Appeals from the Superior Court of the District of Columbia (F12536-93, F3131-94 & F12661-93) (Hon. Arthur L. Burnett, Sr., Trial Judge) .
The opinion of the court was delivered by: Reid, Associate Judge
Before FARRELL, REID, and GLICKMAN, Associate Judges. Opinion for the court by Associate Judge REID.
Opinion of Associate Judge GLICKMAN, dissenting in part, at page 44.
These are consolidated appeals by appellants Thadduse Lee Hartridge,*fn1 James Thomas Cullison, and Mark A. Ford.*fn2 They were charged with first- degree murder while armed (premeditated) of Andre Wynn, in violation of D.C. Code §§ 22-2401, -3202 (1996);*fn3 possession of a firearm during a crime of violence (PFCV), in violation of § 22-3204;*fn4 and carrying a pistol without a license (CPWL), in violation of § 22-3204 (a).*fn5 They were convicted of the lesser-included charge of second-degree murder while armed, as well as the weapon charges.*fn6 All of the appellants claim that the trial court (1) improperly allowed the introduction of "other crimes" evidence against them; (2) permitted improper argument by the prosecutor; and that (3) their conviction for carrying a pistol without a license violated their Second Amendment constitutional right to bear arms. Mr. Hartridge also claims that the indictment against him should be dismissed with prejudice because he was denied his Sixth Amendment constitutional right to a speedy trial. Mr. Cullison argues, in addition, that the trial court erred (1) by not granting his motion for judgment of acquittal on the ground that the evidence was insufficient as a matter of law to establish his guilt; and (2) by not disallowing a government witness's identification of him because of an impermissibly suggestive photo array.*fn7 Mr. Ford also contends that the trial court improperly admitted into evidence the grand jury testimony of a witness, who asserted that Mr. Ford confessed killing Mr. Wynn, even though that witness recanted her grand jury testimony at trial. We affirm the convictions as to all of the appellants.
The government presented evidence showing that Andre Wynn was shot to death on November 8, 1993. Leon Shannon testified that he had known Mr. Hartridge, whom he identified in court, for "three or four years maybe," and saw him twice on the day of Mr. Wynn's murder -- once in the morning in the "cut leading out to the 200 block of K Street," (in the Southwest quadrant of the District of Columbia) and the second time, later that same day in "[t]he 200 block of K Street" when Mr. Wynn was shot. Mr. Wynn was the "uncle of [Mr. Shannon's] two kids." Mr. Hartridge, who "wasn't acting normal" asked Mr. Shannon how his friend, Shannon Battle, "g[o]t locked up." Mr. Hartridge was "angry." Later, Mr. Shannon observed Mr. Wynn and Mr. Hartridge "close" together and "talking"; his view was unobstructed. The men had "words" and Mr. Hartridge "punch[ed] [Mr. Wynn] in the face."
When Mr. Wynn hit Mr. Hartridge, Mr. Hartridge "told [the person who was with him, identified by Mr. Shannon as Mr. Ford] to bust him, kill his a**." Mr. Ford "pulled out a 9-millimeter [gun and] shot [Mr. Wynn] down." Mr. Shannon stated that Government Exhibit 35, a 9-millimeter gun, "looked just like" the one used during the shooting. Mr. Ford shot Mr. Wynn "several times."
A couple of days after the shooting, Mr. Shannon met with Metropolitan Police Department ("MPD") Detective Willie Toland who showed him "two sets of photographs." Mr. Shannon picked Mr. Hartridge out of the first set of photographs, and Mr. Ford from the second set, as the men he saw in the 200 block of K Street on the day of Mr. Wynn's murder. He was "sure" of his identification of these two men.
