Hawkins v. United States

ROGERS, Chief Judge,

dissenting:

I agree with the majority that the prosecutor had a good faith basis for asking Stephen Weaver whether appellant had shot Willis Gooding, and that the prosecutor was surprised by Weaver’s trial testimony. See Parts II and III of the majority opinion, supra, at 759-760. However, the record makes clear that the grand jury testimony introduced at trial went beyond that necessary to remedy the “affirmative damage” to the government’s case from the surprise proffered by the prosecutor, and that appellant made a timely objection. See Jefferson v. United States, 558 A.2d 298, 301 (D.C.), citing Scott v. United States, 412 A.2d 364, 367-68 (D.C.1980), modified, 571 A.2d 178 (D.C.1989) (to delete footnote 5), cert. denied, 493 U.S. 1032, 110 S.Ct. 748, 107 L.Ed.2d 765 (1990). Therefore, because the evidence went to the central issue, and the government’s evidence was not particularly strong, the error was not harmless. Accordingly, I would remand the case for a new trial.

First, the proper standard of appellate review regarding the scope of impeachment and harmless error is not, as the majority asserts, plain error. See majority at 760. See Mathis v. United States, 513 A.2d 1344, 1347-48 (D.C.1986). Defense counsel made a sufficiently specific objection to preserve this issue for review: counsel made a continuing objection to the introduction of this evidence on grounds of lack of foundation and materiality, and moved for a mistrial after the prosecutor asked Weaver if appellant shot Gooding. Further, in discussing what portions of the grand jury transcript should be permitted to be read to the jury, defense counsel indicated concern with the scope of impeachment, and suggested specifically that impeachment should be limited to rebutting Weaver’s trial testimony that he did not get out of the car or go near the school. Under these circumstances, the trial judge *762was clearly alerted to defense objections regarding the scope of impeachment. See also note 2, infra. The reason for the continuing objection was to limit the amount of grand jury testimony heard by the jury. Accordingly, any error must be assessed under the harmless error standard to determine whether “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Dyson v. United States, 418 A.2d 127, 132 (D.C.1980).

Second, while the trial judge has discretion in deciding what portions of an impeaching statement may be admitted into evidence, this discretion is limited to admitting “most or all of the specific details of the earlier statement [as] are essential to appraise the contradiction uttered from the witness stand.” Wheeler v. United States, 93 U.S.App.D.C. 159, 166, 211 F.2d 19, 26 (1953) (emphasis added). With respect to impeachment by surprise, “[sjince the sole justification for impeachment of one’s own witness is to remove the damage cause[d] by the surprise testimony, the scope of impeachment must be limited to evidence which will further that end.” Scott, supra, 412 A.2d at 368.

The grand jury testimony introduced by the prosecutor went beyond that necessary to remedy the damage caused to the government’s case by the surprise identified by the prosecutor. The particularly objectionable impeachment occurred after Weaver had testified, contrary to his grand jury testimony, that he had not gone near the buildings at the Phelps Vocational School, but was approximately 300 feet from the school. The prosecutor was then permitted to introduce a portion of Weaver’s grand jury testimony (covering eighteen lines of trial transcript) that went beyond testimony that Weaver had gone near the building; rather, the prosecutor was allowed to introduce grand jury testimony that Weaver observed appellant go down the steps toward Gooding and then heard a gunshot.

The surprise encountered by the prosecutor was that Weaver testified at trial that he was not near the buildings. This damage could have been rectified, as defense counsel suggested to the trial judge, by reading only a portion of the grand jury testimony in which Weaver said that after he, appellant and Gooding arrived at Phelps, appellant and Gooding “went down the steps and we was [sic] at the top of the step laughing.”

This is not a case, as in Wheeler, supra, 93 U.S.App.D.C. at 166-67, 211 F.2d at 26, where the details regarding the shooting of Gooding were “essential to appraise the contradiction from the witness stand.” Instead, such details were entirely irrelevant to the impeachment at issue, namely whether or not Weaver went near Phelps Vocational School.1 By introducing more testimony than necessary, the government was able to substitute Weaver’s grand jury testimony for the testimony Weaver would not give at trial. See Scott, supra, 412 A.2d at 368 (“impeachment cannot be allowed as a means ‘to supply the anticipated testimony’ ”) (citation omitted). It was, therefore, error for the trial judge to permit the introduction of the grand jury testimony to the extent that he did.

The error was not harmless. See Dyson, supra, 418 A.2d at 132. In the portion of the grand jury testimony improperly read to the jury Weaver stated that he observed appellant and Gooding together, and then heard a gunshot. The error, therefore, went to the central issue of whether appellant shot Gooding. The eyewitness testimony against appellant was not strong, the *763government’s case consisting primarily of Gooding’s testimony. Gooding changed his story and was impeached on two occasions; on redirect examination Gooding testified that the shooting was an accident.2 In addition to changing his story, Gooding was impeached twice with omissions from his grand jury testimony.

Under the circumstances, the limiting instructions to the jury that impeachment testimony should not be considered as substantive evidence, and that questions by counsel are not evidence, were insufficient to dissipate the prejudice. Accordingly, I would remand the case for a new trial.

. The trial judge appears to have realized that he allowed too much grand jury testimony to be introduced:

And it seems to me that given the peculiar nature of surprise, impeachment and a continuing denial by a witness and the fact that I’m going to have to tell the jury that [Weaver’s grand jury testimony] is only here for their consideration as to whether or not the witness has testified truthfully on the witness stand and it is not substantive evidence in the case, that we’ve got to put a stop to it sooner or later. And I think that we’re at least at sooner and probably at later right now (emphasis added).

. The prosecutor told the judge that this was at odds with the witness’ prior testimony, and he claimed surprise and wanted to impeach Good-ing. The trial judge did not allow the government to impeach Gooding.