Appeal from the Superior Court of the District of Columbia; Hon. Truman A. Morrison III, Trial Judge
Ferren, Belson, and Terry, Associate Judges.
The opinion of the court was delivered by: Ferren
A jury convicted appellant of first-degree premeditated murder while armed, D.C. Code §§ 22-2401, -3202 (1989), first-degree felony murder while armed, id., first-degree burglary while armed, D.C. Code §§ 22-1801(a), -3202 (1989), and carrying a pistol without a license, D.C. Code § 22-3204 (1989). Appellant's primary arguments on appeal arise from the fact that the government did not turn over to the defense a statement to the police by Essie Bowman, an eyewitness to the shooting, until the fifth day of a six-day trial. The statement revealed that Gary Augustine, an unavailable witness, had told Bowman, among other things, to remove the murder weapon from the scene immediately after the shooting. Two trial days before the government disclosed this evidence, the court had admitted as a spontaneous utterance another statement by Augustine (to Jean-Robert Baptiste), identifying appellant as the shooter. It is undisputed that Augustine made his supposedly spontaneous exclamation identifying appellant as the shooter after he had told Bowman to remove the weapon. Thus, the statement to Bowman, which the government withheld until the fifth day of trial, casts serious doubt on whether the later statement identifying appellant as the shooter was truly spontaneous and thus properly exempt from the rule against hearsay.
Appellant argues that the prosecutor had a duty to disclose this evidence at an earlier point in time under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), as well as an ethical duty to do so. Appellant stresses that "the prosecutor's failure to disclose this information in a timely fashion led to the erroneous admission of hearsay testimony and interfered with the trial court's exercise of its discretion so as to violate Mr. James' confrontation clause and due process rights." Although appellant did not move for a mistrial or ask the trial court to revisit its spontaneous utterance ruling upon disclosure of Augustine's remarks to Bowman, we conclude that this failure does not bar appellant's claim here. Moreover, because the evidence of guilt in this case was not overwhelming, and because we cannot determine as a matter of law whether the evidence disclosed would have affected the trial court's hearsay ruling and the outcome of the trial, we remand the record for a trial court decision on whether its hearsay ruling would have been different had it considered the later-disclosed evidence and, if so, whether there is a reasonable probability that the result of the trial would have been different. *fn1
On January 18, 1988, shortly before 2:00 p.m., Ben Johnson was shot three times in a northwest Washington apartment that was used to sell drugs. He died from his injuries before police arrived on the scene a short time later. One eyewitness, Essie Bowman, identified appellant as the man who shot Johnson. Bowman testified that she was sleeping on the couch in the apartment when she heard someone knock on the door. She turned over to see who was there, and when she saw "it was Keith," she turned back over because she was familiar with appellant. She then heard a "pow." She turned back over to see appellant shooting Johnson. Bowman testified that, as appellant was shooting Johnson, Johnson was trying to run into the bathroom. Bowman further testified that, after the shooting, there was a struggle between appellant and Gary Augustine, who was also in the apartment. Augustine hit appellant's hand; appellant dropped the gun; and appellant hit Augustine in the eye and ran out of the apartment. Bowman testified that, after appellant left, she removed from the apartment the murder weapon and another gun and gave them to a man she knew as "Six Fingers." *fn2 Although Bowman maintained that it was her decision "to give [the guns] to the police," she admitted that Augustine had told her to remove the guns from the apartment.
Gary Augustine's close friend, Jean-Robert Baptiste, testified that, at about two o'clock that afternoon, he encountered Augustine outside the apartment. According to Baptiste, Augustine was "shaking" and "scared" and said: "John, John, John, Keith shot at Ben." *fn3 Baptiste immediately went inside the apartment and found Johnson lying on the bathroom floor. Baptiste asked Augustine to call an ambulance. The others then left the apartment, while Baptiste waited alone for the ambulance and the police to arrive.
