GLICKMAN, Associate Judge:
On April 25, 2001, appellants Harrell Hagans, Brion Arrington, Warren Allen, and Gary Leaks were indicted for conspiring to assault and kill members, associates, and friends of a criminal enterprise known as the "Mahdi Brothers organization," and
While appellants were awaiting trial, several other indictments were returned against Arrington. Two of them charged him with assault with intent to kill while armed ("AWIKWA") and related weapons offenses in connection with the shootings of Antonio Tabron on January 24, 1999, and Robert Nelson on January 30, 2000. On the government's motion, these two AWIKWA indictments against Arrington were joined for trial with appellants' earlier indictment. Appellants' joint trial commenced on September 23, 2003, and continued for ten weeks. On December 3, 2003, the jury rendered its verdict, finding appellants guilty on all counts as charged.
The trial court proceedings in this case were lengthy and complex, and appellants challenge their convictions on numerous grounds. We find that some of their claims are not without merit. Indeed, the government now concedes one error of constitutional magnitude, involving its introduction of testimonial hearsay in violation of appellants' Sixth Amendment rights of confrontation. Nonetheless, we conclude that the errors were few in number and not consequential enough to warrant reversal of appellants' convictions.
According to the government's evidence at trial, appellants were members of the so-called Delafield gang, a group of men who, among other things, sold marijuana in the area around Delafield Place in Northwest Washington, D.C. A number of witnesses testified about the Delafield gang and its activities. Five former members of the gang, cooperating with the prosecution in accordance with plea agreements, were among the key witnesses against appellants. In 1999 and 2000, the period encompassed by the indictments, appellants Arrington and Hagans, along with cooperating witness Kevin Evans, were the putative leaders of the Delafield gang, while appellants Allen and Leaks and cooperating witnesses Charles Payne, Marquet McCoy, Sean Gardner, and Jason Smith were lower-ranking members. Gardner stored and maintained many of the gang's assault weapons and other firearms, while Jason Smith specialized in stealing cars for gang members' temporary use.
The shootings at issue in this case were allegedly committed in the course of a violent feud between the Delafield gang and a rival drug gang led by five brothers — Abdur, Nadir, Rahammad, Malik, and Musa Mahdi — who lived in the 1300 block of Randolph Street in Northwest Washington, D.C. A number of former members and associates of the Mahdi brothers' organization testified about the shootings pursuant to cooperation plea agreements. (None of the Mahdi brothers themselves appeared as a witness at appellants' trial. However, as we shall discuss, the jury heard redacted versions of factual proffers to which four of the brothers had assented when they pleaded guilty to federal charges.) It was unclear how the feud began — it may have started with the shooting some time prior to 1996 of a Delafield gang member named Steve St. John — but it began to escalate in 1999 with the shooting of a Mahdi gang member named Antonio Tabron.
The principal testimony about this shooting was provided by Delafield cooperator
As various witnesses, including cooperating Mahdi and Delafield gang members, testified, the shooting of Tabron initiated a series of retaliatory actions. On the night following the shooting, Tabron's brother Antoine drove to the Delafield neighborhood with Musa and Nadir Mahdi and others. They shot at a group of men near the corner of Delafield Place and Fourth Street but did not hit anyone. Evans testified that he witnessed this shooting from his apartment window with Arrington and Hagans. According to Evans, Arrington identified the shooters as Mahdi gang members and said the Delafield gang needed "to get some guns and put a stop[] to it."
A month later, on February 28, 1999, masked gunmen attacked and shot Delafield gang member William Ray on the street shortly after he left a meeting with Arrington, Hagans, Evans, and Charles Payne to go sell marijuana.
The primary witness to the next charged shooting was Evans. Early on the morning of January 30, 2000, as he and Arrington left The Palace nightclub and walked to their cars, a white car pulled up and a man got out. Evans saw Arrington reach into the trunk of his car, pull out a .45-caliber gun, and begin shooting at the man, who fell to the ground. Shots then rang out from other quarters, and Arrington stopped shooting, closed the trunk of his car, and fled on foot.
Evans and Payne testified that on the morning of February 29, 2000, Payne, at Arrington's instruction, drove Arrington, Hagans and Evans into Mahdi territory. As they came to the corner of Thirteenth
The murder of Webb was followed in the next several weeks by a number of shooting incidents involving Delafield and Mahdi gang members.
