Appeal from the Superior Court of the District of Columbia. (F-4142-90). (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before TERRY and RUIZ, Associate Judges, and KING, Senior Judge.
Appellant challenges his second conviction arising out of a gun battle in 1990 between two rival drug dealers, during which two teenaged bystanders were shot, one of whom died as a result. His first conviction was reversed and we remanded for a new trial. See Gordon v. United States, 783 A.2d 575 (D.C. 2001). At the second trial, appellant was convicted of second-degree murder, assault with a deadly weapon, possession of a firearm during a crime of violence, and carrying a pistol without a license. On appeal from his second conviction, appellant complains that the government's deportation of a witness between the first and second trials and the prosecution's Brady violations again warrant reversal and another trial. We disagree, and affirm.
In March 1990, Kirk "New York" Cheek fought with "Fat Junior" Higgins, an ally of appellant, for control of the open-air drug market on the 700 block of Lamont Street, N.W.Cheek shot Higgins, who survived, though injured. Three days later, on Monday, March 12, 1990, around 2:00 a.m., Cheek was again hanging out on Lamont Street with a group of several local teenagers, including Lamont Simms and his brother, Keith Simms. At that time, a black Honda came driving down Lamont Street toward the group. Government witness Diane Griggs, who was standing outside a nearby house, testified that she called out to the driver of the car using appellant's nickname, "Supa."*fn1 Appellant brought the car to a stop and spoke with Griggs for a few minutes. In the front passenger seat was the man whom Cheek subsequently identified as the person who had come to Higgins's defense during their skirmish a few days earlier. Another, unidentified man was in the back seat. After leaving Griggs, the Honda crept slowly down the street toward the group. When Cheek heard his nickname, "New York," called from the Honda, he approached the car. He heard his name again, then saw guns extended out of the car windows, one held by appellant. The occupants of the car began shooting at Cheek, in the direction of the group of teenagers. Cheek dove to the ground, got his own gun out, and started to return fire toward the back of the Honda as it drove past. He testified that he did not fire into the group. Cheek survived the gun battle unharmed; Lamont Simms, however, died of a gunshot wound to his heart and lungs, and his brother, Keith, was grazed by a bullet -- both apparently bystander victims of drug trafficking-related retaliation against Cheek by appellant and other allies of Higgins. Several witnesses at the scene, including Norman "Soldier" Brown, identified appellant as the driver of the Honda. Brown also testified that he heard Keith Simms, the surviving victim, call out during the shooting, "Supa, Supa, we know it's you. We know it's you." Keith Simms also testified at trial that he recognized the appellant as the driver.
Police officers found bullet fragments in the area where the shooting took place. An autopsy of the decedent yielded the lead core of the bullet that killed him. Though the police never recovered any of the guns used by the three assailants in the black Honda, the police did recover the .38 Rossi revolver used by Cheek when they later arrested him for three other unrelated shootings. A forensics expert testified at trial that the bullet fragments from the scene and the lead core recovered from Lamont Simms's body could not have been fired from the .38 Rossi revolver.
The government also presented in its case-in-chief the testimony of several witnesses to forestall the appellant's anticipated alibi -- presented during the first trial -- that he had been at the Hummingbird nightclub during the time of the shooting. In a surprise twist, the government produced as its last witness Paula Thompson, one of appellant's girlfriends, who had corroborated this alibi at the June 1990 detention hearing prior to the first trial by saying she saw him at the Hummingbird nightclub at the time the shooting was taking place. She now testified, however, that she had lied at that detention hearing, and that, though she had been at the nightclub the evening of Sunday, March 11, and into Monday morning, appellant had appeared at the nightclub only "towards the end of closing time" on Monday morning, March 12. At that time, she saw him hand a pistol to Andrea "Melody" Williams, appellant's girlfriend, and she heard him tell Williams he had "wasted a boy." On cross-examination, Thompson said she lied at the prior detention hearing on behalf of Williams, who had pressured her to do so because she loved appellant, had a child by him, and did not want to lose him.
Appellant produced five witnesses on his behalf in order to establish his alibi that he had been on a date with Maria Burns at the Hummingbird nightclub when the shooting took place. Also, contrary to Thompson's account, Williams testified that she had not been present at the Hummingbird nightclub on the night of March 11-12, and denied that appellant ever handed her any gun or told her that he had "wasted a kid." Andrew Wise, a former Public Defender Service investigator, testified that as part of his investigation for appellant's post-trial motion for a new trial after his first conviction, he had interviewed government eyewitness Brown. Following the interview, Brown signed a statement saying he had lied at the first trial when he testified that he saw "Supa shoot and that I saw him shooting first."*fn2 In rebuttal, the government produced the transcript of Brown's 1995 testimony during the hearing on appellant's first motion for a new trial. At that hearing, Brown affirmed that, though he had not actually seen appellant fire his gun, his prior testimony at the first trial was nevertheless truthful in all other respects.
After the jury returned a verdict of guilty on all charges, appellant filed a motion for a new trial based on undisclosed Brady material, which the trial court denied after a hearing. The trial court resentenced appellant to the same sentence he received after his first trial, an aggregate of eighteen years to life. Appellant then timely noted this appeal.
Appellant claims that the trial court erred: (1) by denying his motion for a new trial based on newly-discovered impeachment witnesses that the government had withheld from him; (2) by admitting Brown's prior testimony from the first trial even though he was unavailable for cross-examination at the second trial because he had been deported; (3) by admitting the government's ballistics evidence after it had destroyed Cheek's revolver; and (4) by denying his motion for judgment of acquittal due to the insufficiency of the government's evidence. We conclude that none of appellant's assignments of error has merit.
1. The Alleged Brady Violation
"[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-282 (1999). "[T]he burden is on the defendant to prove materiality -- hence prejudice -- in the Brady sense." Bennett v. United States, 763 A.2d 1117, 1125 n.9 (D.C. 2000) (citations omitted). "The evidence is ...