Appeal from the Superior Court of the District of Columbia (F-9886-93) (Hon. Lee F. Satterfield, Trial Judge)
Before Farrell, Reid and Glickman, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Appellant Antoine Isler once again appeals his convictions for first-degree murder, in violation of D.C. Code § 22-2101 (2001); possession of a firearm during a crime of violence, in violation of § 22-4504 (b); and carrying a pistol without a license, in violation of § 22-4504 (a).*fn1 He challenges the trial court's ruling allowing the admission into evidence of excerpts from the grand jury testimony of two eyewitnesses; his challenge rests solely on the ground that he did not have an opportunity to cross-examine the two witnesses when they appeared before the grand jury. We affirm the judgment of the trial court, and hold that statements made by a witness before the grand jury are admissible into evidence under the past recollection recorded exception to the hearsay rule provided they meet the requirements for that exception. We further hold that the requirements were met in this case.
On August 30, 1993, Donald Brown was fatally shot in the Southeast quadrant of the District of Columbia. Three persons witnessed the shooting - Patricia Walden, Shanta Dews and Vandora Chappell, all of whom testified at Mr. Isler's second trial. Ms. Walden recounted the events of August 30, 1993, indicating that she and Mr. Brown planned to go out for the evening. When they exited the apartment building to get into Mr. Brown's car, she was on the passenger side of the car when she saw Mr. Isler. She "recognized his face and thought nothing of it, but once he got closer to [Mr.] Brown, [Mr. Isler] repeatedly shot, kept shooting . . . . He was shooting [Mr.] Brown."
Both Ms. Dews and Ms. Chappell acknowledged that they testified before the grand jury on January 25, 1994, but claimed that they could not remember what happened on August 30, 1993, nor what they said during their appearances before the grand jury. As a result of the witnesses' claims that they could not remember the incident nor what they said to the grand jury, the government moved to admit excerpts from the grand jury testimony as past recollection recorded.
The trial court declared that it would allow statements from the grand jury testimony to be admitted, saying in the case of Ms. Dews:
I believe under the past recollection recorded [exception to the hearsay rule Ms. Dews] said those things and she has indicated in her testimony basically that she has insufficient memory now and that she once knew about what happened to [Mr. Brown]. And that's what those [statements] refer to. And so I believe under the hearsay exception of recorded recollection, the Government is able to read that portion of the transcript into the record.
Defense counsel explained why he had objected to the admission of statements from the grand jury testimony: "[T]he reason I'm objecting is because the witness currently doesn't remember. If the court [admits the statements], I will have no ability to cross-examine th[ose] statement[s] because what the witness is testifying now, is that [she] doesn't remember." The trial court responded: "Well, she testified at the first trial and you can ask her questions about things that are relevant to the defense based on the first trial. And if she doesn't remember, . . . you will have the transcript of her testimony to go through. . . ." The prosecutor then read the following excerpts from Ms. Dews' January 25, 1994, grand jury testimony:
QUESTION: "Do you remember what happened to Polo [Mr. Brown]. Did you see something happen to Polo on that date that I gave you, August 30th ?"
QUESTION: "What happened ...