Two months later, on May 10, 2000, Jason Smith drove Hagans and Arrington in a stolen car to the 3900 block of Fourteenth Street, where the three men fired shots at suspected Mahdi gang members, apparently including Rahammad Mahdi. In revenge, Abdur and Nadir Mahdi returned to Delafield territory that night and shot at Payne and McCoy, wounding the latter. According to Payne, members of the Delafield gang, including all of the appellants here, discussed the need to retaliate against the Mahdis. Approximately four days later, Arrington and Hagans armed themselves with assault rifles and, with Payne driving, went looking for Mahdi gang members. When they arrived, eventually, at the intersection of Fourteenth and Monroe Streets, Northwest, Arrington and Hagans got out and started shooting at an individual who fled on foot down Monroe Street. (Payne, who recounted this incident at trial, could not tell who the targeted individual was and did not know if anyone was injured in the shooting.)
At around 5:00 in the afternoon on May 16, 2000, Payne drove Arrington, Hagans, and Leaks in Evans's burgundy Chevy Caprice down Fourteenth Street on what was apparently a reconnaissance expedition to "see," as Payne testified, "if there was anything out."
Later that night, Smith, Hagans, Arrington, and Payne went out and stole two Honda Accords, one gray and the other burgundy.
Thus it came to pass, according to the government's witnesses,
Eva Hernandez, a woman who lived with her family next door to the targeted house, at 3922 Fourteenth Street, had just returned home from the laundromat with her two sons and was unloading her car when the shooting started. She was shot in the neck and died on the front steps of her house. According to subsequent analysis, the bullet and bullet fragments recovered from her body were fired by one of the assault rifles, a Mac-90. Gloria Flores-Bonilla, who lived a couple of doors down at 3928 Fourteenth Street, was sitting in her bed when she was grazed in the back by a .45-caliber bullet that came through her window.
Just a few hours later that same morning (before 8 a.m.), the police found the Accords by the cemetery where they had been abandoned. From the rear door of the gray Honda, they obtained Hagans's fingerprint. The police also recovered shell casings from the vehicles and, eventually, from the cemetery.
The warfare between the Delafield and Mahdi gangs continued after May 17, 2000. Of relevance for present purposes, on the afternoon of May 26, 2000, Abdur and Nadir Mahdi ambushed Arrington as he was working on his car parked on Sheridan Street. Arrington sustained a gunshot wound in the left side of his chest.
Over Arrington's objections, the trial court permitted the government to present evidence of a shooting on June 3, 2000, in an alley off of Roxboro Place, Northwest, even though it was not part of the Delafield gang's feud with the Mahdi organization and no charges arising out of this incident were included in the indictments in this case. The evidence was admitted solely for its relevance in establishing Arrington's possession of two firearms that had been used (according to ballistics evidence and expert testimony) in the Hernandez, Webb, and other Mahdi-related shootings for which Arrington was on trial — a Ruger handgun and a Mac-90 assault rifle.
As Evans testified, he was selling marijuana on Delafield Place shortly before noon on June 3, 2000, when Arrington drove up in a Cadillac that Smith had stolen the previous evening.
When Arrington and Evans arrived at Arrington's car, they saw a burgundy Mazda drive up the street and turn into an alley immediately in front of them. Arrington told Evans that this Mazda had been following him all morning and that he wanted to find out why. The pair proceeded to follow the Mazda. They saw it stop at the end of the alley, behind Roxboro Place, and watched a pedestrian walk up to it and transact some business — apparently a drug buy — at its window.
According to Evans, Arrington then exited the Cadillac with his Ruger and immediately started shooting at the Mazda. Evans followed suit, firing the .45 caliber handgun he found in the Cadillac at an occupant of the Mazda who fled on foot. Arrington returned to the Cadillac, retrieved the Mac-90, and continued shooting with it. When Arrington finally stopped shooting, he and Evans ran back to the Cadillac and drove to the vicinity of Delafield Place, where Arrington dropped Evans off.
