Appeals from the Superior Court of the District of Columbia (F-5242-95, F-5268-95, F-5269-95, F-6030-95). (Hon. Susan R. Winfield, Trial Judge).
Before Farrell, Associate Judge, Steadman, Associate Judge, Retired,*fn1 and Nebeker, Senior Judge.
The opinion of the court was delivered by: Farrell, Associate Judge
Appellants were found guilty by a jury of conspiracy to commit murder, first-degree premeditated murder, and multiple counts of armed assault with intent to kill, as well as related weapons offenses. We postponed resolution of their consolidated appeals until the Supreme Court decided Crawford v. Washington, 124 S.Ct. 1354 (2004), and received supplemental briefing. The principal issue now presented is whether the admission against appellants of certain hearsay statements of non-testifying co-defendants as declarations against penal interest, in conceded violation of appellants' Sixth Amendment right of confrontation, was harmless error. We hold that it was not. Under the test for constitutional harmless error established by Chapman v. California, 386 U.S. 18 (1967), we cannot say beyond a reasonable doubt that the admission of the statements did not affect appellants' substantial rights. While the significance of the statements, and their use by the prosecutors, was directed primarily to the conspiracy charge, their presence and effect was interwoven in the fabric of this trial such that there is a reasonable possibility that they affected the jury's verdicts on all counts of the indictment, necessitating reversal under Chapman.
We appreciate the fact that this nullifies the results of a nine-week trial. Even before certiorari was granted in Crawford, however, the prosecutors were on notice of the risk they assumed in seeking admission against appellants - even in redacted form - of the primary hearsay statement at issue here, co-defendant Kilgore's confession to the police at the time of his arrest. See, e.g., Lilly v. Virginia, 527 U.S. 116, 128 (1999) (plurality opinion) ("In the years since Bruton [v. United States, 391 U.S. 123 (1968)] was decided,
. . . we have consistently either stated or assumed that the mere fact that one accomplice's confession qualified as a statement against his penal interest did not justify its use as evidence against another person."); Williamson v. United States, 512 U.S. 594 (1994); Lee v. Illinois, 476 U.S. 530 (1986). Moreover, as a result of their convictions based partly on the wrongly admitted statements, appellants each received a murder sentence of up to life imprisonment carrying a mandatory minimum term of thirty years. See D.C. Code § 22-2104 (b) (2001). Regardless of these considerations, this court's task is to apply the standard of Chapman in deciding the effect of the error on appellants' rights; and the conclusion we reach is that they are entitled to a new trial cleansed of the effect of statements that should not have been admitted against them.
A jury found each of the appellants guilty of conspiracy to commit murder; of the armed first-degree murder of Michael Thompson on May 14, 1995; of multiple counts of assault with intent to kill while armed (AWIKWA) also based on May 14 shootings; and of related weapons offenses. It found all of the appellants except Holston guilty as well of several counts of AWIKWA based on shootings that took place on May 11, 1995.*fn2
According to the government's evidence, appellants and others, who were all members of the Stanton Terrace Crew (STC), conspired during the Spring of 1995 to kill members of a rival gang known as the Parkland Crew (PC) in order both to retaliate for the slaying of STC member Leonard Anderson and to suppress competition in the drug trade by the PC. The STC claimed the 1700 block of Stanton Terrace, S.E., as its home turf, where it took over vacant apartments in which to, among other things, stash guns and sell crack cocaine in the neighborhood. The rival PC claimed the 1800 block of Savannah Street, S.E., as its home territory, from which it likewise dealt in crack cocaine. When Leonard Anderson was shot and killed on March 20, 1995, STC members held the PC responsible and decided to retaliate. They also blamed the PC for "moving in" on the STC's drug territory and reacted violently to stifle that competition. The resulting feud or "beef" led to a series of attempted shootings of PC members in which (apparently) no one was killed or injured. That changed on May 11, 1995.
On May 11, according to government witnesses, appellants Felder, Morten, and Woodson and fellow STC members Antwanne Kilgore, Michael Thomas, and David Williams*fn3 came to Savannah Terrace and fired gunshots intended to kill PC member James Dawkins. As it happened, four-year-old Martin Tyndle, his mother Gemese, and her friend Larell McCauley were wounded in the shooting spree. Two days later, on the evening of May 13, STC member Michael Cureton shot and killed PC member William Zimmerman with a gun handed to him by Kilgore. Several hours later, after midnight, PC members were gathered in a parking lot on 18th Street discussing Zimmerman's death. Michael Thompson, who was not a PC member but had been seen in the company of one earlier, was seated in a car in the parking lot. Government witnesses saw appellant Felder, accompanied by his brother, Michael Thomas, drive up to the lot and fire several shots at Thompson's car as Thompson sought to drive away. At the same time, appellants Morten and Holston came running down the hill shooting at the car as they ran. Appellant Woodson was seen nearby pointing a scoped rifle toward the parking lot. Thompson, who had been hit, died of a gunshot wound to the head.
The government's principal insider witness was STC member Mark Barnes, who testified pursuant to a plea agreement. As the government explains (Supp. Br. for Appellee at 12), Barnes "provided a detailed accounting of the STC's membership, its goals, and its criminal activities." He described the group's twin goals of maximizing drug sales through intimidation of the rival PC and, after the shooting of Anderson, retaliating for his death. The STC members took their own revenge and did not seek police aid because, as Barnes asked rhetorically, "As far as the streets, it's like a tradition, when one of your homies gets killed, you know who did it, why not retaliate?" Barnes described different occasions on which STC members, including Felder, Morten, and Kilgore, chased and shot at PC members when they happened upon them.
Barnes, however, was not an unblemished witness. At the time he testified, he was in jail awaiting sentencing on a plea to aggravated assault while armed, a charge that carried no mandatory time and secured him a promise not to be prosecuted for several other felonies, including a capital murder in Maryland. The government therefore did not rely wholly on Barnes (and other live witnesses) to prove the conspiracy and its structure and goals. Rather it sought and gained the admission into evidence, as declarations against penal interest, of a videotaped statement that Kilgore had made to the police at the time of his arrest, and of transcripts of the colloquy between the court and the defendant at proceedings in which Kilgore and Thomas had pleaded guilty. Recognizing that this was "pretty powerful stuff," the trial judge required the names of all "defendants, . . . unindicted coconspirators, and any other . . . person[s]" to be redacted from the statements and replaced by obscuring noises on the videotape and "name deleted" in the transcripts. The jury was given a transcript of Kilgore's police statement to follow as they watched the videotape.
In this statement, Kilgore explained to the police that the STC was an organization with a chain of command, in which people "above" himself and others would supply those lower down with "pistols and cocaine" and give orders to do shootings, in particular to shoot PC members with whom the STC was "beefing." The reasons for the beef were the death of Leonard Anderson and "money." Kilgore was told by a superior that
We ain't making enough money. Go down there and start pumping out Parkland. Get [the PC] . . . off that strip [including Savannah Terrace] because they [are] ...