Scales v. US

• Decision Date: 23 December 1996
• Docket Number: No. 95-CF-214.,95-CF-214.
• Citation: 687 A.2d 927
• Parties: Louis J. SCALES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

687 A.2d 927

Louis J. SCALES, Appellant, v. UNITED STATES, Appellee.

No. 95-CF-214.

District of Columbia Court of Appeals.

Argued October 3, 1996.

Decided December 23, 1996.

Jaclyn S. Frankfurt, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant.

Ann K.H. Simon, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher and Roy W. McLeese, III, Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY, KING and REID, Associate Judges.

KING, Associate Judge:

Louis J. Scales appeals his convictions for armed second degree murder and related weapons charges, contending the trial court committed reversible error in certain rulings involving the only eyewitness to testify at trial, Kenneth Hodge. Specifically, Scales contends that the trial court erred by: (1) admitting into evidence grand jury testimony given by Hodge about his prior identification of the appellant, where the witness had first testified at trial concerning the identification but later in part recanted that testimony; (2) not giving, sua sponte, a limiting instruction immediately after the court allowed the government, on redirect examination, to impeach its own witness (Hodge) with portions of the witness's grand jury testimony; (3) refusing to allow the defense to recross-examine Hodge after he recanted his earlier testimony and was impeached with his grand jury testimony; and (4) denying appellant's request to call Hodge as a defense witness at a pretrial hearing on a motion to suppress identification. Finding no error requiring reversal, we affirm.

I.

Appellant Louis J. Scales was tried before a jury on charges of armed first degree murder, possession of a firearm during a crime of violence, and carrying a pistol without a license,¹ in connection with the August 30, 1993, shooting death of Torey Lawrence. Scales was convicted of armed second degree murder and the weapons charges. A co-defendant, Russell Ross, was acquitted on related charges. The government principally relied upon the testimony of Kenneth Hodge, who was an eyewitness to the shooting which caused Lawrence's death. In addition to Hodge's testimony, the government presented the testimony of investigating police officers concerning Hodge's identification of Scales as the shooter, testimony by other police officers who arrived at the scene of the shooting that the victim said, before he died, that "Reds" shot him, evidence that Scales's nickname was "Reds," and evidence that four months after Lawrence was killed Scales possessed a gun similar to the gun used to kill Lawrence.

Hodge testified at trial on direct examination that he was present when, earlier on the day of the shooting, Scales's co-defendant Ross got into a dispute with Lawrence. Hodge identified Scales in court as the "light-skinned one" who accompanied Ross. Then Hodge described in detail the events occurring later that same day when he saw Scales and Ross return, saw Scales approach Lawrence, and saw Scales shoot Lawrence at close range with a gun he described as looking like a black "Mack." Hodge also testified that after the shooting he left the scene, returning ten to fifteen minutes later while Lawrence was still lying on the ground. Hodge said nothing about the shooting to police until some months later.

Hodge also testified that he selected photographs of Scales and Ross from photo arrays at the United States Attorney's office on March 24, 1994, and told detectives what he saw on the day of the shooting. In response to questions from government counsel at trial, Hodge testified that he told the truth at the U.S. Attorney's office, and that no one suggested to him the identity of the shooter or mentioned any names to him. Hodge also testified that he was interviewed by defense counsel, but he had not told her the truth about the shooting.

On the same day he made the out-of-court photo array identification of Scales, Hodge testified before a grand jury about the shooting of Lawrence and about the identification procedures. At trial, Hodge's direct testimony was consistent with his grand jury testimony. However, his answers on cross-examination were at times inconsistent with his direct testimony, and he indicated he might have been pressured to identify Scales. On redirect, Hodge recanted his identification of Scales, testifying that he lied to the grand jury, that he lied during direct examination, and that he did not see who shot Lawrence. Hodge stated that he changed his testimony because the prosecutor and the detectives had pressured him to give his original testimony.

