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Daye v. United States

July 15, 1999


Before Wagner, Chief Judge, and Farrell and Reid, Associate Judges.

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeal from the Superior Court of the District of Columbia

(Hon. Robert I. Richter, Trial Judge)

Argued May 6, 1999

Farrell, Associate Judge: Found guilty by a jury of first-degree murder while armed, related weapons offenses, and obstruction of Justice, appellant contends primarily that the trial Judge allowed the government to bolster the testimony of two key witnesses improperly by introducing their prior consistent statements without meeting the evidentiary requirement for admission of such statements. He argues that the prosecutor then compounded the prejudice that the statements caused him by asserting -- both in examination of the witnesses and in summation -- what amounted to her personal belief in the veracity of the witnesses.

The government responds that the witnesses were questioned about their prior statements not to elicit consistencies (it concedes that "prior consistent statements are generally inadmissible") but rather to "explain[ ] the evolution of the [witnesses'] story" from their initial false statements to the version they gave at trial. The government's disclaimer of reliance on the prior consistent statement doctrine while yet arguing for the ability to establish the prehistory of a witness' trial testimony (i.e., his successive versions to the authorities) is fuzzy and, in any case, unconvincing: so broad a theory would swallow up the very doctrine the government claims not to invoke. Under our case law, it was error to admit the two witnesses' prior consistent statements. Further, we hold that both in questioning the witnesses and in her closing argument, the prosecutor vouched personally - and thus improperly - for the "truth" of the story ultimately told the authorities and the jury by the witnesses.

Nevertheless, these actions do not cast enough doubt on the fairness and reliability of the verdicts to warrant reversal. Appellant admitted the murder to a friend and gave telling evidence of his consciousness of guilt by inducing others to lie about the murder and by orchestrating an intimidatory assault on a witness. Moreover, allowing for small differences, the two eyewitnesses who testified described in consistent fashion appellant's actions in shooting the victim, and one of the witnesses told two friends contemporaneously of appellant's responsibility for the murder. Whatever motive the eyewitnesses had to falsely incriminate appellant was explored fully before the jury. In these circumstances, we are satisfied that the errors committed did not have a "substantial and injurious effect or influence in determining the jury's verdict." Kotteakos v. United States, 328 U.S. 750, 776 (1946).


The two primary witnesses against appellant (hereafter "Daye") were Gerald Clay and Louis Hairston, friends of Daye who were with him on August 19, 1995, when he allegedly shot and killed James Ellis. Before the shooting, Ellis had been playing craps with Daye and Hairston in an alley; Clay was present but not playing. When Hairston left to get more money, only Daye and Ellis were left gambling as Clay watched. According to Clay, Daye began arguing with Ellis over a roll of the dice, and when Ellis picked up Daye's money anyway, Daye became angry but continued playing, eventually losing all of his money. Saying "I'll be back," he then left the game. Ellis continued shooting dice with Hairston, who had returned.

Daye returned to the alley five minutes later carrying a .357 handgun. *fn1 He motioned to Clay to come over to him, while Ellis and Hairston kept playing unaware that Daye had returned. Daye told Clay, outside the hearing or sight of Ellis and Hairston, that "he's gone." He then pulled the gun from his waist, cocked the hammer, and snuck up on Ellis. Without saying a word, he shot Ellis once in the back of the head. Moments later, he took money from Ellis' hand and pockets and from the ground. Hairston, like Clay, had seen Daye shoot Ellis in the back of the head. He then ran down the alley in one direction, while Clay and Daye ran the other way. A short time later Hairston excitedly told a friend, Raymond Martin, that "Lenard [Daye] just shot somebody."

Daye himself later told a friend, William Koger, that he had shot Ellis because "the man was cheating him out of his money on the dice," and that as a result he left the game to get a gun, returned, and "[p]ointed it to the back of his head and shot him." According to Clay, Daye gave him the murder weapon right after the shooting and told him to put it in his house. Later Daye retrieved it, saying he was going to sell it. Clay heard Daye tell Hairston that if the police asked, Clay and Daye were both "supposed to be home" at the time of the shooting, and Hairston was to say that "two men came in the alley and robbed the game" and that, as Hairston ran away, Ellis "got shot." Hairston similarly testified that Daye had told him to tell the police "[t]wo men came back there. They told us to get down. I ran. Heard a gunshot." And Koger too heard Daye tell Clay to "[t]ell [Hairston] that somebody came in the back of the alley and stuck up the crap game and robbed the whole crap game."

James Dunn, a friend of Daye's, testified that on the day of the murder Hairston came to his house scared and told him that "Lenard just shot somebody" and was crazy. Dunn also testified to a series of telephone calls he received from Daye in which Daye, from the cell block following his arrest, indicated that he knew Clay would be testifying against him and told Dunn, "Get at him for me" because "he was saying, lying, snitching." Another witness, Vincent Dixon, testified that Dunn told him of Daye's insistence that they "go beat up [Clay]." Dunn and Dixon later assaulted Clay at school, Dunn asking Clay, rhetorically, "Why you snitched?"


On direct examination of Gerald Clay, the prosecutor was allowed to take some of the "sting" out of Clay's initial statement to the police in which, unlike his trial testimony, he had said that he was present when the craps game started but had gone home before the shooting, hence knew nothing about it. Clay explained that he had not wanted to "snitch" on Daye, a friend. The prosecutor continued the questioning as follows:

Q. "Mr. Clay, did you receive a subpoena from the Grand Jury to come down to testify before the Grand Jury on September 22nd, 1995?"

A. "Yes."

Q. "And did you, in fact, come down to the Grand Jury at that time?"

A. "Yes."

Q. "And did you meet with me in my office before you talked to the Grand Jury?"

A. "Yes, I did."

Q. "And did you tell me -- did you tell me what you knew truthfully about the shooting?"

[DEFENSE COUNSEL]: "Objection."

THE COURT: "Overruled."


Q. "Did you tell me truthfully what you knew about the shooting in the alley back ...

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