Mr. Shannon acknowledged on direct examination that he was convicted in 1991 on a charge of possession of cocaine. On cross-examination, defense counsel sought not only to cast doubt on his credibility, but also to raise questions as to the reasons why he was a government witness. For example, he was asked about his September 1995 arrest for possession of marijuana, and his arrest on February 28, 1996, five months before trial in this case, for assault. Both cases were dropped by the prosecution. In addition, Mr. Shannon confirmed that he lived with Mr. Wynn's sister and they have two children. He also acknowledged that he told an investigator for the Public Defender Service that he did not see who fired the shots that killed Mr. Wynn. He explained that he "was not telling [the PDS investigator] nothing in the streets . . . in front of all [those] people." Counsel for Mr. Ford attempted to demonstrate that Mr. Shannon did not actually see who shot Mr. Wynn, and that he did not really identify Mr. Ford's photo as the shooter. And counsel for Mr. Hartridge sought to establish that Mr. Shannon did not hear his client speak with Mr. Wynn on the day of his murder, that he had not described the events of that day accurately, and that he and Mr. Wynn were selling drugs on that day. Both counsel for Mr. Ford and Mr. Hartridge emphasized Mr. Shannon's three- week delay before speaking with the MPD.
Prior to the day of Mr. Wynn's murder, Theresa Givens, another government witness, had seen Mr. Hartridge with two different guns, one which was silver and another which was black and had a brown handle. However, the trial court precluded any testimony, in the presence of the jury, about two guns, or a gun with a silver handle. When she testified before the jury, Ms. Givens identified a picture of Mr. Wynn and related what she saw on the day of his murder.
Ms. Givens was standing near the corner of Delaware Avenue and K Street, when she heard a gunshot. She saw Mr. Wynn "standing up in the street in the middle . . . and [he was] turning around in the middle of a circle saying ouch . . . . He fell to the ground." Mr. Hartridge and Mr. Cullison were standing "[o]ver top of [Mr. Wynn]." While Mr. Hartridge and Mr. Cullison were standing over Mr. Wynn, with their backs toward Ms. Givens, she heard gunfire and witnessed the men "unloading the gun." Mr. Hartridge and Mr. Cullison "went hand-to-hand to each other like they were switching something around." Mr. Hartridge also "was kicking" Mr. Wynn. Mr. Ford was standing nearby in the "cut."
When asked whether she had seen Mr. Hartridge with a gun prior to the day on which Mr. Wynn was shot, Ms. Givens declared that she had seen him with a gun "in [her] mother's house two days before the [shooting]." Sometime after Mr. Wynn's murder, Ms. Givens picked out photographs of Mr. Cullison and Mr. Ford. When shown another group of photographs, Ms. Givens did not tell the police that she recognized the picture of Mr. Hartridge, even though she did, because she "was terrified."
Kivory P. Proctor testified that he was in a back alley on K Street, Southwest on the morning of the day Mr. Wynn was killed. He watched as the police arrested Shannon Battle "in the cut away of Delaware Avenue." About twenty minutes later, he saw Mr. Hartridge, whom he had known for about eight years, in the same back alley with Datwon Paris, Mr. Ford and Mr. Cullison. The men were standing near the home of Mr. Paris' girlfriend. Mr. Hartridge had Mr. Paris "by the collar of the shirt." Mr. Cullison was "within a foot" of Mr. Paris and "had a gun in his hand." It was a "small handgun, black." Mr. Proctor left the alley and eventually walked towards the "cut away" at Delaware and K. There he saw Mr. Wynn "lying on the fence." Mr. Hartridge was "[s]tanding in front of [him]." He also saw Mr. Ford and Mr. Cullison nearby. He spoke with Mr. Wynn and Mr. Hartridge, and then went "[a]cross the street." He "heard gunshots" and "turned around to see where they were coming from." He saw Mr. Ford "shooting the gun, shooting [Mr. Wynn]." Mr. Wynn fell to the ground, and Mr. Proctor "continued to go around the corner to get away from the gunshots." He heard more gunshots, the last three of which were "slower and louder."