At this point, government counsel requested and received permission from the court to impeach its own witness with his grand jury testimony. The government read into the record, and questioned Hodge about, two separate segments of his grand jury testimony, consisting of: (1) testimony about an argument between Lawrence and Ross that occurred earlier on the day of the shooting, Hodge's description of the events of the shooting, the gun used by the shooter, and his statement that he did not know the shooter; and (2) Hodge describing his prior identification of "Reds" from the photo array. Defense counsel objected to use of the grand jury testimony on the ground that the government could not claim genuine surprise. The defense did not request an immediate limiting instruction and the court did not give one.

After redirect, the defense asked to recross-examine Hodge but the court denied the request. Hodge was then excused and the court took a brief recess, followed by approximately an hour of testimony from two witnesses and a one hour lunch break. After the lunch break, defense counsel moved for mistrial, citing In re L.D.O., 400 A.2d 1055 (D.C.1979), and contending that the trial court erred in admitting a witness's prior identification when the witness was uncertain of the identification at trial. That motion was denied. The jury later convicted Scales of second degree murder and the weapons charges, and this appeal followed.

II. Admissibility of the Out-of-Court Identification

Although the murder of Torey Lawrence occurred in August of 1993, Hodge did not emerge as a witness until months later. On March 24, 1994, upon being shown a photo array by one of the investigating officers, Hodge selected a photograph of Scales, whom he called "Reds," as the person who shot Lawrence, although he did not know Scales's given name.² Later that same day Hodge testified before a grand jury about the murder of Lawrence.

At trial Detective Vacin testified about the photo identification procedures and testified that Hodge selected a photo of Scales as the shooter. On direct examination Hodge described and affirmed his prior identification of "Reds" in the photo array at the U.S. Attorney's office, stating that he did not know that person's given name. He also made an in-court identification of Scales as the person who shot Lawrence. On cross-examination, however, Hodge testified that: (1) he did not know the name or nickname of the shooter, but that he did know Scales and knew Scales's nickname was "Reds," (2) he was pressured or threatened by police to say that "Reds" was the shooter, and (3) in the evening after the shooting he spoke by telephone to Scales and told Scales about the shooting of Lawrence. In response to the government's questions on redirect, Hodge recanted his identification of Scales, testifying that he could not really say the shooter was Scales. Then he stated that he lied to the grand jury, and that he did not see who shot Lawrence.

Scales argues, in light of Hodge's equivocation on cross-examination and his recantation on redirect of his identification of Scales as the shooter, that it was error for the court to allow the government to introduce his prior identification of Scales for any purpose other than impeachment, and that the court erred by not immediately instructing the jury that Hodge's grand jury testimony, which included the prior identification statement, could be considered only with respect to Hodge's credibility. We reject the first contention for the reasons discussed below and deal with the second in Part III.

Scales contends that Hodge's prior identification of Scales was inadmissible as substantive evidence because Hodge destroyed the predicate for its admissibility when he testified on redirect that he lied before the grand jury and that he did not see who shot Lawrence. As Scales correctly observes, we have held that evidence of a prior identification is not properly admissible when the declarant is uncertain of, or recants, the prior identification at trial. See Fletcher v. United States, 524 A.2d 40, 43 (D.C.1987) (witness's repudiation at trial of his prior identification of the defendant rendered the earlier statement inadmissible hearsay); In re L.D.O., supra, 400 A.2d at 1057 (prior identification by witness is rendered unreliable when the witness testifies to significant doubt about the identification);³ cf. Riley v. United States, 647 A.2d 1165, 1171 n. 13 (D.C.1994) (prior identification exception applies when witness does not repudiate his prior out-of-court identification and is available for cross-examination on the point). However, none of these cases addressed the unusual circumstances presented in this case. In each of our previous cases where we held that it was error to allow testimony concerning the earlier identification, the witness expressed significant doubts about his prior identification, but did not in any way identify the defendant as the perpetrator of the offense. Here, Hodge made an in-court identification of Scales as the shooter, and he both affirmed his prior identification during direct examination and repudiated it during redirect examination.

We are persuaded that Hodge's identification of Scales in direct examination...