Appeal from the Superior Court of the District of Columbia F-3316-98 and F-3373-98 Hon. Nan R. Shuker, Trial Judge.
The opinion of the court was delivered by: Kramer, Associate Judge
Before WASHINGTON, Chief Judge, and KRAMER, Associate Judge and SCHWELB*fn1, Senior Judge.
The appellants, Gregory Lindsey and Marcus Gayles, both challenge their convictions of first-degree murder while armed, possession of a firearm during a crime of violence (PFCOV) and carrying a pistol without a license (CPWL) following a jury trial. Appellant Lindsey claims that his conviction should be reversed because the trial court denied his motion to suppress his confession. Appellant Gayles challenges his convictions based on the trial court's denial of his motion to sever, the denial of his motion for a mistrial based on the government's belated discovery disclosures and the trial court's decision to disallow two defense witnesses from testifying. The appellants together also argue that the trial court erred in denying their joint post-conviction motion to vacate sentence, filed pursuant to D.C. Code § 23-110 (2001). We conclude that none of the claims raised on appeal justifies reversal of the appellants' convictions and therefore affirm.
On August 4, 1998, Lindsey and Gayles were charged with four offenses in the same indictment: conspiracy to commit murder, first-degree premeditated murder while armed, PFCOV and CPWL. These charges stemmed from a shooting that occurred at approximately 4:00 a.m. on February 23, 1992, in the 600 block of Morton Street, Northwest. The decedent, Russell Johnson, was shot twenty-three times and died from the gunshot wounds. Several eyewitnesses identified the appellants as the shooters.
Lindsey was first arrested in connection with the Johnson murder in 1992. At that time, he was informed of his Miranda rights and signed a PD-47 form indicating that he was not willing to talk to police without an attorney present. After several months, during which Lindsey was detained, the government dismissed the charges against him.
Lindsey was arrested again in May 1994 on drug charges. He agreed to cooperate with law enforcement agents and pleaded guilty in the U.S. District Court for the District of Columbia to distribution of cocaine pursuant to a plea agreement. Until his sentencing about a year later, Lindsey continued to cooperate with law enforcement authorities, particularly with Bureau of Alcohol, Tobacco and Firearms Special Agent Frank Haera and D.C. Metropolitan Police Detective Anthony Brigidini, in the ongoing investigation of criminal activity in the Park Morton neighborhood.*fn2
In August 1997, Agent Haera and Detective Brigidini visited Lindsey at the Federal Correctional Institute located in Cumberland, Maryland, where he was serving his sentence on the cocaine distribution charge. Cumberland is a minimum security facility and Lindsey was in a work-release program. Lindsey was summoned by an intercom while taking a GED test to meet with the officers. He was directed to a conference room with a window, a long table and several chairs. After some initial pleasantries, the officers told Lindsey that they had new evidence relating to the Johnson murder and that they believed he was involved. They provided "a detailed synopsis" of the events before, during and after the murder, including Gayles' involvement and the motive for the murder. The agents did not read Lindsey his Miranda rights, but they notified him that he was not under arrest and did not have to talk to them about the murder. They did indicate, however, that they wanted him to cooperate with them on a new drug investigation and that it could be easier on him if he assisted in the investigation.
Lindsey confessed to killing Johnson and also implicated Gayles in the course of his confession. He also told them that the murder was the result of a "drug-related situation with a person" named Ray Proctor. After Lindsey indicated that he would cooperate in the new Park Morton area investigation, the agents told him they would inform the prosecutor and return with a defense attorney to try to reach a plea agreement.
Several months later, Lindsey was arrested for the murder while still serving his sentence in the Cumberland facility and was subsequently indicted. Thereafter, he filed a pretrial motion to suppress his confession, which was denied after a three-day hearing. In denying the motion, the trial court stated: "I don't believe that based on the hearings we have had in this case that I can find he was in custody." The court went on to rule, "I think once the [c]court concludes he's not in custody the only basis to suppress these statements he made would be based on voluntariness. And I don't even think it's a close question with regard to voluntariness here. It's clear to me that these statements were voluntary."
Appellant Gayles filed a pretrial motion to sever the trials based upon the expectation that Lindsey's confession, implicating Gayles, would be admitted into evidence. This motion was also denied, and the trial court explained: "To admit [Lindsey's] statement under these circumstances . . . would . . . violate in a very fundamental way Mr. Gayles' confrontation rights by depriving him of the right to cross-examine the accuser of these statements." Thus, the court required the government "to redact in a full and complete way any reference or inferential reference to Mr. Gayles" in Lindsey's statement as a condition of its admission at trial.
The trial was held over a six-day period. The government called eleven witnesses, including four eyewitnesses: David Hooks, Uniqua Watson, Alfreda Hamilton and Kevin Perry. All of the government's eyewitnesses were impeached with bias evidence. Detective Brigidini also testified at trial about Lindsey's confession. At the conclusion of the government's case, the court granted defense counsels' motions for judgment of acquittal on the conspiracy charges.
Neither Lindsey nor Gayles called any defense witnesses, though Gayles' counsel proffered two witnesses. The first witness was Ray Proctor, the alleged target of the appellants' conspiracy to commit murder. Gayles' counsel indicated that he intended to call Mr. Proctor to testify for the defense regarding his knowledge of the alleged conspiracy. After the government indicated it would cross-examine Proctor about other crimes and the court made extensive inquiry, the court ruled that his Fifth Amendment right overrode Gayles' desire to call him as a witness.
The second witness Gayles sought to call was Cherry Jones, the complainant in the kidnaping case against Kevin Perry, who was an eyewitness to the Johnson murder. The government had dismissed the kidnaping case pursuant to a plea agreement. The court disallowed this testimony on the grounds that it was collateral but granted Lindsey's request to take judicial notice of the facts from the Gerstein filing in the kidnaping case.
After the closing arguments and jury instructions, the case was submitted to the jury, which that same day returned guilty verdicts on the charges of first-degree premeditated murder, PFCOV and CPWL. Lindsey was sentenced to twenty years to life for first-degree murder, five to fifteen years for PFCOV and twenty months to five years for CPWL, all to run consecutively. Gayles was sentenced to twenty years to life for first-degree murder, five to fifteen years for PFCOV, to run consecutively, and one year for the CPWL, to run concurrently with the others. They both filed appeals from their convictions.
Approximately three years after his sentencing, Gayles filed a post-conviction motion to vacate sentence, and Lindsey was permitted to join that motion. The appellants alleged that the government had committed Brady violations by not disclosing the name of an exculpatory witness, Vanessa Anderson, prior to trial. Ms. Anderson submitted an affidavit claiming that Alfreda Hamilton, an eyewitness to the murder who testified at trial, could not have seen the crime from where she was standing during its commission, that is, on the balcony of Ms. Anderson's apartment. Ms. Anderson also stated that she had provided the government with this information prior to trial. After a hearing, the trial court denied the appellants' motion to vacate, finding that Ms. Anderson's testimony was not credible. Lindsey and Gayles appealed that ruling, and the matter has been consolidated with their direct appeals for our review.
APPELLANT LINDSEY'S ISSUES ON APPEAL
We first turn to Lindsey's claim that his confession was admitted in violation of his Fifth and Sixth Amendment rights. In reviewing the trial court's denial of the motion to suppress, we "view the evidence in the light most favorable to the prevailing party, and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling." Castellon v. United States, 864 A.2d 141, 148 (D.C. 2004) (quoting Gatlin v. United States, 833 A.2d 995, 1005 (D.C. 2003)). In addition, we "must accept the trial judge's findings of evidentiary fact and [her] resolution of conflicting testimony," but ...