Appeal from the Superior Court of the District of Columbia; (Hon. Harold L. Cushenberry, Jr., Trial Judge)
Before Schwelb, Farrell and King, Associate Judges.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Carroll Edelen was convicted by a jury of second degree murder while armed *fn1 and possession of a firearm during a crime of violence. *fn2 On appeal, he presents three principal issues for our consideration. First, Edelen contends that he is entitled to a new trial under the doctrine of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), because the prosecution provided him with requested exculpatory materials too late for their effective use at trial, and because the trial Judge refused to take remedial action to protect Edelen's rights. Second, Edelen maintains that the trial Judge abused his discretion in refusing to declare a mistrial after the government knowingly elicited inadmissible and allegedly inculpatory hearsay testimony. Finally, Edelen claims that the trial Judge abused his discretion by refusing to allow the defense to re-call a prosecution witness for the purpose of impeaching her with a prior conviction which she had previously denied. We view some of the prosecution's actions in this case as less than exemplary. Nevertheless, for the reasons stated below, we affirm Edelen's convictions.
Linda Rogers was shot to death in the early morning hours of February 3, 1990. There were no eyewitnesses to the shooting. The prosecution presented evidence, *fn3 however, to the effect that on the night of the murder, Edelen was wearing a green army coat which he had borrowed from Philippa (Pam) Williams, a prosecution witness. Jennifer Jacobs, another government witness, who was then sixteen years of age, testified that she saw a man wearing a green army coat, whom she later identified as Edelen, loading a shotgun outside the building where Ms. Rogers was murdered. Ms. Jacobs went into the building and called the police. Approximately a quarter of an hour later, she heard a shot -- presumably, the shot that killed Ms. Rogers.
Ms. Williams testified that on the following day, Edelen returned to her apartment without the green coat, *fn4 but with a shotgun. Jennifer Jacobs testified that she subsequently saw Edelen in the neighborhood and called the police a second time. As a result, Edelen was arrested.
The defense presented no witnesses, but attempted to discredit the prosecution testimony. A principal defense theory was that Anthony Pate, not Edelen, was the person who was wearing a green army coat and who shot Ms. Rogers. The defense introduced into evidence a stipulation that Pate had told a grand jury that on February 3, 1990, he had possessed drugs in the block where Ms. Rogers was murdered.
During pretrial discovery, the defense made a " Brady " demand for all exculpatory information which was in the possession of the prosecution. Edelen's attorney specifically requested information regarding any inconsistencies in the description of the suspect. Before trial, no information was provided to the defense in response to this request. After jury selection had been completed, however, the prosecutor disclosed that Donna Motley, who was to be called as a government witness, had informed the prosecutor on that very morning that she had seen Anthony Pate, rather than Edelen, wearing a green jacket on the night of the murder in the area where it occurred. Edelen's attorney was thus aware of this information by the time that he made his opening statement. Thereafter, on the second day of trial, the prosecutor provided the defense with Jencks material, which consisted of the grand jury testimony of Ms. Motley and of another witness. Ms. Motley had told the grand jury that she had seen Edelen shortly after the shooting, that he was chatting with a woman from the neighborhood, and that at that time he was wearing a white shirt and dark pants.
Upon receipt of the Jencks material, Edelen's attorney moved the court to dismiss the indictment with prejudice, or in the alternative, to declare a mistrial. Counsel argued that Ms. Motley's grand jury testimony contained Brady information which should have been disclosed to the defense prior to trial. The trial Judge refused to grant any of the requested relief. The Judge stated, among other things, that he was not convinced that Ms. Motley's recollection that Edelen was dressed in a white shirt was necessarily inconsistent with evidence that he had been wearing a green jacket a short time earlier. The Judge concluded that the belated disclosure did not deny Edelen the effective use of the allegedly exculpatory material, and that Edelen therefore was not prejudiced. Defense counsel asked for a brief continuance so that he could absorb the new information and readjust his trial strategy, but the Judge denied the request and decided to proceed with the trial at once. *fn5
Edelen contends that the government's tardiness in providing him with materials to which he was entitled well before trial prejudiced his trial preparation, in that it adversely affected his investigation, his interviews with potential witnesses, his opening statement, and his cross-examination of witnesses for the prosecution.
