Appeal from the Superior Court of the District of Columbia (F-5664-95) (Hon. Susan R. Winfield, Trial Judge).
Before SCHWELBand Farrell, Associate Judges, and Nebeker, Senior Judge.
The opinion of the court was delivered by: Nebeker, Senior Judge
David N. Williams, appellant, was convicted, after a jury trial, of one count of conspiracy to commit murder (D.C. Code §§ 22-105 (a), -2401, -2403), one count of first degree murder while armed (D.C. Code §§ 22-2401, -3202), four counts of assault with intent to kill while armed (AWIKWA) (D.C. Code §§ 22-501, -3202), two counts of possession of a firearm during a crime of violence (PFDCV) (D.C. Code § 22-3204 (b)), and one count of possession of a prohibited weapon (PPW) (D.C. Code § 22-3214 (b)).*fn1 Williams was originally joined as a co-defendant with Curtis Morten, Donnell Woodson, James Holston, and Jermaine Felder. Convictions of those co-defendants were reversed August 12, 2004 (Nos. 97-CF-1263, 02-CO-54, 97-CF-1393, 97-CF-1406, and 97-CF-1557). Due to illness of Williams' counsel, his indictment was severed and tried at a later date on essentially the same testimony, theory of criminal liability, and arguments to the jury. We postponed our ruling in both appeals pending the holding of the Supreme Court in Crawford v. Washington, 124 S.Ct. 1354 (2004), and subsequently asked the parties to address the implications of Crawford on the facts of this case. What followed was a concession by the government that in light of the Crawford holding, some of the statements admitted as statements against penal interest violated Williams' Sixth Amendment rights.*fn2 Accordingly, the question before us becomes whether the admission of those out-of-court statements of non-testifying co-defendants, admitted in conceded error, was harmless under the standard established in Chapman v. California, 368 U.S. 18 (1967). We conclude for substantially the same reasons expressed in the opinion reversing the Curtis Morten, et al. convictions that it was not and that reversal is required.
In early 1995, the Southeast D.C. neighborhoods of Stanton Terrace and Parkland were home to two groups of men who go by the names "Stanton Terrace Crew" (STC) and "Parkland Crew" (PC) respectively. Williams was known to be a member of the STC. These two crews were involved in selling crack cocaine on a strip of Savannah Terrace, Southeast. For the most part, the two crews carried on their individual sales activities without conflict until March 20, 1995. On March 20, 1995, Leonard Anderson (a/k/a Lo or Leno), an STC member, was shot and killed, igniting a "beef" between the STC and PC.*fn3
After Anderson's death, the "beef" manifested itself in threats of violence*fn4 and shootings, by various STC members, including the appellant, of PC members seen in STC territory or areas accessible to STC members. The stated motivation of the "beef" was twofold: (1) to get revenge for Anderson's death, and (2) to get the PC out of Savannah Terrace so the STC could corner the market on crack cocaine sales in that area. The culmination of the conflict between the STC and the PC was a string of shootings occurring on May 11, 1995 and May 14, 1995,*fn5 resulting in the death of two people and injury of several others, including some innocent citizens.*fn6 The actions of the STC members, including Williams, during this two-day period serve as the basis for the charges and subsequent convictions in this case.
At trial, the government provided evidence of Williams' membership in the STC and his participation in the events following the death of Leonard Anderson. Specifically at issue are the admission of a portion of a diary written by an unindicted co-conspirator, Darren McIntyre (see note 8, infra), a videotaped custodial confession of a co-defendant, Kilgore, who pleaded guilty, and statements made during plea proceedings by Kilgore and one Thomas, all arguably implicating Williams. These statements were admitted as statements against penal interest.
The Supreme Court, in Crawford, supra, held that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id., 124 S.Ct. at 1374. The Court, while not expressly defining the term "testimonial hearsay," further stated that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. Accordingly, as it must, the government concedes that Kilgore's videotaped confession to police was "testimonial hearsay" and, having been admitted without the opportunity for cross-examination of Kilgore, was admitted erroneously. It contends that the statements made by both Thomas and Kilgore during their respective plea proceedings were testimonial and thus admitted in error.*fn7 Crawford, although decided after Williams' trial, is binding on this court. See, e.g., Davis v. Moore, 772 A.2d 204, 226 (D.C. 2001) (en banc).
Where a conviction is based upon the admission of evidence in violation of a defendant's Sixth Amendment right to confrontation, it is reversible unless the error is "harmless beyond a reasonable doubt." Lilly v. Virginia, 527 U.S. 116, 140 (1999) (quoting Chapman, supra, 386 U.S. at 24). This standard requires that the government show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman, 386 U.S. at 24. Accordingly, where there is a "reasonable possibility that" the plea statements of Kilgore and Thomas and the videotaped statement of Kilgore "contributed to [Williams'] conviction[s]," we must reverse.*fn8 Schneble v. Florida, 405 U.S. 427, 432 (1972) (citing Chapman, supra).
As noted in our opinion dealing with Williams' co-defendants, we must address the harmlessness of the error separately for Williams' conviction for conspiracy and his convictions for multiple substantive offenses. We begin with the conspiracy conviction. The government argues that Williams' participation in the STC, the resulting conspiracy, and any acts in furtherance of the conspiracy were established by independent evidence and, therefore, not reliant on the videotaped confession of Kilgore or the plea statements of Kilgore and Thomas. It further contends that the trial court's redacting of the names from the statements alleviated any prejudice to the appellant. We cannot agree.
The independent evidence referred to by the government primarily included the testimony of Mark Barnes, a co-conspirator, who testified pursuant to a plea agreement with the government. Barnes provided extensive testimony regarding the inner workings of the STC, the hierarchy of the organization, and the plan to kill members of the PC in retaliation for the killing of STC member Anderson and to take sole control of the drug trade in the neighborhood. However, Barnes was far from an unblemished witness. He had an extensive criminal background, and as a result of his plea agreement with the government, was not going to be prosecuted for several serious crimes including a charge of capital murder in Maryland. The statements of Kilgore and Thomas were not presented to the jury as having been made in the course of plea proceedings. Instead, the statements were identified only as having been made during an official court proceeding. Accordingly, it is reasonable to believe that the jury could have seen Barnes as a man with strong incentives to testify in support of the government's theory of the case, ...