Appeals from the Superior Court of the District of Columbia (F2266-97) Hon. Mary Ellen Abrecht, Trial Judge.
The opinion of the court was delivered by: Schwelb, Senior Judge
Reargued February 24, 2006
Before WASHINGTON, Chief Judge,*fn2 RUIZ, Associate Judge, and SCHWELB,*fn3 Senior Judge.
Dante Ricardo Boyd was convicted by a jury of first-degree murder, felony murder, kidnapping, attempted kidnapping, conspiracy, and related firearms offenses.*fn4 On appeal, supported by the Public Defender Service (PDS) as amicus curiae, Boyd contends, inter alia:
1. that the government's prosecution of Boyd on the basis of a factual theory allegedly different from, and irreconcilable with, the factual theory relied on by the government to secure the conviction of Boyd's former co-defendant, Wendell Craig Watson, deprived Boyd of his liberty without due process of law, in violation of the Fifth Amendment; and
2. that the government violated its obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide Boyd with material exculpatory statements by prospective witnesses; Boyd also claims that the trial judge abused her discretion by declining to examine the relevant statements in camera.
The government responds that the due process claim based on allegedly irreconcilable prosecution theories was not preserved, and that in any event this claim lacks substantive merit. The government further asserts that it has complied with all of its obligations pursuant to Brady.
We conclude that although the prosecutor should have revealed to the jury in Boyd's case that the government's factual theory had changed on a material issue from the position the government took at Watson's trial, Boyd is not entitled to reversal on that ground, for the inconsistency in the government's theory did not go to the core of its case. We further conclude that the potentially exculpatory statement of at least one prospective witness who had been interviewed by the police should have been provided to the defense, and that the trial judge abused her discretion in declining to review, in camera, two other allegedly exculpatory statements. We remand the case for further proceedings with respect to the Brady issue.
I. BOYD'S DUE PROCESS CLAIM
A grand jury indicted four young men -- Corey Shaw, Wendell Craig Watson, Jovan (Tweety) James, and Dante Ricardo (Deadeye Rick) Boyd -- for the armed kidnapping and execution-style murder of Darryl Hall (aged twelve) and for the attempted kidnapping of Darryl's older brother, D'Angelo Hall, who was then fourteen. The murder and attempted kidnapping apparently arose out of a feud between two "crews" or gangs of young men and boys in southeast Washington, D.C. The two factions were known as the "Circle Crew," which allegedly included Boyd and his co-defendants, and the "Avenue Crew," to which the Hall brothers are said to have belonged. During the winter of 1996-97, members of the two crews fired gunshots at each other, and shots were fired into the home of Dante Boyd's mother, in what the government describes in its brief as "an ever-increasing cycle of retaliation." This cycle culminated in the horrifying murder of a twelve-year-old boy.
The evidence at Boyd's trial, much of it undisputed and consistent with the evidence at Watson's trial, showed that on January 15, 1997, two or more of the accused men drove in a brown station wagon to the Hall brothers' school, Fletcher-Johnson Junior High School, and arrived there during the lunch break. The men's apparent purpose was to conduct reconnaissance regarding the two boys' route home. After speaking to Boyd's sister, Antee Boyd, who was a pupil at the school, the men in the station wagon departed. At least three of the accused men later returned to an alley near the school in the same station wagon when classes ended at approximately 3:30 p.m. The men soon spotted, chased, and apprehended Darryl,*fn5 placed him in the station wagon, stopped at an apartment house at which Jovan James picked up a "Mac 11" handgun, and drove to a wooded area near Ridge Road, S.E. James then took Darryl out of the car, walked him to the woods, and shot him through the head. The principal issue at Boyd's trial was whether or not Boyd was one of the participants in these crimes.
The cases of Boyd's three co-defendants were all resolved prior to Boyd's trial. Corey Shaw entered a plea of guilty to second-degree murder before any defendant was tried. Apparently in order to avoid Bruton*fn6 problems, the government elected to try Watson separately from James and Boyd .
Watson's trial began in November 1997. The government's theory at that trial was that Watson aided and abetted James in committing the murder, first by participating in the planning of the crime, and second, by driving James and the other kidnappers to and from the murder scene. Watson admitted that he participated in the kidnapping and that he drove the car, but he asserted a partial defense of duress, claiming that he was afraid of James and Shaw. On December 1, Watson was convicted of felony murder, conspiracy, the kidnapping of Darryl Hall, the attempted kidnapping of D'Angelo Hall, and related firearms charges.
On February 20, 1998, shortly before James and Boyd were scheduled to go to trial, James entered a plea of guilty to first-degree murder. Boyd was therefore tried alone. Thus, by the time Boyd's trial began, the three other accused men -- Shaw, Watson, and James --had all admitted their participation in the offenses, and all three had been convicted, Shaw and James on the basis of their guilty pleas, and Watson following an unfavorable jury verdict. Boyd presented an alibi-type defense, and the principal issue at his trial was whether the murder and attempted kidnapping were committed by four men (as the prosecution claimed) or by three men (as the defense contended). Obviously, if only three men participated in the crimes, and all three had confessed their roles, then Boyd could not have been one of the three murderers. At the conclusion of the trial, Boyd was convicted of first-degree premeditated murder, felony murder, conspiracy, kidnapping, attempted kidnapping, and firearms charges.
