KRAMER, Associate Judge:
David Graham appeals from his convictions for first-degree murder while armed, possession of a firearm during a crime of violence ("PFCV"), and carrying a pistol without a license ("CPWL"). Appellant argues that the jury lacked sufficient evidence to sustain the convictions, that the trial court erred by improperly admitting hearsay evidence, that the trial court erred
On December 12, 2001, Kamau Walker was shot to death in his home in northwest Washington. The government's evidence showed that, prior to the shooting, Graham and Walker had at least one altercation, and on the day of the murder, at least two altercations during which Walker threatened Graham. At trial, the government introduced testimony from a number of witnesses, including Graham's friend Derrick McCray, and Walker's friends Jose Henriquez and Barrington Fowler. Because the testimony was at times contradictory, we summarize the relevant testimony of the key witnesses.
Henriquez testified that prior to the shooting, he was in the house with Graham, Fowler and Walker. Minutes after Graham arrived, Henriquez went to the bathroom, where he heard Walker speak with someone, then heard "firecrackers." When he emerged, Walker was dead, and he fled to get help. He testified that he encountered Fowler by the front door near the stairs, and told him that Walker was "on the floor." Henriquez testified that he believed that the shooter fled via the back door. That night, while giving a statement to police, Henriquez saw Graham across the street and told officers that he "might be the guy."
Fowler testified after Henriquez. He testified that he was outside the home when the shooting occurred, and while running into the home to investigate, met Henriquez in front of the house, where Henriquez, hysterical, told him "Dave [Graham] shot your friend, Kamau [Walker]." Fowler testified that despite knowing that Henriquez was in the house when the shots were fired, he did not believe Henriquez was the shooter. Fowler also testified that after the shooting, he saw Graham walking quickly down the street, in different clothing than he had worn earlier. The night of the shooting, Fowler made a report to the police. At trial, he testified that he told the police the shooter was "Kamau's [Walker's] friend, Dave [Graham]."
McCray testified that on the evening of the shooting, after an altercation with Walker, Graham stated that he should "snuff" Walker.
The trial judge instructed the jury, including an instruction allowing the jury to consider flight evidence. The jury convicted on all counts, and this appeal followed.
Graham argues that the evidence presented at trial could not have sufficiently identified him as the shooter.
Graham's primary contention is that the testimony provided by the various witnesses at trial was too contradictory to sufficiently identify him as the shooter. Furthermore, he emphasizes that McCray, the only eyewitness to the shooting, changed his account of events and was influenced by a plea agreement with the government. Nonetheless, viewing the evidence in the light most favorable to the government, we find that the evidence was sufficient to identify Graham as the shooter.
Contradictions between the testimony from various witnesses is unremarkable, and in and of itself is not enough to reverse a jury verdict. See Freeman v. United States, 912 A.2d 1213, 1220 (D.C. 2006) ("The fact that there may be some inconsistencies between the testimony of one witness and another is therefore of no consequence. The jury has the `right to assess credibility and to draw reasonable inferences from the evidence it has heard.'" (quoting Nelson v. United States, 601 A.2d 582, 593 (D.C.1991))). "[I]nconsistencies in the evidence affect only its weight, not its sufficiency, and are in any event for the jury to resolve." Id. (quoting Gibson v. United States, 792 A.2d 1059, 1066 (D.C.2002)).
The testimony of McCray alone, if credited by the jury, was sufficient to convict Graham. McCray testified that on the day of the murder, he heard Graham say that "he should go snuff" Walker. McCray also testified that he witnessed the shooting. While McCray could not testify that he saw Graham holding a gun, he testified that he was standing behind Graham as Walker was shot, and that the only other person present in the room, Fowler, was "definitely not shooting."
We have repeatedly held that the testimony of one witness is sufficient to sustain a conviction.
Graham disputes McCray's credibility, arguing that McCray initially stated
In re A.H.B., 491 A.2d 490, 496 n. 8 (D.C. 1985) (quoting Jackson v. United States, 122 U.S.App.D.C. 324, 329, 353 F.2d 862, 867 (1965)). We cannot conclude that McCray's testimony was inherently incredible. Graham offers no logical proof disputing McCray's testimony, and whether to credit McCray's testimony or the testimony of other witnesses who did not place him at the scene was a decision for the jury. See Adams v. United States, 883 A.2d 76, 85 n. 17 (D.C.2005) ("In any event, `inconsistent or contradictory [evidence] is not enough to reverse [his] conviction, as such considerations are best left to the jury for determining credibility.'" (quoting Graham v. United States, 746 A.2d 289, 297 (D.C.2000))). Further, McCray's plea arrangement was disclosed to the jury, who were properly instructed on how to credit such testimony. Cf. McCrimmon v. United States, 853 A.2d 154, 165 n. 23 (D.C.2004) (declining to find a cooperating witness's testimony inherently incredible where the plea was disclosed and credibility determinations were left to the jury).
Because the identification evidence was sufficient and the witness was not inherently incredible, we hold that the evidence adduced at trial was sufficient to support the verdict.
Graham also assigns error to the trial court's admission of Fowler's conversation with the police the night of the murder. The application of a hearsay exception is a question of law that we review de novo. (Larry) Brown v. United States, 840 A.2d 82, 88 (D.C.2004); see also (Henry) Brown v. United States, 881 A.2d 586, 599 (D.C.2005).
Graham argues that the trial court erred by allowing Fowler to testify on direct examination regarding his statements to police the night of the murder.
