Appeals from the Superior Court of the District of Columbia (FEL4882-04 & FEL5927-04) (Hon. Erik P. Christian, Trial Judge)
The opinion of the court was delivered by: Percuriam:
Before WASHINGTON, Chief Judge, and KRAMER and THOMPSON, Associate Judges.
In a five-count indictment, appellant Antonio C. Johnson, appellant Marcus A. Martin, and Robert Eggleston were charged with the following offenses stemming from the July 20, 2004, murder of Joshua Arrington: (1) conspiracy to commit murder, (2) first-degree premeditated murder while armed, (3) possession of a firearm during a crime of violence, (4) carrying a pistol without a license, and (5) obstruction of justice. Johnson was convicted on all five counts and Martin was convicted on all counts except obstruction of justice.*fn1
On appeal, Johnson argues the trial court erred - on both evidentiary and confrontation grounds - in admitting the victim Arrington's statements to Officer Ba'th as dying declarations. He also alleges that the trial court erred in failing to sustain objections to the prosecutor's suggestion during closing and rebuttal arguments that Johnson's former girlfriend, Tatum Plater, had repudiated her grand jury testimony because she was afraid of Johnson. Martin argues that admitting the videotape of Plater's statements to the police, in which she relayed statements that Johnson made to her regarding the murder, violated his Sixth Amendment right of confrontation under Bruton v. United States, 391 U.S. 123 (1968). We find no error and affirm.
Shortly after 2:00 a.m. on July 20, 2004, Joshua Arrington was shot six times at close range, sustaining gunshot wounds to the chest and rib cage, while sitting in his car. He staggered out of the car and collapsed, at which point a neighbor called 911. Metropolitan Police Department Officer Mikal Ba'th was the first to arrive on the scene. He asked Arrington a series of questions as Arrington lapsed in and out of consciousness, often closing his eyes "as if he wanted to go to sleep, or as if a person was going to sleep." Officer Ba'th sometimes had to repeat his questions. In response to Officer Ba'th's questioning, Arrington stated, inter alia, that his name was Joshua; that he had been shot while sitting in the car; that the person who shot him was Antonio Johnson; that Johnson had left the area in a white Marquis; and that Officer Ba'th should contact his grandmother. Arrington died a few hours after getting to the hospital.
On August 1, 2004, Johnson's then-girlfriend Tatum Plater went to the police and gave a video-taped statement. She stated that she came to the police at her brother's suggestion because she didn't feel "safe" with Johnson's "lifestyle." She reported that Johnson "openly told [her] that he was involved with the murder of his best friend, [Arrington]," and that he "beat [her] up, and told [her] he was going to kill [her]." Some of Johnson's statements to her, as related by Plater, implicated Martin.
On August 3, 2004, Plater testified before the grand jury and adopted her video-taped statement. At trial, however, Plater disavowed "everything" she said in her grand jury testimony and the video, stating that she had "made up a story about having information about [the] murder" because she "didn't like the way [Johnson] treated [her] that day" and she wanted to get him "in trouble."*fn2 Because Plater disavowed her video-taped statement in its entirety, the tape was played for the jury as an inconsistent statement. The tape had been redacted by mutual agreement of the parties to eliminate references to Martin. Appellants' respective counsel lodged no objections to the playing of the tape, though Martin's counsel did request a limiting jury instruction that Plater's statements be used only against Johnson, which the trial court provided.
II. Dying Declarations and the Confrontation Clause
The trial court admitted Arrington's statements through Officer Ba'th as dying declarations, because there were: short bursts of words from the decedent. His eyes were closed as if he was going to sleep. . . . [H]e was going in and out of consciousness. And the number of wounds that he observed at the time and location of those wounds specifically near the heart, the rib cage of the decedent's body.
Johnson argues that the trial court erred in admitting the statements because (a) they did not fall under the dying declaration hearsay exception, and because (b) their admission violated his Sixth Amendment right of confrontation.
A. Arrington's Statements Satisfied the Dying Declaration Hearsay Exception
"To make out a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending death." Lyons v. United States, 683 A.2d 1080, 1083 (D.C. 1996) (quoting Shepard v. United States, 290 U.S. 96, 99 (1933)); see also Bell v. United States, 801 A.2d 117, 126 (D.C. 2002). "The declarant need not utter words acknowledging the certainty of death." Bell, supra, 801 A.2d at 126. Rather, "[t]he court can infer the victim's sense of impending death from the circumstances - from the nature and extent of his wounds." McFadden v. United States, 395 A.2d 14, 16 (D.C. 1978). That is, a "'despair of recovery may indeed be gathered from the circumstances if the facts support the inference'" that the decedent was conscious of his impending death. Jenkins v. United States, 617 A.2d 529, 531 (D.C. 1992) (quoting Shepard, supra, 290 U.S. at 100). At the same time, "the perception of impending death 'must be exhibited in the evidence, and not left to conjecture.'" Lyons, supra, 683 A.2d at 1084 n.8 (quoting Shepard, supra, 290 U.S. ...