Joseph R. Ebron and Steven Goode v. U.S.
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporter s. Users ar e requeste d to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volum es go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 99-CF-145 J OSEPH R. E BRON, A PPELLANT, v. U NITED S TATES, A PPELLEE. No. 99-CF-273 S TEVEN G OODE, A PPELLANT, v. U NITED S TATES, A PPELLEE. Appeals from the Superior Court of the District of C olumbia (F7123-97) (F7349-97) (Hon. Stephen G. Milliken, Trial Judge) (Argued December 13, 2001 Decided December 24, 2003) Stuart Fisk Johnson, appointed by the court, for appellant Joseph R. Ebron. Timothy P. O To ole, Public Defender Service, with whom James K lein, Public Defender Service, was on the brief, for appellant Steven Goode. David C. Berry, Assistant United States Attorney, with whom Kenneth L. Wainstein , United States Attorney at the time the brief was filed, and John R. Fisher, and Roy W. McLeese, III, Assistant United States Attorneys, were on the brief, for appellee. Before W AGNER, Chief Judge, F ARRELL and W ASHINGTON, Associate Judges. W AGNER, Chief Judge: In a joint trial by jury, appellants, Steven Goode and Joseph R. Ebron, were convicted of conspiracy to murder Gregory Epps (D.C. Code § 22-105 (a) 2 (1996)), 1 first-degree m urder wh ile armed of Anthony Tate (D.C. Code §§ 22-2401, -3202 (1996)), 2 assault with intent to kill while armed of Clarence Settle (D .C. Co de §§ 2 2-501 , 3202 (1996)), 3 two counts of possession of a firearm during a crime of violence (assault and murder) (D.C. Code § 22-3204 (b) (199 6)),4 carrying a pistol without a license (D.C. Code § 22-3204 (a) (1996)) a nd carrying a dangero us weap on (D.C . Code § 2 2-3204 (a )). Both appellants argue for reversal on the grounds that the trial court erred in admitting prejudicial evidence consisting of: (1) testimony and argument concerning throat-slashing gestures two spectators made during the testimony of a key witness for the government; (2) improper argument by the prosecutor that a government witness inability to identify appellants was the result of threats and intimidation that occurred in the courtroom; and (3) irrelevant testimony of a witness that encouraged the jury to speculate that appellants had a drug or gang-related motive for the killing and that unfairly tarnished the character of a key defense witness. Alternatively, if a new trial is not ordered, appellants request remand for an evidentiary hearing to address the government s refusal to produce timely impeachment material in compliance with Giglio v. United States, 405 U.S. 150 (1972). Appellant Ebron also challenges as impro per: (1) the admission of e vidence concern ing shots fired at Bernard Pinckney in the community by an unknown assailant; and (2) the government s impeachment of a witness, Gregory Epps, with information related to his pending first-degree murder trial and his failure to report that he was ro bbed to the police. Find ing no rev ersible error in Ebron s case, we affirm his convictions. Concluding that appellant Goode was prejudiced 1 This section has been recodified as D.C. C ode § 22-1805 (2003). 2 These sections hav e been recodified as D .C. Code §§ 22 -2101, -4502 (200 3). 3 These sections hav e been recodified as D .C. Code §§ 22 -401, -4502 (2003 ). 4 This section has been recodified as D.C. C ode § 22-4504 (2003). 3 unfairly by the improper admission of evidence and argument against him of w itness intimidation without any showing that he was linked to the threats, we reverse for a new trial as to Goode. I. Factual Background Clarence Settle testified that on May 24, 1997, while he was on his front porch in Southeast Washington talking with his cousin, Anthony Tate, he heard what sounded like a firecracker. He then saw a man, who was approximately 5'5" tall, weighing about 135 pounds, step from behind a w all and fire a w eapon tha t appeared to be a rifle. Settle said that he then heard what sounded like an auto matic w eapon firing. Afterwards, Settle, who was hit by bullets in the ankle and thigh, went to check on Tate and found him lying on the front porch suffering head wounds from which he later died. The governm ent s theory was that Tate w as the u nintend ed victim of the in tended shootin g of G regory Epps b y appe llants. Eugene Rogers te stified that at the tim e of the sho oting, he w as sitting in a parked car on the other side of the street drinking alcohol with three other people when he saw two men, one approximately 5'9" tall, and the other shorter, fire shots across the street. Gregory Bean testified that he wa s barbecu ing in his backyard when he saw two men in the alley. After the men left the alley, Rogers heard automatic weapon gunfire and a couple of blasts and saw two people run down the alley into a nearby building. Rogers testified that he could not identify the two men, but they were less than 5'10" tall. He had been drinking also. 4 Bernard Pinckney testified that Ebron and Goode were at his apartment when they planned to shoot Gregory Epps and tha t Stanley Rich ardson w as there also. A ccording to Pinckney, a woman named Carolyn c ame to the door and asked for Ebron, and Ebron went outside with her. Ebron returned a few minutes later and told Pinckney and Goode, He [is] out there, let s go. Ebron and Goode then left the apartment, but returned about ten minutes later wearing jackets (one a coat, a nd the o ther, a sweathood). Pinkney testified that Goode had an AK-47 rifle, and Ebron had what looked like a .32 caliber automatic pistol. He testified that Little