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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13

- CF

- 735
F LOYD E. B ROOKS , A PPELLANT ,

v. U NITED S TATES , A PPELLEE
. 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 G LICKMAN and T HOMPSON , Associate Judges , and F ARRELL , Senior Judge

. F ARRELL , Senior Judge : A jury found appellant guilty of two counts of armed premeditated murder and related firearms offen s es arising from the shooting deaths of brothers Robert and Raymond Williams. Appellant claims error in the2

trial court ’ s twofold ruling that allowed the prosecutor (a) to impeach a defense witness, Vernon Parrish, with his prior inconsistent statements to de f ense counsel
and a defense investigator disclosed in appellant ’ s in limine motion to a dmi t Parrish ’ s third

- party perpetrator testimony under Winfield v. United States , 67 6 A.2d 1 (D.C. 1996) (en banc) , and (b) to “ complete the impeachment ” by a stipulation of the parties t hat 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,
p resents troublesome issues that we discuss briefly in P art I, infra

. But because no objection was made to the trial jud ge ’ s ruling , our review is for plain error , and , as we explain in P art 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 accusing3

him of selling drugs, and killed Raymond Williams simultaneously to prevent reprisal or eliminate an eyewitness. Se veral government witnesses incriminated appellant, and we summarize their testimony later. Our present focus i s 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 n ot 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, whi le not naming Parrish, proffered in detail his expected testimony that

a man “ who did not in any manner re semble ” 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 tha t 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 perp etrator evidence will be admitted should normally be resolved as a preliminary matter before trial. ” Id . at 6 n.64

counsel] and [ his ] investigator ” specific things about the shooting an d 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 tri al 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 Stev en Ki e rsh and defense investigator Dale Vaughn ” and had provided the information stated in the Winf i eld proffer.

B.

T he government contends that this procedure was an ordinary example of the practice by which a party, including a prosecutor , may (a) properly cross

examin e a witness with extrinsic evidence so long as t he re 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 witness5

“ 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 con ce des that these did not qualify as “ reverse Jencks ” statement s made admissible by Super. Ct.
Crim. R. 26

. 2 ; and what authorit ies it does cite qualify at best as “ cf

. ”

. F or instance, U

nited 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 C ourt highlighted the importance of the attorney work

- product doctrine

to “ the proper functioning of the criminal justice system , ” in particular t he 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 anticipat ion of litigation

. ” I d . 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 th e issue was whether the prosecutor could use remaining parts of the defense investigator ’ s report summarizing witness interviews, the defense ha d6

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. B y 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, w hether 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 we ak 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 a rgument. That rule of p retrial discovery balances the
work

- product protection s of Rule 16 ( b )(2) ( “ [T]his paragraph does not authorize7

the discovery . . . of . . . statements made by . . . defense witness es

. . . 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

. a t 80, 81 , to disclose whe re he “ claims to have been at the time of the alleged offense
and the names and addresses of the . . . w itnesses 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 “t o the . . . defendant’s agents or attorney[],” Rule 1 6 ( 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.

Ev en 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 of8

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 interest s
. At oral argument government counsel was candid in admitting that were similar impeachment undertaken in the
future based on p ast statements of a witness to defense counsel, the prosecution might have to accept the witness ’ s denial s without the opportunity to enlist defense counsel, as here, to dispute h is client ’ s version of events.

Nevertheless , for the reasons stated in P art 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 i n limine proffer Winfield call s for is a valuable tool of felony trial efficiency, but the use made of it here cannot be shrugged off.9 II.

A ppellant 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 a pprised 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, 1 186 (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
repre sentation 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 compl ete the impeachment. ” Having acknowledg ed that “ if [Parrish] said something different in court . . . from [w hat I w rote down in the pleading] . . . the government should be able to put that before the jury, ” defense c ounsel joined with the prosecutor in fashioning the stipulation as to what Parrish counsel had told him or his investigator. The objection s appellant now makes to th is procedure, in s um, were not preserved.10

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

t hat issue. See United States v. Vonn , 535 U.S. 55, 59 (2002). Assuming without deciding that the permitte d 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 t he 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 t he jury learned
that three weeks before this trial he h ad 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 h is 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 th e a rray 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 [ Willi ams ] , ” before pulling out a handgun. 3 S oon after the shootings Vera Cook , Casey ’ s sister, saw appellant at Vera ’ s home appearing jittery and jump y as he
held a handgun . S he 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 A s to the actual shootings, Debra McPherson, who knew appellant fro m 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 w hen 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 murd ered in the meantime. The witnesses in the Williams murder case had not yet been publicly identified, which suggest ed 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 turn ed around, saw appellant standing over the bodies of the William s 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 f eet of Raymond ’ s body.

T hese witnesses were impeached in different ways, but in the aggregate they related incriminating actions and statements of a ppellant 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

.