Appeal from the Superior Court of the District of Columbia. (Hon. Jose M. Lopez, Trial Judge).
Before Steadman, Schwelb, and Farrell, Associate Judges.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Walter Curry was convicted by a jury of second-degree murder while armed, *fn1 possession of a firearm during the commission of a crime of violence, *fn2 and carrying a pistol without a license. *fn3 His principal contention on appeal is that he was denied the opportunity to present exculpatory testimony because the prosecution violated its responsibilities under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Although the government's lengthy delay in providing the defense with the identity of a potential defense witness is troubling, we find no legal error or abuse of discretion on the part of the trial Judge. Accordingly, we affirm.
THE TRIAL COURT PROCEEDINGS
On the evening of June 14, 1991, William Spriggs was shot to death in northwest Washington, D.C. According to prosecution testimony at Curry's trial in April 1993, the shooting was witnessed by Tanya Sparrow, who subsequently described herself as an "enforcer" for a drug organization, and by Darnell Williams, then 16 years of age, who was alleged by the defense to be a transvestite prostitute. Ms. Sparrow advised the police on the night of the murder that Curry had committed the murder, and she identified him by his nickname of "Noochie" and by his physical description. Williams, who had allegedly been in Spriggs' company when Curry pursued and killed Spriggs, spoke to the police several hours after the shooting and provided a general and in some respects not quite accurate description.
On December 4, 1991, almost six months after the shooting, Ms. Sparrow identified Curry from a photo spread as "Noochie" and as the killer. She also made a courtroom identification. Approximately a year after the shooting, Williams identified Curry from a five-year-old photograph. He thereafter identified Curry from a line-up photo, and in person at trial. *fn4
On the night of the murder, the police also took a statement from James H. Jones, who claimed to have been an eyewitness to the shooting. Jones provided a physical description of the gunman which differed materially from the descriptions provided by Tanya Sparrow and by Williams. *fn5 Jones' statement also contradicted the prosecution's evidence as to the route taken by the assailant and as to his actions following the shooting. Jones told the police, however, that he purposely tried not to look at the shooter's face. Parts of Jones' statement appear to be based on what an unidentified other person told him.
On December 10, 1991, following Ms. Sparrow's identification of Curry's photograph, a warrant was issued for his arrest. On January 13, 1992, having learned of the warrant, Curry surrendered to the police. Approximately six weeks later, on February 22, 1992, a grand jury returned an indictment charging Curry with the murder of Spriggs and with related weapons offenses.
B. The Motion for Sanctions.
Curry's trial was originally scheduled to begin on January 13, 1993, before Judge Henry H. Kennedy, Jr. Two days before that initial trial date, the prosecutor provided Jones' statement to Curry's attorney, describing it as "potentially" Brady. *fn6 Jones, however, could not be located, and the case was continued to April 9, 1993, so that the attorneys could endeavor to find him.
On April 8, 1993, the eve of the rescheduled trial date, Curry's new attorney filed a motion to dismiss the indictment or, in the alternative, for sanctions. In his motion, counsel advised the court that, notwithstanding diligent efforts, he had been unable to ascertain Jones' whereabouts. He argued that if timely disclosure had been made, the defense could probably have located Jones and presented his testimony at trial. Counsel prayed for dismissal or, if that relief were denied, for leave "to introduce relevant portions of [Jones'] statement which contradict the testimony of government witnesses." Acknowledging that the government would have no opportunity to cross-examine the witness, defense counsel stated that, ...