Appeals from the Superior Court of the District of Columbia (Nos. F-1193-03 & F-1240-03) (Hon. Ann O'Regan Keary, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and STEADMAN, Senior Judge.
Appellants Keith Thomas and Ron Herndon were tried jointly before a jury. Each was convicted of first-degree premeditated murder while armed and possession of a firearm during a crime of violence. The government's proof at trial included four out-of-court statements that Thomas or Herndon had made to a relative or other acquaintance. To a greater or lesser degree, each of these statements inculpated not only its maker but also his co-defendant at trial. Two of the statements were admitted against both defendants on the trial court's determination that they qualified under the hearsay exception for declarations against penal interest (in addition to being admissions of a party-opponent). The other two statements were admitted only against their maker, in one case with redactions to exclude incriminating references to the co-defendant. The principal issue in these consolidated appeals is whether the admission of these four statements violated appellants' rights under either the Confrontation Clause of the Sixth Amendment as interpreted by the Supreme Court in Bruton v. United States*fn1 and Crawford v. Washington*fn2 -- inasmuch as Thomas and Herndon did not testify and hence could not cross-examine each other about the statements -- or Criminal Rule 14*fn3 as construed by this Court in Carpenter v. United States.*fn4
We hold that the introduction of appellants' statements in their joint trial did not infringe either appellant's rights under the Confrontation Clause because the statements were not testimonial within the meaning of Crawford. Moreover, with qualifications that do not affect the outcome, we uphold the trial court's rulings on the admissibility of the statements. And although appellants raise several other claims of error, we find none warranting reversal and so affirm their convictions.
I. The Evidence at Appellants' Trial
Appellants were prosecuted for the murder of James Fisher. Early in the morning on July 31, 2002, Fisher was sitting in the Temple Court area of the Sursum Corda housing project in Northwest D.C. when two men approached him from behind and one of them shot him three times in the back with a 9 millimeter semiautomatic handgun. The government's theory at trial was that the two men were Thomas and Herndon and that they killed Fisher in a bungled act of revenge, having mistaken him for another Sursum Corda resident named "Frank" who reputedly had shot to death their friend "Slush" (Marvin Gross) four days earlier. According to witnesses who knew the two men, Fisher and "Frank" both wore their hair in dreadlocks and closely resembled each other from behind. (The day after Fisher's death, "Frank" reportedly shaved his head.)
The government relied on a mosaic of evidence to tie Thomas and Herndon to Fisher's slaying. Sarah Margaret Davis, a resident of Sursum Corda, saw two young men leave her neighbor Angela Freeman's porch and walk toward Fisher, who was sitting nearby. One of the men was carrying a gun. As Davis then knocked on her friend Kineka Fowler's door to ask her to summon the police, she heard gunshots. Davis did not identify either man at trial, but Fowler testified that Davis told her it was "Little Man [who] killed Fisher."*fn5 "Little Man" was appellant Herndon's nickname, and Angela Freeman is his half-sister.
Freeman, who was a reluctant prosecution witness, testified that Herndon was "kind of upset" that Slush had been killed. Before Fisher was murdered, Herndon repeatedly asked Freeman to tell him "who was Frank and how he look." Four days after Fisher's shooting, Herndon showed Freeman a handgun, "the kind you put a clip in." The government's firearms expert testified that a "clip" signified a semiautomatic or fully automatic weapon, which was consistent with the cartridge casings found at the scene of the crime. Herndon subsequently convinced Leona Bradford, his then-girlfriend, to supply him with a false alibi for the morning of Fisher's murder. Bradford related this alibi to the grand jury but recanted it at trial. And while Herndon was in pretrial custody, he told a fellow prisoner named Gregory Bell that he "love[d] Slush and we had to do what we had to do," and that he was "in the middle of what was done." Herndon also told Bell that he himself "did not do the shooting and that someone else had shot the guy in the back."*fn6
In addition to the preceding evidence, the government relied on the four out-of-court statements by appellants that are at issue in the instant appeals. Herndon made the first: in a private conversation with Freeman, Herndon told her that he and Thomas left her porch, "went up behind the guy with the dreadlocks," and "I [Herndon] killed him, Keith's [Thomas's] gun jammed." Herndon's statement to Freeman thus identified Thomas as his accomplice in Fisher's murder. Freeman reported her brother's statement to Detective Jeffrey Williams and the grand jury. The trial court ruled the statement admissible against Thomas under the hearsay exception for declarations against penal interest. (The statement was admissible against Herndon himself, of course, as an admission by a party-opponent.*fn7 ) In her testimony at trial, Freeman disavowed her account of Herndon's admission of guilt, claiming she told "a story" because she felt threatened in the neighborhood after the shooting, needed government funds to help her relocate to a different area, and was "pressured" by the police. Freeman's recantation was impeached by her grand jury testimony and by Detective Williams. Her sworn grand jury testimony was admitted as substantive evidence of Herndon's incriminating statement.*fn8
The second statement was made by Thomas to his brother's girlfriend, Jimi Stover. "[A] couple of days" after Slush was killed, Stover saw Thomas retrieve a black revolver from a linen closet in her home, at which time he told her "that him and Ron was going to finish that shit with Slush." Thomas's statement thus implicated Herndon in the plan to retaliate against Slush's killer. Stover related the statement to the grand jury and again during a pretrial voir dire examination, which was held to enable the trial court to determine whether Thomas's statement was sufficiently reliable to be admissible against Herndon as a declaration against penal interest. The trial court determined that it was. At trial, however, Stover claimed to have lied in her previous testimony because she had been "threatened" by a police officer investigating Fisher's death. She claimed the officer had "spoon fed" her the contents of her testimony and "harassed [her] and threatened [her] for two whole years." She was duly impeached with her grand jury and voir dire testimony (which, like Freeman's prior testimony, was admitted as substantive evidence under D.C. Code § 14-102 (b)(1)).
