Appeals from the Superior Court of the District of Columbia (Nos. F-5535-04 & F-5506-04) (Hon. Lee F. Satterfield, Trial Judge)
The opinion of the court was delivered by: Glickman, Associate Judge:
Before GLICKMAN, Associate Judge, REID,*fn1 Associate Judge, Retired, and BELSON, Senior Judge.
Gonzales Diggs and Odell Griffin appeal their convictions, following a jury trial, of second-degree murder while armed, assault with a dangerous weapon, and related offenses. Each appellant challenges the admission in evidence of out-of-court statements made by a government witness named Mark Fisher, who reported them to the police and testified against them before the grand jury; they argue that because Fisher professed to have suffered brain damage and consequent memory loss, he was not available for cross-examination within the meaning of the Confrontation Clause, and that his statements were inadmissible hearsay. Appellants raise other Confrontation Clause claims as well, asserting the trial court erred by limiting Griffin's cross-examination of Fisher and by admitting a certificate of no license to carry a pistol and an autopsy report without testimony from the documents' preparers. Appellant Griffin further claims that the court abused its discretion in denying his motion for severance after it redacted his out-of-court statement to the police in order to protect his co-defendant's confrontation rights. In addition, appellant Diggs claims that the seven-year delay in bringing him to trial violated his Fifth Amendment right to due process and his Sixth Amendment right to a speedy trial; that he was prejudiced by the addition of a conspiracy count in a superseding indictment; and that his convictions on two counts of possession of a firearm during a crime of violence merge.
We conclude that the admission of Fisher's grand jury testimony and statements to police did not violate appellants' rights under the Confrontation Clause or the hearsay rule. We also reject all but one of appellants' other claims of reversible error. The exception, conceded by the government, is Diggs's claim that the certificate of no license was admitted in evidence in violation of his Sixth Amendment right to be confronted by the witnesses against him. Accordingly, we reverse Diggs's conviction for carrying a pistol without a license. In all other respects, we affirm the judgments of the Superior Court.
On the afternoon of November 9, 2000, four young men were sitting in a white Jeep Cherokee near the 1600 block of Fairlawn Avenue in Southeast Washington. As the young men sat there chatting, drinking, and smoking marijuana, a dark-colored Volkswagen Beetle pulled up and two armed men got out and opened fire at them without warning. The driver of the Jeep, Gregory Phelps, jumped out and escaped unharmed, as did the passenger in the seat directly behind him. The front seat passenger, Melvin Montgomery, also managed to get away, though he was shot in the ankle as he fled. Michael Smith, the back seat passenger behind Montgomery, was not so fortunate. He was shot in the head as he tried to escape into nearby woods. His shooting was not immediately reported to the police, but four days later, after Smith's family had reported him missing, his body was found lying in the brush on the side of the road near where the attack had taken place.
Phelps, testifying at trial pursuant to an immunity agreement, admitted that he had stolen the Jeep Cherokee. A few days before the shooting, Phelps explained, he and two confederates had broken into an apartment occupied by appellants Diggs and Griffin in order to rob them. The intruders, who were armed with a sawed-off shotgun, took appellants' jewelry and drugs, and Phelps grabbed a set of car keys. The keys were to the Jeep, which Phelps drove off in after finding it on the street.*fn2 Phelps kept the vehicle until the attack on November 9. He initially told police he could not identify the attackers, but at trial he testified that he recognized one of them as Diggs, whom he had known prior to the robbery. Phelps could not identify the second gunman. None of the Jeep's other surviving occupants could identify either assailant, though Montgomery's physical description of one of them resembled Diggs.
The owner of the white Jeep Cherokee was appellant Griffin's sister. At trial she testified that she had purchased it in July 2000 and had allowed Griffin to drive it. The government also presented evidence that Griffin was seen driving what probably was the same vehicle shortly after the shooting.*fn3
The critical evidence that enabled the government to prosecute appellants was supplied by Mark Fisher. Fisher's ex-wife was Diggs's sister and Griffin's cousin. On November 24, 2000, Fisher, who was then a sergeant in the United States Army, telephoned the homicide branch and reached Detective Willie Toland. Fisher identified himself and informed Toland that he knew who committed a homicide earlier in the month on Minnesota Avenue. By checking police records, Toland was able to determine that Fisher was referring to the November 9 shooting of Michael Smith.*fn4 Fisher identified Diggs and Griffin and explained to Toland that they had visited him before the shooting and told him of the robbery and the theft of the Jeep Cherokee. They later returned to ask for Fisher's help in cleaning and loading a .45-caliber automatic handgun, saying they planned to use it to "scare somebody" and recover the Jeep. Fisher said he refused to lend appellants his own gun for the endeavor, but his wife gave it to them without his knowledge. Later, Fisher reported to Toland, Diggs and Griffin came back to his apartment and described how they had found the Jeep and attacked its occupants. One of the victims was shot in the head. Appellants returned Fisher's gun to him at that time, and he observed that it was covered with a carbon residue, indicating it had been fired.
Detective Toland was not assigned to the investigation of Michael Smith's murder.
For reasons not explained in the record, no one from the police followed up on Fisher's call before he was deployed on military duty overseas in 2001. Fisher was not interviewed in person until he returned home in 2003, at which time he again implicated Diggs and Griffin in the homicide. Fisher also said he had hidden his gun in order to give it to the police, and the weapon was recovered. Fisher repeated his incriminating account in two grand jury appearances.
Subsequently, in 2005, Fisher became seriously ill. He suffered a total renal failure, was in a coma for several days, and sustained permanent brain damage that affected, to some degree, his short and long term memory. By the time of trial, Fisher claimed he could not recall his interactions with appellants in any detail. After a pretrial inquiry into Fisher's competency, in which expert witnesses opined that he was malingering, the court found that Fisher's professed memory loss was "not an inability to accurately perceive and recall and relate facts and testify truthfully, but . . . more of a lack of willingness to do so." The court ruled that Fisher was ...