Greg Epps was the target of the shooting and that Ebron and Goode were the shooters. Pinckney admitted that he had obtained from Rose Brown or her sister a key to the g ate behind his building through w hich the sho oters passed before sho oting Tate and Settle, but he denied that he opened the gate.5 Rose Brown testified that she saw Goode and Ebron wearing jackets that day, which seemed inapprop riate for the w eather. She said that they were carrying a gym bag that was about two and one-half feet long with two handles and a strap. Ms. Brown denied opening the gate for Pinckney. She recounted that the year before, Goode and Ebron came up to her and others and asked if they had seen Little Greg out there, and she responded, Yeah, maybe, I don t know, but explained that she could not remember exactly what she said. She testified that Goode and Ebron then said they were going to kill Epps. Ebron testified that he and Goode had a troubled relationship with Pinckney, who had become quite angry when Ebron s sister, who had a relationship with Pinc kney, m oved w ith 5 Detective Timothy A. Dowdy testified that Pinckney also said that he procured the getaway car which arrived at his house after the shooting. 5 the couple s two children to Maryland. He said that neither he nor Goode had anything against Epps and that they had never tried to kill him. II. Appellan ts argue that th e trial court erred in allowing the admission of prejudicial and inflammatory evidence . Specifically, th ey refer to testimony elicited by the prosecutor from the witness Pinckney concerning throat-slashing gestures that two spectators allegedly made while he was testifying. Appellants contend that the requisite foundation for admission of this evidence was not laid, as there was no showing th at the gestures were made by appellants or with their k nowled ge or autho rization. The y contend that this evidence and the related argument by the prosecutor jeopardized the fairness of the trial and had a substantial impact on its outcome. The government responds that the evidence was properly admitted. Further, it contends th at appellant G oode did not assert in th e trial court that th e basis for his objection was an in sufficient sho wing of a connection between him and the spectators or make a claim of u nique preju dice, and th erefore that a pla in error s tandard applies . We outline first the context in which the testimony occurred and whether the p lain error standard applies, before turning to an analysis of the arguments in light of the applicable legal principles. A. Factual Context for Admission of Threats Evidence The prosecutor reported during a bench conference that he learned from Mr. Pinckney that a spectator had made a throat-slashing motion while he was testifying and that he 6 recognized that person because he was frequently around Ebron and Goode in the neighborhood. Counsel for Ebron objected, and the court stated that it understood the objection. The court then expressed concern about whether that type of gesture might be intimidating to the jurors and acknowledged that whether the evidence was more prejudicial than probative was an issue. Goode s counsel objected, explaining that the gesture doesn t necessarily mean th at it was because of Mr. Ebron and Mr. Goode. Counsel for Ebron added that neither he nor his intern had seen the spectator s conduct and that such gestures could be misinterpreted. T he court res ponded that defense counsel co uld call a w itness in the defe nse cas e. When Pinckney resum ed his testimony befo re the jury, the prosecutor elicited that Pinckney recognized a person in the gallery who had made a throat-slashin g gesture w hile he was testifying. Pinckney demonstrated the throat-slashing gesture by moving his finger across his neck. The prosecutor asked Pinckney whether he had ever seen th e person w ith either Ebron or Goode, and Pinckney responded that he had. The prosecutor then asked Pinckney how often, and his response was, he usually be out there ev ery day. I go walk to the store, see him down there, down there hustling, you know. The trial court sustained appellant Ebron s objection and ordered the hustling remark to be stricken from the record. In an effort to refute Pinckney s testimony concerning the spectator s gestures, appellant Ebron called Roshetta Harris as a witness. Ms. Harris testified that during Pinckney s testimony , two you ng men tried to get her attention, moved to a seat behind her, tapped her on the shoulder and asked for her telephone number. She said that the men returne d to their seats, bu t continu ed to sta re at her . 7 Over defense objection, the government called as a rebuttal witness, John Ludwig, an inspector deputy U.S. Marshal assigned to the witness protection program. He testified that he was seated behind Pinckney during his testimony and that he saw Ebron cock his head and point back toward th e audienc e, make v isual contac t with two spectators and rub his chin down towards his throat. He testified that this happened three or four times and that each time, the two spectators would move across the courtroom into Pinckney s sight line and make throat-slashing gestures. In cross-examination, Goode s counsel asked the witness if he had seen Goode interact with the spectator, and the w itness respon ded that he had not. B. Preservation of Threats Issue for Review First, the government argues that appellant Goode s argument that he was prejudiced by the introduction of the threats evidence must be reviewed for plain error because it was not adequate ly preserved. It