Appeal from the Superior Court of the District of Columbia (F2005-98) (Hon. Rufus G. King III, Trial Judge)
Before Wagner, Chief Judge, and Schwelb and Washington, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
A jury convicted David T. Watkins of one count of first degree murder while armed,*fn1 one count of assault with intent to kill while armed (AWIKWA), *fn2 and related weapons offenses. On appeal, Watkins presents several claims of error, only one of which - a novel issue under Jencks v. United States, 353 U.S. 657 (1957), the Jencks Act, 18 U.S.C. §§ 3500 et seq., and Super. Ct. Crim. R. 26.2 (implementing the Jencks Act), requires extended discussion. We conclude, contrary to the government's position, that Watkins has preserved this issue, both in the trial court and on appeal. On the merits, however, we discern no reversible error, and we therefore affirm Watkins' convictions.
On December 23, 1997, Watkins allegedly shot two men with a pistol, killing Duan Dabney and seriously wounding Kevin Bowen. The shootings allegedly involved rival gangs of drug dealers, and the prosecution's theory was that Watkins shot Dabney and Bowen in reprisal for the shooting and tragic blinding of Conrad Perry several months earlier, allegedly by a member of Dabney's gang. *fn3
Bowen died in an unrelated incident before Watkins' case came to trial. At trial, the prosecution introduced evidence of an "excited utterance" made by Bowen to his girlfriend shortly after Bowen was shot. In that "utterance" Bowen allegedly identified Watkins as his assailant, stating: "Dave shot me!"
Because he was no longer alive, Bowen was not available for cross-examination by defense counsel. Watkins' attorney, however, requested that the defense be provided with Bowen's grand jury testimony for impeachment purposes. The trial judge declined the defense request. The principal question on appeal is whether, following the admission of Bowen's "excited utterance," and notwithstanding the fact that Bowen did not testify, the prosecution was required to make Bowen's grand jury testimony available to counsel for Watkins under the Jencks Act or pursuant to this court's supervisory authority over the Superior Court.
A. Preservation of the issue on appeal.
Preliminarily, the government contends that the Jencks issue is not properly before us. Counsel for Watkins did not identify it as one of her three questions presented in Watkins' opening brief on appeal, and instead addressed it only in a single footnote. We conclude that there has been no waiver.
The footnote in Watkins' brief, consisting of twenty-five single-spaced lines, and citing authority, succinctly but effectively explained Watkins' theory under the Jencks decision and the Jencks statute. There can therefore be no question that, upon receipt of the brief, the government had been apprised of the essence of the defense claim. Indeed, in its own initial brief, the government argued the substance of its position on the issue in a responsive footnote which consisted of twenty-two single-spaced lines, and which also cited supporting authority.
In any event, following oral argument, this court entered an order directing the parties to file simultaneous supplemental submissions elaborating upon their arguments with respect to the Jencks issue and permitting them to file responses to each other's submissions. Both parties have taken advantage of the court's direction, and the point has now been fully briefed, so that each side has had a full opportunity to have its say on the issue. This is therefore not a case like In re Shearin, 764 A.2d 774 (D.C. 2000), cited by the government, in which "the failure to raise an issue in [one party's] brief prevent[ed] the opposing party from briefing the issue, and prevent[ed] both this court and opposing counsel from preparing for its consideration in oral argument."*fn4 Id. at 778. This court, like most courts, adheres to a "strong presumption favoring adjudication of the merits . . .," Lester v. District of Columbia, 806 A.2d 206, 208 (D.C. ...