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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CF-735

FLOYD E. BROOKS, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the

District of Columbia

(CF1-24121-09)

(Hon. Lynn Leibovitz, Trial Judge)

(Argued May 5, 2015 Decided June 4, 2015) 

Thomas D. Engle, with whom Sharon L. Burka was on the brief, for 

appellant.

John Cummings, Assistant United States Attorney, with whom Ronald C. 

Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth 

Trosman, John P. Mannarino, and S. Vinet Bryant, Assistant United States 

Attorneys, were on the brief, for appellee. 

Before GLICKMAN and THOMPSON, Associate Judges, and FARRELL, Senior 

Judge.

FARRELL, Senior Judge: A jury found appellant guilty of two counts of 

armed premeditated murder and related firearms offenses arising from the shooting 

deaths of brothers Robert and Raymond Williams. Appellant claims error in the 
2

trial court’s twofold ruling that allowed the prosecutor (a) to impeach a defense 

witness, Vernon Parrish, with his prior inconsistent statements to defense counsel 

and a defense investigator disclosed in appellant’s in limine motion to admit

Parrish’s third-party perpetrator testimony under Winfield v. United States, 676

A.2d 1 (D.C. 1996) (en banc), and (b) to “complete the impeachment” by a 

stipulation of the parties that Parrish, contrary to his denials on the stand, had made 

the inconsistent statements to the defense team.

This procedure, for which neither party cites a reported decision on point, 

presents troublesome issues that we discuss briefly in Part I, infra. But because no 

objection was made to the trial judge’s ruling, our review is for plain error, and, as 

we explain in Part II, on this record there is no reason to believe that appellant’s 

substantial rights were affected by the challenged procedure. We therefore affirm.

I.

A.

The prosecution’s theory was that appellant shot Robert Williams to death 

on the street out of anger after Williams “disrepect[ed]” him in public by accusing 
3

him of selling drugs, and killed Raymond Williams simultaneously to prevent 

reprisal or eliminate an eyewitness. Several government witnesses incriminated 

appellant, and we summarize their testimony later. Our present focus is on what 

transpired after Vernon Parrish’s testimony for the defense was ruled admissible 

before trial under Winfield, and Parrish testified that he had seen an unknown man 

who was not appellant get out of a car holding a handgun and fire multiple shots at 

the Williams brothers.

In keeping with the Winfield decision,

1

appellant’s in limine motion to admit 

testimony, while not naming Parrish, proffered in detail his expected testimony that 

a man “who did not in any manner resemble” appellant had shot the two victims.

After Parrish finished his direct examination, the prosecutor received permission to 

cross-examine him about details in the proffer that differed from his testimony. In 

that questioning, Parrish repeatedly denied having told “Mr. Kiersh [defense 

 

1

In Winfield the en banc court reaffirmed that “there is only one standard of 

relevance” in criminal cases, which governs “the admissibility of third-party 

perpetrator evidence” in the same way it applies to other proffered evidence. 676 

A.2d at 3. To present a third-party perpetrator defense, a defendant must proffer 

evidence that will “tend to indicate some reasonable possibility that a person other 

than the defendant committed the charged offense.” Id. at 4 (citation and internal 

quotation marks omitted). The court further instructed that “the issue of whether 

third-party perpetrator evidence will be admitted should normally be resolved as a 

preliminary matter before trial.” Id. at 6 n.6
4

counsel] and [his] investigator” specific things about the shooting and his own 

actions at the time. The judge then left it to the parties overnight to discuss “the 

best way to complete the impeachment,” stating that “[t]o the extent there was a 

statement made in a meeting with you, Mr. Kiersh, that is inconsistent with trial 

testimony one way or another, the government is entitled to complete the 

impeachment.” The prosecutor and defense counsel ultimately agreed to a detailed 

stipulation read to the jury confirming that Parrish had been “interviewed by 

defense counsel Steven Kiersh and defense investigator Dale Vaughn” and had

provided the information stated in the Winfield proffer.

B.

The government contends that this procedure was an ordinary example of 

the practice by which a party, including a prosecutor, may (a) properly crossexamine a witness with extrinsic evidence so long as there is a factual predicate for 

the questions “grounded in a good faith belief that the facts are susceptible to proof 

by competent evidence,” Ali v. United States, 520 A.2d 306, 313 (D.C. 1987), then 

(b) introduce the extrinsic proof (here inconsistent statements) after the witness 
5

“answer[s the hostile] questions in the negative,” Grayton v. United States, 745 

A.2d 274, 283 (D.C. 2000).

Particularly as to the latter part of this procedure, it is not at all clear to us 

that the government is correct. Even as to the cross-examination of Parrish with 

his prior statements disclosed for Winfield purposes, the government concedes that 

these did not qualify as “reverse Jencks” statements made admissible by Super. Ct. 

