Before Terry, Steadman and Ruiz, Associate Judges
The opinion of the court was delivered by: Ruiz, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Ricardo M. Urbina, Trial Judge) (Hon. Steffen W. Graae, Motions Judge)
Argued September 23, 1999
After a jury trial, appellant, Reginald A. Gaither, was convicted of armed premeditated murder, see D.C. Code §§ 22-2401, -3202 (1996 Repl.), and of carrying a pistol without a license, see D.C. Code § 22-3204, for the killing, along with another man, of Charles Douglas, on Seventh Street, N.W., in the vicinity of N Street on September 10, 1987. The trial court imposed concurrent terms of incarceration of twenty years to life on the murder conviction and one year on the conviction for carrying a pistol without a license. In his direct appeal, Gaither claims that the trial court abused its discretion by admitting, under Drew v. United States,*fn1 other crimes evidence in the form of testimony that Gaither and another man chased Douglas with a gun the night before the murder.*fn2 During the pendency of the direct appeal Gaither filed numerous collateral attacks on his convictions, the denials of which give rise to the additional appeals consolidated herein.*fn3 Gaither's direct appeal contesting the trial court's admission of other crimes evidence and his appeal from the motions court's order of February 18, 1997, denying his Brady*fn4 and newly-discovered evidence claims are properly before the court for consideration.*fn5
In the direct appeal, we affirm the trial court. We also affirm the motions court's ruling denying a new trial based on newly-discovered evidence. Because the motions court failed to make necessary factual findings and applied an incorrect legal standard to Gaither's post-conviction Brady claims, we remand the case for the court to make factual findings and apply the correct rule of law.
Gerald Fennel, a thirteen-times convicted felon, was the government's sole eyewitness to the murder of Charles Douglas. Fennel testified at a motions hearing that he looked out the window at around 7:50 p.m. on the night of Douglas' murder, September 10, 1987, because he was anxiously expecting a ride to a halfway house where he was serving a sentence. Fennel testified that he saw Gaither, whom he recognized as "Gator" from the numerous times he had seen Gaither in the neighborhood, along with a light-skinned accomplice, chase and shoot the decedent in the back. Six days after the shooting, on September 16, 1987, Fennel reported the incident to Detective Schwartz at the Metropolitan Police Department homicide division, but stated he would not testify in court. Fennel escaped from the halfway house on November 6, 1987, but was captured and charged with prison breach in the spring of 1988. On the same day he was arraigned for prison breach, May 4, 1988, Fennel was brought to the United States Attorney's Office, where he chose Gaither's picture from a photo array as that of Douglas' murderer. Two months later, on July 5, 1988, Fennel testified before the grand jury and adopted his May 4, 1988, identification.
Subsequently, on February 27, 1990, Fennel gave a written statement to defense counsel in which he reconfirmed his prior identification of Gaither as the murderer. Fennel again adopted his prior identification of Gaither at the pre-trial motion hearing on March 12, 1990, stating his certainty to be a "ten" on a scale of one to ten.
At trial, Fennel testified that Gaither shot and killed Douglas and that he was certain of his identification. He also testified that he never wanted to be involved in the investigation and feared the consequences of being labeled a "snitch." The defense contended that Fennel did not see the shooting, but rather relied on street rumor to script for himself a prosecution starring role so that authorities would aid him with his own criminal troubles. The defense bolstered this theory by producing halfway house business records which indicated that Fennel returned to custody at 7:10 p.m., forty minutes before the shooting, on the night Douglas was killed. The government countered that the records did not reflect the accurate sign-in time because they were "fudged" by a halfway house counselor who signed Fennel back in early as a favor.
The defense also argued that Fennel's grand jury account of the shooting could not be reconciled with the physical evidence and the account he offered in court. Before the grand jury, Fennel testified that he saw Gaither shoot the decedent several times in the chest and once in the head. The medical examiner established that the decedent was shot four times, three times in the back and once in the arm. Fennel explained that his grand jury testimony had been mistaken, and adamantly denied under cross-examination that the prosecutor had coached him to conform his testimony to the physical evidence.
Fennel was impeached with his thirteen prior criminal convictions, with details of the murder inconsistent with his testimony, with inconsistencies between his trial testimony, his grand jury testimony, and his pre-trial hearing testimony, with positive drug tests, and with the inconsistency between the halfway house records and his testimony. To show bias, the defense stressed that when Fennel first talked to Detective Schwartz on September 16, 1987, he was pending sentencing, having just pled guilty to taking property without right, a conviction which threatened revocation of his halfway house sentence and federal parole. The defense also explored the relationship between Fennel's identification of Gaither from the photo array at the United States Attorney's Office on May 4, 1988, and Gaither's arraignment on the same day for prison breach. The government, on the other hand, portrayed Fennel as an individual who had no incentive to testify and elicited testimony that Fennel never asked for nor received help from the government.
The trial court allowed the government, over objection, to elicit testimony from Pamela McGriff, the deceased Douglas' girlfriend, that on the day before the murder, September 9, 1987, she observed Gaither, gun in hand, along with Kenneth Ray Johnson, chase Douglas near his house. Gaither "concede[d] that [whoever shot and killed Douglas] acted with premeditation, deliberation, with specific intent and malice," but insisted that he was not the shooter, and maintained that the other crimes evidence relating to the night before the murder constituted prejudicial propensity evidence. The court ruled that this evidence was ...