Appeal from the Superior Court of the District of Columbia. (No. F5983-00) (Hon. Natalia Combs Greene, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before REID, GLICKMAN, and KRAMER, Associate Judges.
A jury found appellant Eugene Roberson guilty of first-degree (premeditated) murder while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license. Roberson asserts that the trial court violated his Sixth Amendment right of confrontation by admitting in evidence against him the testimonial hearsay statements of Anthony Lee, a witness who was killed before trial. The court admitted Lee's out-of-court statements after finding that Roberson had conspired to murder him to prevent him from testifying. Roberson challenges the sufficiency of the evidence to support that factual finding. Although we consider the question to be a close one, we are not persuaded that the trial court's finding was clearly erroneous. Accordingly, we uphold the court's determination that Roberson forfeited his right to object to the introduction of Lee's statements.
In interviews with the police and testimony before the grand jury, Lee claimed to have been a witness to events occurring on June 24, 2000, in an alley near 58th and Blaine Streets, N.E. Lee described an altercation in the alley between a drug dealer named Donnell Simms and a woman identified at trial as Monica Davis, during which Lee saw Simms hit Davis. As Davis left, Lee heard her say that she would return with her "peoples." Lee later saw appellant Roberson and a man named Suley Roberts enter the alley together and confront Simms. There was a brief argument, during which Lee saw Roberson hold a gun to Simms's head. Lee heard a gun shot, turned around, and saw Simms lying on the ground. Lee then fled from the scene.
Roberson was arrested in October 2000 and subsequently indicted for Simms's murder. Roberson's first trial ended in a mistrial. At his second trial, which resulted in his conviction, several witnesses implicated him as the person who shot Simms. Anthony Lee was not one of those witnesses, however. The parties stipulated that Lee had been killed on December 3, 2000, in the vicinity of 58th and Blaine Streets. Roberson did not dispute the government's representation to the court that the person who killed Lee was Suley Roberts.
Before the start of Roberson's second trial, the government moved in limine for the admission in evidence of Anthony Lee's out-of-court statements pursuant to the forfeiture-bywrongdoing doctrine recognized in Devonshire*fn1 and other decisions of this court.*fn2 Relying primarily on the proffered testimony of a witness named Darren Redd, the government alleged that Roberson had procured Lee's unavailability by conspiring with Suley Roberts to murder Lee. In brief, the government proffered that Redd would testify that he witnessed the shootings of both Simms and Lee. Redd allegedly saw Roberson, accompanied by Roberts, shoot Simms in the alley at 58th and Blaine Streets on June 24, 2000. Redd saw Lee in the alley too, and Lee was visible to Simms's assailants. A month after the shooting, Roberson told Redd that he was looking for Lee because he had seen Lee get "snatched up" by the police and he wanted to know if Lee had been "snitching." Thereafter, Redd was at the scene on December 3, 2000, when Suley Roberts shot and killed Lee. Finally, Redd also would testify that some months later, while he and Roberson were in jail awaiting trial, Roberson discussed his criminal case with Redd. Roberson allegedly showed Redd a copy of the affidavit in support of his arrest and said that the police had "messed up" the witnesses against him. Roberson told Redd that Lee (who was not identified by name in the affidavit) had been the "star witness" against him, but that he was not worried because Roberts "took care of that for me."
In addition to Redd's statements, the government proffered that Suley Roberts had been interviewed by the police and had admitted having spoken with Roberson several times by telephone between October and December (while Roberson was in jail awaiting trial). Several witnesses would testify at trial that Roberson and Roberts were close and hung out together in the vicinity of 58th and Blaine Streets. Finally, the government also proffered the testimony given at Roberson's first trial by Kim McLaughlin. McLaughlin, a prosecution witness, had testified that the police picked her up for questioning two months after Simms was murdered. When she returned home, Roberson and Roberts followed her into her house and, looking "real serious," asked her what she had told the police and whether the police were looking for them.
Roberson disputed the sufficiency of the government's evidentiary proffer, but he proffered no evidence to rebut it. Based on the proffer, the court found by a preponderance of the evidence that Roberson had conspired with Roberts to procure Lee's absence from trial, and thus had waived his objections to the admission of Lee's statements to the police and the grand jury.
At trial, to fulfill the evidentiary promise of its proffer, the government called Redd to the witness stand before seeking to introduce Lee's out-of-court statements. Redd refused to testify, however, despite being found in contempt of court. In his place, and out of the jury's presence, the government called police investigator Lewis Hagler, who testified that he had spoken with Redd several times in the previous month. Hagler summarized the information Redd had furnished to the police. Roberson raised no Sixth Amendment or hearsay objection to this testimony. Hagler's summary tracked the government's earlier proffer of Redd's anticipated testimony, except that Hagler omitted Redd's claim to have seen Roberts shoot Lee.*fn3 Hagler stated that Redd never contradicted himself or gave inconsistent versions of the facts, and that the police did not discover any inaccuracies in Redd's account. In exchange for Redd's truthful testimony, Hagler added, the government had promised to address his security concerns and speak to the parole board on his behalf. Regarding Redd's jailhouse conversation with Roberson about Lee, Hagler testified, again without objection from Roberson, that police had confirmed that the two men were incarcerated in the same cell block. Hagler also testified without objection that Suley Roberts had acknowledged to police having spoken by telephone with Roberson several times in the weeks before Lee was murdered.*fn4
After Hagler testified, Roberson renewed his challenge to the sufficiency of the evidence that he had conspired with Roberts to procure Lee's unavailability. Crediting Hagler's testimony, the trial court adhered to its earlier ruling that Roberson had forfeited his confrontation rights. The court allowed the government to introduce Lee's statements to police and his testimony before the grand jury.
On appeal, Roberson contends that the record before the trial court does not support the admission of Lee's out-of-court statements pursuant to the doctrine of forfeiture by wrongdoing. Roberson mainly argues that the evidence was insufficient to prove by a preponderance that he conspired with Roberts to prevent Lee from testifying at trial. There is some force to Roberson's position, and as we shall discuss, the record is not all it might have been. Nonetheless, we ...