Appeals from the Superior Court of the District of Columbia (F-552-04 & F-549-05) (Hon. Wendell P. Gardner, Jr., Trial Judge)
The opinion of the court was delivered by: Thompson, Associate Judge:
Before GLICKMAN and THOMPSON, Associate Judges, and FARRELL, Senior Judge.
On October 31, 2006, after a several-week trial, a jury convicted appellants Marquette Ward and Franklin Thompson of several offenses relating to the shooting deaths of Mario Evans and Jakhema "Princess" Hansen in the Sursum Corda neighborhood of N.W. Washington. Ward was convicted of the first-degree premeditated murder while armed of Mario Evans; carrying a pistol outside his home or place of business without a license; conspiracy to murder Hansen; first-degree premeditated murder while armed (Hansen); assault with intent to kill while armed ("AWIKWA") (victim Tonique White); first-degree burglary while armed; first-degree (felony) murder while armed (Hansen); two counts of obstruction of justice (with respect to Hansen and witness Timika Holiday); and four counts of possession of a firearm during a crime of violence ("PFCV"). Thompson was convicted of the same offenses except the murder of Evans and the related PFCV charge.
In these appeals, Ward contends that he was denied his Sixth Amendment right to a speedy trial. Both Ward and Thompson contend that the trial court erred in permitting the government to elicit hearsay testimony recounting statements by Hansen and statements appellants made to government witness Devin Evans, who had been a fellow inmate of each in the D.C. Jail. Additionally, both appellants argue that the court erred in denying their motions for severance. Thompson further contends that he was charged with and convicted of multiplicitous crimes, in violation of his right to due process. We conclude that some of appellants‟ convictions merge, and we therefore remand to the trial court for it to determine which affected convictions to vacate. In all other respects, we affirm the judgments of conviction.
We summarize the evidence only briefly. Holiday testified that on January 18, 2004, Mario Evans was selling PCP in the hallway of a Sursum Corda apartment building. Among the other people in the hallway were Ward, Hansen, Holiday and one Bernard Smith. Ward and Evans began to argue when Evans refused to sell Ward a PCP-laced cigarette for a discounted price. After arguing for some time, Ward paid the full price and left the hallway. Shortly thereafter, Ward returned and opened fire on Evans, killing him. Holiday spoke with police officers who arrived on the scene, identified Ward as the shooter, and told the police that Hansen had also witnessed the shooting.
Holiday further testified that on January 23, 2004, Hansen and Holiday were approached by Thompson, who warned Hansen that she had "better not be snitching." Later that day, while Hansen was visiting Holiday at Holiday‟s grandmother‟s house, a masked Thompson burst into the house and began shooting, killing Hansen (who was in the living room with Holiday) and injuring White (Holiday‟s sister, who was in the kitchen). Thompson also pointed his gun at Holiday, but realized that it was empty and then left the house. The government‟s theory at trial was that Thompson, a friend of Ward, murdered Hansen and attempted to kill Holiday to prevent them from testifying about the Mario Evans murder.
On January 24, 2004, Ward was arrested and held for the Mario Evans murder. On October 24, 2004, a grand jury indicted Ward, charging him with the murder of Evans as well as firearm offenses. Ward was arraigned on November 2, 2004, and an initial trial date was set for March 7, 2005. However, several delays ensued, including delay attendant to the grand jury‟s handing down of a superseding indictment on June 1, 2005, and pre-trial motions did not begin until September 11, 2006.
For Sixth Amendment speedy-trial purposes, the clock starts with "either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge," Dillingham v. United States, 423 U.S. 64, 65 (1975), and stops when pre-trial motions hearings commence. Hartridge v. United States, 896 A.2d 198, 207 (D.C. 2006) (stating that this is when "trial" is deemed to start). A delay exceeding one year between formal charging and trial "gives prima facie merit to a claim that an accused has been denied the right to a speedy trial, creates a presumption of prejudice, and shifts the burden to the government to justify the delay." Moore v. United States, 675 A.2d 71, 74 (D.C. 1996) (internal quotation marks omitted). Ward contends that his right to a speedy trial was violated in that his trial was delayed for 33 months. He contends that he was prejudiced by the delay because, by the time of trial, Smith (who, defense counsel proffered, stated during a February 2004 videotaped interview that Ward did not shoot Mario Evans) was claiming that he could no longer "remember what happened back in 2004." Ward also argues that during the delay, he suffered emotional harm from a lengthy stay in the "equivalent of solitary confinement," deprived of contact with family and friends.
To determine whether a defendant‟s right to a speedy trial was violated, the trial court must employ a balancing test in which it weighs the conduct of both the prosecution and the defendant. See Barker v. Wingo, 407 U.S. 514, 530 (1972); see also id. at 521 (noting that it is "impossible to determine with precision when the right has been denied"). The factors the court must analyze are the "[l]ength of delay, the reason for the delay, the defendant‟s assertion of his right, and prejudice to the defendant." Id. at 530. These factors must be considered "together with such other circumstances that may be relevant" in a "difficult and sensitive balancing process." Id. at 533. This court‟s duty in reviewing the trial court‟s decision is to "assess [the] evidentiary support for the facts that have been determined respecting" the Barker factors. Reid v. United States, 402 A.2d 835, 837 (D.C. 1979). We are bound by the trial court‟s findings of fact, and we will not reverse "unless they are plainly wrong or without evidence to support them," or unless there are errors of law. Hartridge, 896 A.2d at 207 (internal quotation marks omitted).
In evaluating the reasons for delay, "we focus primarily on whether and to what extent it was due to a deliberate attempt by the prosecution to gain tactical or other advantage" or, instead, "a more neutral reason." Diggs v. United States, 28 A.3d 585, 599 (D.C. 2011). Deliberate attempts to delay trial to hamper the defense should be weighed heavily against the government. Barker, 407 U.S. at 531. Although chargeable to the government, investigative delay "is considered more "neutral‟ and is "weighted less heavily‟ against the government." Lyons v. United States, 683 A.2d 1080, 1085 (D.C. 1996) (quoting Barker, 407 U.S. at 531). Delay caused by a prosecutor‟s unavailability due to conflicting trial dates is charged to the government and is considered significant delay but is not weighed as heavily as purposeful delay. See Hammond v. United States, 880 A.2d 1066, 1082 (D.C. 2005). While the government bears responsibility for delays arising from its choice to proceed jointly against co-defendants, "in light of the policy considerations favoring joinder, this responsibility does not weigh heavily against the government." Id at 1081 (internal quotation marks omitted). Reasons such as an overcrowded court docket are considered neutral and, although charged to the government, are not weighed heavily. Id. at 1079-80. Further, "the more serious and complex the charge[s], the greater is the delay that will be tolerated because of the extended pretrial preparation required." Diggs, 28 A.3d at 599 (internal quotation marks omitted).
In this case - one the trial court referred to as "a case of this complexity" - the evidence supports the trial court‟s finding that only a relatively small portion of the delay "weigh[s] heavily against the Government." Appropriately, the trial judge did not weigh heavily against the government the delay that ensued while the government was still investigating (explaining that he did not understand how the defense could "make a call as to what [the government] need[s] to do, how they need to do it, when they need to do it, [and] why they need to do it to get somebody indicted").*fn1 Although Ward argues that the shooting of Evans was a simple offense that could have been indicted and tried without delay, the prosecutor explained to the court that the ...