Appeal from the Superior Court of the District of Columbia (CF1-10689-07) (Hon. Lynn Leibovitz, Trial Judge)
The opinion of the court was delivered by: Ruiz, Senior Judge:
Before FISHER and THOMPSON, Associate Judges,and RUIZ, Senior Judge.*fn1
After the jury in a first trial was unable to reach a verdict, the jury in a second trial found appellant guilty of second-degree murder while armed*fn2 and weapons offenses*fn3 in connection with the death of Delonte Borum, who was shot in the back of the head while he was playing dice. Appellant challenges several evidentiary rulings that led to the admission of a prior consistent statement of a witness he claims had a motive to lie when the statement was made, records from the D.C. Jail that showed the movements of appellant and a government witness, and four telephone calls appellant made from the D.C. Jail. He also challenges the trial court's limitation of cross-examination of a government witness for anti-gay bias and the denial of appellant's motion to compel the government to reveal the identity of a confidential informant. We reject appellant's claims of error, except with respect to the limitation on bias cross-examination. However, we hold that the error was harmless. Accordingly, we affirm appellant's convictions.
Early in the morning hours of April 24, 2007, Delonte Borum was shot and killed while he was playing a dice game in an alley in the 2900 block of 30th Street in Southeast Washington, D.C. Appellant was present, but not participating in the dice game. Jamie Irving, a friend of Borum and appellant, lived near the alley where the game was being played. She testified that she was outside that night drinking alcohol and smoking marijuana with a friend. As the night wore on, people began to leave the game. Appellant approached Irving. He demanded that she leave the alley and "go in the house" because he did not "need no witnesses." Shortly thereafter, from inside her apartment, Irving heard several gunshots and went back outside where she saw Borum lying in the alley.
Irving called 911, and within a few minutes several Metropolitan Police Department ("MPD") officers arrived. The officers saw that Borum had been shot three times from the back. They recovered two plastic drinking cups, dice, and some currency in the area around Borum's body. They also found three spent .380 caliber cartridge casings. No witness testified to having seen the shooting.
Two brothers, Miguel and Kevin Crouch, lived with their family in an apartment directly adjacent to the alley where the murder took place. The morning after the murder, MPD officers executed a search warrant of the Crouchs' apartment as part of an unrelated gun trafficking investigation. In the apartment, police found three guns, over 100 rounds of ammunition, and an unspecified amount of marijuana. Under Miguel's bed, the police found a .380 caliber handgun that ballistics experts determined to be the gun used to fire the bullets whose casings were discovered around Borum's body. The police arrested several members of the Crouch family and charged them with illegal possession of weapons and ammunition.
Both Crouch brothers were questioned during the investigation of Borum's murder.
Investigators tested for fingerprints on the guns found in the Crouchs' apartment and on the items found at the murder scene. Appellant's fingerprints, which were on file due to a prior arrest, were not on the handgun or the ammunition found in the Crouchs' apartment, but they matched fingerprints recovered from one of the plastic cups found in the alley. However, when the discovery of these fingerprints was reported to the detective in charge of the investigation, it was mistakenly reported that appellant's fingerprints were found on bullets inside the suspected murder weapon. Additionally, the day after the murder, a confidential informant told the police that appellant had been hired by a rival of Borum to murder him. Although this tip, also, turned out to be unsubstantiated, appellant remained the focus of the investigation.
Miguel Crouch was arrested and charged in connection with the unregistered weapons and ammunition found in his family's apartment. Miguel testified that after he was released, he located appellant and asked him whether he had been in the Crouchs' apartment on the night Borum was killed. After some wavering, appellant admitted to Miguel that he had "smoked" Borum and had hidden the murder weapon under Miguel's bed because the situation had been "hectic." Kevin Crouch testified that he had been in his apartment the night of the murder and heard gunshots outside. Minutes later, he saw appellant in the Crouch family's apartment, walking from the direction of Miguel's bedroom.
Appellant was arrested and charged with first-degree murder for Borum's death. While awaiting trial, appellant encountered Arthur Jackson, another inmate in the D.C. Jail. Jackson testified at trial about conversations he had with appellant in jail. According to Jackson, appellant confessed that he murdered Borum and hid the murder weapon in a friend's apartment, where the police later discovered it; he also explained his concern that a female friend (presumably Irving) was "tattling on him."
Appellant was in the D.C. Jail for over a year before his first trial. During this time, he made numerous phone calls to friends and members of his family, all of which were recorded. In some of these calls he acknowledged being outside at the dice game the night Borum was shot, and expressed concern over whether others might implicate him as the murderer. He also conveyed apprehension about a false alibi he had given to the police. The government introduced parts of these phone call recordings into evidence during appellant's second trial.
A trial was conducted in October and November of 2008. On November 5, 2008, the court declared a mistrial after the jury was unable to reach a verdict. A second trial commenced on April 1, 2009. At the second trial, the government presented not only the evidence it had introduced at the first trial, but also evidence that was developed subsequently.
During the first trial, Miguel Crouch had been detained at the D.C. Jail on a material-witness warrant issued to secure his appearance as a witness for the government. According to Miguel, on the way from the jail to the courthouse on October 29, 2008, he and appellant were in adjacent holding cells. They were close enough to communicate, and appellant confronted Miguel about "snitch[ing]" and asked Miguel to change his story. Miguel described this conversation in his testimony at appellant's second trial.
On April 10, 2009, the jury in the second trial found appellant guilty of the lesser-included offense of second-degree murder while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license. Appellant timely filed a notice of appeal.
A. Prior Consistent Statement
Kevin Crouch appeared as a witness for the government. The following statements were introduced at trial:
1. On May 31, 2007, Kevin testified before a grand jury that he had seen appellant in his apartment the night Borum was shot, walking from Miguel's bedroom (where police were to discover the murder weapon), approximately four minutes after he heard gunshots fired outside.
2. On March 29, 2009, prior to trial, Kevin told a defense investigator that it had actually been someone else, by the name of "DJ," he had seen in his apartment the night of the shooting.
3. On April 6, 2009, at appellant's trial, Kevin reverted to his earlier story that it had been appellant that he had seen in the apartment the night of the shooting.
The sequence in which the statements were presented to the jury is important to our discussion. First, the prosecutor elicited that Kevin saw appellant the night of the shooting, and that he had previously implicated "DJ" in an interview with the defense team. On cross-examination, defense counsel questioned Kevin about the statement he had made to the defense team. Kevin repudiated it by confirming that it was appellant whom he had seen inside his family's apartment on the night of the shooting. Defense counsel then impeached Kevin for bias to curry favor with the government: Kevin had recently been convicted of carjacking in Maryland, and had filed a motion to reconsider his sentence immediately prior to appellant's trial. Defense counsel mentioned several additional reasons Kevin might have to ingratiate himself with the government: (i) Kevin was arrested and charged with carrying a pistol without a license the day after Borum was shot, but was never prosecuted, (ii) Kevin's brother Miguel was threatened with prosecution for the ...