At Watson's trial, the government's theory was that Watson helped to plan the murder and kidnapping and that he aided and abetted James in the killing of Darryl Hall, inter alia, by driving James to and from the murder scene. In his opening statement, the prosecutor told the jury that the evidence in this case is going to show beyond a reasonable doubt that after he was grabbed off the street, he was stuffed into a [car] being driven by this man, Wendell Craig Watson . . . .
Craig Watson then drove to the area near the rec center near Burns and Ridge Road in southeast.
At this point, [Darryl] was utterly defenseless. Unable to even run away, much less defend himself or pose a threat to Jovan James.
At this point, Jovan James raised his gun again and fired a bullet into the back of little Darryl's head, killing him.
Jovan James and D[a]nte Boyd then walked out of the woods to the waiting car where Wendell Craig Watson and Corey Shaw were waiting. Wendell Craig Watson then drove them back to the 600 block of 46th Place, Southeast.
The government's case was consistent with the prosecutor's opening. The evidence against Watson consisted primarily of Watson's own statements, first to the police and then to the grand jury. Watson initially told the police, and asserted to the prosecutors, that although he was present at the kidnapping and drove the station wagon to and from the site of the murder, he played no part in the planning of the crime. Watson also initially reported that Dante Boyd was not involved in any way. The prosecutors were dissatisfied with Watson's denial that he played any part in the conspiracy and with his exoneration of Boyd. After a polygraph test was administered to Watson, however, he testified before the grand jury that he did in fact help to plan the kidnapping and murder, and he also implicated Boyd in the crime. Watson told the grand jury, inter alia, that all four men were present at the scene of the kidnapping, but that Boyd remained in the station wagon while Watson, James, and Shaw were apprehending Darryl.*fn7 In both of the foregoing accounts, Watson acknowledged that it was he who drove the station wagon to and from the murder scene. The prosecution also introduced a statement against penal interest by James in which James confirmed that Watson was driving the car. According to James, he, Watson, and Shaw decided to snatch and kill Darryl Hall, and only the three of them were involved in the abduction, with Watson doing the driving and James doing the shooting. Like Watson, James stated that Boyd was not involved at all.*fn8
Watson testified in his own defense. He claimed that he had not wanted to participate in a murder and that he had tried to leave the car, but that he was afraid of Corey Shaw and Jovan James.*fn9 Watson reiterated that he was driving the car throughout the episode. He testified that he had falsely told the grand jury that he was involved in the planning of the murder (and that he had lied when he accused Boyd) because his lawyer had pressured him to say whatever the prosecutors wanted to hear. Watson's brother, Vincent Watson, testified for the defense. Vincent confirmed that his brother opened the door as if trying to get out of the car, and he too stated that Wendell Craig Watson was behind the wheel.
In his closing argument, the prosecutor returned to the theme that Watson was an aider and abettor:
Craig Watson knows Jovan James has a gun. He sees him come out of the house with a Mac 11 on a shoestring. He helps him. He drives him to the scene and he waits for him to murder Darryl and then he drives away. He's aiding and abetting a murder, first-degree murder, premeditated.
The prosecutor also specifically represented to the jury that Watson's grand jury testimony was the truth:
When you go through [the cassette tapes of Watson's grand jury testimony], you will see when you listen to this, as you did in court, that [Watson] was telling the truth in grand jury. He was giving it up. He was coming clean. The whole story, the whole truth. . . . You can listen to them again and again and you can hear in his own voice, from his own lips, the truth about what happened on January 15th.*fn10
Watson, as previously noted, was convicted of felony murder, kidnapping, and related charges.*fn11
On February 27, 1998, just over three months after he had vouched for the truth of Watson's grand jury testimony and secured Watson's conviction as the aider and abettor who drove the car, the same prosecutor stood before the same judge, who had heard his prior representations, but before a different jury, which had not. On this occasion, however, the prosecutor's opening statement was dramatically (and astonishingly) different:
In this case, ladies and gentlemen, the [g]overnment will prove to you beyond a reasonable doubt that it was Deadeye Rick, the defendant before you today, who was giving the orders on January 15, 1997, who was giving the directions, and who was driving the car that was waiting just a short distance away when Darryl Hall was kidnapped.
That afternoon they drove up -- this man, Dante Boyd, drove up approximately lunchtime, 12:00 o'clock. He was there with Corey. They wanted to confirm, to make sure, that Angelo and Darryl were, in fact, in school that day, and once they were satisfied that they were, they left and returned about 3:30, shortly before school let out. Dante was driving. He was driving the same car at 3:30 that he was seen driving at 12:00 o'clock. He parked in an alley, and Dante, along with Corey, Craig and Tweety, sat and lied ...