concurring:
I am haunted by a bizarre factual situation although it comes to me in a cold record. It reflects an urban phenomenon — a murder committed in a street scene before numerous witnesses in a densely populated but nevertheless psychologically isolated neighborhood in an inner city.1 As Judge Kern points out, the government produced three eyewitnesses and the defense produced eight (quite apart from the defendant and his alibi witnesses). Obviously the critical issue for the jury was one of credibility.
Against this backdrop, the prosecutor’s strategy of impeachment spawned several errors of the type that pose the risk of improperly influencing a jury. Like the majority, I am troubled by the government’s use of the defendant’s alleged pretrial inconsistent statement which in fact was not inconsistent (see Hill v. United States, 404 A.2d 525 (D.C.1979)) and the government’s presentation, through rebuttal testimony, of an alleged prior inconsistent statement of a defense witness without having developed a foundation justifying the use of such rebuttal. See United States v. Wright, 160 U.S.App.D.C. 57, 489 F.2d 1181 (1973). Even more troubling is the government’s use of prior voir dire testimony of its own witness for alleged impeachment purposes without making a claim of surprise or the requisite showing of damage to its case. See Scott v. United States, 412 A.2d 364 (D.C.1980). Such errors individually, and certainly collectively, would have furnished grounds for reversal under different circumstances. See, e.g., Scott v. United States, supra; Sampson v. United States, 407 A.2d 574 (D.C.1979); United States v. Wright, supra.
In considering the question of reversal in such cases, we have weighed among other factors, the strength of the government’s case, and the danger that, in the absence of limiting instructions, the jury might have considered matters raised for impeachment purposes as substantive evidence. Towles v. United States, 428 A.2d 836 (D.C.1981); Scott v. United States, supra; Walker v. United States, 402 A.2d 424 (D.C.1979). The government’s evidence here was strong; yet paradoxically it is the strength of the defense evidence, coupled with the superficially apparent and abortive nature of the government’s attempts to discredit that defense — even as to collateral matters — that lead me to conclude that the impact of such errors could not have significantly prejudiced the defense. After a reading of the record, I agree with the majority that the errors complained of were either harmless (see Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) or were not so clearly prejudicial as to jeopardize the very fairness and integrity of the trial. Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc).
. An investigating police officer, asked whether he talked to certain people in the neighborhood answered, “Well, most of the people I talked to up there wouldn’t give me the time of day, let alone their names.”
On the other side of the coin, a resident of the area, asked about whether the police know about a prior shooting incident involving the victim, replied: “The police did not come. If you lived on Chapin Street, a lot of things happen that the police don’t come to see.”