Over Graham's objection, the trial court admitted the statement as a prior statement of identification. See D.C.Code § 14-102(b)(3) (2001). On appeal, characterizing the testimony as a prior consistent statement,
"The prior identification exception to the hearsay rule allows the admission of out-of-court statements through the testimony of either the identifier or a third party who was present when the identification was made." (Larry) Brown, supra, 840 A.2d at 88 (citing Morris v. United States, 398 A.2d 333, 336 (D.C.1978); Clemons v. United States, 133 U.S.App. D.C. 27, 39-40, 408 F.2d 1230, 1242-43 (1968)). Codified in D.C.Code § 14-102(b)(3) (2001), the exception provides that "[a] statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is. . . an identification of a person made after perceiving the person. Such prior statements are substantive evidence." Descriptions of an event itself are admissible only to the extent necessary to provide context to the identifications. See Lewis v. United States, 996 A.2d 824, 829-30 (D.C. 2010) (citing Porter v. United States, 826 A.2d 398, 410 (D.C.2003)). We admit prior statements of identification "because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind." Morris, supra, 398 A.2d at 337 (citations omitted).
Where a statement fits within the prior identification exception, it is properly admitted as substantive evidence, and is not an impermissible prior consistent statement. (Henry) Brown, supra, 881 A.2d at 600 ("Although [appellant] argues that it was improper to use the consistency of [prior] descriptions to bolster [a witness's] in-court testimony in the absence of a prior attack on that testimony, we see nothing inherently wrong with using prior statements of identification in this way.") Here, the statement fits the exception, and was properly admitted as a prior statement of identification. Fowler's statement to the police identified Graham as the shooter
The trial judge issued this flight instruction, over Graham's objection:
The instruction is the standard "Red Book" instruction. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.44 (4th Ed. 2004).
"In reviewing a challenge to a jury instruction that was preserved at trial, the central question for this court is whether it is an adequate statement of the law, and whether it is supported by evidence in the case." Wheeler v. United States, 930 A.2d 232, 238 (D.C.2007) (citing Leftwitch v. United States, 251 A.2d 646, 649 (D.C.1969)). "This court reviews the trial court's decision to give a requested jury instruction for abuse of discretion,
"A flight instruction is improper unless the evidence reasonably supports the inference that there was flight or concealment and that the defendant fled because of consciousness of guilt and actual guilt of the crime charged." Scott v. United States, 412 A.2d 364, 371 (D.C.1980) (citations omitted). Graham argues that the evidence in the case was insufficient to support the required inference, and as such the instruction was unduly prejudicial.
Evidence adduced at trial established that Graham left the area quickly after the murder, in different clothing than he had been wearing shortly before. McCray testified that after the incident, he did not see Graham in the neighborhood, and furthermore, that he traveled to another neighborhood to take Graham the clothes from Graham's apartment. This was corroborated by Graham's former girlfriend, who also testified to the grand jury that after the shooting, Graham avoided the neighborhood because it was "hot."
Graham emphasizes that other evidence produced at trial suggests he did not immediately leave the area, and that his reluctance to remain in the neighborhood was consistent with innocence. However, "[a] degree of ambiguity for flight evidence is acceptable; the standard instruction deals with the uncertainties by warning the jury that flight does `not necessarily reflect' consciousness of guilt and `may be motivated by a variety of factors which are fully consistent with innocence.'" Comford v. United States, 947 A.2d 1181, 1187 (D.C. 2008) (citation omitted); see also (Curtis) Smith v. United States, 777 A.2d 801, 808 (D.C.2001) (finding that conflicting explanations for flight are weighed by the jury). Furthermore, to the extent that some evidence suggested Graham did not immediately flee, "contradictions among witnesses at trial are inevitable and are matters for the jury to resolve as they weigh all the evidence." Koonce v. United States, 993 A.2d 544, 551 (D.C.2010) (quoting Payne v. United States, 516 A.2d 484, 495 (D.C. 1986)). We hold that because the evidence reasonably supported the inference that there was flight, and that the flight reflected consciousness of guilt, the trial court did not abuse its discretion by issuing the instruction.
Graham argues that the language of the flight instruction was improper because it did not clearly inform the jury that finding evidence of flight or concealment is a predicate to weighing such evidence.
To preserve a jury instruction issue for appeal, Superior Court Rule of
The instruction given at trial included the sentence "If you find evidence of flight or concealment, you should consider and weigh such evidence along with all the other evidence in the case and give it the weight that you think it deserves." (emphasis supplied). Nevertheless, Graham argues that the instruction was flawed because that statement should be prefatory, as reflected in the revised 2008 instruction.
Graham relies on Scott v. United States, 412 A.2d 364 (D.C.1980), where we held that a flight instruction was inadequate where it did not instruct the jury that "it was not bound to consider the flight evidence unless it was convinced that flight had been established." Id. at 372. However, the instruction in Scott failed to give any indication whatsoever that the jury must first find evidence of flight before considering it. Id. Here, while not at the beginning of the instruction, the jury was correctly instructed. In fact, the instruction given here included the clause "If you find evidence of flight or concealment" in direct response to our decision in Scott. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, Comment to No. 2.44 (4th Ed. 2004).
While the 2008 revised instruction did move the language to the beginning of the instruction, this move was for clarification only. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, Comment to No. 2.44 (6th Ed. 2008) ("The Committee did not intend to make any substantive change in the contents of the instruction."). Admittedly, the current formulation of the instruction puts more emphasis on the jury's role in first finding evidence of flight, and may prove to be clearer. Nevertheless, we are unaware of any cases—and Graham points us to none—where the court found the instruction used at Graham's trial erroneous; we decline to find error now. The flight instruction given at trial properly informed the jury that they must first find evidence of flight before weighing such evidence.
Because the testimony of McCray was sufficient to convict Graham, the admission of Fowler's statement of identification was not error, there was enough evidence to support a flight instruction, and that instruction
Affirmed.