April 5, 2018
from the Superior Court of the District of Columbia
(DEL-1027-15) (Hon. Kimberley S. Knowles, Trial Judge
Pavlovic, Public Defender Service, with whom Samia Fam,
Jonathan Anderson, and Jaclyn Frankfurt, Public Defender
Service, were on the brief for appellant.
Y. Sheppard, Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Todd
S. Kim, Solicitor General at the time the brief was filed,
and Rosalyn Calbert Groce, Deputy Solicitor General, were on
the brief for appellee.
Easterly and McLeese, Associate Judges, and Ruiz, Senior
EASTERLY, ASSOCIATE JUDGE
C.A. appeals from a determination that he was
"involved" in two counts of attempted first degree
murder while armed and related lesser charges. He argues both
that the trial court should not have precluded his
impeachment of a key government witness and that it should
not have admitted a prior consistent statement by that same
witness. We review the trial court's evidentiary rulings
for abuse of discretion, recognizing that it is necessarily
such an abuse for the trial court to employ "incorrect
legal standards." Mayhand v. United States, 127
A.3d 1198, 1205 (D.C. 2015) (internal quotation marks
omitted). We conclude that the trial court's adverse
rulings were each an abuse of discretion and were not
harmless. Accordingly, we reverse.
government's case against C.A. turned on the testimony of
the two complainants, A.H. and his brother, M.L. At trial,
A.H. and M.L. testified that two males-one dressed in a white
t-shirt and jeans (identified as C.A.), the other dressed in
all black (identified as C.A.'s adult companion,
Mike)-had confronted and followed A.H. and M.L. down the
street. The brothers further testified that Mike handed a gun
to C.A. and that C.A. then shot at them. Counsel for C.A.
sought to challenge this narrative and impeach A.H. with the
fact that he failed to correct Officer Wertz-one of the first
police officers to respond to the scene and speak to A.H. and
his brother-when Officer Wertz told another uniformed officer
that "the one in black" (Mike) was the shooter. But
the trial court precluded counsel from pursuing this line of
impeachment. The trial court subsequently permitted the
government to introduce a prior consistent statement by A.H.
to a plainclothes detective, identifying C.A. as the shooter.
Ultimately, the trial court found that C.A. was the shooter,
based on (1) the "adamant" and
"consistent" testimony of A.H. and his brother; (2)
the shell casings found at the scene; and (3) a surveillance
video from a home a block away from the shooting.
Preclusion of Impeachment
first argues that the trial court erred when it prevented him
from impeaching A.H. as to the identity of the shooter with
the fact that A.H. failed to correct Officer Wertz when
Officer Wertz told another uniformed officer that "the
one in black" (Mike) was the shooter. We agree.
cross-examination, C.A.'s counsel asked A.H. if it was
this entire scene was going on around you when all the first
officers came there, and they all thought Mike was the
shooter, and you never corrected them . . . . There were
people going on - or there were cops all around you, talking
about Mike being the shooter, or ...