Appeal from the Superior Court of the District of Columbia (F-7740-95) (Hon. Susan R. Winfield, Trial Judge)
Before Glickman and Washington, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Glickman, Associate Judge
Michael Harris was charged with the first degree murder of James Monroe, who was shot to death on July 28, 1995. Harris argued that he acted in self-defense. Harris claimed that James Monroe's nephew Donald Monroe had a grudge against Harris and had ordered James Monroe and another man named Thaddeus Lowe to kill Harris. Harris's first trial ended in a mistrial after the jury deadlocked; after retrial a jury convicted Harris of the lesser-included offense of voluntary manslaughter and related charges of possession of a firearm during a crime of violence and carrying a pistol without a license.
The centerpiece of Harris's self-defense theory was his allegation that James Monroe and Thaddeus Lowe had attempted to kill Harris on July 28, 1995, at Donald Monroe's urging. In confirmation of this theory, Harris claimed that Donald Monroe had tried to have him killed on another occasion by ordering Charles Minnis to shoot Harris on April 23, 1996, an attack that left Harris a paraplegic. To support his self-defense theory, Harris offered his own testimony and attempted to offer two additional pieces of evidence: an application in support of a search warrant for Donald Monroe's residence sworn to by Metropolitan Police Officer James L. Trainum and approved by an Assistant United States Attorney (hereafter "Trainum Affidavit"), which asserted that there was probable cause to believe that Donald Monroe conspired in the April 1996 attempt to murder Harris; and the testimony of Dwayne Drummond, who testified before a grand jury that he saw Donald Monroe's car drive by on the night Harris was shot. Neither piece of evidence was presented to the jury. The trial court ruled that the Trainum Affidavit was inadmissible hearsay, rejecting Harris's contention that the affidavit was a party admission by the government. When Drummond, who was under subpoena, failed to appear to testify, the trial court refused defense counsel's request to send marshals to Drummond's Baltimore residence and rejected defense counsel's alternative proposal to admit Drummond's grand jury testimony under the prior recorded testimony exception to the rule against hearsay.
We hold that the government adopted the conclusions in the Trainum Affidavit regarding probable cause when an Assistant United States Attorney signed and approved the affidavit for submission to the court with an application for a search warrant. The conclusion that probable cause existed to believe that Donald Monroe conspired to kill Harris was, therefore, an adoptive admission by a party that was admissible against the government. It was error to exclude this statement. Whether the government also adopted other statements contained in the Trainum Affidavit is a factual question that should be addressed in the first instance by the trial court on remand. We further hold that the trial court erred by failing to send marshals to secure Drummond's testimony. Because the excluded affidavit and Drummond's testimony would have been the only evidence corroborating Harris's testimony, the trial court's errors were not harmless. We, therefore, reverse Harris's convictions and remand for a new trial.
The government presented the testimony of two witnesses to James Monroe's death, only one of whom claimed to have seen the shooting. Thaddeus Lowe testified that he was with Monroe on July 28, 1995. Both men had been drinking, and Lowe testified that Monroe "looked like he had some PCP." *fn1 Lowe testified that James Monroe was intoxicated and "fumbling around" to the point that Lowe dropped Monroe off at his house, intending to leave him there. Later, however, Monroe approached Lowe while Lowe was making a call at a phone booth at North Capitol and R Streets, N.E. Monroe asked Lowe to take him down the block so that he could buy PCP. Lowe agreed and drove Monroe to 1st and R Streets, N.E. Monroe exited the car and approached Michael Harris, whom Lowe knew as "Jug." Lowe, still sitting in his car, saw Monroe give Harris some money and saw Harris give Monroe something in return. Lowe testified that Monroe and Harris were "talking and laughing" and that they began walking to Lowe's car. Lowe then heard Monroe challenge Harris by saying, "go head, young 'un, before I slap you" to Harris. Id. Lowe urged Harris to ignore Monroe's comment. Monroe began getting in the car when Harris reached behind a nearby wall, picked up a gun, and fired twice at Monroe.
Lowe testified that he drove Monroe to the hospital and left him there without speaking to the police. Lowe went to James and Donald Monroe's home, where he talked to Donald Monroe and other members of James's family before going to his own home. Lowe did not contact the police until he saw several police officers inspecting his car, at which point he approached the officers and gave a statement. Lowe's statement to the police differed in significant respects from his trial testimony. Lowe told the police that he did not give Monroe a ride, did not know why Monroe was on R Street, and did not know whether Monroe was high on PCP. Most significantly, Lowe said that Monroe was killed by a man named "Chub." Lowe explained this inconsistency at trial by claiming that he was "shaken" and meant to say "Jug."
The government also presented the testimony of Marc Queen, Harris's cousin, who testified that he was with Harris on R Street on July 28, 1995. Queen claimed that he saw Lowe and Monroe drive up the street in Lowe's car and saw Monroe get out and approach Harris. Queen did not see any money or other objects exchanged between Harris and Monroe. According to Queen, Monroe and Harris argued "for a minute." Harris then walked over to Queen and asked him to get Harris's gun from his apartment. Queen initially refused but then complied with the request after Harris asked him again. Queen testified that he retrieved the gun, gave it to Harris, and walked away. Harris and Monroe continued arguing until Harris "pulled [the gun] up." Queen said he closed his eyes and did not see the shooting but "heard like three shots." The defense impeached Queen with his statements to the grand jury that Harris got the gun himself, which Queen admitted were "lies."