contends that although Goode made a general objection to the evidence, he failed to argue that the basis for his objection was an insufficient foundation linking him to the alleged threatening gestures. Goode contends that the objections made were sufficient to satisfy the contemporaneous objection rule. A party objecting to the admission of eviden ce mu st do so timely . Mercer v. United States, 724 A .2d 117 6, 1182 (D.C. 1 999). To be considered timely, an objection must permit the court to take appropriate and effective corrective action. Id. (quoting Coreas v. United States, 565 A.2d 594, 600 (D.C. 198 9)) (other cita tions omitted). The objecting party must also state grounds for the objection. Super. Ct. Crim. R. 51. Objections must be made with specificity in order to fairly apprise the co urt of the question presen ted. Hunter 8 v. United States, 606 A.2d 139, 144 (D.C. 1 992). If the trial court has ruled on the substance of the objection , this court will review the trial court s decision on admissibility of evidence for an abuse of discretion, even though it is not clear that the party objected contemporaneously. Id. (citations omitted). If the party has not preserved the issue by an adequate and timely objection, we review for plain error, i.e., error so clearly prejudicial to substantial rights that the fairness and integrity of the trial was jeo pardize d. Id. (citing Mills v. United States, 599 A .2d 775 , 787 (D .C. 199 1)). Applying these principles, we conclude that the objections were tim ely and ad equate to preserve the issue for review. In making the objection, Goode s counsel argued that the fact that gestures might have been made doesn t necessarily mean that it was because of M r. Ebron and Mr. Goode. This statement was sufficient to alert the court that the b asis for the objection was that the re was no showin g that appellants h ad authoriz ed or set this intimidating conduct in motion. It adequately informed the court that the basis for the objection was the failure to show that appellants were responsible for or connected to th e spectators conduct. As such, it was sufficient to apprise the trial court, as required, of the issues on whic h it was being asked to rule. See Tindle v. United States, 778 A.2d 1077, 1082 (D.C. 2001); Brown v. United States, 683 A .2d 118 , 126 n.9 (D.C. 1996). It satisfied the purpose behind the contemporaneous objection rule, i.e., putting the court on notice of the objection, the reas on for it, a nd the r elief sou ght. See Williams v. United States, 382 A.2d 1, 7 n.12 (D.C. 197 8). Similarly , we conc lude that the o bjection by Ebron s c ounsel, specifying an additional reason for the objection, was sufficient to include him in the ground advanced by Go ode s c ounse l, i.e., the lack of a link between the spectators and himself. After Goode s cou nsel specified this basis for objecting, there w as no need for E bron s 9 counsel to restate the foundational challenge. He started his statement of reasons with the word also, as if advancing an additional ground, not simply a separate one. For these reasons, we reject th e govern ment s arg ument th at the objectio n to the threa ts evidence is subject to plain error review. C. Applicable Legal Principle for Admissibility of Threats Evidence Appellan ts argue that the trial court committed reversible error in allowing the prosecutor to elicit from Pinckney testimony concerning throat-slashing gestures made by two spectators d uring his testim ony solely on the basis that they were seen together frequently in the neighborho od. The g overnm ent argues th at the eviden ce was re levant to show Ebron s consciou sness of guilt, to rehabilitate Pinckney after his motive for participating in the witness-protection program was challenged, and to bolster Pinc kney s credibility after appellants suggested that he should not be believed because he had waited more than a month to convey information concerning the shooting. Generally, evidence showing the bias or motivation of a witness may be relevant in assessing the witness credibility. Mercer, supra, 724 A.2d at 1184 (citing Springer v. United States, 388 A.2d 846, 855 (D.C. 1978)). When shown to be relevant, such evidence should be excluded only when its probative value is substantially outweighed by the danger of unfair prejudice. Id. (quoting (William) Johnson v. United States, 683 A.2d 1087, 1090 (D.C. 1996) (en banc)). Evaluating and weighing evidence for relevance is within the trial court s discretion, and we accord its decisio n in that r egard g reat def erence . Id. at 1185 (quoting (William) Johnson, 683 A.2d at 1095)). Nevertheless, evidence of threats against 10 a witness is recognized as having a great potential for prejudice to the accuse d. Id. at 1184 (citing United States v. (Paris) Thomas, 86 F.3d 6 47, 653-5 4 (7th Cir. 19 96); Dudley v. Duckw orth, 854 F.2d 967, 970-71 (7th Cir. 1988) , cert. denied, 490 U.S. 1011 (1989) (other citation omitted). Therefore, we have cautioned that the adm ission of suc h evidenc e should be limited, unless admitted to explain specific behavior of the witness, such as inconsistent statements, delay in testifying, or unusual courtroom demeanor. Id. (citing (Paris) Thomas, 86 F.3d at 654). It has been held to be an abuse of discretion for the trial court to admit such evidence solely for the p urpose of re flecting on th e general c redibility and bias of the witness. See id. (citing (Paris) Thomas, 86 F.3d at 654). Further, this court has admonished against engaging in tactics that promote the concept of guilt by