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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 16-FS-632


                             IN RE C.A., APPELLANT.


                         Appeal from the Superior Court
                          of the District of Columbia
                                (DEL-1027-15)

                    (Hon. Kimberley S. Knowles, Trial Judge)

(Argued April 5, 2018                                     Decided June 14, 2018)

      Claire Pavlovic, Public Defender Service, with whom Samia Fam, Jonathan
Anderson, and Jaclyn Frankfurt, Public Defender Service, were on the brief for
appellant.

       Janice 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.


      Before EASTERLY and MCLEESE, Associate Judges, and RUIZ, Senior Judge.

      EASTERLY, Associate Judge: Appellant C.A. appeals from a determination

that he was ―involved‖ in two counts of attempted first degree murder while armed
                                            2

and related lesser charges.1 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.



                                   I.     Facts



          The 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


      1
          D.C. Code §§ 22-2101, -4502, -1803 (2012 Repl.).
                                            3

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.



                            II.   Evidentiary Rulings



                             A. Preclusion of Impeachment



      C.A. 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.



      On cross-examination, C.A.‘s counsel asked A.H. if it was correct that:
                                           4



            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 the one all
            in black being the shooter, and you never spoke up?


Before A.H. could answer, the government objected. The government did not

contest the relevance of a witness‘s prior inconsistent silence; rather, it argued

defense counsel had not yet ―la[id] a foundation as to whether [A.H.] heard those

statements‖ by the police that the man in black was the shooter. Defense counsel

then asked A.H., ―[d]id you hear people talking about the one in black being the

shooter.‖ A.H. denied that he had. The court called counsel to the bench where

defense counsel proffered that bodycam footage showed Officer Wertz telling

another uniformed officer that ―the one in black‖ was the shooter, while A.H. sat

within earshot and did not correct Officer Wertz. The trial court ruled, however,

that defense counsel could not confront A.H. with the bodycam footage and

attempt to impeach him with it because the defense could not ―prove that he heard‖

Officer Wertz‘s statement.



      The trial court overstated the requisite foundation for the impeachment of a

witness. To impeach A.H., all C.A. had to show was that the line of questioning
                                             5

was relevant and premised on a good faith basis. Moreover, so long as this line of

questioning did not concern a collateral matter, it was permissible for C.A. to

confront A.H. with extrinsic evidence (the bodycam video).2



      ―As a general rule, a defendant is entitled to wide latitude in presenting

evidence tending to impeach the credibility of a witness . . . .‖ Vaughn v. United

States, 93 A.3d 1237, 1264 (D.C. 2014) (brackets and internal quotation marks

omitted); 1 KENNETH S. BROUN      ET AL.,   MCCORMICK   ON   EVIDENCE § 33 (7th ed.

2016) (explaining ―the common law and the Federal Rules [of Evidence] liberally

admit impeaching evidence‖) [hereinafter MCCORMICK        ON   EVID.]. Relevance is,

of course, the baseline prerequisite for any proposed impeachment. On cross-

examination ―any matter[]‖ that ―contradict[s], modif[ies], or explain[s] the

testimony given by a witness during direct examination‖ will ordinarily be

relevant. Morris v. United States, 398 A.2d 333, 339 (D.C. 1978); see also 1

MCCORMICK     ON   EVID. § 29 (evidence is relevant on cross-examination if ―it aids

the trier of fact in appraising the witness‘s credibility and assessing the probative

value of the witness‘s direct testimony‖). If the proposed subject of impeachment


      2
          The defense only sought to use the video to impeach A.H., not to admit it
for its substance. Had the defense sought to do the latter, it would have also had to
demonstrate why this out-of-court statement was not hearsay.
                                            6

is relevant, counsel needs only a ―good faith basis‖ for an impeaching question.

See Clayborne v. United States, 751 A.2d 956, 963 (D.C. 2000) (explaining that

the standard for bias cross-examination is ―a good faith basis‖3 and that the

requirement is ―flexible as well as lenient‖); Garibay v. United States, 72 A.3d

133, 139 (D.C. 2013) (affirming that a ―good faith basis‖ is all that is needed for

counsel to explore on cross-examination ―whether [a] witness fabricated an

accusation‖) (internal quotation marks omitted); see also ROGER PARK & TOM

LININGER, THE NEW WIGMORE, A TREATISE           ON   EVIDENCE: IMPEACHMENT     AND

REHABILITATION § 5.12 (1st ed., 2018 Supp.) (―[T]he cross-examiner is required to

have a good faith basis for questions about inconsistent statements.‖) [hereinafter,

THE NEW WIGMORE].



