Appeals from the Superior Court of the District of Columbia (F-9115-97) (Hon. A. Franklin Burgess, Jr., Trial Judge)
Before Terry, Farrell, and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Appellant Erik J. Ginyard was indicted along with Ricardo Curtis for the shooting of Laffette Copeland. The theory underlying the indictment was that Curtis furnished the gun with which Ginyard fired the shots. Before trial, Curtis pleaded guilty to a single count of carrying a pistol without a license in exchange for the dismissal of the other counts against him. As part of his plea agreement, Curtis agreed to testify against Ginyard. At Ginyard's trial, however, the government found itself unable to present Curtis's testimony when the court upheld his unexpected invocation of his Fifth Amendment privilege against self-incrimination. Despite not hearing from Curtis, the jury found Ginyard guilty of assault with intent to murder while armed, aggravated assault while armed, two counts of possession of a firearm during the commission of a crime of violence or dangerous offense, and related weapons offenses. Ginyard appealed his convictions. He also filed a motion in the trial court pursuant to D.C. Code § 23-110 to set aside his convictions for ineffective assistance of counsel, based on his counsel's decision not to present certain potentially exculpatory witnesses at his trial. The court denied that motion without a hearing. Ginyard appealed from that denial. The two appeals have been consolidated in this court.
With one exception, we reject Ginyard's contentions on appeal. We hold that Ginyard was not denied his Sixth Amendment right of confrontation when the government failed to produce Curtis as a witness after having summarized his expected testimony in its opening statement. We also hold that the trial court did not abuse its discretion in denying Ginyard a mistrial for prosecutorial misconduct. We reject Ginyard's claim that the government infringed his Fifth Amendment right to due process by not disclosing allegedly exculpatory evidence to him before trial, namely the fact that Curtis denied handing any weapon directly to Ginyard. We also reject Ginyard's contention that the trial court violated his Fifth and Sixth Amendment rights when it upheld Curtis's assertion of his privilege against self-incrimination without requiring the government to grant Curtis use immunity. We agree with Ginyard that his two convictions for possession of a firearm during a crime of violence merge, but reject his argument that his convictions for aggravated assault and assault with intent to commit murder merge. Finally, we hold that the trial court did not err in denying Ginyard's post-conviction claims of ineffective assistance of counsel without an evidentiary hearing. Accordingly, we affirm Ginyard's convictions and remand for resentencing.
The issue for the jury in this case was whether it was Ginyard or Curtis who shot Laffette Copeland. Copeland himself was positive that it was Ginyard, whom he knew. Copeland told the police immediately after the attack that "Erik" shot him. Copeland confirmed that Ginyard was the shooter when the police showed him a photographic array containing Ginyard's picture. At trial, Copeland identified Ginyard unequivocally and flatly denied that it was Curtis who shot him. Although he admittedly had told Ginyard's mother, defense counsel, and defense investigator that Ginyard was not his assailant, Copeland explained at trial that he made that statement only because he was afraid to tell them the truth.
According to Copeland, Ginyard held a grudge against him following a quarrel with Copeland's uncle. On the day of the shooting, Ginyard and his friends Anton Parker and Vernon followed Copeland down the street and threatened him until he ducked inside a friend's house to get away from them. Later that day, Copeland went to visit Nathan Coppedge, who was friends with both Copeland and Ginyard. Copeland and Coppedge were standing in the yard outside Coppedge's house when Ginyard and Parker appeared along with a crowd of some twenty people. Copeland testified that while Parker spoke with him about ending their dispute, Ginyard stood apart and taunted him. Copeland shook hands with Parker and ignored Ginyard's taunts. Then Copeland noticed Ricardo Curtis come around the corner and walk over to Ginyard. Curtis had a gun in his right pocket. Ginyard leaned back and whispered something to someone in the crowd. Copeland could not say who it was that Ginyard addressed. Ginyard then turned back around. Now Ginyard was holding a gun. He pointed the gun at Copeland and started shooting. As Copeland fell to the ground, wounded in the wrist, back and stomach, he saw Ginyard and Curtis run away together.
Copeland did not testify that he saw Curtis give his gun to Ginyard. A police detective testified, however, that Copeland identified Curtis from his photograph three months after the shooting as "the person that passed Erik the gun to shoot me with."
The theory of the defense was that Copeland's assailant was Curtis, not Ginyard. A police officer who testified in the government's case-in-chief reported that several eyewitnesses whom he knew to be friends of Ginyard told him that Ginyard was not the shooter. A detective testified that Ginyard himself spoke with him after the shooting and said that he and Parker were settling their dispute with Copeland when somebody dressed in black came from nowhere, shot Copeland, and ran off. Ginyard himself did not testify at his trial, but the defense called three eyewitnesses - Parker, Coppedge and Coppedge's girlfriend Tenisha Monroe - who testified that Ginyard did not shoot Copeland. Coppedge said that he recognized the shooter to be Curtis, while Parker and Monroe said they could not identify the shooter because he covered his face with a black t-shirt.
In convicting Ginyard, the jury evidently credited Copeland's identification of Ginyard over the contrary evidence.
The theme of Ginyard's direct appeal is that the trial court violated his Fifth and Sixth Amendment rights and abused its discretion in permitting his prosecution to proceed as it did without the testimony of Ricardo Curtis. Ginyard's contentions focus on the government's opening statement, which summarized Curtis's expected testimony; Curtis's subsequent assertion of his privilege against self-incrimination; the government's failure to disclose Curtis's testimony to Ginyard before trial; and the government's decision not to immunize Curtis and call him as its witness.