association. Id. at 1185 (citing Funchess v. United States, 677 A.2d 101 9, 1021 (D.C. 19 96)) (other citation omitted). Evidence that a defendant made threats to witnesses against him in a criminal proceedin g is releva nt to sho w the d efenda nt s con sciousn ess of g uilt. Byers v. United States, 649 A.2d 279, 286 n.3 (D.C. 1994) (citing Smith v. United States, 312 A.2d 781, 78485 (D.C. 197 3) (other citatio n omitted ); see also Roy v. United States, 652 A.2d 1098, 1108 n.22 (D.C. 199 5). Eviden ce of threats against a witness may be admitted also to explain why the witness delayed in reporting a crime and courtroom d emeanor indicating intimidation may also be admitted to account for the specific behavior of a witness that, if unexplained, could damage a p arty s case. Foreman v. United States, 792 A.2d 1043, 1049 (D.C. 2002) (citing (Paris) Thomas, supra, 86 F.3d at 653-54). Applying these principles, we consider appella nts argu ments conce rning th e adm ission o f the thre ats evid ence. 11 1. Goode s Challenge Appellant Goode argues that it was reversible error for the trial court to admit the evidence of throat-slashing gestures against him and to permit the governm ent to suggest in closing argument that these threa ts were linked to him. He contends that the government imprope rly imputed to him the actions of the c ourtroom spectators b ased solely upon his having been seen with them in the neighborhood. He argues that this was an insufficient found ation fo r the adm ission o f such in flamm atory ev idence agains t him. This cour t has recogn ized the pre judice that res ults from ad mitting witness intimidation evidence, particularly absent a foundation linking the evidence to the accused. See Mercer, supra, 724 A.2d at 118 4. It is improper to adm it evidence of a defenda nt s connection to a group of people of questionable character if not relevant to some other factual issue. Id. at 1185. Since thre ats tend to show guilty knowledge or an admission of guilt on the part of the defendant, a proper foundation must be laid show ing the threats were made either by the defendant or with his or her knowledge or authorization. Dudley, supra, 854 F.2d at 970 (quoting Cox v. Sta te, 422 N.E.2d 357, 36 1-62 (Ind. App. 19 81)); see also Mercer, 724 A.2 d at 1184; United Sta tes v. Rios, 611 F.2d 1335, 1349 (10th Cir. 1979) ( Gener ally references to threats or danger to prosecution witnesses are improper unless there is evidence conn ecting the accused to the d anger). Here, the government throughout the testimony of Pinckney, attributed to Goode the threatening actions of the spectators based solely on their association with him in the neighborhood. It does not c ontend on appeal that a ppellant Goode had any link to the 12 spectators or their conduct other than having been seen in the n eighborh ood togeth er with them. A neigh borhood association, th e only nex us provide d in this case, is not an ade quate foundation for the admission of the evidence to prov e Goo de s co nsciou sness o f guilt. See Mercer, supra, 724 A .2d at 11 85, 118 7. In Mercer, we foun d improp er the prose cution s attem pt to intimate that the defendan ts were frien ds with co urtroom s pectators an d to create the impression that the spectators were there to influence the testimony of witnesses. 724 A.2d at 1184. Although the prosecutor did not use the words intimidation or threat, he nevertheless created the impression that the spectators were there to intimidate witnesses by linking a witness contradiction of his grand jury testimony to the presence in the courtroom of spectators from the neighb orhoo d whe re the cr ime w as com mitted . Id. at 1187. We observed that such tactics were fraught with unfair prejudice because: (1) they suggest to the jury a decision based on guilt by association ; and (2) the evidence plays on the passions and fear of the jury, by suggesting that a threat exists against the witnesses. Mercer, 724 A.2d at 1187 (citing McClellan v. United States, 706 A .2d 542 , 551 (D .C. 199 7)). The conduct of the spectators here was n ot shown to reflect G oode s thinking because no evidence associated him with their actions in the courtroom. See Dudley, supra, 854 F.2d at 970 (ci tations o mitted ). The menacing conduct was, therefore, irrelevant to prove Goode s conduct or beha vior. See Foreman, supra, 792 A.2d at 1049 ( to be relevant, evidence must be probative of the fact it is intended to establish) (citations omitted). Absent any showing that the threats were made with Goode s knowledge or authorization, this highly prejudicial evidence should have b een ex cluded as to him . Dudley, 854 F.2d at 970 (citation omitted). 13 The main thrust of the government s responsive argument is that the plain error standard applies.6 We have rejected the governm ent s argument that the p lain error standard applies in this case, since appellant adequately asserted the lack of foundation as a basis for his objection. Therefore, our standard of review for harmless error requires us to determine whether we can say with fair assurance, without stripping the erroneous action from the whole, that the error did not sway the verd ict. See Kotteakos v. United States, 328 U.S. 750, 764-65 (1946); Mercer, supra, 724 A.2d at 1194 (cita tions omitte d). The qu estion is whether the error itself has substantial influence. Barron v. United States, 818 A.2d 987, 993 (D.C. 2003) (quoting Kotteakos, 328 U.S. at 764-65). In making this determination, the appellate court must weigh the severity of the error against the importance of the determination