Appeal from the Superior Court of the District of Columbia. (F-1971-02) (Hon. Ann O'Regan Keary, Trial Judge).
The opinion of the court was delivered by: Farrell, Associate Judge, Retired
Argued September 29, 2008
Before GLICKMAN, Associate Judge, FARRELL, Associate Judge, Retired, and KING, Senior Judge.
Opinion for the court by Associate Judge, Retired, FARRELL.
Concurring opinion by Senior Judge KING at page 19.
Appellant (hereafter Blunt) was found guilty by a jury of armed voluntary manslaughter and possession of a prohibited weapon, both arising from the death of Robert Ford. On appeal, Blunt first argues that the trial judge erroneously allowed a prosecution witness to explain that she was afraid to testify because she had been "stabbed nine times and almost lost my life by testifying" - inferentially to the grand jury in this case - when no evidence linked Blunt to the stabbings. The judge immediately told the jury that there was "no evidence that Mr. Blunt participated in any way connected to that incident" and that the testimony "was only . . . relevant to the witness' presentation." Despite this instruction, we agree with Blunt that the witness' mention of the stabbings as the reason for her fear was more prejudicial than probative in the circumstances, and should not have been permitted. But we hold that the error was harmless for the reasons to be stated.
Second, Blunt argues that his right to confront the same witness was violated by the introduction of her grand jury testimony as substantive evidence under D.C. Code § 14-102 (b)(1) (2001),*fn1 because her inability to remember the events of the crime or the contents of her grand jury testimony was not genuine but feigned. We conclude, to the contrary, that Blunt was afforded the opportunity that the Constitution requires to confront the witness on cross-examination. We therefore affirm.
Sandra Williams was outside her mother's home one evening in mid-August when she saw three men gambling on the sidewalk. One of them was Blunt, whom she had known as "Fats" for seven years. Williams watched as a second man, "Dayton," snatched ten dollars from the hand of the third player, later identified as Robert Ford, whereupon Ford hit Dayton in the chest and the two began fighting. Ford soon pinned Dayton against a car and punched him repeatedly, causing Dayton to yell to Blunt for help. Blunt went to a nearby alley and picked up a cinder block which he hoisted above his head. Then, according to Williams and two other eyewitnesses, he used it to strike Ford repeatedly in the head or body while also kicking him. When Ford rose from the ground at one point and chased Blunt, Blunt retrieved a second block and again struck him on the head and ribs despite Ford's appeal to stop ("why you doing this, it [was] a one on one fight?"). After delivering further blows to Ford, Blunt ran from the scene when an eyewitness called the police.
Ford died early the next morning. An autopsy revealed that he had suffered serious internal hemorrhaging from head and body blows, which in turn aggravated a pre-existing hypertensive cardiovascular disease by reducing the volume of his circulating blood and the supply of oxygen to his heart. The hemorrhaging also triggered a "generalized sickling phenomenon" (Ford suffered from sickle cell trait), whereby his red blood cells became "twisted and [were] plugging all the capillaries of all the organs in the body . . . and also at the site[s] of the hemorrhage." According to the medical examiner, Ford's pre-existing conditions combined with the "multiple blunt impact trauma with soft tissue hemorrhage" to cause his death through deprivation of oxygen to the heart and a "cardiac event." The jury rejected the contrary opinion of Blunt's medical expert that, rather than blunt-impact trauma, Ford had died from "exertional rhabdomyolisis," a release of toxic substances in the blood caused by "fighting in a hot humid stressful climate under circumstances where he was at risk through dehydration and alcohol, as well as having a rather large body mass index." The jury also rejected Blunt's defense of justification, i.e., defense of himself or a third person, but convicted him of armed voluntary manslaughter as a lesser-included offense of armed second-degree murder.
Before trial, the prosecutor informed the judge that Sandra Williams was afraid to testify and would be a reluctant witness. The prosecutor asked that Williams be allowed to explain her fear, specifically that she had been stabbed eight months earlier, that a gun had been fired through the floor of a house when she was present there, and that "random people" had warned her that "nobody likes snitches on her block." Williams held Blunt indirectly responsible for these actions. Over defense objection, the judge ruled that Williams could "say whatever she thinks is causing her to be motivated to fear coming here today,"*fn2 and that any "negative inference towards [Blunt] because she may be fearful" could be prevented by an immediate limiting instruction, which she asked the parties to draft jointly.
When Williams took the stand at trial, she admitted being home on the day of the charged crimes but denied remembering anything about them. The prosecutor sought to refresh her memory with her grand jury testimony given two days after the crimes, but Williams declined to read it. After the judge intervened, Williams apparently read the proffered transcript but testified that it did not refresh her memory of the events described therein. At a bench conference, the prosecutor sought leave to question her about why she had been crying ever since she took the witness stand. The judge granted leave, noting that "that's such unusual behavior[,] that she's been crying throughout [her testimony]" and looking away from the jury.
The prosecutor then asked Williams the following questions:
Q: Ms. Williams, can you tell us why you ...