Appeals from the Superior Court of the District of Columbia F-6484-03 (Hon. Judith E. Retchin, Trial Judge)
The opinion of the court was delivered by: Ruiz, Senior Judge:
Before GLICKMAN, Associate Judge, and FARRELL and RUIZ,*fn1 Senior Judges.
Opinion for the court by Judge Ruiz.
Opinion concurring in part and concurring in the result by Judge Farrell at page 43.
Michael Longus was convicted of armed second-degree murder*fn2 and possession of a firearm during a crime of violence (PFCV)*fn3 in connection with the drive-by shooting of Maurice Brown. On appeal, he argues that his due process rights under the Fifth Amendment were violated when the government failed to correct the false statement of a detective who corroborated the testimony of a key witness in the case; and that his Sixth Amendment right to confront adverse witnesses was violated by improper limitations on defense counsel's examination of the detective for corruption and bias. Although we do not come to a final resolution of appellant's Fifth Amendment claim, we conclude that his Sixth Amendment right to confrontation was violated and that his defense was prejudiced as a result. We therefore reverse and remand for a new trial.
I. STATEMENT OF THE FACTS
In the early morning hours of June 5, 2003, Maurice Brown was walking across Foote Street near 60th Street, N.E., when he was killed by shots fired from a blue truck. At trial, the government presented two eye-witnesses, Chandra Cooley-Hinton and Shannon Scott.
Cooley-Hinton testified that she was sitting in a parked car getting ready to smoke cocaine when she saw a person dressed in black (Maurice Brown) walk from the 5900 block of Foote Street towards Eastern Avenue and, "as he was crossing the street[,] the truck came by and some shots were fired and he got killed."*fn4 Scott testified that she was smoking "crack" and "out there prostituting" when she observed a blue Bronco truck come down the 60th Street hill, turn onto Foote Street, and stop in front of a man dressed in a black coat with a hood, who was "shot a couple of times" and then fell to the ground. Both women testified that appellant ("Mike") was driving the truck when multiple shots were fired through the open passenger side window at Brown, who then collapsed. They disagreed on the number of persons in the truck and who fired the shots. Scott testified that appellant was the only person in the truck and that he had reached across the passenger seat of the truck and fired the shots at Brown. Cooley-Hinton testified that there were two people in the truck, that appellant was driving but did not fire the shots, and that the passenger, whom she saw but could not identify, fired the shots that killed Brown. Both Scott and Cooley-Hinton agreed that after the shots were fired, appellant sped off in the direction of 58th Street, N.E.
Scott and Cooley-Hinton testified that they each separately had a conversation with appellant that same day or the day after, June 6, 2003, regarding the murder. Scott had seen appellant standing at his "regular corner," on 60th Street and Eads Street, N.E., one block from where Brown was shot Appellant had approached Scott to ask if she knew what had happened "down there." Initially, Scott said, she demurred, but then told appellant "that [she] had heard he had shot this man, did something to this man in the street." She testified that appellant did not deny shooting Brown, and said that the man "shouldn't have been up here robbing people." Cooley-Hinton testified that she also spoke with appellant at the intersection of 60th Street and Eads Street, N.E., where she saw appellant sitting in the blue truck; she got into his truck, and asked why "would you do that on our street and make it hot around here?" Cooley-Hinton recalled that appellant responded by saying he had "fucked up" and that "[Brown] shouldn't have fucked with my shit." The day after the shooting, Cooley-Hinton was arrested by the Metropolitan Police Department (MPD)and taken to the 6th District police station.*fn5 While at the police station, Cooley-Hinton volunteered that she had information about the Foote Street, N.E. homicide. She was interviewed by MPD Detective Eric Brown. The official police report taken of the interview by Detective Brown was entered into evidence by defense counsel at appellant's trial, and is described below.
There was no physical or forensic evidence that linked appellant to the shooting of Maurice Brown. Based on Scott's and Cooley-Hinton's testimony about their conversations with appellant, the government argued that appellant killed Brown because Brown had robbed him.
Appellant's defense was that he had nothing to do with the shooting of Maurice Brown. The defense called four witnesses at his trial, Veria Brickhouse, Shirletta "Cheryl" Lewis, defense investigator Faheemah Davillier, and Detective Brown. Brickhouse lived in the building located in front of where the shooting took place; she testified that on the morning of June 5, 2003, she had heard gunshots outside as she was walking from her bedroom towards her living room. After she lay on the floor for about a half a minute for protection, she looked out of her window and saw a "boy" lying on his stomach on the ground in front of her apartment building. She then saw "'L' . . . one of the boys [from] around her neighborhood" drive down 60th Street and turn west onto Foote Street, stop beside the man on the ground and yell up to Brickhouse to call the police. Brickhouse testified that two to three minutes later, appellant ("Mike") and an unknown companion approached on foot, from the west. Appellant spoke with "L," turned around and walked east on Foote Street, crossed Eastern Avenue, to where his truck was parked. Appellant started his truck, returned to pick up "L," and drove off.
