LYONS v. U.S., 89-CF-1145

• Decision Date: 16 March 1993
• Docket Number: No. 89-CF-1145,89-CF-1145
• Parties: Lewis LYONS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

622 A.2d 34

Lewis LYONS, Appellant, v. UNITED STATES, Appellee.

No. 89-CF-1145.

District of Columbia Court of Appeals.

Argued March 18, 1992.

Decided March 16, 1993.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Stephen I. Singer, Public Defender Service, with whom James Klein, L. Page Kennedy, and Jo-Ann Wallace, Public Defender Service, were on the brief for appellant.

Philip S. Kushner, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Roy W. McLeese III, and David Schertler, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge, and FERREN and WAGNER, Associate Judges.

FERREN, Associate Judge:

A jury convicted appellant of first degree murder while armed, D.C.Code §§ 22-2401, -3202 (1989 & 1991 Supp.), assault with intent to kill while armed, id. at §§ 22-501, -3202, assault with a dangerous weapon, id. at § 22-502, and carrying a pistol without a license, id. at 22-3204. Appellant contends the trial court erred when it (1) permitted the government to cross-examine him about his positive urine test for PCP administered five days after the shooting and (2) allowed, under the spontaneous utterance exception to the hearsay rule, the testimony of a police officer who recounted a government eyewitness's lengthy statement to the officer. Appellant also alleges three instances of prosecutorial misconduct, arguing that the government improperly impeached him with his post-arrest silence, his pre-arrest silence, and a prior inconsistent statement the government failed to disclose to the defense before trial. While we address appellant's three claims of improper impeachment and agree with appellant on two of them, we need not assess the prejudice from these improprieties because we reverse appellant's convictions on the first two grounds and remand for a new trial.¹

I.

Lionel Harris was shot and killed on March 12, 1988. At trial, appellant admitted he had shot Harris but maintained he had shot him in self-defense. Appellant's first trial ended in a mistrial because the jury was unable to reach a unanimous verdict.

On the afternoon of March 12, Harris and his friend, Kent Jones, drove out to Hains Point, where they each drank three beers and had a half pint of cognac. Then they drove to the parking lot of Peoples Drug in Georgetown, parked, and walked down Wisconsin Avenue. After eating and placing a phone call, the two walked by a record store in which Jones saw Carlette Watkins, whom Jones recognized from junior high school. According to Jones's testimony, after he and Harris entered the store, he approached Watkins and said, "Hi, how you doing?" When Watkins did not respond, Jones asked her if she remembered him, and she replied she did not. Jones testified that appellant, standing three or four feet away, gave him "a mean look," at which point Jones suggested to Harris that they leave. They walked back to the drugstore parking lot.

According to Jones, as he and Harris were standing in the lot urinating, appellantand Watkins walked into the lot and passed them. As Appellant walked over to his car, Watkins said, "Don't do it, don't do it." At the car, appellant pulled out something long and silver that he stuffed into his pants. After Watkins sat down in the car, appellant approached Jones and Harris, and Jones said, "I know her, I was just speaking to her and that's all." Appellant responded, "No, no you don't know her," and fired a shot at Jones from fifteen to twenty feet away. The bullet missed. Appellant ran over to the driver's side of Harris's car, where Harris was sitting, and began hitting Harris in the face with the gun. At that point Jones ran out of the lot to get help but bumped into a man later identified as appellant's friend, Ivan Jones ("Whitey"). Kent Jones said Whitey tried to grab him and punched him in the side of the head. When Kent Jones returned to the parking lot a few minutes later, he found Harris lying and bleeding on a nearby sidewalk. Jones claimed that neither he nor Harris had a gun that night and that he had never seen Harris with a gun.

The government also called Whitey as a witness. He testified that, after leaving the record store, he had heard a noise "like a firecracker." As he walked to the lot he bumped into a man (Jones) who was running. When Whitey reached the lot he saw appellant and Harris fighting. Whitey tried to break it up, appellant pushed him away, Whitey continued to the car, and appellant followed soon thereafter. Appellant did not tell him or Watkins what had happened, but a few days later appellant told Whitey that Harris had "disrespected [his] girlfriend."