In the alley where the shooting occurred, police found and collected what a mobile crime scene officer described as "a tremendous amount of firearm evidence." A firearms examiner who had analyzed this evidence, comparing it to the ballistics evidence recovered by police from the Mahdi-related shootings, testified that it included (1) nine shell casings expelled by the same Ruger used in the shootings of Webb, Tabron, Vance, and Arrington; (2) twenty-five shell casings and four bullets or bullet fragments from the Mac-90 used in the shooting of Hernandez and in the shooting on 14th and Monroe Streets on May 14 or 15; and (3) one .45-caliber shell casing expelled from the same gun used in the Webb, Nelson, Vance, and Flores-Bonilla shootings.
The day after the Roxboro Place shooting, the police found the stolen Cadillac parked near Rock Creek Cemetery. Among the items of evidence found inside the vehicle were a burnt cigarette with Arrington's DNA on it, and a cassette tape bearing Jason Smith's thumbprint.
In seeking reversal of their convictions, some or all appellants challenge several rulings respecting the government's evidence at their joint trial. The rulings, in the order we shall discuss them, allowed the government to introduce (1) the Mahdi
In 2001, the Mahdi brothers were indicted on multiple criminal charges related to their gang's narcotics distribution conspiracy. Four of the five brothers eventually pleaded guilty to the conspiracy in federal district court, and Nadir and Rahammad Mahdi also pleaded guilty to having attempted to kill Arrington and his associates.
Over appellants' objections, the trial court allowed the government to introduce redacted versions of the Mahdi brothers' plea proffers in evidence as statements against penal interest.
Before the proffers were read into the record, the trial court informed the jury that the four Mahdi brothers had pleaded guilty in district court and had admitted, under oath, the criminal activity described in the proffers. After the proffers were read, the trial court explained to the jury that they were admitted only to show what Nadir and Rahammed Mahdi believed and the background of the alleged relationship between the Mahdi and Delafield gangs, and that the proffers were not evidence
Appellants objected to the admission of the plea proffers on Confrontation Clause grounds. In light of the Supreme Court's subsequent decision in Crawford v. Washington
In Morten and Williams, where we held that the Confrontation Clause violation was not harmless beyond a reasonable doubt, the erroneously admitted plea proffers were made by the appellants' co-conspirators, and they provided substantial and direct proof of both the conspiracy and the substantive charges against the appellants.
First, appellants argue, the plea proffers tended to prove the existence of the charged conspiracy by showing its "mirror-image," or what the prosecutor called in his rebuttal argument "the other side of the equation." That the Mahdis conspired to retaliate against "Arrington and others" for their acts of violence implied, it is said, that "Arrington and others" had conspired to commit and committed such acts (and, perhaps, that Arrington was one of the leaders of the conspiracy). Moreover, appellants contend, Nadir Mahdi's admission that he shot at "Arrington and others" on May 16, 2000, established a motive for appellants — Arrington, in particular — to commit the shooting that night in which Eva Hernandez was killed and Flores-Bonilla was wounded.
In response, the government contends that the improper admission of the plea proffers did not prejudice appellants because: (1) the proffers themselves were "entirely cumulative of other evidence presented by multiple, live witnesses at trial;" (2) the issues the proffers addressed were "peripheral; none of them provided any direct proof at all of appellants' guilt of the charged conspiracy or substantive offenses;" and (3) "although the government made use of the proffers in its closing and rebuttal arguments, they were hardly the central focus of the government's case, which presented overwhelming evidence of appellants' guilt through the consistent testimony of numerous independent witnesses, corroborated by extensive firearms and other forensic evidence."
Considering the record of appellants' ten-week trial in its entirety, we conclude that the government has carried its burden of establishing that the erroneous admission of the Mahdi plea proffers was harmless beyond a reasonable doubt.
To begin with, the government is correct in emphasizing that, unlike the testimonial hearsay of the defendants' coconspirators in Morten and Williams, the Mahdi plea proffers were not directly probative of any of the crimes charged in this case. The proffers did not assert the existence of the Delafield criminal organization or appellants' involvement in a conspiracy of any kind; nor did they mention any of the shootings with which appellants were charged. Although the proffers stated that Nadir and Rahammad Mahdi "believed" Arrington and others were responsible for (unspecified) acts of violence against the Mahdi organization, the proffers set forth no basis for that belief and were not offered or relied upon as evidence of its truth. To the contrary, the trial court instructed the jury that the proffers were "not any evidence" that Arrington or his co-defendants "did anything." Thus, even if the proffers' description of a Mahdi conspiracy against "Arrington and others" implied the existence of a "mirror image" conspiracy by Arrington and others against the Mahdi organization, the jury was inoculated against drawing that implication.
