Appeal from the Superior Court of the District of Columbia (FEL5532-98) (Hon. Ann O'Regan Keary, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID and BLACKBURNE-RIGSBY, Associate Judges, and KING, Senior Judge.
A jury convicted appellant, Cortez Gatlin, of second-degree murder (of Kevin Buckman) while armed, a lesser included offense of the charged first-degree (premeditated) murder while armed;*fn1 and assault with a dangerous weapon (baseball bat), in violation of D.C. Code § 22-502 (1996), recodified at D.C. Code § 22-402 (2001).*fn2
He challenges his convictions mainly on the grounds that (1) the trial court violated his constitutional Sixth Amendment confrontation right by admitting into evidence the grand jury testimony of decedent, Troy Jones; and (2) the trial court's rulings relating to the false testimony of a government witness violated his Fifth and Sixth Amendment constitutional rights. We affirm the judgment of the trial court and hold that (1) the trial court did not violate Mr. Gatlin's constitutional confrontation right and that, in this jurisdiction, the preponderance of the evidence standard continues to govern "predicate facts" in post-Crawford*fn3 cases where the government seeks to introduce grand jury testimony on the theory that the defendant is responsible for a witness's unavailability; and (2) Mr. Gatlin suffered no due process violation necessitating a new trial because we do not see any reasonable likelihood that a government witness's unexpected accusation against defense counsel on cross-examination (that he attempted to suborn perjury) could have affected the jury's verdict.
The government presented evidence showing that the murder of Kevin Buckman, on July 28, 1998, grew out of an earlier theft of drugs and guns from the home of Damien Champion by Mr. Buckman. Mr. Gatlin was a close friend and associate of Mr. Champion; witnesses described them as brothers or like brothers because Mr. Gatlin stayed with Mr. Champion's family after his mother died. Following the theft, government witness Sandra Levi*fn4 encountered Mr. Gatlin who had a bat in his hand and who admonished Ms. Levi not to tell Mr. Buckman he was looking for him. Later, government witness Lowan Bowman, Mr. Buckman's ex-girlfriend, saw him holding his side, in obvious pain, and Ms. Levi observed him "spitting up blood." Derron Smith (who killed Mr. Champion in 1999), and who entered a guilty plea to manslaughter while armed), witnessed Mr. Gatlin beating Mr. Buckman with a wooden baseball bat in the summer of 1998. Mr. Gatlin admitted to two other government witnesses that he beat Mr. Buckman.
Even after the baseball bat beating, Mr. Gatlin continued to pursue Mr. Buckman. On July 28, 1998, Mr. Champion and Mr. Gatlin searched for Mr. Buckman. Just as they were asking Michelle Hunter whether she had seen Mr. Buckman, they noticed him as he left an alley and called to him. Ms. Hunter soon heard Mr. Buckman "holler [that] he had been stabbed." Mr. Gatlin ran down the street toward Mr. Champion, asking for a gun. Once he obtained a gun, Mr. Gatlin ran back to Mr. Buckman. Mr. Buckman had begun to run, but collapsed in the street. When a car appeared on the scene, Mr. Gatlin and Mr. Champion fled.
Another government witness, Isaiah Ray, testified that he saw Mr. Buckman coming out of the alley. Mr. Gatlin approached on a bicycle and called Mr. Buckman. Mr. Ray watched as Mr. Gatlin "was sticking [the decedent] in his chest with . . . a knife." Mr. Buckman "started hollering" and "ran." Mr. Buckman said he was "dying" and "keeled over." With gun in hand, Mr. Gatlin ran towards Mr. Buckman. Those around, including Mr. Ray, distracted him by saying the police were coming. Both Mr. Gatlin and Mr. Champion took flight. The prosecution presented the grand jury testimony of a third eyewitness, decedent Troy Jones, who saw Mr. Gatlin stab Mr. Buckman in the chest.
