Before Wagner, Chief Judge, and Schwelb, and Reid, Associate
The opinion of the court was delivered by: Wagner, Chief Judge
Appeal from the Superior Court of the District of Columbia (Hon. Cheryl M. Long, Trial Judge)
(Argued October 27, 1998 Decided March 25, 2000)
Opinion for the court by Chief Judge Wagner.
Concurring opinion by Associate Judge Schwelb at p.
Following a jury trial, appellant, Bradley Sweet, was convicted of two counts of assault with intent to kill while armed (AWIKWA) (D.C. Code §§ 22-501, -3202 (1989)), two counts of possession of a firearm during the commission of a crime of violence (PFCV) (D.C. Code § 22-3204 (b) (1989)), two counts of carrying a pistol without a license (D.C. Code § 22-3204 (a) (1989)), one count of first- degree murder while armed (premeditated) (D.C. Code §§ 22-2401, -3202 (1989)) and two counts of obstruction of justice (D.C. Code §§ 22-722 (a)(3), -722 (a)(1) (1989)). These charges arose out of an assault on Marcia Watson and her nephew, Edgar Watson, on October 17, 1991 and the subsequent murder of Marcia Watson on November 29, 1991. In the same trial, Sweet was also convicted of multiple offenses in a consolidated case related to the murder of a corrections officer, Ronald Richardson, on October 7, 1991. The offenses for which he was convicted in the Richardson case included conspiracy to commit first-degree murder while armed (premeditated) and felony murder while armed (D.C. Code §§ 22- 2401, -3202), obstruction of justice (D.C. Code § 22-722 (a)(1)), assault with intent to commit obstruction of justice while armed (D.C. Code § 22-722 (a)), possession of a firearm during the commission of a crime of violence, and carrying a pistol without a license. *fn1 Sweet argues for reversal on the grounds that the trial court erred in: (1) permitting the government to introduce other crimes evidence that he was a hit man who had committed prior murders at the behest of co- defendant, Tony Hammond; (2) denying severance of improperly joined charges; (3) denying his motion to suppress statements; (4) precluding the admission of decedent, Marcia Watson's hearsay statements which exculpated Sweet and implicated someone else; (5) improperly admitting hearsay statements of his co-defendants as declarations against penal interest; and (6) amending the indictment by use of a verdict form which broadened the charges. Sweet also contends that various offenses merge, an argument which the government concedes in part. We reverse and remand for a new trial on the grounds that Sweet was substantially prejudiced by the improper admission of other crimes evidence.
On October 7, 1991, Ronald Richardson, a corrections officer, was scheduled to testify as a complaining witness in the trial of Michael Page, who was charged with kidnaping two correctional officers, including Richardson, from a halfway house. Richardson was gunned down in front of his home as he left to meet with the prosecutor on the morning of trial. His daughter heard about a dozen shots, and from her window, saw three men in the middle of the street, one of whom stuck a gun down his pants. She observed the men enter a burgundy colored Dodge Caravan, which was parked in front of her father's car, and drive away. She spotted her father on the ground and called the police. Richardson had sustained multiple gunshot wounds from which he died.
Eric Pleasant, co-defendant Terry Pleasant's cousin, read about Richardson's murder in the newspaper and recognized the name of Michael Page in the account. *fn2 Eric had seen his cousin, Terry, with Tony Hammond, Chester Wright and Sweet, and he had associated with them occasionally. Shortly after Richardson's murder, Terry informed Eric that "we got one around your way," which Eric understood to mean that they had murdered someone. Eric asked Terry if he was referring to the corrections officer, and Terry responded, "Yeah." Eric knew that Terry drove a burgundy Caravan at the time of the murder, and later Terry informed Eric that he had driven the car to the scene of the murder. Eric knew a police deputy chief and spoke to him later about the crime. The deputy chief had Eric "debriefed" by Detective Will. Detective Will conveyed information about the case to Detective Gregory who applied for a warrant for Terry Pleasant's arrest. Terry Pleasant was arrested the next day. After his arrest, Eric spoke with Chester Wright who informed him that Terry should be home soon because he did not kill Richardson. When Terry was released from jail, Eric spoke to him about the comment. Terry responded, "Man, Chester Wright and Bradley [Sweet] better take their beef, because he wasn't going to take it."