      Given that A.H. identified C.A. as the shooter on direct examination and

testified that C.A. had been wearing a white T-shirt, A.H.‘s earlier failure to

correct the police‘s understanding that the person wearing all black was the

shooter, when he had the opportunity to do so, was unquestionably relevant to

A.H.‘s credibility and reliability as a witness. See Hill v. United States, 404 A.2d


      3
        Clayborne, 751 A.2d at 963 (alternatively describing the requirement for a
good faith basis as ―a reasonable factual foundation‖ and ―at least a well-reasoned
suspicion‖) (internal quotation marks omitted).
                                             7

525, 531 (D.C. 1979) (―Failure to assert a fact, when it would have been natural to

assert it, amounts in effect to the assertion of the non-existence of the fact.‖)

(quoting 3A J. WIGMORE, EVIDENCE § 1042 (Chadbourne Rev. 1970)); cf.

Blackson v. United States, 979 A.2d 1, 7 (D.C. 2009) (explaining that an

individual‘s failure to speak has traditionally been received as an admission so

long as a third party makes a statement in the individual‘s presence and hearing;

the individual actually understood what was said; the individual had an opportunity

to deny it; and the statement contains assertions which, if untrue, the party would

be expected to deny under the circumstances). C.A.‘s attorney needed only a good

faith basis to believe that A.H. in fact heard Officer Wertz identify the shooter as

the man in black and said nothing. C.A.‘s counsel had at least that, based on his

proffer describing the bodycam footage.4 Indeed, the government had already

conceded the authenticity of the bodycam footage, and defense counsel had, only

moments before, used it to successfully impeach A.H. on a different topic (his

failure, when asked, to tell the police the nicknames of the shooter and his


      4
          C.A. has provided this court with a copy of the footage counsel intended to
use to impeach C.A. But this footage is not part of the record of this case, see D.C.
Court of Appeals Rule 10 (a), because counsel was never permitted to play it, and
the trial court never looked at it or accepted it as a lodged exhibit for the purposes
of an appeal. Although this issue may have been waived because the government
did not object to the video‘s transmission to this court, we do not consider the
content of video footage in our analysis.
                                              8

companion).



      Moreover, the trial court‘s apparent determination that the defense could not

challenge the veracity of A.H.‘s assertion that he had not heard the conversation

between Officer Wertz and the other uniformed officer, and could not confront

A.H. with the bodycam footage, was incorrect. Although parties may not employ

extrinsic evidence5 on cross-examination to impeach witnesses on ―collateral

matters,‖6 the credibility of A.H. with regard to the identity of the shooter was not

collateral. The identity of the shooter was the central issue at trial. The credibility

of A.H. was, therefore, of ―critical importance‖ because he was a ―key government

witness [on] whose largely uncorroborated testimony‖ the government‘s case

rested. Coligan v. United States, 434 A.2d 483, 485 (D.C. 1981) (citing Davis v.

Alaska, 415 U.S. 308, 317 (1974)). Defense counsel should have been permitted to

confront A.H. with the bodycam footage to attempt to impeach him both on the

      5
         In the impeachment context, extrinsic evidence is any evidence that is not
produced ―through cross-examination of the witness [on the stand],‖ i.e., testimony
of ―other witnesses,‖ 1 MCCORMICK ON EVID. § 49 n.2 (quoting United States v.
McNeill, 887 F.2d 448, 453 (3d Cir. 1989), or evidence ―as proved through some
[other] source‖ such as an exhibit or a stipulation. 27 VICTOR J. GOLD, WRIGHT &
MILLER, ET AL., FEDERAL PRACTICE & PROCEDURE: FEDERAL RULES OF EVIDENCE,
§ 6096 n.14 (2d ed. 1987, 2018 Supp.).
      6
         1 MCCORMICK ON EVID. § 36 n.3; see also id. at § 49 (defining collateral
matters as those which are not ―relevant to a fact of consequence on the. . . merits
of the case‖).
                                             9

original point that he had failed to correct Officer Wertz and on the fact that he had

not been truthful when he denied having heard Officer Wertz.7 See Clayborne, 751

A.2d at 963; THE NEW WIGMORE § 5.12.