Crim. R. 26.2; and what authorities it does cite qualify at best as “cf.”. For 

instance, United States v. Nobles, 422 U.S. 225 (1975), serves more to identify the 

problem than furnish an answer aiding the government’s position. In Nobles the 

Supreme Court highlighted the importance of the attorney work-product doctrine 

to “the proper functioning of the criminal justice system,” in particular the shelter 

it provides for “material prepared by agents for the attorney as well as those 

prepared by the attorney himself,” id. at 238-39, including “interviews [and] 

statements” “assemble[d]” by defense counsel “in anticipation of litigation.” Id. at 

237-38 (quoting Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)). At the same 

time, the work-product privilege is a “qualified” one and “may be waived,” and in 

Nobles, where the issue was whether the prosecutor could use remaining parts of 

the defense investigator’s report summarizing witness interviews, the defense had
6

waived the privilege by first “present[ing] the investigator [at trial] as a witness” to 

impeach government witnesses with their out-of-court statements. Id. at 239. By 

resisting jury exposure to the investigator’s complete report, the defense had tried 

“to sustain a unilateral testimonial use of work-product materials,” which the 

Supreme Court would not permit. Id.

It is debatable, surely, whether a defendant’s disclosure of witness 

statements to the court to obtain a ruling on admissibility — disclosure responsive 

to the trial court’s “authority to require disclosure of a prospective Winfield

defense in time to permit a ruling on it,” Jordan v. United States, 722 A.2d 1257, 

1262 (D.C. 1998) (emphasis added) — is akin to defense “testimonial use” of its 

work-product before the jury, such that “waiver” analysis applies equally to the 

one as to the other. Appellant’s “intent to use [the Winfield] evidence at trial,” 

which the government stresses, Br. for Appellee at 26 (emphasis added), is a weak 

equivalent of the actual use of the statements by the defense in Nobles. 

Nor is it obvious how the alibi-notice provisions of Super. Ct. Crim. R. 12.1

help the government’s argument. That rule of pretrial discovery balances the 

work-product protections of Rule 16 (b)(2) (“[T]his paragraph does not authorize 
7

the discovery . . . of . . . statements made by . . . defense witnesses . . . to the . . . 

defendant’s agents or attorneys.”) against the government’s valid interest in 

“protecting itself against an eleventh-hour [alibi] defense.” Williams v. Florida, 

399 U.S. 78, 81 (1970). The rule does so by requiring the defendant, in “a limited 

form of pretrial discovery” that is “carefully hedged with reciprocal duties,” id. at 

80, 81, to disclose where he “claims to have been at the time of the alleged offense 

and the names and addresses of the . . . witnesses upon whom the defendant 

intends to rely to establish such alibi.” Super. Ct. Crim. R. 12.1 (a). It is not clear 

to us how that limited (and reciprocal) discovery right justified the broader use at 

trial here of defense work-product — statements made by defense witnesses “to the 

. . . defendant’s agents or attorney[],” Rule 16 (b)(2) — that the defense had 

disclosed only to obtain a ruling on whether Parrish could testify. Allowing the 

prosecution to appropriate these fruits of defense counsel’s work, and enabling the 

prosecution to gather its own impeaching evidence, Rule 12.1, are very different 

things. 

Even more fraught with difficulty, however, is the second part of the process 

followed here. Parrish’s denial of having made particular pretrial statements 

opened the door, the government asserts, to a compelled stipulation in lieu of 
8

testimony by defense counsel that what the witness had told the defense team 

contradicted his trial testimony including those denials. It is not easy to imagine a 

clearer instance of pitting defense counsel’s credibility as an officer of the court 

against his client’s own defense and interests. At oral argument government 

counsel was candid in admitting that were similar impeachment undertaken in the 

future based on past statements of a witness to defense counsel, the prosecution 

might have to accept the witness’s denials without the opportunity to enlist defense 

counsel, as here, to dispute his client’s version of events.

Nevertheless, for the reasons stated in Part II we need not decide whether, or 

what part of, the impeachment process allowed here was error. It is enough for us 

to advise the government to think hard before pursuing again what, at the least, is a 

dangerous application of the broad rule it invokes allowing witness impeachment

with extrinsic evidence. The in limine proffer Winfield calls for is a valuable tool 

of felony trial efficiency, but the use made of it here cannot be shrugged off.
9

II.

