The District of Columbia Court of Appeals affirmed a conviction for premeditated murder and related offenses but suggested that defense counsel had a conflict of interest when a defense witness was challenged based on alleged prior statement to counsel and his investigator.

appellant’s in limine motion to admit testimony, while not naming [witness] 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 “[defense 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, [defense counsel] , 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…and defense investigator Dale Vaughn” and had provided the information stated in the Winfield proffer.

The court expressed concern about that process

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 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.

But given the other evidence and lack of objection, the error was harmless but drew a warning

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.

(Mike Frisch)