Jonathan Maxson also testified for the government. He said that he was sitting in his car in the drugstore parking lot when he heard a gunshot. Two men ran in front of his car, one of whom — later identified as appellant — had a gun. Appellant pointed the gun at Maxson, who accelerated his car to hit him. When appellant jumped out of the way, Maxson drove off to find a policeman. When the police arrived on the scene, Harris was lying on the sidewalk, dead.

Appellant Lyons testified in his own defense, claiming that he had shot Harris in self-defense. Appellant said that he, Watkins, and Whitey had gone into the record store so that Whitey could buy a tape. As appellant and Whitey were waiting at the front counter, Whitey informed appellant that two men were bothering Watkins at the rear of the store. When appellant walked over to Watkins, she told him that Jones and Harris had been following her around. By that time Jones and Harris were leaving the store. After a few minutes, Lyons saw Whitey at the counter purchasing his tape, so he and Watkins decided to head for their car, which was parked in the Peoples Drug parking lot.

According to appellant, Jones and Harris harassed him and Watkins as they made their way to the car. After Watkins had gotten into the car, Jones and Harris continued to swear at them. Appellant then approached the two. An argument developed, and Harris came toward appellant with a gun. Appellant was able to knock the gun to the ground. He and Harris went for it, appellant got to it first, and, as Harris came toward him, appellant fired one shot, which hit Harris. After Harris fell to the ground, appellant ran back to his car and fired a shot at another car that he believed was coming at him. Appellant jumped out of the way of the car. By this time Whitey had returned to the lot; he helped appellant back to his car. Appellant drove home, and, after realizing he still had the gun, he threw the gun down a sewer.

Carlette Watkins, for the defense, testified that she had not seen a gun in appellant's car that day and that appellant had not shown her a gun that night. When she and appellant left the record store and entered the parking lot, Jones and Harris smiled at her and "wriggl[ed] their penises." She and appellant kept walking to their car as Jones and Harris repeatedly called her a "bitch." After appellant unlocked the car door for Watkins, she believed he was mad enough to start a fight with them. He left the car and approached Jones and Harris with only his keys in his hand. As the three men argued, Watkins turned on the radio loudly enough so thatshe could not hear them. The car was facing the wall so Watkins could not see or hear anything. When appellant returned to the car with Whitey a few minutes later, he was quiet and refused to tell her what had happened.

Several days later, after he heard from his parents that the police were looking for him, appellant turned himself in to the police. One day after his arrest and five days after the shooting, appellant's urine tested positive for PCP.

II.

We first address appellant's three complaints of prosecutorial misconduct. Initially, we conclude that appellant's complaint that the prosecutor commented on his post-Miranda² silence in violation of Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976) has no merit.³ His other two complaints of misconduct, however — the prosecutor's impeachment of appellant both with his pre-arrest silence and a prior inconsistent statement the government failed to disclose to the defense before trial — have merit.

A.

On cross-examination, the prosecutor — over objection that was immediately overruled in each instance — repeatedly asked appellant why he did not tell his friends, Watkins and Whitey, in the car immediately after the shooting that he had acted in self-defense (as he had testified on direct) when they asked "what happened." Appellant replied he was "scared to death." The prosecutor then highlighted in closing argument appellant's failure to explain to his friends what had happened, reflecting a proffered inconsistency with his later self-defense testimony at trial. The government argues that such impeachment by "omission" was proper under our line of cases beginning with Hill v. United States, 404 A.2d 525, 531 (D.C. 1979) (per curiam), cert. denied, 444 U.S. 1085, 100 S.Ct. 1042, 62 L.Ed.2d 770 (1980). We disagree. Although it is appropriate to give a prosecutor leeway to inquire into a testifying defendant's state of mind surrounding an incident for which the defendant has claimed self-defense, we conclude that, in this case, the trial court erred in allowing the government, over objection, to impeach appellant with his failure to tell his friends his version of events immediately after the shooting and to explain to them that he had acted in self-defense.

In Hill the defendant, claiming self-defense, testified at trial that he had heard gunshots and that the decedent had come running toward him carrying a pistol. Hill, 404 A.2d at 531. In his statement tothe police after receiving his Miranda⁴ warnings, however, he had failed to mention these two exculpatory facts. The prosecutor impeached the defendant with his...