                    B.     Admission of Prior Consistent Statement


      C.A. also argues that the trial court erred in admitting a statement A.H. made

to a plainclothes officer, Detective Roy, in which he identified C.A. as the shooter;

the trial court ruled over defense objection that the government could elicit

evidence of this prior consistent statement in its rebuttal case. Prior statements

consistent with a witness‘s trial testimony are generally not admissible because

they are not legitimately probative: ―mere repetition does not imply veracity and

once an inconsistency in [a] statement is shown, evidence of additional consistent

statements does not remove the inconsistenc[y].‖ Mason v. United States, 53 A.3d

1084, 1090 (D.C. 2012) (internal quotation marks and ellipsis omitted); accord

Worthy v. United States, 100 A.3d 1095, 1097 (D.C. 2014). There are exceptions

to this rule, but they are ―narrowly defined.‖ Musgrove v. United States, 441 A.2d


      7
         As noted above, see note 4, the court never viewed the bodycam footage
and, without doing so, it could neither credit A.H.‘s denial that he heard Officer
Wertz in light of counsel‘s proffer to the contrary, nor determine that counsel
lacked a good faith basis for impeaching A.H. with his prior inconsistent silence.
                                            10

980, 985 (D.C. 1982).



      Per statute, prior consistent statements are admissible ―to rebut an express or

implied charge against the witness of recent fabrication or improper influences or

motive‖ when the statement predates any of these grounds for impeachment. D.C.

Code § 14-102 (b)(2) (2012 Repl.); Ventura v. United States, 927 A.2d 1090, 1103

(D.C. 2007).    Prior consistent statements are also admissible for the limited

purpose of allowing the factfinder to consider an inconsistent statement when it is

part of the same statement used to impeach the witness, under a rule of

completeness rationale.    Musgrove, 441 A.2d at 985.          Recently this court

determined that, in addition to these two well-established exceptions, a prior

consistent statement may be admitted ―for rehabilitation purposes‖ so long as ―the

proposed evidence is directed only at the particular impeachment that occurred‖

and could be of ―very clear help to the factfinder in determining whether the

witness is truthful.‖   Worthy, 100 A.3d at 1097–98 (internal quotation marks

omitted). But, in discussing the precedent that supported the recognition of this

third exception, the court in Worthy made clear that it ―does not open the door to

admissibility, willy-nilly, of prior consistent statements simply because a prior

inconsistent statement has been used for impeachment.‖ Id. at 1098 n.5.
                                            11

      On appeal, the government argues that the trial court permissibly employed

this third exception under Worthy to admit A.H.‘s statement to Detective Roy at

the scene in which he identified C.A. as the shooter. We disagree. Preliminarily,

we note that the trial court made its initial ruling without reference to Worthy,

which no one at that point had cited. Instead, the court appeared to base its ruling

on one of the two other exceptions.



      The court first indicated that it thought that A.H.‘s prior consistent statement

could come in under D.C. Code § 14-102 (b)(2) to rebut a charge of recent

fabrication raised by defense counsel‘s ―questions about[] ‗you didn‘t tell anyone

on the scene about these things.‘‖ Even if this had been defense counsel‘s line of

questioning, this exception would not have authorized the admission of A.H.‘s

statement to Detective Roy. The consistent statement that was offered did not

predate the motive; rather, it came after the inconsistent statement. See Mason, 53

A.3d at 1092; cf. Tome v. United States, 513 U.S. 150, 156 (1995) (interpreting

Rule 801 (d)(1)(B) under the federal rules to require the prior consistent statement

to predate the motive to fabricate to be admissible). Beyond timing, the consistent

statement offered did not rebut C.A.‘s impeachment of A.H., which was much

more targeted. As defense counsel reminded the trial court, he had sought to

impeach A.H. specifically with A.H.‘s failure to identify C.A. as the shooter to the
                                             12

uniformed officers who were first on the scene. Counsel explained that the defense

theory was that, at this juncture, A.H. and his brother were ―making what isn‘t

exactly an excited utterance, but what amounts to an excited utterance,‖ and giving

the uniformed first responders their best and least calculated recollection of the

incident.8 As counsel explained, whether A.H. had later spoken to a detective at

the scene did not meet the force of this impeachment.