in the whole proceeding and the possibility for prejudice as a result. Mercer, 724 A.2d at 1194 (quoting (James W.) Johns on v. U nited Sta tes, 398 A.2d 354, 367 (D.C. 1979)). The critical factors for that determinati on are: the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error. (William) Thomas v. United States, 557 A.2d 1296, 1303 (D.C. 1989) (quoting Gaither v. United S tates, 134 U.S. App. D .C. 154, 172, 413 F .2d 1061, 1079 (1 969)). Addressing each of these factors, we conclude that the error was not harmless. Contrary to the government s argument, we conclude that this was a close case. None of the eyewitnesses could identify appellants as the shooters, even though some were able to provide the heights for the individuals. A neighbor, Gregory Bean, saw the shooters twice 6 The governm ent contends that there was a proper foundation for admission of the evidence against appellant Ebron, an issue we address in the next subsection. 14 that day, but he did not recognize them as appellants. There was no physical evidence linking appellants to the crime. Therefore, proof of the government s case depended essentially upon the credibility of two witnesses, Bernard Pinckney and Rose Brown. Both of these witnesses were impeached with prior inconsistent statements and motives for not telling the truth . Indeed, the re was ev idence that P inckney w as involved in the events related to the crimes and was initially a suspect. The evidence showed that Pinckney obtained the key from B rown an d opened the gate through w hich the sho oters proce eded on th eir way to the shooting, and secured the car used by the shooters to leave the area later. Th e jury deliberated five days, an d the court f ound it n ecessary to provide an anti-deadlock instruction. Under these circumstances, we cannot say that the government s case was overwhelming. See Dallago v. United States, 138 U.S. App. D.C. 276, 289, 427 F.2d 546, 559 (1969) (observing that had the case be en overw helming , the jury wo uld be exp ected to reach a decision in less than five d ays). The threats evidence was central to the case because it was used not only in a n effort to show appellants consciousness of guilt, but also to show that the government s key witness, Pinckney, had reason to fear appellants and for that reason had delayed in reporting their participation in the crime and his entry into the witness-protection program. Howeve r, in order for such evidence to be relevant to these issues, there must be some proof that the witness fear is rel ated to a ppellan t. See Mercer, supra, 724 A.2d at 1187. As to Goode, no such relation ship was s hown. T his make s it difficult to conclude that the evidence and the government s argument based thereon was harm less. The government argues that any prejudice created by the threats evidence was 15 ameliorate d becaus e counse l for Good e was ab le to establish th at Deputy Marsha l Ludw ig did not see Goode interact with the men in the courtroom who m ade the threatening gestures. We cannot agree that this was sufficient to mitigate the harm under the circumstances. Here, the trial court s ruling permitted the jury to attribute the spectators th reats to Goode, based upon evidence that they had been seen in the neighbor hood w ith him and Ebron. Under these circumstances, it is unlikely that th e jurors wo uld disassoc iate Goode from the evidence of witnes s intimid ation so lely bec ause he was n ot obse rved sig naling h is assoc iates tha t day. Moreover, the prosecu tor took no steps in closin g argum ent to disasso ciate Goode from the spectators and their threatening behavior. Indeed, their actions surrounding the shooting of Tate, he explained, tie[] into everything that you saw in this courtroom. A theme of his argument was the disdain b oth defendants, and their witness Gregory Epps, had shown for the syste m by h andling the ir disputes vio lently out o n[] the streets. T his attitude extended into the courtroom as well, for people who come into the courtro om . . . to tell what they know . . . about Mr. Goode and Mr. Ebron receive the same dis[d]ain. In particular, the jury had seen Mr. Pinckney as he sat her e on this witness stan d [and] ha d to put up with two ge ntleme n in the g allery, . . . these kind of motions going on in the back of this courtroom. When Pinckney tells you that these two young men were back in that gallery going like th is to him, the prosecutor continued, [i]t s the disdain, the contempt for the system . . . . [i]t s the contempt that each of these gentlemen behind me [the defendants] share for hum an life. Altogether, then, the jury was invited to consider both the evidence from . . . the witness stand about the defendants culpability and also the evidence that went on in this courtroom during [the] trial. In rebuttal, the prosecuto r returned to th is theme briefly, explaining that the govern ment s witness Rose Brown had been offered 16 witness protection [f]or a reason[,] . . . a lot of [which] relates to what hap pened in th is courtro om. No effort was made to exclude Goode from the inferences that could be drawn from the disdain[ful,] menacing conduct of the spectators in the courtroom. The foregoing analysis of the three factors decisive in determining harmlessness of the erroneous admission of the threats evidence weighs against the government in this case. Unde r the circ umsta nces, a n ew trial i s warra nted fo r appella nt Goo de. 2. Ebron s Challenge Appellant Ebron is in a different position than appellant Goode in challenging the evidence of the throat-slashing gestures made in the courtroom. D eputy M arshal Lud wig testified that while Pinckney was testifying, Ebron commu nicated three or four times by gesture with the spectators, including a movemen t from his ch in to his throat. 