Appeals from the Superior Court of the District of Columbia (F-4770-93, F-4768-93 & F-5646-94) (Hon. Colleen Kollar-Kotelly, Trial Judge) (Hon. Russell F. Canan, Motions Judge)
Before Reid and Glickman, Associate Judges, and Ferren, Senior
The opinion of the court was delivered by: Ferren, Senior Judge
After a 1994 jury trial in this drive-by shooting and hot-pursuit case, appellants Antonio E. Bell, William D. McClain, and Charlie Webb *fn1 were convicted of first-degree premeditated murder while armed of Richard Tillman, D.C. Code §§ 22-2401, -3202 (1996); *fn2 assault with intent to kill ("AWIK") while armed of Anthony Irving, D.C. Code §§ 22-501, -3202 (1996); *fn3 AWIK while armed of Lawrence Hutton; assault with a deadly weapon ("ADW") of Alonzo Smith, D.C. Code § 22-502 (1996); *fn4 possession of a firearm during the commission of a crime of violence ("PFCV") (murder of Tillman and related assaults), D.C. Code § 22-3204 (b) (1996); *fn5 ADW of police officer Clarence Douglas, D.C. Code § 22-505 (b) (1996); *fn6 (PFCV) (Officer Douglas); possession of a prohibited weapon ("PPW") (machine gun) (Officer Douglas); D.C. Code § 22-3214 (a) (1006); *fn7 and carrying a pistol without a license ("CPWL") (Officer Douglas), D.C. Code § 22-3204 (a) (1996). *fn8 First, we set out the facts developed at trial. Second, we consider appellants' contentions that the trial court erred in admitting in evidence several hearsay statements under the dying declaration exception to the hearsay rule. Third, we address the out-of-court identifications of appellants (admitted in evidence through the testimony of a police detective), which the witness is claimed to have repudiated at trial. Finally, we evaluate appellants' arguments based on the Jencks Act, 18 U.S.C. § 3500 (1994), and on Brady v. Maryland, 373 U.S. 83 (1963), that the government withheld from them exculpatory evidence. We affirm in part, reverse in part. *fn9
Specifically, we conclude that the trial judge erred by improperly admitting Richard Tillman's statements as dying declarations. Because this error pertaining to the site of the murder and related crimes was not harmless, and because no evidence placed Webb and McClain at the site of the assailants' crash after the pursuit by the police where the other crimes occurred, we reverse Webb's and McClain's convictions on all charges, and Bell's convictions for first-degree murder while armed, Bell's two AWIK convictions, Bell's ADW conviction, and Bell's conviction for PFCV as to Tillman and related assaults. We remand for a new trial of all defendants on these charges on which we reverse. However, we affirm Bell's convictions for assault of police officer Clarence Douglas with a dangerous weapon and the related counts for PFCV, PPW, and CPWL.
The criminal charges were derived from two events: (1) a drive-by shooting of Richard Tillman and others on May 10, 1993, and (2) the high-speed police chase of a station wagon that matched the description of the vehicle involved in the shootings. The parties stipulated that Tillman died on June 24, 1993, from complications that arose from the May 10 gunshot wound. The parties further stipulated that the station wagon pursued by the police bore a temporary license tag in appellant Webb's name, but that the temporary licence had not been issued for that vehicle, which belonged to none of the appellants.
The government's evidence showed that Ronald Brewer had been standing at the corner of Florida Avenue and North Capitol Street, N.W., at approximately 8:00 p.m. Brewer saw a brown, four-door Chevrolet station wagon with green, temporary tags approaching from Q Street, turning onto Florida Avenue, and traveling north toward North Capitol Street. Brewer then heard gunshots and saw three guns pointing out of the passenger side of the car. Because Brewer was frightened and saw everyone in the area running for cover, he could not see how many persons occupied the station wagon. Brewer next saw a man with a shotgun approaching him on the street exclaiming that someone had been hit. Brewer immediately noticed a man injured "in his stomach area" lying on his back in front of a house on Q Street. The police arrived, and Brewer described the events he had just witnessed, including a description of the brown station wagon. Approximately forty-five minutes later, the police brought Brewer to a location on 20th Street, N.E., where he identified the brown station wagon involved in the shooting.
