Argued
October 17, 2018
Appeals from the Superior Court of the District of Columbia
(CF3-16946-08 and CF3-16948-08 - Walker) (CF1-25684-08 -
Donaldson) (Hon. John Ramsey Johnson, Trial Judge)
Nathaniel S. Wright, with whom Jeffrey T. Green, Lindsey N.
Walter, and Robin E. Wright were on the brief, for appellant
Willie Walker, Jr.
Nancy
E. Allen for appellant Ricky Donaldson.
Valinda Jones, Assistant United States Attorney, with whom
Jessie K. Liu, United States Attorney, and Elizabeth Trosman,
Nicholas P. Coleman, Kimberley C. Nielsen, and Jeffrey
Pearlman, Assistant United States Attorneys, were on the
brief, for appellee.
Before
Blackburne-Rigsby, Chief Judge, and Glickman and Fisher,
Associate Judges.
FISHER, ASSOCIATE JUDGE
In
these consolidated appeals, Willie Walker, Jr. and Ricky
Donaldson challenge the trial court's denial of their
post-trial motions, which claimed that they were entitled to
a new trial because of newly discovered evidence. Walker also
asserts that reversible error occurred during the trial. We
affirm.
I.
Background and Procedural History
Appellants
Willie Walker, Jr. and Ricky Donaldson were tried by a jury
between January and March 2014. The charges arose out of
three separate events: the February 4, 2008, shooting of
Patricia Holmes; the March 31, 2008, shooting of Delois
Persha; and the September 13, 2008, murder of Delois Persha.
Walker was found guilty of several crimes in connection with
the three events and sentenced to 88 years in prison.
Donaldson was found guilty of several crimes in connection
with the murder of Persha and sentenced to 45 years in
prison.
A.
Appellants and Their Victims
Walker
(known as "Wee Wee") and Donaldson (known as
"Slick") were members of the LeDroit Park crew. The
crew was involved in selling drugs and committing violent
crimes, and its members stored communal guns and ammunition
in "trap houses" in the neighborhood. The
government alleged that the LeDroit Park crew was a criminal
street gang, citing evidence of the crimes its members
committed and graffiti with messages such as "DBD"
or "Death Before Dishonor," "Kill Rats,"
and "Respect G's or Die," meaning snitching was
not tolerated and members of the crew would die before
snitching to the government.
Walker
and Donaldson were close friends with Devon
Davis[1] (also known as "D Nice") who had
a court-imposed curfew while Walker was incarcerated.
Patricia Holmes (known as "Trish") grew up in
LeDroit Park and bought drugs from many people there,
including Walker, whose family she had known since before
Walker was born. In the past Holmes had run errands for
Walker and they got into physical altercations in which
Walker threatened to shoot and kill Holmes. Delois Persha
(known as "Peaches") had known Walker "since
he was a baby" and had seen him selling drugs. Holmes
and another witness from the neighborhood testified that they
knew Walker as "Wee Wee."
B.
The Shootings
Patricia
Holmes was shot outside of Jerry's carry-out restaurant
at the intersection of Georgia and Florida Avenues, N.W., on
February 4, 2008, after getting into an argument with
appellant Walker. When the police arrived at the scene,
Holmes repeatedly screamed, "Wee Wee shot me." Two
days later, Holmes looked at a nine-photo array and
identified Walker as the shooter. Before her grand jury
testimony in August 2008, Holmes identified Walker as
"Wee Wee" from a book containing photographs of
approximately 50 different people. (The jury
was not told of this identification.) At trial Holmes
identified Walker as "Wee Wee" and confirmed that
Walker shot her. According to Holmes, Donaldson was with
Walker at the time of the shooting.
On
March 31, 2008, Delois Persha was shot outside of an upstairs
apartment at 242 W Street, N.W., a block north of LeDroit
Park, while waiting for Terrill McCray to come to the door.
When Persha entered the apartment building, she had seen
Walker holding a gun and arguing with a man in the hallway.
While waiting for McCray, Persha told Deandre Swann, who had
come out of the apartment, to hurry up because she wasn't
"going to let him sit [her] down and shoot [her] like he
did that girl Trish [Holmes]." Walker and Swann soon
came up the steps while Persha was waiting outside the
apartment, and Walker shot her multiple times. Before Walker
shot Persha, he said "what you looking at" and
"you fuck with me, I'm going to shoot you like I did
that bitch Trish. Bitch, I'll kill you." Persha
briefly lost consciousness and when she woke up, she was shot
two or three more times. In total, Persha was shot six times.