Appellant did not object below to the impeachment he now challenges, or to 

the ruling letting the government “complete” it by stipulation. “[O]bjections must

be made with reasonable specificity,” “the trial judge must be fairly apprised as to 

the question on which [s]he is being asked to rule,” and “points not asserted with 

sufficient precision to indicate distinctly the [objecting] party’s thesis . . . will 

normally be spurned on appeal.” Comford v. United States, 947 A.2d 1181, 1186 

(D.C. 2008) (citation and internal quotation marks omitted). Appellant’s counsel 

agreed with the trial judge that his Winfield proffer was a “good faith 

representation of things [Parrish had] said” to counsel and his investigator, and 

agreed further (“That’s fine”) that if the prosecutor “confront[ed Parrish] with an 

inconsistency in [the] proffer, . . . it would be appropriate to put her in a position to 

complete the impeachment.” Having acknowledged that “if [Parrish] said 

something different in court . . . from [what I wrote down in the pleading] . . . the 

government should be able to put that before the jury,” defense counsel joined with 

the prosecutor in fashioning the stipulation as to what Parrish counsel had told him 

or his investigator. The objections appellant now makes to this procedure, in sum, 

were not preserved.
10

Our review thus is for plain error, and appellant has not met his burden on 

that issue. See United States v. Vonn, 535 U.S. 55, 59 (2002). Assuming without 

deciding that the permitted impeachment and use of the stipulation were “error,”

and “clear” or “obvious” error, United States v. Olano, 507 U.S. 725, 732-734 

(1993), appellant has not shown that the error affected his “substantial rights,”

Super. Ct. Crim. R. 52 (b), because he has not demonstrated “a reasonable 

probability that, but for [the error claimed], the result of the proceeding would have 

been different.” United States v. Dominguez-Benitez, 542 U.S. 74, 82 (2004) 

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Parrish’s testimony 

suffered from inconsistencies not just when compared to pretrial statements he had 

made, but also as between his direct and cross-examination.2 And the jury learned 

that three weeks before this trial he had given exculpatory testimony in the murder 

trial of another defendant from the same neighborhood (Clay Terrace) closely 

paralleling his testimony here. 

 

2

Thus, he testified at one point that what caught his attention and caused 

him to turn around was a car’s screeching tires, but at another point that it was the 

sound of gunshots. His testimony varied too as to whether he had seen the 

unidentified shooter before or after hearing shots fired.
11

Critical, moreover, is the array of government witnesses who linked 

appellant to the murders, contrary to Parrish’s description of an unknown assailant 

bearing no resemblance to appellant. Frances Cook, whose daughter Casey was 

dating appellant at the time, had witnessed appellant’s angry reaction before the 

shootings to the “disrespect[]” or humiliation he received in public from Robert 

Williams over putative drug dealing, and heard him declare that “I’m going to kill 

[Williams],” before pulling out a handgun.3Soon after the shootings Vera Cook,

Casey’s sister, saw appellant at Vera’s home appearing jittery and jumpy as he 

held a handgun. She heard him tell Casey that he had shot Robert Williams 

because Williams insulted him, and was forced to shoot Raymond Williams as well 

after appellant’s confederate Angelo Jones (“Lochi”) “froze up” and failed to shoot 

Raymond, whom he “was supposed to get.”

4 As to the actual shootings, Debra 

McPherson, who knew appellant from seeing him nearly every day, heard gunshots 

 

3

James Black, a brother to the Williams brothers, testified that several days 

before the murders appellant had told him “that one day somebody is going to 

sneak up on your brother and kill him but it’s not going to be me.” Black 

understood this to refer to Robert Williams, who when told of the remark began 

wearing a bullet proof vest like the one he was wearing at the time of his murder.

4

In later telephone calls from jail before trial, appellant greeted as “good 

news” the fact that Jones had been murdered in the meantime. The witnesses in 

the Williams murder case had not yet been publicly identified, which suggested to 

the lead detective (who testified) that appellant knew Jones was a likely witness 

against him since they had been together at the time of the shootings. 
12

and, as she turned around, saw appellant standing over the bodies of the Williams

brothers holding a handgun, after which he left in a car driven by another man.

Appellant’s own car was found on the scene after the shootings, parked within 

fifteen feet of Raymond’s body.

These witnesses were impeached in different ways, but in the aggregate they 

related incriminating actions and statements of appellant in marked contrast to the 

spare testimony of Parrish placing the blame on a stranger. Their testimony 

formed the vast bulk of the prosecutor’s argument to the jury, while the 

impeachment of Parrish with his prior statements was mentioned in the 

prosecutor’s initial closing, but not his rebuttal, as part of a broad attack on the 

weakness of Parrish’s story and appellant’s alibi defense. On this record, all told, 

we cannot say that “the probability of a different result [if the claimed error had not 

taken place] is ‘sufficient to undermine confidence in the outcome’ of the 

proceeding.” Dominguez-Benitez, supra, 542 U.S. at 83 (quoting Strickland v. 

Washington, 466 U.S. 668, 694 (1984)).

 Affirmed.