Officer Walker Roach processed the crime scene at the shooting on Q Street. Roach recovered various shell casings, jackets, and bullet fragments from the street and from inside the laundromat. Roach also recovered from another detective the bullet fragments doctors had removed from Anthony Irving.
Lawrence Hutton testified that he had been working inside a laundromat at 10½ Q Street, N.W., when he saw approximately twelve to fourteen "youngsters" standing outside near the telephone. Hutton then heard approximately four gunshots and was shot once himself in the right leg. From his position inside the laundromat, Hutton could not see who fired the shots.
Alonzo Smith was the last civilian witness for the government. Smith testified that he had been on Q Street visiting his friend Tillman. Smith's testimony indicated that shots had been fired at Tillman and others from a station wagon going up Q Street toward Florida Avenue. When the prosecutor asked Smith to describe the procedure the police had used for identifying the assailants, Smith testified that he had picked out only photographs the police had told him to pick. During his testimony there were a number of bench conferences, which demonstrated that Smith was not cooperating in the manner the prosecutor expected. Despite the prosecutor's repeated requests, the trial judge did not allow the government to impeach Smith based on claimed surprise. After Smith eventually acknowledged his prior identifications of the appellants, the trial judge allowed the government's next witness, Metropolitan Police Department (MPD) Detective Lupercio Rivera, to testify as to the substance of Smith's prior identifications. *fn10 Rivera testified that Smith had identified McClain as the driver of the station wagon involved in the shooting, and that Smith had placed McCray as the front seat passenger, with Webb sitting behind McClain and Bell sitting behind McCray. Rivera added that Smith had identified Bell, McCray, and Webb as the shooters.
Sgt. Arthur Butts testified that on May 17, 1993, in statements at the hospital, Tillman identified the gunmen as "Kermit" (McCray), "Charles" (Webb), "Antonio" (Bell), and "Denard" (William D. McClain). Butts also visited Tillman in the hospital on June 22, 1993, when Tillman nodded only in response to pictures of Bell and Webb.
The prosecution then took up the second, related event. MPD Officers Jerald Brown and Clarence Douglas each testified that on the evening of May 10, 1993, while driving west on Rhode Island Avenue in their respective marked police cars, they heard radio broadcasts describing a brown station wagon with several occupants who had just been involved in a shooting in the area of North Capitol Street. Both officers saw a brown station wagon that matched the broadcast description, with four persons inside, turning onto Rhode Island Avenue from 4th Street. Brown made a U-turn to try to read the vehicle tag number, but the station wagon sped away. Douglas also made a U-turn. Both officers pursued the station wagon through Northeast D.C. as it sped through red lights and traveled on the wrong side of the street. At times exceeding eighty miles per hour, the chase ended after the station wagon turned from Rhode Island onto 20th Street, N.E. There, the driver lost control, plowing through cement steps into a house near Eastern Avenue.
Douglas testified that his cruiser - in front of Brown's car throughout the pursuit - pulled back a little from the station wagon once it turned onto 20th Street because that was a residential area. As a result, Douglas did not actually witness the crash into the house. When he came to the crash scene, Douglas observed both rear doors of the station wagon fly open and saw two men heading into a walkway between two houses while the two other occupants were still in the car. Douglas further testified that he then saw two muzzle flashes coming from the passenger side of the car. Douglas could not see the faces of any of the men because it was growing dark.