Mr. Proctor gave a statement to the police approximately two days after the shooting, but did not identify anyone because he "was afraid to" and "didn't want to get involved." Soon after he gave the statement, he was shown a photo array but did not identify anyone, even though he recognized Mr. Hartridge's picture. However, on December 21, 1993, he attended a lineup and identified Mr. Ford. Some time in February 1994, Mr. Proctor viewed a photo array and picked out Mr. Hartridge. And, on a date that he did not recall, Mr. Proctor was shown other photos and picked out Mr. Cullison.
On the day of the November 1993, murder of Mr. Wynn, Datwon Paris, who had two prior drug convictions (attempted distribution in 1994 and possession with intent to distribute in 1994, as well as a conviction in 1994 for transporting a hand gun during a drug offense), lived in the 900 block of Delaware Avenue, S.W. He saw Mr. Hartridge, whom he identified in court, in a cut beside his house on the day of the murder. Mr. Hartridge was standing with a man named Shannon Battle. When the police arrived on the scene, Mr. Battle "ran through the cut" but was apprehended and "got locked up for having a handgun on him." Mr. Hartridge "started . . . going off . . ., acting wild, talking to the police . . .," but Mr. Paris did not hear what Mr. Hartridge was saying. Mr. Paris identified Mr. Cullison and Mr. Ford as persons who also were on the scene.
After Mr. Battle was taken into custody, Mr. Paris went to the alley in back of his house. There he saw Mr. Hartridge, Mr. Cullison and Mr. Ford. Mr. Hartridge was "[r]ight in front of [his] face." Mr. Ford stood beside him and Mr. Cullison was "to [his] back," "right behind [him]." Mr. Paris "saw a gun" in Mr. Ford's hands, and "[a] gun . . . [a] .38" in Mr. Cullison's hands. Mr. Paris then returned to his home, but exited his home a few minutes later and stood in the front. From there he heard gunshots, "spaced apart." The first shots sounded as though they came from "a semiautomatic gun" and the next shots from a revolver. Mr. Paris returned to the inside of his home and looked out the back window where he could see the alley. He saw Mr. Cullison "running" with a gun in his hand. Mr. Cullison reversed direction and Mr. Paris saw him "[r]unning back towards the same way he came." Mr. Paris also witnessed Mr. Hartridge "run in a car" which was "parked out back."
Appellant Hartridge's Speedy Trial Claim
Mr. Hartridge's "chief claim . . . is that the trial judge erred in denying him a speedy trial in conformance with the Sixth Amendment" to the Constitution of the United States. We begin with the factual context for Mr. Hartridge's claim.
Less than one month after the murder of Mr. Wynn, on December 3, 1993, Mr. Hartridge was presented to the court and ordered to be held without bond. On April 12, 1994, Mr. Hartridge was arraigned and demanded a speedy trial. Counsel for Mr. Hartridge requested a severance in order to expedite his trial date, but the trial court scheduled trial for Mr. Ford and Mr. Hartridge for August 22, 1994.*fn8 At a status hearing on July 19, 1994, Mr. Ford and Mr. Cullison requested a continuance; Mr. Hartridge objected, but the government did not. The trial court granted the request for a continuance, and a new trial date was set for November 14, 1994.*fn9
During an apparent status conference on October 6, 1994, counsel for Mr. Hartridge expressed concern that the new trial date not be altered. And, the trial court mentioned counsel's assertion that "his client . . . [was being] depriv[ed] of his right to a speedy trial. . . ." On November 14, 1994, the trial judge had to postpone the trial until November 15. But on November 15, Mr. Ford's counsel asked for a thirty-day continuance, which the government and Mr. Hartridge opposed. Without ruling on the motion, the trial court reconvened the following day for a motions hearing. On that day, the trial court indicated that it would hear the motions, but would anticipate a new trial date in December. Eventually, due to scheduling conflicts, the new trial date was set for April 10, 1995.
By January 1995, a new trial judge and a new prosecutor had been assigned to the case. A new trial date of May 31, 1995 was set at a January 27, 1995 status conference.