In her opening statement, counsel for the government summarized the testimony she expected to present from Ricardo Curtis. She said only that Curtis had tried to give Ginyard a gun at various times during the day of the shooting and that Curtis had been thwarted one of those times by the presence of Ginyard's mother. Nonetheless, the prosecutor obliquely concluded, "the person who was wanting this weapon that was used in the shooting was Mr. Ginyard" - implying that Curtis ultimately succeeded in getting the weapon into Ginyard's hands.
Ginyard's opening statement previewed evidence expected to show that Curtis was the shooter. In his summary of this evidence, Ginyard's counsel proffered that after Curtis was indicted, he wrote a letter asking a friend to "take care" of Copeland before Copeland could testify against him. The fortuitous discovery of this incriminating letter during the execution of an unrelated search warrant led the police to open an investigation of Curtis for obstruction of justice. A police handwriting examiner concluded that Curtis wrote the letter despite Curtis's attempt to fool the examiner by altering his writing style in the handwriting samples he submitted. Informed of the examiner's conclusion, Curtis agreed to plead guilty to carrying a pistol without a license in exchange for the dismissal of "every other single charge that was pending against him." His deal with the government required Curtis to testify against Ginyard, "and that's why," defense counsel concluded, "we'll see him in court sometime next week."
This prediction did not come to pass. On the third day of trial, Curtis's attorney appeared in court and advised that his client would assert his Fifth Amendment privilege against self-incrimination in response to any questions he might be asked about the letter he allegedly had written. The attorney explained that the government had not agreed to drop the potential charge of obstruction of justice that was based on the letter, and that Curtis had not waived his privilege with respect to that charge when he pled guilty to carrying a pistol without a license. The government agreed that the obstruction charge was not covered by the plea agreement and that Curtis retained a Fifth Amendment privilege not to answer questions about the incriminating letter.
Although counsel for the government stated that she did not intend to ask Curtis about the letter, the trial court agreed with Ginyard's counsel that the document would be a proper subject of cross-examination to impeach Curtis's credibility. Concluding that the government could not benefit from Curtis's testimony on direct if he could not be examined about the letter on cross, the court ruled that the government could not call Curtis as a witness unless it first immunized him from prosecution for obstruction of justice in connection with the letter. The government acquiesced in the court's ruling and elected to forego Curtis's testimony.
Ginyard then moved for a mistrial, claiming that he was prejudiced by the government's summarization of Curtis's testimony in its opening statement. Ginyard argued that the government should have known that Curtis would assert his Fifth Amendment privilege and not testify. The court deemed a mistrial unwarranted. It found that the government had not proceeded in bad faith and concluded that it could negate any adverse inferences from the failure of either party to call Curtis by instructing the jury that he was unavailable to testify. Ginyard asked the court to tell the jury that Curtis was unavailable because he had asserted his privilege against self-incrimination, which the government opposed and the court refused to do.
The following day, Ginyard renewed his objections to the government's opening statement. In the colloquy that ensued, the government proffered that if Curtis had testified, he would have said only that he attempted to give his gun to Ginyard on the day of the shooting but eventually gave it instead to Ginyard's friend Vernon. Although Curtis believed that Vernon passed the gun on to Ginyard, he did not see Vernon do so. Curtis claimed that he did not see Ginyard shoot Copeland either and so could not say what gun he used. Vernon himself was not a government witness, and the government conceded that it had no witness who could confirm that Curtis supplied Ginyard with a gun.
In light of this proffer, the court deemed it a close question whether the government had a sufficient basis to say in its opening statement that Ginyard used Curtis's gun to shoot Copeland. Assuming arguendo that the government's opening statement was improper for lack of a sufficient foundation, the court nonetheless declined to declare a mistrial. Rather, the court decided that it would instruct the jury specifically to disregard anything said in the opening statements about what Curtis's testimony would have been.
In addition to renewing his claim that the government's opening statement was improper, Ginyard advanced two other contentions. First, Ginyard claimed that the government had committed a Brady *fn1 violation by not informing him before trial that Curtis said he gave his gun to Vernon. Ginyard argued that if he had been told that before trial, he might have called Vernon as a witness to contradict Curtis and testify that he did not receive a gun from him. Ginyard's counsel acknowledged, however, that he had not talked with Vernon and did not know what Vernon would say. The court refused to halt the proceedings but said it would consider granting a motion for a new trial if Ginyard could proffer that Vernon did have helpful testimony to give. (Ginyard did not include such a proffer in the new trial motion that he subsequently made.)
Second, Ginyard objected to the trial court's determination that Curtis had a valid Fifth Amendment privilege. Stating that the government had told him some months earlier that Curtis had admitted writing the incriminating letter, which the government did not deny, Ginyard's counsel argued that Curtis had waived his Fifth Amendment privilege with respect to the letter. Unpersuaded by this contention, the court pointed out that Ginyard had no right to require the government to call Curtis as its witness or to resist Curtis's assertion of his Fifth Amendment privilege.
The government did not mention Curtis in its closing arguments. Ginyard's counsel commented that Curtis "ha[d] become unavailable now . . . [and] didn't come in to respond" to the testimony that he was the shooter, even though the government had "promised" the jury it would hear from Curtis. The court instructed the jury not to consider what counsel had said in their opening statements about Curtis's anticipated testimony because the opening ...