Appeals from the Superior Court of the District of Columbia, (F9723-95), (Hon. Reggie B. Walton, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before FARRELL, REID and GLICKMAN, Associate Judges.
Appellant Maurice Sykes was tried in 1997, along with two other persons, for attempted armed robbery and for the murder of Evgeny Mihailov, as well as other charged crimes.*fn1
The jury found him guilty of two counts of attempt to commit robbery while armed, first-degree felony murder while armed, possession of a firearm during the commission of a crime of violence or dangerous offense, and carrying a pistol without a license. He lodged several post-conviction motions in the trial court related to allegations of ineffective assistance of counsel, all of which were denied. He filed timely appeals from the judgments of the trial court.
We reach only one of the issues raised by Mr. Sykes -- that relating to an alleged Brady*fn2 violation. We conclude that the government's late disclosure of Brady information, and the consequent inability of the government or the defense to locate two potential defense witnesses who had given grand jury testimony that was favorable and potentially exculpatory, impinged on Mr. Sykes' constitutional due process right to a fair opportunity to defend himself. Furthermore, on the record in this case, we hold that there was a reasonable probability that the outcome would have been different had the defense been able to present at trial one or both of the witnesses whose grand jury testimony rebutted that of a key government witness. Therefore, we reverse the judgment of the trial court and remand this case for a new trial.
The government presented evidence showing that on the night of October 23, 1995, three young men were sitting on the outside front steps of the Bulgarian Embassy at the corner of 22nd and R Streets, in the Northwest quadrant of the District of Columbia. While sitting there, they saw a gold or orange colored car drive by, and later heard Paniot Ignatiev, who had been struck in the head and beaten by two assailants, calling for help. One of the assailants turned to the young men sitting on the steps and demanded money; he had a gun. Evgeny Mihailov offered a couple of dollars to the assailant. The assailant grabbed his arm and directed Mr. Mihailov to give him his leather jacket. Convinced that the gun was not loaded, Mr. Mihailov moved to take it away from the assailant, but he was shot. As he ran toward the embassy, he was shot again and later succumbed to his wounds. The two assailants ran away.
Two other government witnesses, Jordan Petkov and Mary Sherman Willis, both saw a gold colored vehicle that night. Mr. Petkov noticed two men, one wearing a long, black jacket, running toward the vehicle and getting into it; the vehicle was driven away at a high rate of speed. Ms. Willis, who lived close to the Bulgarian Embassy, heard two gunshots, looked out of her window, watched as two men ran up to an old, gold car and got into the back seat.
Mr. Ignatiev maintained that he got a "very good look" at his assailant, whom he described as shorter than the other man, 20-30 years old, with "large characteristic eyes." Neither he nor Velio Kitanov,*fn3 who had been sitting on the embassy steps with Mr. Mihailov, identified anyone from a "showup" presentation on the evening of the murder. The showup did not include Mr. Sykes or his co-defendants, Gary Washington and Shon Hancock.
On the same night, in the Washington suburb of Capitol Heights, Maryland, Ralph Williams, a government informant (he was paid and received other benefits for information given to the police), was gambling, playing cards at a boarding house with Wayne Sellers and Tony Parrott. He testified that Mr. Washington, Mr. Sykes, and Mr. Hancock appeared at the boarding house around 10:45 p.m. on the night of the attempted robbery and the shooting. Mr. Washington, who was wearing a three-quarter length black leather jacket, began to describe beating up an older guy and "bust[ing]" someone "over a jacket." According to Mr. Williams, Mr. Washington said that as the person "tried to make it into a door, and a buzzer went off, . . . he just shot him." Mr. Sykes "was saying that he was beating this guy up for a watch, an older guy." Mr. Sykes demonstrated by "shadow boxing." Mr. Hancock declared that he was in the vehicle used to transport Mr. Washington away from the scene of the crime. Messrs. Williams, Sellers and Parrott tried on Mr. Washington's leather jacket, which he wanted to sell. Mr. Williams discovered a rusty .38 revolver in the inside jacket pocket.
Mr. Williams did not initially report the alleged encounter with Mr. Washington and Mr. Hancock at the boardinghouse. When he heard about the embassy murder, however, he inquired of a DEA agent to whom he previously had provided information, whether there was a reward for information. The DEA agent told him to contact a Metropolitan Police Department ("MPD") officer, Sergeant Joseph McCann. Mr. Williams relayed his information about the boarding house incident to Sgt. McCann.
Both direct and cross-examination revealed that Mr. Williams had prior drug convictions, including a 1994 conviction for conspiracy to possess cocaine with intent to distribute, and a 1994 conviction for possession of cocaine. He was charged in January 1995 with possession of cocaine with intent to distribute, which was still pending in October 1995.
Although he later entered a guilty plea to that charge, he had not been sentenced at the time of his trial testimony. He acknowledged that he had been a drug dealer between 1989 and 1992, and could earn "between 6 and $7,000 a week on a good week." He indicated that he was paid $2,100 by the government "for relocation." He still lived in the Capitol Heights neighborhood at the time of trial, but said that he was "in the process of moving."
When the two young men who were sitting on the embassy steps with the decedent were shown a photo array four days after the murder, which included a picture of Mr. Washington, they were unable to identify anyone as an assailant on the night of Mr. Mihailov's murder. When Mr. Kitanov was taken to the area where a gold-colored car was parked in late October 1995, he did not recognize it as the one he saw the night of the murder, but the person he believed shot the decedent was sitting in a car. Mr. Sykes was arrested in Capitol Heights, Maryland on November 2, 1995. Mr. Washington and Mr. Hancock were spotted a couple of days later in a gold-colored car, with one other person, and they were arrested.
Two lineups were assembled on December 14, 1995. Mr. Washington was in the first and Mr. Sykes in the second lineup. Mr. Kitanov identified Mr. Washington right away, but picked someone other than Mr. Sykes from the second lineup. Neither Peter Enchev, the other young man who was sitting on the steps of the embassy at the time of the murder, nor Ms. Willis, was able to identify Mr. Washington or Mr. Sykes from the lineups. Mr. Ignatiev did not identify Mr. ...