Appeal from the Superior Court of the District of Columbia. (F-7117-03) (Hon. Ann O'Regan Keary, Motions Judge). (Hon. Russell F. Canan, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge.
Before RUIZ, GLICKMAN, and BLACKBURNE-RIGSBY, Associate Judges.
Appellant was convicted of several felony offenses in connection with the stabbing of Allan Lancaster in May 2000, and of the murder of Lancaster and a bystander six weeks later.*fn1 Appellant challenges the admission of several hearsay statements on Confrontation Clause and evidentiary grounds, and claims that the government suppressed evidence in violation of his constitutional due process rights, warranting a new trial. He also argues that there was insufficient evidence of "serious bodily injury" as required for a conviction of AAWA. Having considered these claims of error and their effect on appellant's trial, we reverse his convictions for assault related to the stabbing and remand the case to the trial court for further proceedings.*fn2 We affirm appellant's other convictions.
Appellant, Thomas Zanders (a.k.a "T.J."), and AllenLancaster (a.k.a. "Snuff") were residents of the D.C. neighborhood known as Lincoln Heights, where they regularly dealt in drugs. Appellant had been robbed by Lancaster at gunpoint in the past and on May 17, 2000, a fight ensued between them in which Lancaster was stabbed and shots were fired. The bleeding Lancaster started to walk away with his brother Jamar, was taken by a passerby to a nearby fire station, and, from there, by ambulance to a hospital where he was treated for an open wound in the chest cavity. At the fire station, Lancaster was questioned by Metropolitan Police Department (MPD) Officer Kevin Raynor. Lancaster told the officer that he had been approached on a basketball court by three acquaintances, one of whom, appellant, had stabbed him, and another had shot at him. Lancaster repeated the accusation at the hospital when he was questioned by MPD Detective George DeSilva. At trial, appellant took the stand and claimed that he had stabbed Lancaster in self-defense. According to appellant, Lancaster had threatened him with a knife as part of a robbery and was stabbed during the struggle when appellant attempted to disarm him.
Six weeks after the stabbing, in the early morning hours of July 1, 2000, four men wearing scarves over their faces came into a courtyard where Lancaster sat in front of 224 51st St., N.E., and unleashed a hail of bullets killing Lancaster and a bystander, Cateria Howell (a.k.a. "TT"). Three witnesses who were present at the shooting testified at trial, one of whom, Monica Brown-Robinson, identified appellant as one of the gunmen.*fn3
That appellant was guilty of these murders was corroborated by Ernest Clark (a.k.a. "Moo-Moo"). Clark testified that he was approached by appellant and Frankie Winston (a.k.a. "Dog"), and appellant had told Clark that he had stabbed ("put the knife into") Lancaster. Clark also said that, according to Winston, he, appellant, and two others wore scarves to cover their faces and were the "trigger-men" in the later shooting. They had wanted to "get" Lancaster, but had not intended to injure Howell. Clark recounted that appellant asked him whether he was willing to kill appellant's girlfriend (and mother of his two children), Naseea Tinney, for money, because she was the only one who knew that he had stashed the guns used in the shooting at her house. Winston asked Clark if he was willing to "hit," or kill, the other two "trigger-men," because he trusted only appellant, as he feared that one or both of the others would turn on them.
At trial, appellant denied ever speaking to Clark and claimed that Clark was lying. In rebuttal, the government called Melvin Wider, who had been incarcerated in D.C. jail with appellant while he was awaiting trial. Wider testified that he told appellant that he was "bitter" Clark had "snitched" on Wider by informing the police that Wider was trying to have a child witness killed. Appellant told Wider that he thought Clark was cooperating with the police about him too (appellant had confessed to Clark about stabbing Lancaster) and wanted to impeach Clark's expected testimony to that effect by having Wider testify that Clark had lied when he testified in Wider's trial.*fn4 Wider testified that after he met with appellant's trial counsel, he notified the United States Attorney's Office. The prosecutor offered, and Wider accepted, an agreement to plead guilty to offenses "involving drugs, witness tampering and conspiracy to commit murder," for which he faced a maximum sentence of life imprisonment -- as opposed to the possibility of capital punishment if convicted after trial as charged. In exchange, Wider agreed to cooperate and testify at appellant's trial. At trial, Wider testified that he had lied to appellant when he told him that Clark had fabricated the story about his arranging to kill the child witness. In fact, Wider pled guilty to that offense.*fn5
II. Confrontation Clause: The Stabbing
A. Lancaster's Statements to Police Concerning the Stabbing
Appellant argues that the admission of out-of-court statements made by Allen Lancaster to police officers at the fire station and hospital accusing appellant of having stabbed him violated his rights under the Confrontation Clause. Specifically, he argues that Lancaster's out-of-court statements were testimonial and do not come within the forfeiture-by-wrongdoing exception to the Confrontation Clause, as the government contends on appeal.*fn6 We agree with appellant's contention.
"Under the forfeiture-by-wrongdoing doctrine, a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to the introduction of hearsay, if he wrongfully procured the unavailability of that witness with the purpose of preventing the witness from testifying." Roberson v. United States, 961 A.2d 1092, 1095 (D.C. 2008) (emphasis added) (citing Giles v. California, 128 S.Ct. 2678, 2684 (2008)). "[T]he rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds." Davis v. Washington, 547 U.S. 813, 833 (2006) (quoting Crawford, 541 U.S. at 62). Because the government presented no evidence that appellant's purpose in murdering Lancaster was to prevent him from testifying about the stabbing, Lancaster's out-of-court testimonial statements were barred by the Confrontation Clause.
See id. (noting that Federal Rule of Evidence 804 (b)(6) and many state courts require a showing of motive by a ...