The government is also correct in stating that it relied on abundant admissible and probative evidence wholly apart from the plea proffers to prove the existence of the Mahdi and Delafield gangs, the feud between them, appellants' conspiracy, and appellants' commission of each of the shootings charged in their indictments — evidence that included the live eyewitness testimony of a slew of witnesses associated with each of the two gangs. For the most part, the Mahdi plea proffers added nothing of consequence to this evidence; they were cumulative at best.
Citing Morten, appellants argue that the Mahdi plea proffers were qualitatively superior to the cooperating witnesses' incourt testimony because, in contrast to that testimony, the proffers were read to the jury without disclosure of "the advantages [the Mahdi defendants] secured by pleading guilty and incriminating" Arrington and others.
We are not persuaded, however, of the importance of this contribution by Nadir Mahdi to the evidence against appellants. As summarized above, appellants' involvement in the May 17, 2000, raid was established at trial by multiple witnesses in addition to Payne, including: (1) Smith, who, like Payne, admitted to having participated in the raid himself; (2) Gardner, who witnessed appellants' activities immediately before the raid, and talked with them about it immediately afterward; (3) Evans and Hardie, to whom Arrington admitted his involvement; and (4) McCoy, to whom Leaks and Allen did likewise. In addition, the government presented the evidence that Hagans's fingerprint was found on the door of one of the stolen Accords and corroborative ballistics evidence.
There likewise was substantial corroboration at trial, apart from Nadir Mahdi's plea proffer, of Payne's testimony about the May 16, 2000, incident in which Nadir shot at Arrington. As previously mentioned, two of Nadir Mahdi's own associates (James Hamilton and David Tabron) confirmed that he committed the May 16 shooting, and Kevin Evans and Tamika Payne testified to Payne's prior consistent statements about the incident (given before he had any reason to fabricate).
Appellants argue that the critical importance of the Mahdi plea proffers to the government's case against them, and thus the likelihood of prejudice from their admission in evidence, is shown by the prosecutors' reliance on the proffers in
So, to take appellants' chief example, the prosecutors did cite Nadir Mahdi's plea proffer as evidence that corroborated Payne's testimony about the May 16 shooting. But it was not the only such corroboration, the prosecutor emphasized, nor did it outshine all the rest. The prosecutors also cited the testimony of Hamilton and other witnesses to the incident, and that of Tamika Payne, to whom Payne had described what happened; and ballistic and other physical evidence supporting Payne's account that Nadir Mahdi left the porch and shot at Arrington and the others in the car Payne was driving. Nadir Mahdi's plea proffer did not become key evidence against appellants merely because the prosecutors invoked it as one of many pieces of evidence corroborating Payne's testimony.
In sum, we conclude that the government has overcome the high bar set by the Chapman standard of harmlessness for constitutional error.
Appellants present two distinct but related claims of error in the admission of the testimony concerning their out-of-court admissions. One of the claims concerns whether this evidence should have been excluded because the jury was instructed on vicarious liability. The other claim focuses on whether one witness's testimony,
Although we address these two claims separately, they are related in that each claim invokes the same underlying evidentiary limitation, in multiple defendant trials, on the permissible use of statements made by one defendant that come within the party opponent exception to the rule against hearsay. (Because the statements at issue in this case were non-testimonial, we focus solely on the rule against hearsay and not on the Confrontation Clause.) When such a statement is not independently admissible against the non-declarant co-defendants, care must be taken to ensure that it is considered as evidence only against its maker and not against the other defendants in violation of the general prohibition against the use of hearsay. As we explain below, in cases where defendants may be convicted on a theory of vicarious liability, admitting party opponent statements might make it possible for all defendants to be convicted based on statements that are hearsay as to all but one of them, an unacceptable outcome that we rejected in Akins v. United States.
Appellants contend that because the jury was given a Pinkerton instruction on the vicarious liability of all co-conspirators for substantive crimes committed by any of them in furtherance of the conspiracy,
The reason for this rule is that a vicarious liability instruction may undercut the condition under which a properly redacted party opponent statement may be admitted in a joint trial — namely, the condition, on which the jury must be instructed, that the statement is to be considered as evidence only against its maker and not against the other defendants.
