*fn1,Per curiam.,Judith A. Lovelace, appointed by the court, for appellant.,DWAIN MERCER, APPELLANT, v. UNITED STATES, APPELLEE." />

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Mercer v. United States

September 2, 2004 *fn1

DWAIN MERCER, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia. No. F-1061-96. Hon. Judith E. Retchin, Trial Judge.

Before Farrell and Washington, Associate Judges, and King, Senior Judge.

Per curiam.

Argued December 17, 2003

Dwain Mercer and Antonio Terrell were indicted on April 2, 1996, for first-degree murder*fn2 while armed and associated weapons offenses related to the shooting death of Omar Johnson that occurred on June 1, 1995. After a jury trial, Mercer was convicted of second-degree murder and weapons offenses. On appeal, Mercer's convictions were reversed, Mercer v. United States, 724 A.2d 1176 (D.C. 1999). Mercer was tried again in May 2000, and again convicted of second-degree murder and the weapons offenses.*fn3 A timely notice of appeal was filed. Subsequently Mercer filed a pro se motion to vacate his conviction pursuant to D.C. Code § 23-110 (1981) which was denied without a hearing. A timely notice of appeal was filed and the two appeals were later consolidated.

In the direct appeal, Mercer claims the trial court committed reversible error in admitting the prior recorded testimony of four witnesses at his murder trial. He also contends the court erred in denying his post-conviction motion. We affirm.

I.

Mercer first contends that the trial court erred in admitting the grand jury testimony of a witness, Linda Washington, who had testified at the previous trial and who appeared as a witness at the second trial. Washington was declared unavailable at the second trial, however, because having recently suffered a head injury and a series of strokes, she was unable to recall in any meaningful way the events of the day of the shooting, her testimony before the grand jury, or her testimony in the first trial. The government used the prior trial testimony -- where Washington admitted testifying before the grand jury -- to lay the foundation to impeach her claim at the second trial that she could not recall testifying before the grand jury. After she testified that she could not "remember the case at all," the government was permitted to read a portion of the grand jury testimony in which she said she saw Mercer shoot the victim. The jury was later instructed that if it found the grand jury testimony inconsistent with the witness's present testimony in court, it could consider the inconsistency both in judging the credibility of the witness at the trial and as proof that what was said before the grand jury was true.

Mercer contends that the trial court erred in allowing the government to impeach Washington with her grand jury testimony because he had no opportunity to cross-examine Washington's grand jury testimony, and as a result since the witness was unavailable, only the prior trial testimony should have been allowed. We do not agree.

Because Washington was unavailable,*fn4 the trial judge did not err in allowing the government to use her prior trial testimony, where she stated that she recalled testifying before the grand jury, to lay the foundation for the introduction of her grand jury testimony. See Bedney v. United States, 684 A.2d 759, 763 (D.C. 1996). Nor did the trial judge err in admitting the grand jury testimony under D.C. Code § 14-102 (b) (1996) as a prior inconsistent statement and as substantial evidence. Under § 14-102 (b) a witness's prior statement may be introduced as substantive evidence if "the declarant testifies at the trial or hearing and is subjectto cross-examination concerning the statement and the statement is . . . inconsistent with the declarant's testimony, and given under oath subject to the penalty of perjury at a trial, hearing or other proceeding . . . ." McConnaughey v. United States,804 A.2d 334, 340 n.5 (D.C. 2002). It is settled that grand jury testimony, assuming all other requirements are met, is admissible as substantive evidence under D.C. Code § 14-102 (b). Id.

All the statutory requirements were met. At the second trial, Washington testified that she had no memory of what happened the night of the murder. Before the grand jury, however, she testified that she saw Mercer shoot the victim. Thus, her grand jury testimony contradicted her trial testimony and was therefore admissible as a prior inconsistent statement under § 14-102 (b). See Mercer, 724 A.2d at 1195-96; United States v. Owens, 484 U.S. 556,563 (1988). See also United States v. Milton, 303 U.S. App. D.C. 386, 393-94, 8 F.3d 39, 46-47 (1993), cert. denied, 513 U.S. 919 (1994) (grand jury testimony admitted as prior inconsistent statement where witness testified she remembered almost nothing about the incident or what she told the grand jury); United States v. Bigham, 812 F.2d 943, 946-47 (5th Cir. 1987) (grand jury testimony of witness that he saw assault was admitted where witness testified at trial that he had no recollection of incident).

In addition, Mercer's counsel cross-examined Washington at the second trial with respect to her prior knowledge of the murder. For example, Washington gave an affirmative answer at the second trial when asked whether she recalled testifying at the first trial that she had not seen Mercer shoot the gun. That testimony directly contradicted Washington's grand jury testimony that was used for impeachment.

Mercer argues that Washington's grand jury testimony was not admissible because it was not subject to cross-examination. The operative question, however, is not whether the witness was cross-examined before the grand jury, but whether the witness was subject to cross-examination at trial. While it may be a "semantic inconsistency" or a "verbal curiosity," it is possible, and in fact not uncommon, for a witness who appears at trial to be considered unavailable for some purpose, but deemed available for and subject to cross-examination. See Owens, 484 U.S. at563-64.*fn5

Accordingly, we conclude that the trial court properly admitted Washington's prior trial testimony on the grounds that she was unavailable and properly admitted the grand ...


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