Appeals from the Superior Court of the District of Columbia (F-8316-94, F-8443-94) (Hon. Harold L. Cushenberry, Jr., Trial Judge)
Before Terry, Farrell, and Reid, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Argued September 26, 2000
Appellants Robinson and Bailey were convicted of one count each of first-degree murder while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license. On appeal, both appellants contend that the evidence as to all counts was legally insufficient to convict them, that the court erred in admitting the opinion testimony of an investigating detective, and that the court erred in denying their respective motions under D.C. Code § 23-110 (2001) based on claims of ineffective assistance of counsel. Bailey also maintains that the government violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to make timely disclosure of a witness' name and grand jury testimony. We reject all of these arguments and affirm both appellants' convictions, as well as the orders denying both § 23-110 motions.
A. The Government's Evidence
Janet Blakeney testified that on December 17, 1993, her nineteen-year-old son Frank and his close friend, eighteen-year-old James Harris, were repairing Frank Blakeney's car, which was parked at the curb in front of the Blakeney home. At one point Harris went inside to watch television while Frank Blakeney remained outside working on the car. A short time later, a friend, Quindell Mercer, called and spoke with Harris briefly, *fn1 whereupon Harris "slammed the phone down" and ran out the front door.
From inside the house, Mrs. Blakeney heard gunfire and heard her son cry out for her. She quickly called the police and then ran outside, where she found her son lying on the ground, with Harris close beside him. She also saw "a grey car . . . parked extremely close to Frank's car with the windows down . . . on the wrong side of the street" and facing in the wrong direction. Mrs. Blakeney did not see anyone in the car because she "wasn't that close . . . and they were like leaning back in the car . . . ." When she knelt down beside her son, he made a "death growl." Leaning forward, Mrs. Blakeney put her ear next to his chest and heard his heart slowly stop beating. Frank Blakeney was taken to the hospital and pronounced dead shortly after arrival.
James Harris testified that when he received the telephone call from Mercer, he became "concerned" as a result of what Mercer told him. He ran outside to the front yard, and from about midway between the sidewalk and the house he called out to Frank Blakeney, but Blakeney was busy working on his car and did not respond. Harris briefly headed back toward the house, but then turned again toward Blakeney. As he did so, he saw a blue car *fn2 with its headlights off pull up next to Blakeney and stop. Some of the occupants of the car began to shoot at Blakeney. Harris stated that at first he "froze up," and that he "was in shock and then fell to the ground after calling [Blakeney's] name." He heard Blakeney cry out for his mother, then heard someone in the car yell, "Bail out." The car quickly sped away in the "wrong direction" (i.e., against traffic).
Frank Blakeney and his car were between Harris and the shooters. The shots were fired from the driver's side of the shooters' car, which was the side nearest to Harris. Harris testified that he saw at least four persons in the car and that he recognized two of them as appellants Robinson and Bailey, whom he knew as "Ron" and "Little Rick." They were both firing at Blakeney from inside the car. *fn3 Bailey was on the passenger side of the car, and Robinson was in the back seat. Harris also said that at least two other individuals, including Telly Wilson, *fn4 were in the car. According to Harris, the firing of the guns lit up the inside of the car so that he could see appellants' faces. *fn5 Harris was unable to state how far he was from the shooters at the time, but the investigating officer estimated from what Harris told him that the distance was approximately forty to fifty feet.
The police soon arrived and attempted to speak with Harris, but he was not cooperative and gave them a false name. Harris admitted this when he testified at trial, but he said he was "upset and mad" and was "thinking about getting revenge." He was also concerned about the likelihood that Mrs. Blakeney or others, including himself, might get hurt.
Harris was then taken to the police station, where Detective Daniel Whalen questioned him. Harris initially told Whalen that he had "heard gunshots and had seen a car leaving the area . . . ." Whalen testified that Harris was "very nervous, very upset, and intentionally vague as to what he knew about the shooting," and that he could extract information from Harris only "with difficulty." The prosecutor then asked Whalen:
Q: Did he ever tell you at that time that he had actually seen the shooting?
Q: Did he tell you that he didn't see the shooting?
Q: Did you believe him when he told you that?
Mr. McCarthy [counsel for Robinson]: Objection, Your Honor.
Mr. Engle [counsel for Bailey]: Objection, ...