      The trial court stated that A.H.‘s statement to the detective was alternatively

admissible because ―it puts it all in context.‖ There is no such justification for the

admission of prior consistent statements under our law. To the extent the trial

court was alluding to the limited exception that permits admission of the consistent

parts of an inconsistent statement under a rule of completeness rationale (the

exception the government pressed at trial but does not discuss on appeal), the

court‘s ruling also lacked foundation. A.H.‘s later statement to a plainclothes

detective that C.A. was the shooter could not reasonably be characterized as part of

the whole of his earlier statement to the uniformed officers. Officer Wertz testified


      8
         See Mayhand, 127 A.3d at 1206 (―The essential rationale of [the excited
utterance] hearsay exception is that statements made while a person is overcome
by excitement or in shock are fundamentally trustworthy. The theory at least is
that the wash of excitement blocks the reflection and calculation that could
produce false statements. . . .‖).
                                             13

that he and another uniformed officer spoke to A.H. and his brother for about ten

minutes, after which there was a gap of several minutes before the detectives

arrived at the scene. There was no rule of completeness rationale that justified the

admission of this distinct, later-in-time statement. Cf. Cox v. United States, 898

A.2d 376, 381 (D.C. 2006).



      This leaves only our decision in Worthy—which had not previously been

cited by the government and instead was first cited by the defense in support of its

motion to reconsider—as a potential foundation for the trial court‘s ruling

admitting A.H.‘s prior consistent statement.       In ruling on C.A.‘s motion to

reconsider, the trial court identified Worthy as authority for the general proposition

that there are ―other ways a prior consistent statement can come in.‖ But the court

did not explain why A.H.‘s statement to Detective Roy was admissible under

Worthy. Even assuming that the exception recognized in Worthy was the implied

basis for the trial court‘s decision both to issue and then stand by its ruling, we

conclude that the admission of A.H.‘s statement to Detective Roy did not fall

within the ―limited conditions for admissibility‖ authorized thereunder. Worthy,

100 A.3d at 1098.



      In Worthy, this court upheld the admission of a prior statement made by the
                                            14

complainant on the day of the assault in which she told a detective that the

defendant had hit her and threatened to kill her. Id. at 1096. Although consistent

with her trial and grand jury testimony, it directly met the impeachment by the

defense that the day after the incident, she told the police that the defendant ―did

not do anything to her,‖ because the consistent statement was closer in time to the

incident. Id. at 1096, 1098.



      C.A‘s case is distinguishable. A.H. spoke to Detective Roy later in time,

after he spoke to the uniformed officers, and his statement that C.A. was the

shooter was not ―directed only at the particular impeachment that occurred,‖9

Worthy, 100 A.3d at 1098 (internal quotation marks omitted), because it did not

explain why A.H. had not told the uniformed officers, the first responders, who the

shooter was. More generally, nothing in Worthy suggests that it was altering the

long-standing ―general rule of exclusion,‖ id., for prior consistent statements that

      9
          One might question whether any ―particular impeachment . . . occurred‖
so as to justify rehabilitation. Worthy, 100 A.3d at 1098 (internal quotation marks
omitted). As discussed above, C.A. was precluded from using the bodycam
footage to impeach A.H. with his prior inconsistent silence, and the defense‘s
attempt to impeach A.H. through Officer Wertz (who acknowledged that A.H. had
never told him that C.A. or the person in the white t-shirt was the shooter, but also
testified that he never asked A.H. who the shooter was) was arguably unsuccessful.
See Musgrove, 441 A.2d at 985 (―Prior consistent statements . . . may not be used
to support a witness‘[s] unimpeached testimony.‖). This argument, however, has
not been raised on appeal.
                                             15

dictates they are admissible only in ―exceptional circumstances.‖ Musgrove, 441

A.2d at 985. No such exceptional circumstances were present in this case.



