Appeal from the Superior Court of the District of Columbia (F-1499-00) (Hon. Judith E. Retchin, Pre-Trial Motions Judge) (Hon. Patricia A. Broderick, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before GLICKMAN, Associate Judge, and NEWMAN and TERRY, Senior Judges.*fn1
Appellant was charged in a three-count indictment with first-degree premeditated murder, first-degree felony murder, and arson, all arising from the death of Cynthia Evans during a fire. A jury found him guilty of second-degree murder, a lesser included offense of first-degree premeditated murder.*fn2 Appellant challenges his conviction on several grounds. He contends that the trial court erred by (1) denying his request for a subpoena for the school records of a government witness; (2) refusing to impose discovery sanctions on the government or to give a missing evidence instruction; (3) admitting the prior statements of a government witness on redirect examination; and (4) denying his motion for new trial.*fn3 We reject all of these contentions and affirm the judgment.
A. The Government's Evidence
Appellant lived with his sister, Mary Tyer, and his sister's children, Angela Miller, Deborah Forte, and Valorize Forte, in a house in Northeast Washington. Cynthia Evans, the wife of appellant's nephew, and Reynard Edwards, not related to any of the other occupants, also stayed there from time to time for indefinite periods.
In the early morning hours of March 5, 2000, shortly after midnight, Angela Miller was visited by her friend, identified only as "Mona," who entrusted Ms. Miller with holding twenty-five dollars. Later that day, when Mona asked Ms. Miller for her money, they discovered that twenty dollars was missing. Mona recalled that after handing the money to Miller, she (Mona) had sent Cynthia Evans into Ms. Miller's bedroom to ask her if she knew a certain phone number. Then "Miss Frances," the godmother of Miller's nephew, told Ms. Miller that she had seen Ms. Evans spend the missing money. Later, Miller and Evans argued in the kitchen, and in the course of that argument Evans shoved Miller at least once. Appellant witnessed their altercation.
Ms. Evans eventually went upstairs to lie down for a few minutes. Deborah Forte and Marvin Carter, Mary Tyer's son, arrived home shortly thereafter, and Mary Tyer told them about the argument. Appellant overheard this conversation as well. Ms. Miller and Mr. Carter then left to go to the store, and appellant, who enjoyed a "real close" relationship with Ms. Miller, his niece, went upstairs to talk to Ms. Evans for approximately five to ten minutes.
While appellant was still upstairs, Mary Tyer asked Mr. Edwards to go up and "see what was going on." Edwards found appellant in Ms. Evans' bedroom, questioning her about the missing money. According to Edwards, appellant slapped Ms. Evans across the face and then cut the electrical cord from the television set with a razor blade. She struggled and tried to resist, but appellant wrapped the cord around her neck. Because appellant "asked [him] to," Edwards sprayed "chemicals" from a "clear bottle" next to the television set onto a pile of clothes. He did not know what was in the bottle.
Mr. Edwards then went back downstairs to watch television, and appellant joined him a few minutes later. Soon thereafter Mr. Carter and Ms. Miller returned from their errand, and Mary Tyer, who smelled something burning, asked them to check upstairs. At about the same time, Ms. Evans, still in her bedroom, began screaming for help. Deborah Forte and Reynard Edwards ran upstairs, but Evans' bedroom door was locked. Edwards kicked at the door, but it would not open. He and Ms. Forte then went back downstairs, passing Carter and appellant (who was carrying a bucket of water upstairs) on the stairway. Deterred by the heat and smoke, they also rushed downstairs. Everyone but Ms. Evans managed to get out of the house.
Ms. Evans was found dead in her bedroom by members of the Fire Department. An autopsy showed that she died of smoke inhalation and also noted that she had suffered burns which, apart from the smoke, were sufficient to kill her. An electrical cord with "a plug at one end" was wrapped around her neck, but her body showed no injuries from the cord. A Fire Department inspector determined that the fire was deliberately set and that an accelerant had been used. Dr. Marie-Lydie Pierre-Louis, the deputy medical examiner, determined that the death was a homicide.
Eugene Sober, a fire investigation expert, testified that the fire started on Ms. Evans' bed but that its cause could not be determined. He also doubted that any accelerant spray fueled the fire. On cross-examination, however, Mr. Sober conceded that he did not visit the scene, nor did he interview any of the persons who were in the house during the fire or prepare any written reports based on his analysis.
Marvin Carter testified that as the family members raced upstairs when they heard Ms. Evans' screams, Reynard Edwards exclaimed that Evans had set fire to the room.*fn4
The autopsy report revealed that Ms. Evans had ingested cocaine a few hours before her death and that there was cocaine residue in her blood. In addition, both the testimony of witnesses and a toxicology report established that she had been drinking and was severely intoxicated at the time of the fire. She also had been smoking cigarettes in her room that night.
Defense counsel inquired about the circumstances surrounding the police interrogation of Mr. Edwards, the government's star witness. Immediately after the fire, Mr. Edwards signed a statement that did not implicate appellant. He was then questioned by several detectives who accused him of homicide. After four hours of questioning, they took a second statement from him. Mr. Edwards, who acknowledged that he "can read a little bit but not that much," was working on this second statement when the detectives interrupted to question him further. After about three hours of additional interrogation, the police attempted to secure a statement from Mr. Edwards for the third time. At no time did the police read him his Miranda rights.*fn5
Appellant did not testify.
Defense counsel filed a pre-trial motion requesting a subpoena for certain school records related to Mr. Edwards' mental health, which the court denied. Appellant now contends that this denial was reversible error.
A trial court's determination of a party's request for a subpoena is reviewed for abuse of discretion. Cooper v. United States, 353 A.2d 696, 702 (D.C. 1976). To obtain a subpoena duces tecum for documents, a party must show (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable . . . by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production . . . and (4) that the application is made in good faith and is not intended as a "fishing expedition."
Brown v. United States, 567 A.2d 426, 428 (D.C. 1989); see Turner v. United States, 443 A.2d 542, 547-548 (D.C. 1982). Furthermore, "[e]vidence regarding mental illness is relevant only when it may reasonably cast doubt on the ability or willingness of a witness to tell the truth." United States v. Smith, 316 U.S. App. D.C. 199, 204, 77 F.3d 511, 516 (1996). Finally, a trial court ruling regarding the competency of a witness "should not be disturbed unless the record provides unmistakable evidence that the trial court's impressions are defective." Hammon v. United States, 695 A.2d 97, 104 (D.C. 1997).
Appellant maintains that the trial court abused its discretion by denying his subpoena request. Mr. Edwards, who was 38 years old at the time of trial in 2001, had attended the Kennedy Institute, a school for students with learning disabilities, from 1976 to 1982. The trial court, noting that nearly twenty years had passed, denied the motion for a subpoena, but agreed to defense counsel's request for a competency examination of Mr. Edwards at the next hearing. Two days later, however, after the case had been transferred to a different judge for trial, counsel withdrew his request, stating that "at this point we would object to the competency examination." The next day defense counsel reiterated his concerns about Edwards' competency as a witness, but the court stated that his argument ...