Appeal from the Superior Court of the District of Columbia; (Hon. Ricardo M. Urbina, Trial Judge)
Before Rogers, Chief Judge, and Ferren and King, Associate Judges. Opinion for the court by Chief Judge Rogers. Concurring opinion by Associate Judge King.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge: Appellant Michael A. Feaster appeals from his convictions by a jury of sexual offenses on the grounds that his Sixth Amendment right to present a defense was violated when the trial Judge excluded from the defense case a transcript of the grand jury testimony of Oscar Mitchell. We hold that the Judge will have abused his discretion in excluding the grand jury transcript unless accompanied by a finding that the witness was not shown to be unavailable to testify at trial. Accordingly, we remand the record to the trial court to make a finding regarding unavailability. Appellant's other contention, that the trial Judge erred by denying his motion to sever the counts relating to two of the complainants, is controlled by Johnson v. United States, 610 A.2d 729 (D.C. 1992), petition for reh'g en banc denied, which upheld the admission of prior sexual conduct under the "unusual sexual preference" Drew *fn1 exception.
The complainants were seven young boys from troubled homes whom appellant took into his home and held out as his "godsons." *fn2 Four of the complainants were under the age of fourteen at the time of the incidents, which occurred between the summer of 1987 and early 1989. The complainants maintained that when they began staying at appellant's home, he had treated them "nice," made sure that they went to school and did their homework, and bought clothes for them. However, this living situation ended on Saturday, February 25, 1989, when one of the boys, John, ran away from appellant's apartment to his grandmother's home. Crying and upset, he told his grandmother that appellant had sexually assaulted him. The following Monday, John was examined by a doctor. As a result of a police investigation, appellant was charged with forty-one counts of sexually assaulting the boys who lived at, or regularly visited, his home. *fn3
At trial, the boys related a similar account of the events which allegedly took place in appellant's home. The testimony of John, who was twelve at the time of the incidents, is both illustrative and possibly critical in some respects. John testified that he had lived in appellant's two-bedroom home for six months. According to John, appellant stayed in the front bedroom, while he (John) and his brother Harald (age eleven), Derrick (age ten), and Oscar Mitchell (age nineteen), stayed in the rear bedroom. *fn4 On November 23, 1988, a date which John claimed to remember because it fell between his birthday and Thanksgiving, John was watching television in the living room. Around 10:30 p.m. appellant, dressed in his underwear, told him to come into his room. John testified that he went into appellant's room, and appellant closed the door, laid on the bed, and began rubbing John's buttocks. John claimed that appellant told him to lie on his side on the bed, kept touching his buttocks, and sodomized him. John and William (age sixteen) described several occasions on which appellant, in a similar manner, sodomized them. *fn5
In addition, the boys described in strikingly similar detail incidents in which appellant asked them to "hit the nipple," directing them to suck his chest nipples while he masturbated and ejaculated. John, Harald, and Derrick explained that they had not told anyone about what appellant was doing because they were afraid of appellant and ashamed. Alex (age nine) admitted that at first he had denied to the police and the prosecutor that the acts occurred because he was frightened. William testified that appellant had given him money in exchange for being his lover, and that appellant had told William that if he was ever caught, he (appellant) would take all of the boys down with him.
However, three of the boys -- John, Harald, and William -- also testified that Oscar Mitchell (age nineteen) had been aware of, and in some instances even observed, the sexual misconduct that occurred. John testified that when appellant sodomized him in December 1988, Oscar Mitchell was in the bed with them. *fn6 Harald testified that at one time, although he could not remember when, Oscar Mitchell walked into the room as appellant was sexually assaulting him. A third boy, William, testified that Oscar Mitchell "knew what was going on," having walked into the room and observed things; William recalled an incident in the summer of 1987 when Oscar Mitchell had been in the bedroom when appellant called William and asked him if he wanted to "make love." According to William, Oscar Mitchell left the bedroom after hearing this statement.
At the close of government's case, defense counsel sought permission to introduce the transcript of Oscar Mitchell's testimony before the grand jury in lieu of his live testimony. *fn7 Counsel proffered that Oscar Mitchell was unavailable to testify at trial:
At this time, Your Honor, the defense would proffer to the Court that over the last three months the defense has taken extensive steps to determine the location of Mr. Oscar Mitchell. I've personally been out looking for him, I have had relatives of the defendant out trying to find him. I've had several investigators trying to find Mr. Mitchell. We have been unable to do so. We have used every bit of our effort and good faith to find Mr. Mitchell, to present him as witness at this time.
Defense counsel requested that the trial Judge direct the prosecutor to disclose the transcript and, waiving appellant's Confrontation Clause rights, counsel sought to have the transcript introduced under the prior recorded testimony exception to the hearsay rule as the first defense witness. Defense counsel stated, "it is clear that this witness is unavailable," and again offered to present testimony of an investigator regarding the witness' unavailability. In response to the trial Judge's question, the prosecutor stated that the government did not know where Oscar Mitchell was. When defense counsel asserted that the defense " done everything we can to find him," the trial Judge responded, "All right," and asked the prosecutor for his "response to the defense request that the grand jury testimony be submitted as evidence in light of the witness' unavailability." The prosecutor responded, "I've never heard of such a thing in a criminal trial, and I would strongly oppose it." Following a recess, the prosecutor repeated his opposition to introduction of the grand jury transcript on the basis that the case had been on hold for six weeks and that defense counsel had never voiced any concerns about locating Oscar Mitchell. The prosecutor also argued that the defense had not made a sufficient showing of unavailability, observing that defense counsel had not sought the assistance of the government or the court in finding Oscar Mitchell.
Upon reviewing the grand jury transcript, and hearing from defense counsel on the relevance of the grand jury testimony, the trial Judge denied the defense request to have Oscar Mitchell's grand jury testimony admitted in the defense case. *fn8 The Judge stated:
The thrust of what Mr. Mitchell says in this transcript is he doesn't know any -- he was hardly home. He didn't see anything, and he doesn't know anything. And when the inquiry was made that resulted in that testimony, it is clear from this transcript that the prosecutor did not assume an adversarial, inquiring, searching, and explicative approach in trying to ascertain what lay behind the superficial responses and attitude of the witness.
Accordingly, I find that that testimony would not supply the jury with an opportunity to understand and scrutinize the testimony of Mr. Mitchell, and that the grand jury testimony will, therefore, not be available for evidentiary purposes at this hearing.
The defense then presented its case, including two witnesses who stated that they had never seen appellant engage in sexual acts with the boys in the house and one witness who offered a possible motive for John's instigation of the allegations. *fn9 The jury found appellant guilty of six counts of sodomy, sixteen counts of indecent liberties, and four counts of enticing a minor child. *fn10
Under the Sixth Amendment, a criminal defendant is guaranteed the right to offer testimony of witnesses in his favor. U.S. CONST. amend. VI. Appellant contends that his right was violated when the trial Judge excluded the transcript of Oscar Mitchell's grand jury testimony, and that his convictions must, therefore, be reversed. He maintains that Oscar Mitchell's testimony was critical because three of the complainants placed him in the same room during some of the alleged assaults, thus making him the only adult eyewitness, and the only one (aside from appellant) in a position to contradict the boys' version of what had happened. Appellant asserts that the transcript was admissible under the prior recorded testimony exception to the hearsay rule because defense counsel made a sufficient showing of Oscar Mitchell's unavailability and the government had a full and fair opportunity to cross-examine him at the grand jury.
In Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), the Supreme Court stated that "the right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Id. at 294. Accordingly, "the right[ ] . . . to call witnesses in one's own behalf has ...