7 According to Deputy Marshal Ludwig, the spectators responded each time by mov ing to a position in the courtroom where Pinckney could see them and then making throat-slashing gestures. This testimony provided a clear connection between Ebron and the spectators threatening conduct. The evidence provided a basis for concluding that Ebron procured or authorized the spectators, with whom he had an association, to make the threatening gestures. Thus, unlike Goode s case, as to Ebron, the evidence met the foundational requirement of showing 7 We are not persuaded by Ebron s argument th at reversal is required because the evidence that he procured and participated with the spectators in the threatening gestures was developed in the government s rebuttal case. Even though that connection should have been established earlier, Ebron cannot complain that factually there was no showing of the requisite nexus between him and the intimidation of the w itnesses. Moreover, Ebron did not request an opportunity to rebut the evidence of his participation in the threatenin g condu ct. 17 that the threats w ere mad e either by th e defenda nt or with his . . . knowledge or authorization. Dudley, supra, 854 F.2d at 970 (citation s omitted); see also Mercer, supra, 724 A.2d at 1184- 85. Th erefore , the evid ence, if r elevan t, was ad missib le again st Ebro n. The government argues that the evidence was relevant: (1) to show Ebron s consciousness of guilt of the underlying offense; (2) to rehabilitate Pinckney s testimony after his motive s for participatin g in the witn ess-protectio n program were questioned; and (3) to explain P inckney s delay in w aiting a mo nth before reporting the shooting. Evidence that a defendant made threats to witnesses against him in a criminal proceeding is relevant to show defendant s consciousness of guilt. Byers, supra, 649 A.2d at 286 n.3 (citing Smith, supra, 312 A.2d at 784-85 ) (other citation omitted); see also Roy, supra, 652 A.2d at 1108 n.22. Such evidence is not being admitted for the improper purpose of showing criminal propensity, but rather for the legitimate purpose of show ing con sciousn ess of g uilt. United States v. Gatto, 995 F.2d 449, 454 (3d Cir. 19 93) (citation omitted). Since there was evidence that Ebron authorized or participated in intimidating conduct against Pinckney during trial, the threats evidence was properly admitted to show his consciousness of guilt. See, e.g., United States v. Mickens, 926 F.2d 1323, 1328-29 (2d Cir . 1991) , cert. denied, 502 U.S. 1060 (1992) (evidence that defendant made a hand gesture in the shape of a gun in order to intimidate a key prosecution witness w as probative of defend ant s consciousness of g uilt). We have also recognized, as the government contends, that evidence of threats against a witness may be admitted to explain why the witness delayed in reporting the crime and courtroom demeanor indicating intimidation. Foreman, supra, 792 A.2d at 1049 (citing (Paris) Thomas, supra, 86 F.3d at 653-54). The government argues that, under these 18 principles, the eviden ce of threaten ing gesture s was also admissib le to explain that Pinckney delayed in reporting the crimes and entered the witness-protection program because of fear for his safety. We do not agree that these two asserted grounds of relevance are applicab le here. Pinckney s delay in c oming forw ard and his entry into the witness-protection program came well in advance of the trial when the threatening gestures were said to have occurred. Thus, they cannot account for his decisions in regar d to eithe r of these events . See id. While the evidence m ight tend to show that Pinckney s fears were not baseless, its principal relevan ce wa s related to Ebro n s con sciousn ess of g uilt. That does not end our inquiry, however, as admissib le evidence may be excluded if its probative v alue is substa ntially outweighed by its pre judicial e ffect. See Clayborne v. United States, 751 A.2d 956, 963 (D.C. 2000) (citations omitted). The probative/prejudice analysis is quintessentially a discretionary function of the trial court, and we owe a great deal of deference to its decision. Id. (quoting Mercer, supra, 724 A.2d at 1185) (other citation omitted). Evidence that appellant Ebron procured and participated in threats to a testifying witness is highly probative of his own consciousness of guilt as well as to the witness manne r of testifying tha t the jury wo uld be called upon to assess. An exercise of judicial discretion will not be reversed unless it appears that it was exercised on grounds, or for reasons , clearly unten able or to an extent clearly unreasonable. Id. at 963 (quoting (James W.) Johnson, supra, 398 A.2d at 363) (other citation omitted). That is not the case here. T herefo re, we f ind no a buse o f discretio n in the tr ial court s ruling . 19 III. Appellants make a number of other arguments for reversal, none of which we find persuasive. First, they argue that the trial court erred in allowing the government to argue, without evidence, that Gregory Bean could identify the shooters, but did not do so out of fear. Read in context, we are not persuaded that the prosecutor s argument conveyed the meaning asserted by the defense.8 The argument, which is reproduced in the margin, did not suggest that the witness actually knew who the shooters were that night, but failed to identify them only out of fear. 9 There was evidence that the w itness was thinking ab out his safety after the shooting and that he was not trying to determine the identities of the shooters. The prosecutor s argume nt can be c onsidered a fair comment on the evidence and the rea sonable inferen ces ther efrom . See Streater v. United States, 478 A.2d 1055, 10 58-59 (D.C. 19 84). 