Akins framed its rule against the admission of party opponent hearsay in joint conspiracy trials not merely as an application of traditional rules of evidence, but specifically to protect the Confrontation Clause rights of the non-declarant defendants as those rights were understood in the era before the Supreme Court decided Crawford v. Washington.
However, although appellants objected on other grounds to the introduction of their out-of-court statements, an objection under Akins was never made at trial. We do not mean to suggest that appellants needed to cite Akins by name to preserve their objection for appellate review; but "appellants' failure to either cite to Akins or object that the combination of the admission of [their co-defendants'] redacted statements and the Pinkerton instruction would violate their ... rights meant that the trial court was not fairly apprised that appellants sought relief based on that claim."
Importantly, "it is inherent in the nature of plain error review that appellant must make that showing based on the record on appeal."
We cannot find plain error on the record here. For one thing, the record does not show clearly that the Akins rule was violated by the admission of the hearsay statements at issue here. There is every reason to suppose that at least some of those statements would have been "alternatively admissible" under a reliability-based hearsay exception (as contemplated by the Akins rule) — namely the exception for statements against penal interest.
In any event, in order to establish that the asserted error affected their substantial rights (the third requirement of plain error), appellants must show a reasonable probability that, but for the admission of their extrajudicial statements under the party opponent exception, the outcome of the trial would have been different.
Appellants' second party opponent hearsay claim is specific to cooperating witness Marquet McCoy's testimony recounting admissions by appellant Leaks. Before calling McCoy to the witness stand, the government informed the trial court and defense counsel that Leaks had told McCoy "chapter and verse" about the May 17 shootings, among other things "naming all five of his accomplices," but that "for Bruton reasons" the government had instructed McCoy to limit his testimony about Leaks's admissions so as to implicate only "Leaks and [unnamed] others."
On the stand, McCoy testified that a few days after the May 17 raid, Leaks gave him a detailed account of it and admitted having been "present and involved" himself. The prosecutor asked McCoy whether Leaks had said who went with him on the raid; McCoy confirmed what he had indicated earlier in his testimony, that Leaks had indeed named his confederates. The prosecutor then inquired how many there were. "It was him [i.e., Leaks] and five others," McCoy responded. Defense counsel objected and moved to strike the witness's answer as being violative of the Bruton doctrine because it plainly referred to Leaks's co-defendants. The trial court declined to strike the testimony but repeated its earlier instruction to the jury that a statement by a defendant could only be used against that defendant. McCoy then went on to testify to what Leaks told him about how the May 17 shootings had occurred.
On appeal, Allen argues that Leaks's statement to McCoy incriminated
Appellants' argument is not without merit. Rule 14 "requires that the trial court take appropriate steps to minimize the prejudice inherent in codefendant confessions which are inadmissible against the nondeclarant defendant."
Here, of course, the statement was redacted; instead of identifying those whom Leaks had named as his confederates, McCoy referred to them only in neutral terms as "five others." Thus, as it was summarized to the jury, the statement did not directly incriminate Leaks's co-defendants on its face. This is important, because
But, as we have emphasized, these principles "are guidelines for the mine run of cases, not ironclad rules for every case no matter what the circumstances."
When a defendant's extrajudicial statement is redacted by replacing the co-defendants' names with neutral pronouns or other generic terms (such as "others"),
Transparently redacted statements "continue to incriminate the non-declarant defendant `directly' and `facially,'" to the extent that a limiting instruction alone usually cannot be deemed an effective remedy.
We therefore cannot approve the redaction of Leaks's statement. The admission in this joint trial of McCoy's testimony summarizing what Leaks told him was error. That does not mean, however, that any of Leaks's three co-appellants are entitled to a new trial. We are persuaded by the government's alternative argument that, in light of the mass of other evidence of their involvement in the May 17 shootings, which we have summarized above, the error did not have a substantial impact on the jury's verdict and thus was harmless.
In deciding whether to admit evidence of the uncharged Roxboro Place shooting, the trial court had to evaluate and balance the government's assertions of relevance against claims of prejudice raised by Arrington and Hagans. Ultimately, the court ruled evidence of the Roxboro Place incident admissible only for the limited purpose of showing Arrington's possession of firearms used to commit the shootings charged in the indictment;
Evidence of an uncharged crime is inadmissible for the purpose of proving the defendant's criminal disposition to commit the type of offense for which the defendant is on trial.