According to government witnesses, two days before the shooting, on January 16, 1988, Johnson, Augustine, Baptiste, and appellant had participated together in the theft of approximately fifteen pounds of marijuana. *fn4 The government's theory was that appellant killed his long-time friend, Johnson, in a dispute over how to divide the stolen marijuana. It introduced evidence from several witnesses that there had been such a dispute between appellant and Johnson and that appellant was looking for Johnson during the 36 hours that preceded the shooting. It also introduced evidence that, after the shooting, both Jacqueline Johnson (the victim's sister) and Keith Travers (a close friend of appellant) called appellant to see if he had shot Ben Johnson. To both inquiries, appellant responded he had not shot Johnson. When Rosslyn Marshall, Travers' girlfriend, informed Travers that she had seen appellant on Euclid Street on the afternoon of the shooting, *fn5 Travers called appellant again and confronted him with the information. Appellant first admitted and then denied seeing Marshall on Euclid Street. *fn6 The government also introduced evidence of appellant's apparent lack of concern or sorrow after his good friend had been shot; the government argued at length in its closing that this was evidence of appellant's guilt.
Appellant did not testify. The defense's theory was that appellant was not present when Johnson was shot and that the government's witnesses identifying him as the shooter were unreliable and biased. The defense did not dispute appellant's participation in the marijuana theft but elicited testimony that, despite a disagreement about how to divide the stolen marijuana, appellant did not appear angry with Johnson during the time between the theft and the murder. The defense also argued that appellant's stake in the drug theft was small compared to that of Jean Baptiste, and that Baptiste had a greater motive to kill Johnson because Johnson disagreed with Baptiste's plan to lace the marijuana with PCP and sell it. The defense also argued there was no physical evidence to support the government's theory. Indeed, none of the latent fingerprints recovered from the scene of the shooting matched those of appellant, and swabs of appellant's hands, taken approximately seven hours after the shooting, did not reveal any chemical elements consistent with the recent discharge of a firearm.
The main focus of the defense was to impeach the credibility and the motives of the government's two main witnesses, Baptiste and Bowman, as well as the motives of the absent Augustine. *fn7 In particular, the defense impeached Essie Bowman, the government's only eyewitness, on the following grounds: (1) she removed the murder weapon and another gun from the scene of the shooting; (2) when she spoke to the police two days after the shooting, she could give no name, nickname, or description of the shooter; (3) she was high on cocaine on the day of the shooting; (4) the government had promised her immunity for any criminal acts she might have committed on the day of the shooting; (5) she expected the government to assist her in several pending criminal matters in exchange for her testimony; and (6) she was friends with both Jean Baptiste and Gary Augustine, both potential suspects in the shooting.
This case centers around several statements attributed to Gary Augustine, who was unavailable for trial and did not testify. See (supra) note 7. One of his statements was admitted on the third day of trial. Jean Baptiste testified that Augustine had said: "John, John, John, Keith shot at Ben." Before the court admitted this hearsay statement, there was considerable Discussion at a bench conference about whether the statement qualified as a spontaneous utterance. See generally Price v. United States, 545 A.2d 1219, 1225-27 (D.C. 1988). The trial Judge took a brief recess to read several cases involving spontaneous utterances, after which he permitted a lengthy voir dire of Baptiste in order to allow the government to lay the foundation for admitting a spontaneous utterance. Baptiste's testimony shed no light on the question of Augustine's state of mind between the time of the shooting and the time Augustine encountered Baptiste. Accordingly, the court's only comment on the "spontaniety" of Augustine's utterance was: "t seems to me circumstantially from his testimony there isn't too much concern about the time element here; is there? I mean, he is there before the police are there and the body is still bleeding in the bathroom." The court eventually ruled that the statement was admissible as a spontaneous utterance.
Later, on the fifth day of trial, the government disclosed to the defense Essie Bowman's statement to the police, *fn8 the relevant portion of which was as follows:
I turned around and Mike [ *fn9] and Gary had the gun and there was another gun in the house. Mike then put them (the guns) into a jacket and that's when Gary said. "No, man, forget that." Gary said: "Don't leave the gun in here or him" (meaning Ben). "Let's get them out of here." I told Mike don't touch nothing. I said this gun needs to go to the police and I getting ready to call them. That's when I ran out with the two guns in a gray jacket. As I was going out of the door I ...