8 The argument complained of consisted of the following: Prosecutor: . . . Gregory Bean never makes an identification, never points across the courtroom, doesn t stare into anybody s face that night. And I know, ladies and gentlemen, that you appreciate why. As you put this altogether [sic] and consider . ... Ebron s Counsel: Objection, Your H onor. Court: Objection is overruled. Prosecutor: . . . the evidence from not only the witness stand but the eviden ce that we nt on in this co urtroom d uring this trial. 9 This case is not like McClellan, supra, upon which appellants rely. In McClellan, the government, in direct conflict with [the witness s] sworn testimony, [stated] that [she] had seen [the defendant s] face and was afraid of retaliation since she co uld identify him. 706 A.2d at 553. Thus, the prosecutor had asked the jury to draw inferences not supported by the eviden ce. Id. Here, th ere wa s som e evide ntiary su pport fo r the arg umen t. 20 At most, the argument might be viewed as somewhat ambiguous. In that case, w e should not lightly infer that a prosecutor intends an ambiguous remark to have the most damaging conceivable meaning, or that the jury will so understand it. Dixon v. United States, 565 A.2d 7 2, 79 (D .C. 198 9) (citatio n omi tted). Appellan ts argue that the trial court erred in allowing the prosecutor to question a key defense witness, Epps, about a gang-related murder and his gang affiliation. They contend that the prosecu tor s question ing had no legitimate basis and conveyed the impression that appellants were dangerous drug dealers who tried to kill Epps, a rival drug dealer. The government responds that the cross-examination was proper, and even assuming error, it was harmless. In testifying for the government, Pinckney stated that Epps was the target of the shooting that night. In response, the defense called Epps to the stand, and he testified that he, Ebron and Goode were friends, although he had problems with Pinckney, including that Pinckney had tried to rob him some years earlier. The trial court then allowed the government to question Epps about whether he had allegiances to drug gang members who were in competition with a gang to which appellants migh t be connected. The trial court instructed counsel that he should not use the word gang, a nd that he w ould be stuck w ith the witness answers. The prosecutor then asked Epps whether he knew four people from the 18 th Street, S.E. area, whether he knew that one of them had been murdered, whether Epps used or sold drugs and whether he had ever been in a p articular crack house. Ep ps said that he knew the four people and that one of them had been murdered. He denied using or selling drugs, althou gh he adm itted that his dogs were kept in a building that was used as a 21 crack house. Appellants contend that this line of questioning unfairly smeared the reputation of Epps, a key defense witness, and caused the jury to speculate that they were members of a rival ga ng. [T]he government may not attempt to manufacture evidence by creating an impression in the minds of the jurors through questions that imply the existence of facts. Ali v. United States, 520 A.2d 306, 313 (D.C. 1987). Questions to a witness assuming a particular factual predicate mu st be grounded in a g ood faith belief that those facts are susceptible to proof by competent evidence. Id. (citations om itted); Harris v. United States, 618 A.2d 140, 146 (D.C. 1 992). Even if denied, false insinuations may leave some prejudice in the juro rs min ds. Clayborne, supra, 751 A.2d at 962-63 (c itations omitted). Appellan ts argue that the government had no good faith basis for this line of questioning and that they were pre judiced by it. The prosecutor proffered at trial that information that appe llants and Epps w ere membe rs of rival drug gangs co mpeting for territory around 18th Street, S.E. resulted from months of investigation by the Metropolitan Police Depa rtmen t and the FBI. The trial court found this founda tion adequ ate to permit some limited inquiry into this area, and we find no abuse of discre tion in its r uling. Cross-examination is often exploratory because counsel can not alway s know what th e oppo sing sid e s witn ess will s ay. Clayborne, supra, 751 A.2d at 963 (citing Alford v. United States, 282 U.S. 687, 692 (1931)). The foundational requirement is fairly lenient. Id. (citing Carter v. United States, 614 A .2d 913 , 919 (D .C. 199 2)). Here, the proffer was sufficient for the court to determine that the prose cutor had a good faith b asis 22 for the inquiry.10 See id. (citation om itted); see also McGrier v. United States, 597 A.2d 36, 44-45 (D.C. 1 991). IV. There remains appellants alternate argument that the case should be remanded for an evidentiary hearing concerning the government s delay in producing Brady/G iglio material. Prior to trial, the defense requested Brady material. 