Two of appellant's witnesses offered testimony intended to impeach Shannon Scott's testimony that appellant had fired the shots that killed Brown. Shirletta Lewis testified that she and Scott were in an alleyway near the scene at the time of the murder, that they had heard gunshots, two at first and then three more, and then "heard a truck pull off." According to Lewis, Scott left and Lewis stayed in the alleyway. In contrast to Scott, Lewis testified that she and Scott were sitting in some bushes in the alley when the shots were fired, and that Lewis was unable to see what transpired from that location. Defense investigator Davillier testified that she had measured the distance between the location in the alley where Scott and Lewis had been and the place on the street where Brown was shot. From that distance - one-hundred and ninety feet and four inches - the investigator was unable to see or describe persons in vehicles driving on Foote Street.
MPD Detective Brown was called by the defense to impeach the testimony of Cooley-Hinton based on the Detective's written report of the statement she had given to Detective Brown on June 6, 2003, the day after Maurice Brown was killed. That report described a shooting that was starkly different from the one Cooley-Hinton said she saw when she testified at appellant's trial that appellant ("Mike") had driven by in a blue truck and the passenger had fired the shots that killed Maurice Brown. Detective Brown's report of his interview with Cooley-Hinton on June 6, however, recorded that she saw Maurice Brown "in some type of transaction" with a person who goes by the nickname "L" and identified "L" as the shooter.*fn6 According to the Detective's report, Cooley-Hinton said that "L" had "walked up on [Maurice Brown] and shot [him] three times and fled the scene in an unknown direction." When confronted with Detective Brown's report at trial, Cooley-Hinton contradicted the statement attributed to her in Detective Brown's report. Instead, she testified, she had not identified the shooter as "L" when she spoke with Detective Brown two years earlier and she never said that someone had "walked up," shot the victim, and fled on foot. Rather, Cooley-Hinton maintained, she had told detectives from the beginning that "Mike" (appellant) drove up in a blue truck and that it was the passenger in the truck who had fired the shots.Detective Brown testified at trial that Cooley-Hinton had identified "L" as the shooter, and never mentioned"Mike" or a truck as involved in the shooting. This was consistent with his report, which did not include any mention of appellant or a truck involved in the shooting. Detective Brown deviated from his written report, however, when he confirmed at trial that Cooley-Hinton had said "L" "drove up" - not that he had "walked up" - and dismissed this inconsistency between his report and the Cooley-Hinton's trial testimony as a "typographical error."
Faced with Detective Brown's testimony disowning part of his own report, which corroborated Cooley-Hinton's changed story that the shots came from a truck driven by appellant, defense counsel attempted to impeach Detective Brown by questioning him for bias as a hostile witness. The examination centered on a government investigation of allegations that Detective Brown and other officers had coached witnesses to change their stories about a homicide at "Club U."*fn7 Alerted by a February 25, 2005 article that appeared in The Washington Post*fn8 shortly before appellant's trial was scheduled to begin, defense counsel had filed a pre-trial request for Brady*fn9 material at a motions hearing on February 28, 2005. The article reported that "one or more witnesses" had changed their stories concerning the murder weapon after having been interviewed by the officers. The motion requested the names and addresses of the witnesses interviewed by Detective Brown in the Club U homicide investigation, their various statements to the prosecutors, the substance of the allegations against Detective Brown, the current state of the investigation into the allegations of police misconduct, and the potential sanctions Detective Brown would face should the allegations be proven true. Defense counsel argued, "I think it would be relevant to  his behavior in this case, that is the similarity between the information in this case as well as when compared to the U Street nightclub case . . . [and] I would think we are positively entitled to this information, especially with bias cross-examination, intrinsic evidence can be introduced. If he were to deny having the bias, . . . we can prove it . . . with intrinsic evidence."*fn10 The trial court asked the government if the article in The Washington Post was accurate and the government responded, "It's not inaccurate. . . [Detective Brown is] under investigation. Defense counsel made clear that was not enough, stating "we are entitled to the witnesses and the witnesses' statements so that we can, if necessary, show the jury, prove to the jury that [Detective Brown] does have a reason to testify falsely at this trial."*fn11 When defense counsel tried to impeach Detective Brown at trial, the trial court denied defense counsel's requests, agreeing with the prosecutor's position that:
Prosecutor: [W]e think the only thing he's entitled to would be to ask the question are you not being investigated for coaching and having witnesses change their story, that's it. I don't think you can get into whether or not he did or did not do it. It's like any other matter and it goes to his credibility. . . . [O]therwise we would start allowing the defense to go on a fishing expedition in another unrelated homicide case that we could take two weeks to try that part of it as to whether or not Detective Brown did or did not.
So limited, defense counsel asked Detective Brown about the pending investigation. Detective Brown acknowledged that he was being investigated by the U.S. Attorney's Office, and that he had been suspended from the police department. Detective Brown, however, deflected the suggestion that he had coached the witness in the Club U investigation to conform her testimony to the other evidence and denied that the witness had in fact changed her description of the murder weapon to conform to the physical evidence in the case:
Q. In any case you were told that the information that the witness provided to you was not consistent with the known kind of physical evidence in the case, correct?
Q. And you went back out and re-interviewed the ...