The Troy Jones' Grand Jury Testimony Issue and Forfeiture Misconduct
Mr. Gatlin contends that the trial court erred by admitting decedent Jones' grand jury testimony, which was not subjected to cross-examination. He asserts that under Crawford, supra, Mr. Jones' "grand jury testimony, presented under oath, is clearly testimonial hearsay within the meaning given by the Supreme Court." The trial court admitted Mr. Jones' grand jury testimony under the doctrine of waiver or forfeiture by wrongdoing, and Mr. Gatlin acknowledges that this doctrine "survives Crawford." However, he takes issue with the trial court's use of the preponderance of the evidence standard in admitting the grand jury testimony, insisting that "[b]ecause the admission of testimonial hearsay under the rules of evidence is not the equivalent to a ruling on . . . admissibility under the Confrontation Clause, there is a logical reason to impose a higher standard for proving an equitable exception to the Confrontation Clause." He advocates "the clear and convincing standard as the appropriate degree of proof." Moreover, he re-emphasizes the fact in his reply brief that "[b]ecause the jury unanimously acquitted defendant of the murder of Troy Jones, of participating in a conspiracy to obstruct justice by threatening witnesses and of individual threat counts, the standard of proof used by the trial court to determine the applicability of the equitable forfeiture doctrine may be determinative of the outcome."
The government argues that the trial court properly admitted Mr. Jones' grand jury testimony under existing precedent, and applied the correct standard of proof, preponderance of the evidence. Furthermore, the government emphasizes the applicability of the co-conspirator liability principle: "[C]o-conspirators can be held vicariously liable for offenses committed by other co-conspirators where the offenses are in furtherance of the conspiracy and reasonably foreseeable as a necessary or natural consequence of the conspiracy." It is the government's position "that a defendant forfeits Confrontation Clause and hearsay objections if he participates in a conspiracy and the death of a witness is in furtherance of the conspiracy and reasonably foreseeable as a natural consequence." The government further asserts that "there was ample evidence of a conspiracy to silence witnesses" in this case, and that "the evidence showed . . . that [Mr. Gatlin] participated in this conspiracy."
In explaining why it admitted the grand jury testimony of Mr. Jones (although Mr. Gatlin was incarcerated when Mr. Jones was murdered), the trial court remarked that "the government's theory of [Mr. Gatlin's] liability is as a co-conspirator in a conspiracy to obstruct justice, which culminates under the government's theory in the homicide of Mr. Jones on the eve of the first trial." As evidence of Mr. Gatlin's involvement in the conspiracy to obstruct justice, the court mentioned the testimony of Mr. Ray, which it credited, "that [Mr. Gatlin] claimed credit for Mr. Jones's death in a cell block conversation between Mr. Ray and Mr. Gatlin on October 5th, 1999." During that conversation, which occurred "two weeks after the murder of Mr. Jones," Mr. Gatlin threatened Mr. Ray, saying: "I can't get to you right now, but what I had done to Troy I can have done to your mother." Mr. Ray communicated his encounter with Mr. Gatlin to his attorney and in testimony at Mr. Gatlin's trial, the attorney, who saw Mr. Gatlin about five days later, took notes which were consistent with Mr. Ray's trial account of the incident.*fn5 The court also singled out the testimony of Derron Smith, that "just days after the Buckman murder, [he] hear[d] [Mr. Gatlin] and Damien Champion talking about getting rid of witnesses." Mr. Champion pressured Sandra Levy to tears and "urg[ed] Ms. Levy and [Mr. Jones] [both of whom were to testify as government witnesses] to change their story and to give a false story."*fn6
The trial court found "that the government has established the basic elements of a conspiracy that the . . . defendant is personally involved in," and that "the government  set up the contours of a conspiracy . . . by virtue of the agreement, Mr. Champion and Mr. Oliver's and Mr. Gatlin's concerted actions to intimidate witnesses . . . ." The court added, "I think there was an additional basis, the co-conspirator exception, for all of those witnesses' statements, [meaning, for example, Mr. Smith, Ms. Levy, and Mr. Ray]."
We turn now to the legal principles which guide our analysis of the grand jury testimony issue. In Devonshire v. United States, 691 A.2d 165, 168-69 (D.C. 1997), we held that a defendant who is "responsible for [a] witness's unavailability, . . . cannot prevent the introduction [of the witness/decedent's statement] on grounds that his right to confront the witness has been denied him." The defendant also "waive[s] any hearsay objections." Id. at 169 (citing United States v. Houlihan, 92 F.3d 1271, 1281 (1st Cir. 1996); United States v. White, 838 F. Supp. 618, 621 (D.D.C. 1993)) (other citations omitted). We declared that the standard of proof governing "predicate facts" is a "preponderance of the evidence." Id. at 169 (citing Houlihan, 92 F.3d at 1280). Crawford, supra, ...