Counsel for Mr. Ford had scheduled leave from January 15, 1995, to March 15, and would be unavailable for trial beginning on March 4. The parties and the trial judge met on April 14, 1995. The necessity of moving the May 31 trial date was discussed. Mr. Hartridge again sought a severance so that he could proceed to trial on May 31; his request was denied. A new trial could not be scheduled before October 16, 1995, due again to scheduling conflicts.
Approximately one month after the April 14th conference, Mr. Hartridge filed a "motion to dismiss on speedy trial grounds," requesting a dismissal of the indictment against him, or in the alternative, a severance and trial on the scheduled May 31 date. He provided a partial chronology of events and pointed out, in part, that he had been "continuously incarcerated since his arrest," had "never requested a continuance in his trial," and was "scheduled for trial nearly 22.5 months after his arrest."*fn10 The government opposed the motion on June 19, 1995, emphasizing that "[j]oinder of cases is favored," and that "[a] period of institutional delay caused by the necessity of a large number of attorneys to coordinate their schedules with a busy trial judge should not be weighed heavily in a case as complex as this one." On June 23, 1995, counsel for Mr. Hartridge reminded the trial court about his speedy trial motion, and the alternative motion for a severance. The court observed that trial was scheduled to go forward on October 16, and inquired whether counsel was "sure [his] severance motion ha[d] significant merit." Counsel responded that he "was requesting a severance not because of independent basis for a severance . . ., but . . . so that [his] client, who has objected to the continuances, could go forward ahead." The trial judge acknowledged that he had not "formally definitively ruled, but [that he was] not too apprehensive about the speedy trial issue," because he had "cases with higher priority."
At a status hearing on September 12, 1995, counsel for Mr. Ford and Mr. Cullison announced that they no longer would represent their respective clients.*fn11 Counsel for Mr. Hartridge asserted that his client "want[ed] to go to trial on the 16th of October" and had lodged a motion to dismiss. The trial court acknowledged his position saying, "you don't want to be dragged along and be denied speedy trial rights." Mr. Hartridge personally addressed the court, stating: "I would like to go to trial. I've been waiting on a trial date. I've had numerous . . . trial dates set. I haven't yet been to trial. . . ."
By September 29, 1995, it was obvious that further delay would occur because neither counsel for Mr. Ford nor Mr. Cullison could be ready by the October trial date; nor by the date of November 13, 1995, which the trial court suggested. At the court's request, counsel for Mr. Hartridge voiced the prejudice he believed Mr. Hartridge would suffer in the event of further delay. The trial court was unpersuaded that delay would prejudice Mr. Hartridge, and announced a new trial date of January 29, 1996, but backed off of that date somewhat when counsel for Mr. Ford expressed uncertainty about his ability to be ready by that date. On January 25, 1996, the trial court confirmed that the trial could not commence on January 29, 1996, both because of the unreadiness of Mr. Ford's counsel, and the probability that the trial judge would not be through with another trial by that time. Counsel for Mr. Hartridge renewed his request for a severance, to permit his trial to go forward on January 29, 1996. The government expressed strong opposition to a continuance, as well as a severance.*fn12 The trial judge picked a new trial date of March 1, 1996. Proceedings in preparation for trial took place on March 7, 1996, and extended hearings on motions began on March 12 and did not end until June 7; jury selection began three days later.