11 The government opposed on the grounds that the defen se sought im peachm ent materia l which w as not Brady and that premature identification of the witnesses would place them in jeopardy. The day before trial, the prosecutor stated that it was his practice to disclose Giglio material at the time the jury was selected and sworn, and the court approved this procedure. The government is required to disclose evidence that tends to be favorable to the accused or evidence that affects the cred ibility of a governmen t witness where material to guilt or pun ishme nt. Brady, supra note 7, 373 U.S. at 87; Giglio, supra, 405 U.S. at 154-55. This obligation includes disclosure at such a time as to allow the defense to use the favorable material effectively in the prepa ration and p resentation o f its case, even if satisfaction of this criterion requires pre-trial disclosure. Edelen v. United States, 627 A.2d 968, 970 (D.C. 1993) (citations om itted); accord Curry v. United States, 658 A.2d 193, 197 10 Even ass uming e rror in allow ing the que stioning, it wo uld not rise to the level of reversible error. The jury was instructed that the questions of counsel were not evidence, and the witness answe rs were not har mful. That a citizen knows someone who was murdered does not in itself damage the citizen s reputation. The questioning bore on the witness, rather than appe llants, which might ha ve been m ore prejudic ial. 11 Brady v. Maryland, 373 U.S. 83 (196 3). 23 (D.C. 1995). Reversal will not be ordered on the groun ds of failure to disclose under Brady absent a further showing that disclosure of the suppressed evidence to competent counsel would have m ade a differe nt result reaso nably probable. Farley v. United States, 694 A.2d 887, 889 (D.C. 1997) (quoting Kyles v. Whitley, 514 U.S . 419, 441 (1 995)). Re asonable probab ility, in this context, means a probability sufficient to undermine confidence in the outcome. Id. (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). The circum stances of this ca se do n ot mee t that stan dard. During cross-examination, the government s key witnesses, Pinckney and Brown, acknowledged receiving sums of money while in the witness protection program. Pinckney received close to $12,000 after he implicated Goode and Ebron in the crimes; and Ms. Brown received a pproxim ately $77,0 00. App ellants conten d that the failure of the gov ernmen t to disclose the information sooner prevented them from investigating the circumstanc es more fully.12 Howeve r, appellants have not dem onstrated prejudice resulting from the delayed disclosure. See Bellanger v. United States, 548 A.2d 501, 503 (D.C . 1988). A ppellants did not object to the p rocedure w hen anno unced or request a de lay of trial to investigate the matters further. See id. Moreo ver, they w ere able to u se the inform ation exten sively in 12 Specifically, appellants contend that they could have inv estigated Ms. Brow n s claim that she had other places to live, although she was being evicted at the time she implicated Ebron and Goode, and that she used some of the funds for her children s medical expenses. They also point to inconsistencies in the statements of Pinckney and Brown that could have been investigated further. As to Pinckney, they refer to the following inconsistencies: (1) telling the police that he obtained the key and opened the alley gate, but later saying that he obtained the key at the request of Good e and Eb ron, who opened th e gate themselves; (2) admittin g to the grand jury that he implicated Ebron and Goode after a breakup with Ebron s sister, while denying later that they had broken up; and (3) denying at trial that he had smoked marijuana the day of the shooting, while saying earlier that he had smoked so much of it that he forgot faces. As to Brown s account, appellants cite her testimony that she had seen Ebron and Goode at the apartment after the shooting, while her grand jury testimony did not include such statements. 24 cross-examination to challe nge the credibil ity of Pin ckney and B rown . Appellants have not shown how the outco me wou ld have been different if they h ad the information ea rlier. Further, we are no t persuaded that a remand for further pro ceedings w ould materially affect the determin ation of the iss ues. App ellants were able to demonstrate the inconsistencies they cite to and to present to the jury the financial benefits that the witnesses obtained after implicating appellants and entering the witness protection program. Appellants have not shown how additional information on how the witnesses utilized the money obtained from the witness protection program would have aided their case. Therefore, we find no basis for a remand for further inquiry into the issue.13 For the foregoing reasons, we affirm the judgment of the trial court as to appellant Ebron,14 and we reverse G oode s co nvictions an d reman d for a new trial. So ordered. 13 We take this opportunity to reemphasize that prosecutors are expected to resolve all reasonable uncertainty about the potential materiality of exculpatory evidence in favor of prompt disclosu re . . . . Edelen, supra, 627 A.2d at 971 (citation omitted) (e mphas is added). When the government fails to make prompt disclosure, as required, the opportunity for use of the material by the defense may be impaired, and the administration of justice may be impeded by the necessity for a continuance to allow the defense to make use of the material or by the need for reversal of a conviction. 14 We find no basis for reversal because the trial court allowed the government: (1) to elicit from Epps that he did not report to the police Pinckney s alleged attempt to rob him; and (2) Epps pending murder c harge in an effort to show h is bias agains t the govern ment.
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