      Because A.H.‘s statement to Detective Roy identifying C.A. as the shooter

did not fit into any of the exceptions to the ban on prior consistent statements, the

trial court should not have admitted it into evidence.



                                        III. Harm


      In assessing harm, we examine the trial court‘s two erroneous evidentiary

rulings together. Smith v. United States, 26 A.3d 248, 264 (D.C. 2011) (―The

standard for reversal where more than one error is asserted on appeal is whether

the cumulative impact of the errors substantially influenced the . . . verdict.‖)

(internal quotation marks omitted). Applying the standard for nonconstitutional

error set forth by the Supreme Court in Kotteakos v. United States, we conclude

that we cannot say, ―with fair assurance‖ that the trial court‘s verdict was not

―substantially swayed‖ by the cumulative impact of these errors. 328 U.S. 750,

764–65 (1946).10


      10
          C.A. argues that the trial court‘s ruling precluding his impeachment of
A.H. rises to the level of a constitutional violation that should be analyzed under
the harmlessness beyond a reasonable doubt test set forth in Chapman v.
                                                                      (continued…)
                                             16



      There was no real dispute at trial that A.H. and his brother had been shot at;

the only question was by whom. In issuing its verdict the trial court explained that

its determination that C.A. was the shooter had a three-part foundation: (1) the

―adamant‖ and ―consistent‖ testimony of A.H. and his brother that C.A. was the

shooter; (2) the shell casings found at the scene; and (3) a surveillance video taken

by a camera a block away from the shooting. The latter two pieces of evidence,

however, shed no light on the identity of the shooter.



      The shell casings only corroborated the complainants‘ account that they had

been shot at and, because of their caliber, provided some link between the shooting

and the gun the police recovered from C.A.‘s companion Mike when the police

arrested him. (C.A. was not present.) The surveillance video does not establish

C.A.‘s identity as the shooter. Because of the level of pixilation, no facial features

are discernible for the figure in the video the government identified as the shooter;

nor is any gun visible.11 As the shell casings and the video footage did not



(…continued)
California, 386 U.S. 18 (1967). Because we conclude that the evidentiary errors
require reversal under the Kotteakos standard, we do not reach this issue.
      11
        A few seconds before gunshots are heard, the video shows a flash of
light—what the government asserted was a muzzle flash—adjacent to a person in a
                                                                 (continued…)
                                            17

establish the shooter‘s identity, the only possible foundation for the trial court‘s

determination that C.A. was the shooter was the credited testimony of the

complainants, A.H. and his brother, the only eyewitnesses to the shooting who

testified for the government at trial.



      On this record, we cannot say that precluding A.H.‘s impeachment and

erroneously admitting evidence to rehabilitate A.H. was harmless. Although A.H.

was impeached on other points, the precluded impeachment and improper

rehabilitation on the central question of the timeliness of his identification may

have altered the trial court‘s assessment of his credibility. Specifically, it could

have affected the court‘s evaluation of the ―adaman[ce]‖ and ―consisten[cy]‖

within A.H.‘s own narrative and as compared with the trial testimony of his

brother, M.L., who was also impeached on a variety of grounds. See, e.g., Smith,

26 A.3d at 264–66 (concluding that a combination of evidentiary errors by the trial

court, including erroneous preclusion of impeachment evidence, was not

harmless); Moss v. United States, 368 A.2d 1131, 1135 (D.C. 1977) (determining

(…continued)
white t-shirt. This does not support a conclusion that C.A. was the shooter.
Although A.H. and M.L. testified that C.A. was wearing a white t-shirt during the
incident, the government acknowledges that ―[w]ithin hours of the shooting‖ C.A.,
was stopped ―wearing a black shirt.‖
                                         18

that reversal was required where the defense was precluded from cross-examining

a key government witness with a prior inconsistent statement); Tibbs v. United

States, 359 A.2d 13, 16 (D.C. 1976) (concluding that the introduction of prior

consistent statements was not harmless where that witness‘s testimony was

essential to the government‘s case).   We therefore reverse the trial court‘s

judgment.



                                                      So ordered.
