Aрpellants each raise a claim of error stemming from their convictions at a joint trial. Powell contends that the trial court erred in failing to instruct the jury оn prior inconsistent statements made by a witness. Suesbury asserts that the court should not have permitted a witness to testify regarding an admission made by Suesbury. We find no merit in either argument and thus affirm.
*532 I.
Appellants were charged with second degree burglary, D.C.Code 1973, § 22-1801(b), destruction of property, id. at § 22-403, and petit larceny, id. at § 22-2202. The charges arose from an incident beginning on October 17, 1977 when appellants met Stephen Lee at about 9 p. m. at a restaurant called Kojacks. Lee told Suesbury that he needеd money, and Suesbury said that he would pay Lee for kicking in a window. Lee left appellants for several hours and then met them again at Kojacks at abоut 12:30 a. m. (October 18). The three men walked in the area for some time, and finally stopped at Grigg Opticians. Lee kicked the Grigg window twice, breaking the glass, while appellants stood nearby. At that point Suesbury told his companions that someone was watching. Lee took a pair of sunglasses from the window display and the three men ran. Lee and Powell were arrested within minutes: Suesbury was arrested about seven weeks later.
At a joint trial before a jury, Lee testified for the government, describing his own involvement and that of the appellants. Lee’s description of the events taking place in front of Grigg’s was corroborated by the testimony of David Johnson, who witnessed the breaking of the window from his position as a security guard in a building across the street. Suesbury did not take the stand, but he did call fоur witnesses who testified that he spent the evening of October 17 at the movies and dining at Kojacks and that he returned home at about 11:30 p. m. Powell neither took the stand nor presented a defense. Both appellants were found guilty of all three charges and were sentenced under the Federal Youth Corrections Act, 18 U.S.C. § 5010(b) (1976).
II.
Powell contests the trial court’s refusal to give Criminal Jury Instruction for the District of Columbia, No. 1.06 (3d ed. 1978) on evaluation of prior inconsistent statements of a witness. 1 Powell contends that the instruction was justified because of a discrepancy between David Johnson’s testimony at trial and before the grand jury. More specifically, Powell asserts that, at trial, Johnson testified Powell and Suesbury were not conversing as they approached the Griggs’ window; before the grand jury he stated that they had been talking.
We find no error in the trial court’s refusal to give the requested instruction. First, we note that the asserted discrepancy in Johnson’s testimony is minimal. At trial, defense counsel for Suesbury rephrased co-counsel’s question as to whether the witness had “ever seen these three men talking while you werе observing them” (emphasis added), and Johnson answered in the negative. He was impeached with his grand jury statement, in which he had agreed that “the two [Powell and Suesbury] were talking together” (emphasis added) as they approached the window. Although the witness stated that his grand jury testimony was incorrect, the two statements arе reconcilable, and the jury need not have concluded that the statements were inconsistent. But even if the statements were inconsistent, we cannоt conclude that Powell has met the standard for entitlement to the instruction.
Specifically, “an accused is entitled to an instruction ... if there is ‘any evidenсe fairly tending to bear upon the issue . ,’ however weak . . . .”
Belton v. United States,
III.
Suesbury raises a different claim of error. After four members of Sues-bury’s family had testified that he had gone to the movies and then home to bed on the night of the burglary, the government called a detective in rebuttal. The detective testified that he had interviewed Sues-bury several days after the burglary and that Suesbury claimed to have been in the Capitol Book Store at the time of the crime. Suesbury argues that the testimony was inadmissible hearsay because it was not used for impeachmеnt of Suesbury, who never took the stand, and it was not a statement against penal interest, because it was exculpatory. The government, however, relies on neither of these theories, but upon the fact that Suesbury’s statement to the detective was an admission by a party which may be entered into evidenсe despite the fact that the party does not testify.
We agree that the trial judge properly permitted the detective to testify.
3
“When a party mаkes a prior statement which is inconsistent with his position in the litigation, it may be introduced into evidence as an admission.”
Johns v. Cottom,
D.C.App.,
Affirmed.
Notes
. The appropriate portion of instruction 1.06 for use in the Superior Court is:
The testimony of a witness may be discredited or impeached by showing that he has previously made statements which are inconsistent with his present testimony. Such pri- or statements are admitted into evidence solely for your consideration in evaluating the credibility of the witness. Should you find the prior statements to be inconsistent, you may consider such statements only in connection with your evaluation of the truth of the witness’s present testimony in court. You must not consider the prior statement as establishing the truth of аny fact contained in that statement.
See Johnson v. United States,
D.C.App.
.The court stated the following in its general credibility instruction:
Inconsistencies or discrepancies in the testimony of a witness or between the testimony of two witnesses may оr may not cause you to discredit such testimony. Two or more persons witnessing an incident or transaction may see or hear it differently. An innocent misconсeption like failure of recollection is not an uncommon experience. In weighing the effect of the discrepancy, always consider whеther it pertains to a matter of important or unimportant detail, and whether the discrepancy results from innocent, fair, or intentional falsehood.
. Suesbury concedes that the statements made to the detective were not obtained illegally.
. We find no merit in Suesbury’s assertion that use of this testimony at trial deprived him of his Fifth Amendment rights.