It is axiomatic that "'the right to a speedy trial is a fundamental constitutional right.'" Hammond v. United States, 880 A.2d 1066, 1079 (D.C. 2005) (quoting Cates v. United States, 379 A.2d 968, 970 (D.C. 1977)) (footnote omitted). This court's approach to a speedy trial claim was delineated in its en banc decision in Graves v. United States, 490 A.2d 1086 (D.C. 1984). We generally follow the "framework . . . established by the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972)." Id. at 1090. Barker "identified four factors which are to be examined: the '[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" Graves, 490 A.2d at 1090-91 (quoting Barker, 407 U.S. at 530). The Barker "factors are related and must be considered together with other relevant circumstances in 'a difficult and sensitive balancing process.'" Graves at 1091 (quoting Barker, 407 U.S. at 533). Moreover, "any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case." Barker, 407 U.S. at 522. In that regard, "'[t]he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.'" Id. (quoting Beavers v. Haubert, 198 U.S. 77, 87 (1905)). In reviewing the trial court's findings and conclusions, "we are bound by its findings of fact unless they are plainly wrong or without evidence to support them," but "[w]e may reverse . . . for errors of law." Graves, supra, 490 A.2d at 1091 (citing D.C. Code § 17-305 (a) (1981)) (other citations omitted).
"Delay is measured from the time the individual is formally accused," or arrested. Graves, 490 A.2d at 1091 (citations omitted). Mr. Hartridge was arrested on December 3, 1993, for the murder of Mr. Wynn. Hearings on defense motions began on March 12, 1996, and continued largely uninterrupted until June 7, after which jury selection began and continued, with occasional breaks, until July 3. Trial began on July 9. Thus, correctly treating the start of the motions hearings as the commencement of trial, Mr. Hartridge asserts that there was a delay of approximately a week more than 27 months between his arrest and the start of trial. We regard a delay of "a year or more" to be prima facie evidence of a speedy trial violation, which creates a presumption of prejudice to the defendant. See Hammond, supra, 880 A.2d at 1079 (citing Tribble v. United States, 447 A.2d 766, 768 (D.C. 1982)) (other citation omitted); Moore v. United States, 675 A.2d 71, 74 (D.C. 1994). "[T]he government's burden in arguing that no violation has occurred increases in proportion to the length of the delay." Graves, supra, 490 A.2d at 1091 (citations omitted). "However, the more serious and complex the charge, the greater is the delay that will be tolerated." Id. (citations omitted). We noted in Graves that "[w]hile the 25-month delay [there] was substantial, . . . delays of roughly that length and longer have been countenanced by this court when all factors were considered." Id. at 1091 & n.7. Indeed, in Cates, supra, the delay was 59 months, in Hammond, supra, 54 months, and in Jones v. United States, 483 A.2d 1149 (D.C. 1984), 34 months; we affirmed the convictions in those cases for different reasons.
In examining and weighing the reasons for delay, we have focused on "'a deliberate attempt to delay the trial,'" "'a more neutral reason such as negligence or overcrowded courts,'" "'a valid reason, such as a missing witness,'" Graves, supra, 490 A.2d at 1092 (quoting Barker, supra, 407 U.S. at 531), and "'significant' delay for government actions deemed less culpable than deliberate foot-dragging to gain tactical advantage but more culpable than the neutral category exemplified by failure to advance trial dates due to court congestion," id.(citations omitted). We have on occasion divided the neutral delay category into "'neutral plus' or 'neutral minus' to indicate that the delay is being weighed more or less heavily against the government." Hammond, supra, 880 A.2d at 1080 (citing Graves, supra, 490 A.2d at 1097-98 n.12). For example, "delay occasioned by institutional difficulties of scheduling a block of time when the prosecutor and all counsel could be available has been designated 'neutral minus.'" Id. (citing Graves, 490 A.2d at 1093).
In applying these standards to the case before us, we note at the outset that an August 22, 1994 trial date was set initially for Mr. Hartridge. Had the trial actually occurred on this date, any allegation of a speedy trial violation undoubtedly would have been rejected. Mr. Hartridge and the government agree that the first period of delay occurred between August 22, 1994 and November 14/15, 1994, a period of 84-85 days. Although Mr. Hartridge objected to Mr. Ford's and Mr. Cullison's July 19, 1994 request for a continuance, and Mr. Ford's motion on November 15 for an additional continuance of 30 days, in his brief he "concedes" that the continuance between August 22, 1994, and November 14, 1994, "in and of itself, would not constitute a violation of his right to a speedy trial." ...