While in the hospital in April 2008, Persha identified Walker
as the shooter while examining a nine-photo array.
Less
than six months later, while Walker was in jail, the police
found Persha lying on the sidewalk bleeding. A medical
examiner found that Persha died as a result of gunshot wounds
to the head and torso. At trial the government introduced
letters between Walker and Donaldson that police found while
executing search warrants for Walker's jail cell and the
homes of Donaldson's parents. The government argued that
these letters were coded messages which showed that Walker
and Donaldson conspired to shoot Holmes and Persha before
they could testify at Walker's trial. The government also
introduced calls Walker made while in jail that referred to
Donaldson.
C.
Jolanta Little
On
September 27, 2008, Jolanta[2] Little was arrested for an
unrelated carjacking and interviewed by detectives. Little
confessed to the carjacking and subsequently told other
detectives that he saw Donaldson shoot and kill Persha.
During that videotaped interview, Little identified a
photograph of Donaldson and a photograph of the type of gun
used by Donaldson, described characteristics of the gun used
by Donaldson, and marked on maps to show where the shooting
took place. The detectives also spoke to Little about the
theory that Walker arranged Persha's murder and Little
responded with information about the friendship of Walker and
Donaldson.
Little
entered into a plea deal and signed a cooperation agreement
with the government. When he testified before a grand jury on
November 26, 2008, Little confirmed that he had reviewed the
videotape of the September 27 interview and wanted to
incorporate that recording into his grand jury
testimony.[3] However, when the grand jury reconvened on
December 11, 2008, Little testified that what he told the
detectives in September was not the truth but was based on
rumors he had heard. Little said that he lied to the
detectives to get out of jail, and put Donaldson in jail
instead, because he had heard a rumor that Donaldson was
trying to rob him.[4]
At a
pretrial deposition over which the trial court presided on
January 14-15, 2014, Little testified that he was the person
who killed Persha. At the time of this deposition, Little
also stated that he had been granted immunity and believed he
could not be prosecuted for Persha's murder. At trial
Little testified again that he had killed Persha and asserted
that he did not know where Donaldson was when he did so. A
large portion of the videotape of Little's interview with
detectives in September 2008 was played before the jury at
trial.
D. This
Court's Decision in Little
After
appellants' trial was over, this court reversed
Little's convictions, holding that his confession to the
carjacking should have been suppressed. Little v. United
States, 125 A.3d 1119, 1122 (D.C. 2015). Looking at the
totality of the circumstances and focusing on the
detectives' statements to Little about possible sexual
assault in jail and the police pursuing other charges against
Little for crimes they did not truly suspect him of
committing, we concluded that Little's ultimate
confession to the carjacking on September 27, 2008, was
coerced. Id. at 1127-28. This court commented that a
negotiation was taking place during the interrogation and
that one of the detectives was trying to get Little to
confess and "work out a deal" once he put
"some meat . . . on the table." Id. at
1129. The court remanded the case for a new trial from which
Little's confession to the carjacking would be excluded
because "the combination of the timing and the nature
and intensity" of the detectives' tactics led to the
conclusion that the confession was not voluntary.
Id. at 1133.
Soon
after Little confessed to the carjacking, he spoke to
homicide detectives. This court did not address whether
Little's subsequent statements implicating Donaldson in
the 2008 murder were involuntary, but merely referred to
these later statements in a footnote. Id. at 1130
n.10 (referring to the police "questioning [Little]
about other crimes he witnessed or knew about").
E.
The Issues On Appeal
Appellants
timely appealed their convictions and also filed motions for
a new trial, which the trial court denied. Portions of the
videotape of Little's interviews with the carjacking and
homicide detectives were played for the jury at the trial in
2014, prior to our ruling in Little. Appellants now
assert that their constitutional rights were violated because
Little's statements implicating Donaldson and Walker are
the tainted fruit of Little's coerced confession to the
carjacking. As a result, they contend, the government has the
burden to show that Little's statements about the murder
were free of taint. The government responds that it is
appellants' burden to show that Little's later
statements about the murder were coerced and
unreliable.
Appellant
Walker has also presented other issues, such as the trial
court's denial of a pretrial hearing to determine the
reliability of identification testimony by Holmes, the trial
court's decision not to determine prior to trial whether
the government had sufficient evidence that he was a member
of a criminal street gang, and the trial court's
admission of evidence as statements of co-conspirators.
Appellant Donaldson ...