Appeal from the Superior Court of the District of Columbia (F-5401-99) (Hon. Robert S. Tignor, Trial Judge)
Before Wagner, Chief Judge, and Schwelb and Farrell, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Appellant was found guilty by a jury of assault with intent to kill while armed and related offenses, all stemming from a shooting in daylight on February 1, 1997, in which Conrad Perry was shot repeatedly at close range, including a shot to the head that left him blind. The issues on appeal arise from the fact that Perry told a police officer -- Detective Kasul -- a week after the assault that the shooter had worn a mask over his face. Perry's statement about the mask was not revealed to the defense until Detective Kasul testified as the last witness in the government's case in chief. Appellant now contends that the belated disclosure amounted to the suppression of material evidence under Brady v. Maryland, 373 U.S. 83 (1963), and relatedly, that the trial court's decision to permit recross-examination of some but not all of the government's witnesses in light of the new information violated his Sixth Amendment right to confront witnesses. Unpersuaded by either contention, we affirm.
In the statement to Detective Kasul in which Perry said that the person who shot him wore a mask, he nonetheless identified appellant as the shooter, explaining that he knew appellant because he had gone to school with him. Several weeks later, Perry again identified appellant to Kasul as the shooter, but denied that appellant's face had been covered. At trial Perry confirmed that he had known appellant since junior high school (and also because appellant and others had sold drugs in his neighborhood); and he identified appellant in court as the person who on February 1, 1997, had approached him from the back and, as Perry turned halfway around, shot him in the eye from a couple of steps away and then shot him again multiple times.
Perry's identification of appellant was corroborated by three eyewitnesses. Aniese Holston was looking out of her apartment window at the time and saw Perry and appellant standing together. A short while later she left the apartment house and, as she walked up the street, again saw the two men standing together. Appellant then walked down the street out of her view, reappeared after a brief time, and reached into his pocket, at one point looking over at Holston ("[h]e . . . looked me in the eyes"). He put a gun to Perry's head and fired it. As Perry ran past Holston, appellant followed him and fired additional shots. Holston had known appellant through his grandmother for "about ten years[,] if that long." *fn1
Tracy Carey had known appellant casually since about 1991 (or for six years at the time of the shooting). Before the shooting she had been sitting on steps outside her building with Tijuana Beynum, when Perry approached and asked them for a light for his cigarette. Appellant was across the street, and Carey watched as he walked to the first-floor window of a building down the street, opened the window, and came back up the street toward Perry pointing a gun. Standing next to Perry, he shot him three or more times.
Beynum testified in similar fashion. She had known appellant from junior high school and around the neighborhood since 1992. After Perry approached her and Tracy for a cigarette light, he crossed the street and appeared to ask appellant and two other persons for a light. Appellant then walked down the street to an abandoned building, moved a board that covered a window, and retrieved a gun. He then walked back up the street and shot Perry in the side of the face, at a distance of some fifteen feet from where Beynum sat. Perry tried to run away, but then fell as appellant chased him and fired additional shots. *fn2
Additionally, April Johnson, appellant's former girlfriend and the mother of his daughter, testified that on an occasion before the shooting, she saw a group of men including Perry fire shots at appellant's car. Two days after Perry was shot, Johnson was staying at appellant's house when she overhead his father ask him why he had shot Perry, to which appellant replied that "[b]asically he was tired of them robbing him, shooting up his car and just bothering him." The next day Johnson heard appellant tell his brother "what he did and how he did it," including the fact that "when he was shooting [Perry] his gun had got jammed and he tried to fix it and he couldn't and so he ran." *fn3
Despite this array of testimony, appellant contends that the belated disclosure of Perry's statement to Detective Kasul about the mask was tantamount to "the discovery, after trial, of information which had been known to the prosecution but unknown to the defense," United States v. Agurs, 427 U.S. 97, 103 (1976), and that his inability to make use of it in preparing for trial, crafting his defense strategy, and especially in cross-examining government witnesses made that information "material" within the meaning of Brady, requiring reversal. Specifically, he argues that Perry's statement, had he learned of it in time to exploit it fully at trial, might reasonably have "put the whole case in such a different light as to undermine confidence in the verdict," Kyles v. Whitley, 514 U.S. 419, 435 (1995) (footnote omitted) (explaining Brady materiality standard); or, in the Supreme Court's alternative formulation, it would have created a "reasonable probability" of a different outcome. Id. (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
This argument, we observe initially, cannot be based on a claimed inability to impeach the complainant Perry with his prior inconsistent statement *fn4 or, indeed, to confront Detective Kasul with the statement in an effort to cast doubt on the diligence with which the police investigated other possible suspects. When appellant moved for a mistrial in light of the belated disclosure, the trial judge denied the motion but allowed appellant to conduct a full cross-examination of both Perry and Detective Kasul outside the jury's presence to decide whether appellant then wished to call those witnesses for recross-examination before the jury. At the close of the voir dire, appellant's counsel declined to recall either witness and instead chose to urge on the jury in closing argument the negative implications of the discrepancy between Kasul's testimony and Perry's silence on the stand about the mask, as well as of the government's suppression of Perry's prior statement:
The government put on a detective who said that Conrad Perry told him that the shooter was wearing a mask. The government did not ask Conrad Perry about this mask. Isn't it interesting that Detective Kasul, whose testimony you can believe, you can credit, ...