Appeal from the Superior Court of the District of Columbia (F-9136-96) (Hon. Linda Kay Davis, Trial Judge)
Before Terry and Ruiz, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: King, Senior Judge
Robert V. Davis appeals from a conviction for perjury arising out of *fn1 his sworn testimony, given under a grant of immunity, at the murder trial of Angelo Daniels. In contradiction to statements made by Davis prior to the trial in which he directly implicated Daniels in the murder, Davis testified at Daniels's trial that another man, Jermaine Morgan, was the other perpetrator of the murder of Benjamin Holley.
Davis contends the trial court erred when it admitted Daniels's confession as a statement against penal interest because: (1) Daniels should not have been deemed "unavailable" since the government could have granted him immunity, and (2) Daniels's statement lacked sufficient particularized guarantees of trustworthiness to overcome Davis's Sixth Amendment right of confrontation. Finding that the admission of the confession, a testimonial statement, without cross-examination was error under the Supreme Court's recent decision in Crawford v. United States, 124 S. Ct. 1354 (2004), and not harmless beyond a reasonable doubt, we reverse the conviction and remand to the trial court for further proceedings.
Davis, Daniels, and James Campbell were indicted on murder and related charges arising out of the November 25, 1994, shooting death of Holley. Both Davis and Daniels were interviewed separately by detectives of the Metropolitan Police Department, and each confessed to his own involvement in the killing. Each of the men told police that he and an accomplice had encountered Holley on the street and then gunned him down while a third man waited in a nearby vehicle. Davis and Daniels each admitted to the police that he had fired at Holley, and both men stated that the two weapons used in the murder were a nine-millimeter and an AK-47.
Davis identified Daniels as the second shooter, who had used the AK-47 rifle, and named James Campbell as the person who waited in the vehicle. Daniels, on the other hand, admitted his *fn2 own participation, including his use of the AK-47 and the fact that one accomplice participated in the shooting while another waited in the car, but he refused to name the other shooter. Daniels added that he never intended to shoot Holley, but he claimed that Holley ran toward him and he only fired in reaction to the situation.
Prior to his own murder trial, which had been severed from the other two defendants' trial, Davis testified under oath at a hearing on a motion to suppress his confession that the statement he had given to the detectives, naming Daniels as the second shooter, was the truth. On December 1, 1995, Davis was convicted of second-degree murder while armed and related weapons offenses. *fn3
B. Facts of Perjury Charge
Afterwards, at the April 1996 murder trial of Daniels and Campbell, the government compelled Davis's testimony after granting him immunity. In that testimony, Davis admitted his own involvement in the murder, but he testified that Daniels had not been involved in the shooting because Daniels had remained in the car. Davis instead asserted that the other shooter, who wielded the AK-47, was Jermaine Morgan. *fn4
Davis was subsequently charged and tried for perjury based on the inconsistencies between his testimony at trial of Daniels and Campbell, and his earlier confession. The indictment charged Davis with committing perjury when he testified that Morgan, not Daniels, had participated in the murder as one of the shooters. Over Davis's objection, the trial court permitted the government to present his own confession, his testimony from the motion hearing conducted prior to his murder trial, and Daniels's confession to the police. Daniels exercised his Fifth Amendment right and refused to testify in Davis's perjury trial.
The only issue in this appeal is the admissibility of Daniels's confession at Davis's perjury trial, in which Daniels admitted firing the AK-47 at Holley and discussed the presence of unnamed accomplices. Daniels's statement was presented at Davis's perjury trial by the government to show that Daniels did participate as one of the shooters, in ...