosecutor made extensive use of this motive theory at trial, asserting in his opening statement, and in his closing and rebuttal arguments, that Turner wanted to eliminate Payton as an ongoing obstacle to his relationship with Taylor.*fn2
Payton testified that in the early morning of August 18, 2007, while asleep in his bedroom in the basement of his house, he awoke to hear his bedroom window being broken in. He looked through the broken window and saw a man he recognized as Turner. He demanded to know what Turner was doing there, then walked up the basement stairs so he could go outside and investigate. While Payton was ascending the stairs, multiple shots were fired into his bed. Once he was upstairs, and while he was discussing the incident with his roommate, the roommate exclaimed that he had just seen a person with a gun in his hand attempt to jump the back gate. When Payton looked, he saw Turner again. Payton called 911, and when the police arrived, he identified Turner as the assailant.
Regarding his relationship with Turner, Payton testified that he had known him "since he been messing with my daughter. . . . maybe five, six years. . . . I know him because he was going with Erica. That's my daughter. Not my biological daughter, my goddaughter . . . he was going with her. . . . It's an off and on relationship. . . .
[H]e had stayed at my house when I lived up on Hudson Street with Erica for a few months until I stopped it." When asked whether Turner had ever visited his house in southeast Washington where the shooting occurred,*fn3 Payton replied, "As far as I know . . . no.*fn4
The defense presented testimony by Krystal Banks that in the weeks after the shooting she spoke with Payton, who informed her that Turner had shot into his bedroom. When asked how Payton was sure, Banks testified that he replied, "I seen his hair, who else could it be?" On cross examination by the prosecutor, Banks admitted that Payton did not say he had onlyseen Turner's hair, or that he had not seen his face.
After the close of the evidence, the defense argued that "there was no evidence" supporting the motive theory advanced by the prosecutor in his opening, and requested that the trial court specifically instruct the jury that, regarding motive, the jury should not consider the opening statement as evidence. The trial court declined, but told defense counsel he was free to make the no-motive argument in his closing. The defense also requested an instruction that the jury could consider the lack of motive evidence as supporting innocence.The prosecutor intervened and argued that Payton's testimony indeed supported the motive theory, because "he said that he did not approve of the defendant and also the defendant's lifestyle and the way he treated his daughter and that he had prohibited the defendant from coming and seeing the daughter at the house." Defense counsel said he did not recall that testimony, but the trial judge stated that he did, "and I was paying attention because I wanted to make sure he did not go beyond the in limine ruling."*fn5
During initial closing argument, the prosecutor highlighted his motive theory:
[M]aybe the opportunity evidence doesn't mean much standing alone. But it doesn't stand alone in this case. Look at the evidence of motive that was presented. . . . You know that Edgar Payton had been standing in between [Turner] and his girlfriend for years. You recall the testimony of Mr. Payton. His goddaughter stays at his house sometimes. When she stays at his house the defendant is not allowed to come there. He's not allowed to come to the house. . . . The inference you can draw from that, it's [Turner's] birthday.*fn6 He's not with his girlfriend. There's a man that's been standing between them for years and he comes and he's gonna eliminate that problem.
At this point the defense objected, without stating a reason, and the objection was overruled. During his closing, defense counsel argued that there was no evidence of "bad blood" whatsoever, and that "if [Payton] has in his own mind some kind of ...