Appeal from the Superior Court of the District of Columbia (FEL-1986-02) (Hon. Harold I. Cushenberry, Jr., Trial Judge)
The opinion of the court was delivered by: Farrell, Senior Judge
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and FARRELL,*fn1 Senior Judge.
A partly reconstituted division of the court granted rehearing in this case to reconsider our previous holding that the prosecutor‟s closing argument did not foster a misleading impression by the jury, sufficient to warrant reversal, of the credibility of an important government witness. See Woodard v. United States, 1 A.3d 371, 376 (D.C. 2010). We now hold that the argument in question might well have improperly bolstered the witness‟s credibility in jurors‟ minds, and that because the trial judge declined to adopt a corrective measure reasonably proposed by the defense, appellant‟s substantial rights were affected and his conviction must be reversed. We vacate our earlier judgment and opinion, and publish this opinion in its place.
The case stems from the October 9, 2002, shooting of Michael Cary and Ebony Byrd, for which appellant and Edward McCoy were charged with, among other things, conspiracy to assault another person with a firearm and assault with a dangerous weapon (ADW). A jury originally found appellant guilty of conspiracy and ADW and McCoy guilty of conspiracy, two counts of ADW, and other charges. On appeal, we affirmed McCoy‟s convictions but reversed appellant‟s because of the introduction of his improperly obtained confession. See McCoy v. United States, 890 A.2d 204 (D.C. 2006).
On appellant‟s retrial before a jury the following evidence was presented, chiefly through the testimony of Cary and Byrd. 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 the 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 sun roof. Byrd testified that she saw appellant firing out of the sun roof.
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 lived across the street from her. 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 a "DJ," and selected a photograph of appellant from a photo array.
At the original trial, Cary and Byrd had testified that they did not see appellant with a gun, but Cary testified that he saw McCoy shooting out of the sun roof.*fn2 At the retrial of appellant, both witnesses were impeached with their earlier testimony. When Cary was asked why he had 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 summation, defense counsel argued that Byrd had 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 just doesn‟t make sense." In rebuttal argument, the prosecutor explained the testimony of both Cary and Byrd as follows:
At [the first trial] . . . 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, asserting that the prosecutor‟s argument that "Mr. Cary and [Ms.] Byrd did not I.D. Mr. Woodard as the shooter at the first trial because they were probably scared to identify the shooter in court" was deceptive, because in fact Cary had identified McCoy as a shooter at the first trial, where McCoy was present as a co-defendant. Defense counsel asked to be allowed to reopen and introduce additional evidence on that point, or else for the court to "instruct the jury and to take judicial notice . . . that Ed McCoy was ...