B. The Assaults on Marcia Watson and Edgar Watson
The evidence showed that on October 17, 1991, shortly before 8:00 p.m., Edgar Watson, the fourteen-year-old nephew of Marcia Watson, saw his aunt in the area of Stanton Terrace speaking to Sweet. Terry Pleasant, who was also in the area, talked to Edgar Watson. Edgar did not hear the conversation between Sweet and his aunt, but she told him afterwards that it was about money she owed Sweet. Edgar remained on the street with his aunt, who was "hustling." Later, Sweet returned to the area and shot Marcia and Edgar Watson. Edgar ran. As he looked back, he saw his aunt cover her head as Sweet stood over her shooting. A man who lived in the area, who knew Marcia Watson, heard the shots and saw her kneeling by a car. He also heard her crying out, "Why you all doing this to me, Bradley." Marcia and Edgar were taken to the hospital. Ballistic tests determined a bullet recovered from the Marcia Watson shooting was fired from the same weapon as a bullet recovered in connection with the Richardson homicide. Her sister, who was visiting, asked who shot her, and Watson, who had tubes in her mouth, wrote on a piece of paper that "Bradley shot me. Don't tell." When she was able to speak, Marcia Watson stated repeatedly that, "I know I'm going to die."
While she was still in the hospital, Marcia Watson told police Detective Giardino that Sweet shot her and her nephew, and she identified Sweet's photograph from a photo array that the detective showed her. She gave the detective a written statement in which she explained that Sweet was angry with her because she owed him money for drugs and that he had discussed it with her before the shooting. In her statement, Marcia Watson described how a bullet struck her causing her to fall, how Sweet stood over her smiling, his face illuminated by the streetlight, and continued shooting her in the face even though she was begging him for her life. Edgar Watson identified Sweet's photograph as looking like the person who shot him. Sweet was arrested on November 4, 1991 in connection with the Watson shootings.
C. The Murder of Marcia Watson
On November 27, 1991, Marcia Watson spoke with police Detective Linda King, whom she encountered on the corner of Stanton Terrace and Alabama Avenue. Ms. Watson informed King that she had some information about "everything that's going on in Stanton Terrace." They arranged to meet the following day. When Ms. Watson came into the area the next day, she spotted someone and left hurriedly. The following day, November 29, 1991, Marcia Watson and Selenna Winston went to a corner on Stanton Terrace to sell drugs. When they reached Stanton Terrace and Frederick Avenue, Watson remarked that she did not know why she was standing there because it was where she had been shot. Watson then saw Sweet approaching and said, "Oh, my God, not again." Winston testified that she saw Sweet run up to Marcia Watson and shoot and kill her.
Kevin Watson, Marcia Watson's cousin, and Kevin Frye were arrested in connection with this murder. After his arrest, Kevin Watson provided information to the police about the Richardson murder. He said that while at Terry Pleasant's house one Saturday in October 1991, Tony Hammond, with whom his sister, Michelle Watson was involved in selling drugs, pressed them to confirm an address and license plate at 58th and Blaine Streets. That was the location where decedent Richardson lived and was later killed. According to Kevin Watson, Pleasant had given Hammond a piece of paper with the address on it just before Hammond made the request. Kevin and Michelle Watson went to that location and confirmed the information. The next Monday, Kevin Watson learned about the murder of the corrections officer at that location. Hammond later admitted to him that as soon as he and Michelle confirmed the information, Hammond "and his man" staked out the location and waited all day Saturday and Sunday for the officer. Kevin Watson said he was present with Terry Pleasant and Michelle Watson later when Sweet described how he and Chester Wright had shot Richardson. Kevin Watson also testified that he spoke with his cousin Marcia Watson about the murder before she was shot on October 17, 1991.
While in jail, Sweet admitted to Kevin Frye that he shot Marcia Watson because she knew about some homicides, and she was on drugs and might talk. Sweet described to Frye how he shot Marcia Watson. He also told Frye that he took a "bet" from Tony Hammond to kill the corrections officer and that a lawyer had provided the officer's address. Hammond described for Frye the details concerning how they laid in wait for the officer in shifts. Sweet told Frye that he "popped [Richardson] a tune," meaning that he murdered him.
Michelle Watson testified that she overheard Sweet describe how he and Chester Wright murdered the corrections officer. Two days after the murder, she heard Sweet bragging to Terry Pleasant about his role in the murder. Sweet said he shot Richardson in the body and that Wright shot him in the head. Michelle Watson also said that Tony Hammond told her that Sweet and Chester Wright killed the corrections officer, and Hammond went to the scene after the shooting and saw them there, along with Wright. Hammond said that he knew it would be done right because Sweet was with ...