The refusal by the prosecution to disclose material evidence favorable to the defense deprives the defendant of his liberty without due process of law. Brady, supra, 373 U.S. at 87. "Although Brady claims typically 'involve the discovery, after trial, of information which had been known to the prosecution but unknown to the defense,'" United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), it is now well settled that the prosecution must disclose exculpatory material "at such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case, even if satisfaction of this criterion requires pre-trial disclosure." United States v. Pollack, 175 U.S. App. D.C. 227, 236, 534 F.2d 964, 973, cert. denied, 429 U.S. 924, 97 S. Ct. 324, 50 L. Ed. 2d 929 (1976). Accordingly, this court has rejected any notion that disclosure in accordance with the Jencks Act satisfies the prosecutor's duty of seasonable disclosure under Brady, or that if such disclosure is made, the burden may then be shifted to the defendant, under pain of waiver, to request a continuance or similar remedy. James v. United States, 580 A.2d 636, 643-44 (D.C. 1990). Arguably, the prosecutor's failure to provide the defense, in advance of trial, with Ms. Motley's statement that Edelen had been wearing a white shirt on the evening in question put in jeopardy the very interests which Brady is designed to protect.
Reversal for failure to provide exculpatory material, however, is warranted only where there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Catlett v. United States, 545 A.2d 1202, 1217 (D.C. 1988) (citing United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (concurring opinion)). Accordingly, where the defendant receives potentially exculpatory information in time to use it effectively at trial, his conviction will be sustained. Catlett, supra, 545 A.2d at 1217. Id. (citing Lewis v. United States, 408 A.2d 303 (D.C. 1979)). The government argues that the defense could and did use the information, and used it effectively, and that Edelen therefore suffered no substantial prejudice.
We conclude that the trial Judge did not abuse his discretion by denying defense counsel's various requests. Ms. Motley's statement that Pate was dressed in green was disclosed before the parties made their opening statements, and defense counsel was therefore able to incorporate it into his initial address to the jury. Moreover, it appears that Ms. Motley did not provide this information to the prosecutor until the beginning of the trial, and that the prosecutor promptly provided it to the defense. Under these circumstances, we have no basis for faulting the prosecutor for belated disclosure.
Ms. Motley's grand jury testimony to the effect that she had seen Edelen wearing a white shirt presents a more difficult question. That information was not disclosed to the defense until after Edelen's attorney had made his opening statement. Edelen's attorney was thus precluded from pitching his case, from the outset, on the promised evidence not only that Pate was dressed in green, but also that soon after the shooting Edelen was wearing white. Nevertheless, counsel was apprised of Ms. Motley's grand jury testimony before the principal prosecution witnesses took the stand, and he was able to use it in attacking the government's evidence.
Edelen contends that his pretrial preparation would have been different if he had known -- as he claims he was entitled to know -- of Ms. Motley's statements, which arguably tended, at least in modest measure, to exculpate him and to inculpate Pate. We do not find this contention persuasive. Edelen's counsel had ample reason, long before the disclosure of the alleged Brady information, to look for any witness who could testify that he or she saw Pate in green or Edelen in white on the evening that the decedent met her violent end. No such witness (other than Ms. Motley) *fn6 was produced. We also note that, although Edelen was represented by resourceful and conscientious counsel from the Public Defender Service, no motion for a new trial on the basis of newly discovered evidence was ever filed, nor has Edelen tendered, to the present day, any exculpatory statement from any witness whom he discovered on the basis of the belated Brady disclosures.
We emphasize that Edelen's claim of a Brady violation is not a frivolous one. Ms. Motley's grand jury testimony should at least arguably have been provided to the defense much more promptly than it was. Indeed, the government does not contend in this court that its failure to make earlier disclosure was proper. Its decision not to enter the fray on this subject is significant, for we rightly expect prosecutors to resolve all reasonable uncertainty about the potential materiality of exculpatory evidence in favor of prompt disclosure, especially in response to a pointed request -- as here -- for evidence of the very kind in question. See Bagley, 473 U.S. at 682-83 (concurring opinion) (implying that defendant's burden of showing materiality to outcome will be lighter "the more specifically the defense requests certain evidence, thus putting the prosecutor on notice of its value. . . .").
Nevertheless, the trial Judge was on the scene. He was in a far better position than we are to assess the atmospherics of the case and to determine whether, given all that had occurred, Edelen's defense was appreciably prejudiced by any delay in the disclosure to counsel of the color of ...