We cannot conclude that the trial court abused its discretion here. As the trial court noted, the Roxboro Place evidence (along with the evidence of a second uncharged shooting, to which appellants
Arrington argues, however, that the trial court abused its discretion by allowing the government to introduce far more evidence of his participation in the violent Roxboro shooting than was necessary or appropriate given the limited purpose for which it was admitted; in reality, he contends, "[t]he only purpose of evidence that Arrington fired at an occupied car in the Roxboro alley was to show Arrington's alleged propensity to shoot people."
The evidence of Arrington's wanton violence against the occupants of the Mazda was undeniably prejudicial as well as probative. "[B]ut unfair prejudice is minimized where the evidence is admitted for a valid purpose and has substantial probative value, the prosecution does not present or argue it improperly, and the court correctly instructs the jury on the permissible use it may make of the evidence."
The decision to keep from the jury the fact that the Roxboro Place assault
We conclude that the trial court did not err, either in placing limitations on Hagans's cross-examinations or in denying his request for severance. Hagans had the right, guaranteed by the Sixth Amendment, to an opportunity for effective cross-examination of the witnesses against him for bias. However, this does not mean "cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."
We review the trial court's denial of Hagans's severance motion for abuse of discretion, which requires Hagans to show "not only prejudice, but manifest prejudice" to his defense from the joinder of his trial with that of Arrington.
In his direct examination, Jason Smith testified that he was taking Haldol, Cogentin, and Risperdal, but only, he stated, to help him sleep. On cross-examination by Hagans's counsel, Smith denied having been prescribed the medications because he had reported "hearing voices" or "see[ing] things that are not there." To impeach Smith, Hagans proposed to call Dr. Benjamin Adewale, the chief psychia-trist at the D.C. Jail, to testify that he had prescribed the medications because Smith had been having auditory hallucinations and manifesting other psychotic symptoms. It was Dr. Adewale's opinion, though he could not be certain, that these symptoms were triggered by sexual abuse Smith had suffered while he was at the Jail.
Hagans sought to present Dr. Adewale's testimony not only to show that Smith had told a lie on the witness stand in claiming his medications were just a sleep aid, but also to establish that the medications were prescribed because Smith suffered from hallucinations. As the trial court recognized, the main thrust of the latter impeachment would be not merely to prove that Smith had lied on the witness stand; rather, it would be to suggest that Smith's testimony at trial was the product of, or influenced by, his hallucinations and therefore not worth crediting. The government argued that Smith's prior consistent grand jury testimony (given before he was incarcerated and hence before he was sexually assaulted) should be admissible to counter such a suggestion. The trial court agreed, concluding that this would "fairly put[] the hallucination issue before the jury and prevent[] it from taking on more value than its worth."
In this court, appellant Leaks (joined by the other appellants) argues that the trial court erred in ruling that Smith's prior consistent statements would be admissible to rehabilitate him if the defense presented evidence that he had hallucinations. Appellants further argue that the court violated their Sixth Amendment confrontation rights by restricting their ability to impeach Smith with such evidence. Because appellants did not invoke the Confrontation Clause in the trial court and opted not to present Dr. Adewale's testimony about Smith's hallucinations, it is arguable that they forfeited these claims.
A trial court has "broad discretion" to permit a party to introduce a witness's prior consistent statement to rebut a suggestion that the witness's testimony at trial is a recent fabrication, provided the court finds the prior statement was made when the asserted or implied motive or other reason for the alleged fabrication did not exist.
The trial court properly applied these principles in connection with Hagans's proffered evidence that Smith was taking antipsychotic drugs to suppress his hallucinations. The court reasonably could find, as it did, that the evidence Smith had suffered from hallucinations would suggest to the jury that his testimony against appellants contained hallucinatory fabrications.
Taking issue with this conclusion, appellants primarily argue that Smith's prior consistent statements were inadmissible because Dr. Adewale's testimony suggested only that Smith was delusional, not that he was "deliberately lying."
In other words, under the "prevailing doctrine," an attack based on the witness's impaired mental condition at the time of trial may be answered with proof that the witness made consistent statements before the impairment developed.
