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Carey v. U.S.

June 1, 1994

FLEMING A. CAREY, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Henry F. Greene, Trial Judge

The Publication Status of the Document has been changed by the Court from Unpublished to Published.

Before Ferren, Steadman and Sullivan, Associate Judges.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge: Appellant, Fleming Carey, ("Carey") was convicted of second degree murder while armed, D.C. Code §§ 22-2403, -3202 (1989 & 1994 Supp.), carrying a pistol without a licence, id. § 22-3204 (a) (1994 Supp.), and two counts of malicious destruction of property (misdemeanor), id. § 22-403 (1989 & 1994 Supp.). On appeal, Carey contends that the trial court erred in admitting the prior out-of-court statement of a government witness because (1) the statement did not qualify as a past recollection recorded; (2) the statement was inherently unreliable; (3) the admission of the statement violated appellant's Sixth Amendment rights; and (4) the admission of the statement violated the rule against admission of prior consistent statements. Carey also argues that the trial court abused its discretion by giving an anti-deadlock instruction which resulted in a coerced verdict. Finding appellant's arguments unpersuasive, we affirm. *fn1

I.

Appellant argues that the trial court erred by permitting the government to read at trial the grand jury testimony of witness Natashia Weaver ("Weaver"). Weaver was an eyewitness to the murder of decedent, Kenny Brown ("Brown") and made a statement to the police the night of the murder, identifying appellant as the shooter. When Weaver testified before the grand jury, her statement to the police was read, and she affirmed that it was true. At appellant's trial, however, Weaver testified that she could not remember what happened the night of the murder. She stated that she did remember making a statement to the police that night and testifying before the grand jury, but could not recall the substantive content of her statement. The prosecutor showed Weaver a copy of her grand jury testimony, but his efforts to refresh Weaver's recollection of the events on the night of the murder were unavailing.

The prosecutor then requested to read that portion of Weaver's grand jury testimony containing her statement to the police. Defense counsel objected on the ground that Weaver's statement was not subject to cross-examination, thus violating appellant's Sixth Amendment right to confrontation. *fn2 After several conferences with counsel for all parties, the trial Judge permitted the government to read that portion of Weaver's grand jury testimony incorporating her police statement to the jury as a past recollection recorded because he found that appellant's trial counsel could effectively cross-examine Weaver at least to the extent constitutionally required.

A prior out-of-court statement is admissible as a past recollection recorded if the following four criteria are established:

(1) the witness must have had first-hand knowledge of the event;

(2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it;

(3) the witness must lack a present recollection of the event; and

(4) the witness must vouch for the accuracy of the written memorandum.

Mitchell v. United States, 368 A.2d 514, 517-18 (D.C. 1977) (per curiam) (citation and internal quotation marks omitted).

The record supports the trial court's finding that all four criteria were met here. First, Weaver was an eyewitness to the murder, and she made a statement to the police the night of the murder in which she identified appellant as the man who chased the decedent to his car and fired shots into the car, killing decedent. Second, Weaver's police statement was made the night of the murder while the details of the event were still clear and fresh in her mind. Third, Weaver testified at trial that she had no present memory of the events, and her memory was not refreshed by reviewing her grand jury testimony or her police statement. Fourth, Weaver testified at trial that the statement she gave to the police was accurate and that she testified truthfully at the grand jury proceeding. As all ...


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