Thomas made the third statement to Gregory Bell. Bell testified that in November 2002, he was hanging out with a group of people in Barry Farms when Thomas arrived and joined them. The group's conversation turned to Slush and how he was missed. According to Bell, Thomas then said, "We handled that." This statement indicated that Thomas had an (unidentified) accomplice in the murder of Fisher. The government sought to introduce the statement only against Thomas (as an admission of a party-opponent), and the trial court ruled that no redaction of the statement was necessary to protect Herndon's rights. Thereafter, before the jury, Bell testified that Thomas had said, "that, you know, they handled that and wasn't no [sic]." Although Bell thus changed the plural pronoun from "we" to "they" in relating what Thomas had said, he did not identify any other persons to whom the pronoun referred.*fn9
The last statement at issue is one Thomas made to Danny Winston. In April 2003, Winston was on trial for murder. (He eventually was convicted.) During a break, he was taken to a holding cell behind the courtroom. There, he encountered Thomas, who had been brought to court for a pretrial hearing in the instant case. Thomas struck up a conversation, asking Winston "what [he] was dressed up for," and Winston replied that he was charged with aiding and abetting second-degree murder. Thomas said his own charge was similar. According to Winston, Thomas then told him (in the unredacted version of their conversation) that he and Herndon had approached "a guy with dreads, sitting with his back to them . . . . Ron ran up and shot him a couple times in the back. When Ron did this, Ron did not do this alone; Keith was with him. Keith did not have a gun." Because this statement shifted the blame for Fisher's murder from Thomas to Herndon, the trial court ruled that it was not admissible as a declaration against penal interest and would have to be redacted to eliminate the references to Herndon. In the sanitized version that the jury heard, Thomas told Winston he was "with someone" on "a friend's relative['s] porch" when "[t]hey saw the person they was beefing with," who was wearing dreadlocks and sitting with his back to them. Thomas "left the porch" and "[came] out from behind" the person, who then "got killed." Winston was allowed to relate that Thomas also said that he was not the shooter, and that the "the wrong person" was killed due to "mistaken identity."
As neither Thomas nor Herndon testified, neither defendant was subject to cross-examination by the other regarding his purported statements.*fn10 After Bell testified, the trial court instructed the jury that when it considered the statements about which he had testified, "each of those bits of evidence are admitted solely as evidence against the particular defendant who was alleged to have made those statements." Similarly, the court told the jury after Winston testified, "that evidence is admitted solely as evidence against Mr. Thomas who is alleged to have made that statement, not against the other defendant." The trial court repeated similar instructions in its closing charge to the jury. The court gave no limiting instruction with respect to the statements to Freeman and Stover that were admitted under the penal interest exception.
II. Appellants' Challenges Under Bruton and Carpenter to the Admission of Each Other's Statements in Their Joint Trial
Thomas argues that the trial court should have redacted Herndon's statement to Freeman to protect his rights under the Confrontation Clause of the Sixth Amendment and Criminal Rule 14, as required by Bruton and Carpenter respectively. On the same grounds, Herndon argues that the trial court erred by failing to redact Thomas's remarks to Stover and Bell and by insufficiently redacting Thomas's statements to Winston. Alternatively, Herndon argues, in the absence of such remedial measures or the exclusion of Thomas's statements altogether, the trial court abused its discretion by denying his motion to sever his case from Thomas's.*fn11 To evaluate these contentions, we first must consider the requirements of Bruton and Carpenter in light of the Supreme Court's recent construction of the Confrontation Clause.
A. The Requirements of Bruton and Carpenter
A defendant's confession or other extra-judicial statement may be inadmissible against a co- defendant under the Confrontation Clause or traditional rules of hearsay. When the government seeks to introduce such a statement against its maker in a joint trial before a jury, Bruton and Carpenter afford protections to the non-declarant co-defendant. The source and scope of the protections mandated by the two cases differ.
In Bruton, the government introduced the confession of Bruton's co-defendant Evans at their joint trial for armed robbery. The confession, which concededly was inadmissible against Bruton,*fn12 directly inculpated him by name as Evans's confederate in the robbery. Because Evans did not take the stand at trial, Bruton was unable to cross-examine him about the confession. The trial court instructed the jury that, although the confession was competent evidence against its maker, it was inadmissible hearsay against Bruton and therefore had to be disregarded in determining Bruton's guilt or innocence.
Concluding that it is unrealistic to expect lay jurors in a joint trial to consider a "powerfully incriminating" extra-judicial statement against its maker but not against an explicitly named and inculpated co-defendant,*fn13 the Supreme Court reversed Bruton's conviction on constitutional grounds. It held that "because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extra-judicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated [Bruton's] right of cross-examination secured by the Confrontation Clause of the Sixth Amendment."*fn14
One way to avoid the constitutional problem while retaining the benefits of a joint trial, the Bruton Court suggested, might be to redact the incriminating references to a co-defendant in the declarant defendant's extra-judicial statement -- a solution the Court later approved explicitly.*fn15
Alternatively, unless the prosecution were to choose to forego introducing the extra-judicial statement against its maker in its case-in-chief, the inculpated ...