Brown testified that he had seen three of the four occupants leaving the vehicle, two from the front door of the passenger side and one from the rear door on the passenger side. According to Brown, the occupant who left from the rear door fired five or six gunshots in Douglas's direction. Brown did not see the gun, but he did see the muzzle flashes. Brown further testified that, after he had seen the shooting, he drove down an alley to cut off the suspects running from the car. Brown recognized one of the runners, who was wearing a blue shirt, as the man who had fired at Douglas. Shortly thereafter, Officer Samuel Naylor - who had seen a blue shirt in the alley - found Bell, dressed in an undershirt and a pair of blue shorts, hiding in a window well. Brown then identified Bell as the man who had shot at Douglas. *fn11
During a canvass of the crash crime scene, Brown testified that he observed "a 9 millimeter ["9mm"] pistol . . . [lying] in between the two houses, in the walkway where the two suspects ran," and a blue shirt was found that was identified as the shirt Bell was wearing and had discarded after he fired on Douglas. Brown also testified that the "Tech 9" (AP 9mm) was "recovered inside the vehicle." Brown further identified a number of photographs that depicted alternative views of the crash scene and the physical evidence he observed - the blue shirt and the two weapons recovered at the scene. He identified the photograph of the 9mm pistol as the pistol that was found lying between the two houses. He also identified the picture of the AP 9mm recovered from the front seat of the vehicle. During cross-examination, the defense impeached Brown with the fact that his statement - provided within two hours of the incident - had not mentioned that someone had shot at Douglas, or that Brown had seen muzzle flashes.
Officer Tira Gibson, a crime scene search officer, testified that prior to collecting the evidence found at the crash scene, she took photographs of the evidence. Gibson identified two handguns - one as an automatic weapon (found partially hidden under the front seat of the station wagon) *fn12 and a semi-automatic weapon *fn13 (recovered from the walkway) - as the weapons recovered at the crash scene. Gibson also testified that the AP 9mm, semi-automatic pistol with a twenty shot magazine (loaded with nineteen rounds of ammunition) and expended shell casings had been recovered from the front seat and the rear floorboard. Further, corroborating Brown's testimony, Gibson indicated that a loaded, operable, semi-automatic Smith & Wesson 9mm pistol was found lying on the walkway between two houses.
During cross-examination, Gibson testified that she had "thoroughly searched" the station wagon, but could not recall whether she had looked under a newspaper found on the rear floorboard. Gibson testified that she found only the AP 9mm in the vehicle. Gibson also testified that ultimately she had handed the evidence to Mobile Crime Technician Connie Hickman. Gibson described where she recovered the shell casings from the vehicle, and Officer Timothy Curtis, the firearms expert, testified as to the specific attributes of the shell casings.
On March 3, 1994, approximately ten months after the crime, Officer William Adamson conducted a second search of the station wagon impounded at the Mobile Crime Laboratory's garage. The prosecutor had procured a search warrant after noticing in a photograph a bulge on one of the car doors that might be holding an unrecovered bullet slug. The windows of the station wagon had been left open and the vehicle thus exposed to the elements. Adamson recovered a red plastic cup, a green beer bottle, key ring with keys, four expended shell casings (two 9mm and two .32 caliber), and a rusted .32 caliber Colt pistol under a newspaper in the back seat.
Officer Curtis indicated that the AP 9 model 9mm, the Smith & Wesson 9mm, and the rusted Colt pistol were fully operable. He indicated that the rusted .32 caliber handgun recovered during the second search was consistent with the ballistic evidence recovered at the Q Street crime scene. His testimony further indicated that three of the shell casings found inside the station wagon had been fired from the 9mm Smith & Wesson pistol found outside the car and in the flight path where appellant Bell had been arrested.
Detective Dale Daily testified that, after appellant Bell's arrest, Bell had provided a written statement indicating that he had been a passenger sleeping in the station wagon; that he had awakened when he heard gunfire; and that he never had fired a gun on May 10, 1993. Detective William Hennessey testified that appellant McClain, after voluntarily surrendering to the police, had remarked that "Flintstone" ...