December 29, 1994
LARRY J. GREEN, APPELLANT
UNITED STATES, APPELLEE. MELVIN T. WILLIAMS, APPELLANT V. UNITED STATES, APPELLEE
Appeals from the Superior Court of the District of Columbia. (Hon. Gladys Kessler, Trial Judge).
Before Wagner, Chief Judge, Farrell, Associate Judge, and Levie,* Associate Judge of the Superior Court of the District of Columbia.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: A jury found appellant Green guilty of conspiracy to obstruct Justice (D.C. Code §§ 22-105 (a), -722 (a)(2) (1982)), two counts of obstruction of Justice (id., § 22-722 (a)(2)) and one count of felony threats (id., § 22-2307). The jury found appellant Williams guilty of two counts of obstruction of Justice, one count of felony threats and two counts of simple assault (id., § 22-504). The charges all arose from alleged behavior between August 22 and October 30, 1992, in which Green and Williams individually assaulted or threatened (and in one instance assertedly kidnapped) Green's estranged wife to attempt to force her to abandon criminal contempt charges against Green stemming from his violation of civil protection orders (CPOs).
Although appellants raise a variety of issues, only two merit more than summary Disposition. *fn1 We reverse one of Green's convictions for obstruction of Justice, but otherwise affirm.
Appellant Green argues that the failure of the government to provide him with information regarding Ms. Green's hospitalization violates the doctrine of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and entitles him to a new trial. Given the circumstances presented here, the trial Judge's Conclusion that the government did not violate Brady was reasonable and must therefore be sustained. See Matthews v. United States, 629 A.2d 1185, 1201 (D.C. 1993).
On the day of sentencing, Mr. Green's trial counsel, in arguing a motion for a new trial, informed the trial court that, upon reading the presentence report, he learned that Ms. Green had been hospitalized for psychological problems three months before the commencement of the April, 1993 trial. *fn2 Mr. Green's counsel asserted that this lack of knowledge prevented him from cross-examining Ms. Green about this hospitalization. *fn3 Government counsel responded that he was "not aware that anything about that hospitalization had to do with any problems of -- that may have led a juror to believe that she fabricated her testimony."
The trial court denied the motion for a new trial, noting, among other things, that there had been extensive cross-examination of Ms. Green about her psychological state and her treatment by a psychologist. The trial Judge believed that "fundamentally. . . her credibility was minutely examined by this jury, and the jury's verdict reflects its assessment of her credibility."
It is significant that, upon seeing a reference in the presentence report to a January hospitalization, *fn4 Mr. Green's trial counsel apparently undertook no efforts to obtain the hospital records or to seek a continuance of the sentencing in order to investigate the issue of Ms. Green's hospitalization. Moreover, his counsel presented no information which would have enabled the trial court to evaluate whether the hospital records might arguably constitute Brady material and, if so, whether the failure to disclose this information would have necessitated a new trial. See United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985).
In these circumstances, there was no obligation upon the trial court, sua sponte, to initiate any further inquiry into the records or information surrounding Ms. Green's hospitalization. *fn5 Trial counsel cannot ambiguously refer to potentially important evidence, fail to take appropriate steps to obtain this evidence and then seek a reversal on appeal based upon the absence of such evidence.
The evidence was insufficient to support Green's conviction for obstruction of Justice under count seventeen. The evidence underlying that charge rested upon his asserted complicity in threatening Ms. Green by a letter delivered to her sometime after October 2, 1992. *fn6 The government concedes that Green neither wrote the letter *fn7 nor delivered it. *fn8 It contends, nonetheless, that information in the letter itself could only have been known by "Green or a close associate" of Green, the reasonable inference being that appellant Williams (Green's alleged co-conspirator) authored the threat at Green's behest. See D.C. Code § 22-105 (accomplice liability).
But the knowledge the government relies on is this: "You know what I did to you on West Virginia Avenue when you called the police. . . ." Although there was testimony that the Greens formerly lived on West Virginia Avenue, N.E., there was no evidence fairly allowing a jury to find beyond a reasonable doubt that only Green or someone he caused to write the letter would have known that fact. Moreover, while Ms. Green testified to past beatings administered to her by her estranged husband, she never linked those beatings to a prior assault while the pair lived at that address and as a result of which the police were called. Similarly, the author's threat to harm "Maryleah" and "the children" implied no knowledge unique to Green or a confederate. And while the demand that Ms. Green "drop the charges" echoed language Williams orally had used in his September threats to Ms. Green and her son, the phrase scarcely had a signature quality that betrayed Williams as its author to the exclusion of others not claimed to be Green's principal.
Further, the evidence adduced at trial raised the possibility of the involvement in the operative events of another individual, Keith Parker. There was testimony that Parker was with Williams on one of the occasions when Williams assaulted and threatened Ms. Green's son and that Parker was a friend of Green and Williams. These references to Parker create a further reason to doubt whether Williams, acting for Green, did the acts constituting the offense alleged in count seventeen.
All told, while the contents of the October letter, together with Williams' other acts of complicity, made it likely - even highly likely - that Williams was the author, that is not the same as proof beyond a reasonable doubt that Williams authored the October letter at the behest of Green. On this evidence, no rational juror could have found beyond a reasonable doubt that Green, acting through Williams, made the threat constituting the obstruction of Justice charged in count seventeen. See Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). *fn9
Accordingly, the judgment on count seventeen is reversed and the case is remanded with directions to enter a judgment of acquittal on that count. In all other respects the judgments of conviction as to both appellants are affirmed.