Several officers and forensic experts testified that James Monroe was killed by a single gunshot to the back and that one other bullet was retrieved from the door frame of Lowe's car. Detective Donald Bell testified that after Harris was arrested, he denied any involvement in the shooting and tried to place blame on Damion Nicholson, a man who Harris claimed looked just like him.
With the exception of a Howard University Hospital employee called briefly to admit medical records, Michael Harris was the only witness for the defense. Harris testified that a week before he shot James Monroe, Harris won several hundred dollars from Donald Monroe in a dice game. Donald Monroe told Harris "that I [Harris] didn't deserve his money" and punched Harris. Harris knocked Monroe down after a brief fistfight. As Harris left the scene, he heard Donald Monroe say, "I'm gonna get your ass." On July 28, 1995, Harris was hanging around on R Street when a car came up the street. James Monroe was in the car along with Thaddeus Lowe. According to Harris, James Monroe "leaped out and started screaming and shouting at me." Monroe said that "Donald sent him down there to get his money back." Harris said he had no money. Monroe told Harris, "You think I'm playing? I'll slap a cap in your ass." Monroe started walking toward his car. Then, Harris testified, the "[n]ext thing I know I heard a shot come out [of] the car then Mark [sic] Queen handed me his gun and I closed my eyes and I shot back towards the car." Harris later clarified that Lowe was the one shooting at him. Harris testified that he fired because "I was scared for my life, I thought he was about to kill me." He denied ever selling Monroe drugs.
Harris was held in the D.C. Jail until March 17, 1996. Five weeks after his release, on April 23, 1996, Harris was shot several times by Charles Minnis and was left paralyzed. Harris testified that just before he was shot, Donald Monroe's car "rolled past" and Minnis then approached him on foot and shot him. Harris also testified that a friend named Maurice Jackson told him that Donald Monroe was driving and that Minnis emerged from the back seat of the car. (This hearsay was admitted without objection.)
The prosecutor questioned Harris's claim that Donald Monroe was involved in either shooting. She cross-examined Harris about his failure to pick Donald Monroe out of a photo array that Detective Trainum showed Harris after he was shot. The prosecutor also questioned Harris about his failure to mention Donald Monroe when Harris was first arrested for shooting James Monroe in September 1995. The government called Detective Trainum to testify in rebuttal that when he questioned Harris in the hospital, Harris identified Minnis as his assailant and had no reaction to Donald Monroe's photo.
In closing argument, the government contended that Michael Harris's claim that Donald Monroe was involved in shooting him was a recent fabrication:
What makes sense about what Michael Harris told you? What doesn't? What doesn't make sense is the first photograph in this array [shown to Harris by Trainum] is of Donnie Monroe. And Michael Harris didn't nod, he didn't put an X on the back of it, take it out and take a look. He didn't do anything with respect to Donnie Monroe. In fact, his face didn't even react to Donnie Monroe. . . .
He didn't say a word about Donnie Monroe. So I'm asking you, ladies and gentlemen, to look when the defendant first says anything about Donnie Monroe. . . .
I submit to you, ladies and gentlemen, that the name Damion Nicholson did not [sic] and neither does the name Donnie Monroe. Because, ladies and gentlemen, the evidence in this case is not that this cycle of violence started with some silly school yard spat over at the rec center over some craps game. The cycle of violence in this case, ladies and gentlemen, started when Michael Harris picked up a gun and shot a defenseless, unarmed man in the back like a coward.
At both his trials, Harris attempted to introduce the Trainum Affidavit as evidence supporting his self-defense theory. The Trainum Affidavit was submitted on August 27, 1996, to Superior Court Judge Dorsey in support of an application for a search warrant for the residence of Donald Monroe. The affidavit was "subscribed and sworn to" before Judge Dorsey by Detective James Trainum. Before it was submitted to the court, the affidavit was approved by an Assistant United States Attorney, as is the practice in this jurisdiction. Cf. 28 C.F.R. § 60.1 (2003) ("[O]nly in the very rare and emergent case is the law enforcement officer permitted to seek a search warrant without the concurrence of the appropriate U.S. Attorney's office."). On each page of the Trainum Affidavit, Clifford T. Keenan wrote the word "approved" and signed his name, identifying himself as an "AUSA."
In his affidavit, Trainum reported information evidencing that Donald Monroe paid Charles Minnis to kill Michael Harris. Trainum reported that one witness saw Donald Monroe's car drive by a few minutes before Minnis shot Harris. This witness saw Minnis driving the car. Trainum also related that several witnesses said that Donald Monroe planned to pay Minnis to kill Harris and that after Minnis was arrested, he asked Monroe to use the money to pay for an attorney. Trainum concluded that he had probable cause to believe that Donald Monroe hired Charles Minnis to kill Harris:
Based on the above described set of facts and circumstances, the affiant has probable causeto believe that Donald Monroe and Charles Minnis conspired to murder Michael Harris. Donald Monroe's part in the conspiracy was to pay Charles Minnis for the murder and to loan Minnis his car to search for the victim. The payment was to be in the form of money which are [sic] the proceeds of drug sales. Such drug sales take place from Donald Monroe's residence, located at 19 T Street, Northeast, Washington, DC. Since the arrest of Charles Minnis, Donald Monroe has been directed to use the "murder for hire" money to pay Charles Minnis' attorney. The affiant has probable ...