Appeal from the Superior Court of the District of Columbia. (Hon. Joseph M.F. Ryan, Jr., Trial Judge).
Before Terry, Steadman, and Schwelb, Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge : Appellant was convicted of distributing heroin, in violation of D.C. Code § 33-541 (a)(1) (1993). He seeks a new trial on the ground that threats from his co-defendant -- threats that were never mentioned to the trial court until after the jury had returned a guilty verdict against appellant and his co-defendant -- deprived him of his right to testify and his right to a fair trial. We hold that the trial court abused its discretion in summarily denying appellant's motion for new trial, and we remand the case of further consideration of that motion.
Undercover officers from the Metropolitan Police were investigating drug traffic in the 3200 block of Georgia Avenue, N.W., when one of the officers, Alphonso Walton, encountered appellant Geddie in front of a house in the middle of the block. Geddie was saying, "747, 747," which Officer Walton recognized as a street name for heroin. When Walton said he wanted to buy some, Geddie told him to "hold tight." Geddie then walked over to speak to another man, his co-defendant Michael Gordon, who was standing about four feet away. Gordon handed Geddie a small bundle of five or six ziplock bags held together by a rubber band, and Geddie walked back to Officer Walton. As Geddie started to pull one of the ziplock bags out of the bundle, Gordon told him to step into a doorway. Once inside the doorway of 3218 Georgia Avenue, Walton gave Geddie a $20 bill whose serial number had been pre-recorded, and Geddie handed him a small bag of white powder. (Later tests showed that the powder was heroin.) Walton then walked away, and Gordon rejoined Geddie in the doorway.
Moments later, other officers arrested both Geddie and Gordon. At the time of his arrest, Geddie had $123 in his possession. He did not, however, have the $20 bill with which Officer Walton bought the ziplock bag; that bill was found on Gordon, who had a total of $329 on him when arrested. *fn1
Geddie and Gordon were tried together before a jury. Geddie's defense was that he was misidentified and that Officer Walton was "confused" when he made his identification. Geddie also presented the testimony of Regina Pitt, his girl friend at the time, who stated that she and Geddie had made plans to see a movie and that Geddie was being arrested when she arrived to meet him. Pitt also testified that Geddie had agreed to buy the movie tickets because he knew he was going to be paid that day. Geddie himself did not testify.
Gordon likewise tried to challenge the accuracy of the police officers' identification of him. His defense, however, was complicated by the fact that he was found in possession of the pre-recorded $20 bill. To explain how he came into possession of that bill, Gordon offered the testimony of Howard Diggs and Celestine Jackson, who said that Gordon had "snatched" money -- including the market bill -- out of Geddie's hand after Geddie had failed to paint the house of a woman named Angela. Angela Alston also testified, on behalf of Gordon, that Geddie had agreed to paint her apartment for $60, but that he had not done so. Gordon did not testify. In closing argument, Geddie's lawyer commented that Gordon's explanation of how he snatched the money, including the marked $20 bill, from Geddie seemed "too coincidental." The jury found both defendants guilty.
A few weeks after the trial, but before sentencing, Geddie filed a motion for new trial alleging that Gordon had intimidated him and had prevented him from testifying and from "properly" cross-examining Gordon's defense witnesses. The motion stated that Gordon "and persons to be associated with" Gordon had made "both open and veiled threats to that he was not to do or say anything that would negatively affect co-defendant Gordon's case or his defense." The motion further alleged that one of Geddie's witnesses had been threatened "and threats were made concerning [Geddie's] family." Geddie took these threats seriously because he "was aware of occasions where beat people up or had them beaten up by his associates," and he had "reason to believe may have had people killed." Throughout the trial, whenever Geddie left the courtroom to smoke a cigarette or go to the men's room, he was followed by "persons in the courtroom" whom he knew to be associates of Gordon. He "was also watched after leaving court." Because of these actions, Geddie was afraid to testify in his own behalf, and his counsel was unable to cross-examine Gordon's witnesses effectively. As a result, the motion asserted, Geddie "could not receive a fair trial."
When Geddie came back before the court for sentencing, the court denied both the motion for new trial and a motion to seal that motion, saying, "I don't really see any reason to seal it. And I will overrule your motion for a new trial. I'm ready to go ahead with sentencing." Geddie's counsel then sought to make a "further statement." After she began to recite Geddie's reasons for moving for a new trial, the court said:
THE COURT: Well, birds of a feather have to take the consequences. They flock together. I think he had a fair trial. I'm sure I gave him the Rule 11 [ sic ] warning when he didn't take the stand. I do that invariably. I'm sure if you look back in the record in this case --
Ms. HINKES [Geddie's counsel]: Your Honor gave him a warning. When you're afraid, you know, of other people, you're afraid for your life, then there's no way you can change at that point.
THE COURT: You do that, you shouldn't commit crime. I mean that's the answer. Abide by the law and you don't have to be afraid of other people.
I'll put this [motion for new trial] in the file with today's date, and I'll sign it. I'll put it in the file. I think you're covered in ...