Thus, we hold that there was no abuse of discretion in the trial court's evidentiary ruling. Furthermore, that ruling did not infringe appellants' Sixth Amendment rights to cross-examine the government's witnesses and present evidence impeaching them. The ruling at issue did not curtail those rights in any way; it did not limit appellants' cross-examination of Smith, nor did it prevent them from calling Dr. Adewale to complete Smith's impeachment. Allowing the government to introduce admissible evidence in rebuttal was not an infringement of appellants' Sixth Amendment rights, even if it dissuaded appellants from exercising them.
Appellants contend that the government, with the trial court's sanction, improperly bolstered Payne's credibility by referring to grand jury testimony that was not in evidence. For the reasons that follow, we conclude that appellants are not entitled to relief on this ground.
From Payne's direct examination at trial, the jury learned that he had appeared before the grand jury on two days, September 13 and 15, 2000, to testify about the shooting of Eva Hernandez as well as the encounter with Nadir Madhi earlier that day that might have instigated the shooting. The government did not elicit any further details of that testimony. During Payne's cross-examination, however, the jury learned that his trial testimony arguably diverged from his grand jury testimony on four specific points: the color of the stolen Honda Accord that Payne drove to and from Fourteenth Street on May 17, 2000; how he and Leaks cleaned the car; the particular weapon Hagans fired during the incident; and whether Evans was at the D.C. Jail or in a half-way house on May 17. No other purported inconsistencies between Payne's grand jury and trial testimony were identified. On redirect, Payne confirmed his grand jury testimony as to which car he was driving notwithstanding his mistake in the grand jury about its color. The jury heard nothing further about the content of the testimony.
The government subsequently moved to introduce forty-five pages of Payne's grand jury transcripts in evidence to rebut what it viewed as an implied charge by Hagans's counsel of recent fabrication, namely that the government had "bought and paid for" Payne's testimony with the financial benefits he gained from having been placed in the Witness Protection Program.
In the government's closing and rebuttal arguments, the prosecutor referred to Payne's grand jury testimony primarily to make three points: (1) that Payne's account of the events surrounding the murder of Hernandez had been corroborated by a great deal of independent evidence; (2) that Payne's testimony at trial had not been impeached; and (3) that his testimony had not been influenced by the benefits he had received from the Witness Protection Program and his cooperation plea agreement.
As to the first point, the prosecutor argued that when Payne appeared in the grand jury, he had no "control" over the other facts that would come to light "that tell you that what he's saying is the truth" — he could not have known that Nadir Mahdi would plead guilty two years later, that other witnesses would emerge and confirm his testimony, or that the police would acquire forensic and other corroborative evidence. Hagans's counsel objected to this line of argument on the ground that the government was "arguing prior consistent statements that are not in evidence.... This whole argument is what [Payne] told the grand jury is the same as what he is telling you here today." The court overruled this objection, stating that the government's argument "meets the force of the impeachment that will be argued and that has been suggested."
As to the second point, the prosecutor argued that
There was no objection to this argument.
Lastly, as to the third point, in rebuttal the prosecutor argued that Payne's witness protection payments and plea agreement "could not have influenced" his trial testimony, as had been suggested by the defense in closing, because Payne gave the same testimony to the grand jury long before either motive to fabricate arose. There was no objection to this argument either.
In reviewing a challenge to prosecutorial argument, we consider whether the prosecutor's statements were in fact improper, and if they were, whether the defendant suffered "substantial prejudice."
Thus, the question before us is not whether the prosecutors argued facts outside the evidence, but whether they made a legally improper argument. On that score, appellants contend the prosecutors used Payne's grand jury testimony improperly to bolster the credibility of his testimony at trial.
The general rule is that "[p]rior consistent statements may not be used to bolster an unimpeached witness;" the rationale being that "mere repetition does not imply veracity."
Two of the prosecutors' references to Payne's grand jury testimony, to which no contemporaneous objection was even made, fit comfortably within one or the other of these exceptions. First, to rebut Payne's impeachment with a few inconsistencies on minor points culled from his grand jury testimony, it was permissible on this record for the prosecutor to argue (pursuant to the "rule of completeness" exception) that Payne did not testify falsely or inconsistently in the grand jury "about anything significant."
That brings us to the government's assertions that Payne could not have foreseen all the corroboration there would be following his grand jury appearance. To the extent these assertions served to enhance the credibility of Payne's grand jury testimony, they were in tension with the general rule against using prior consistent statements to bolster a witness's in-court testimony. On the other hand, the trial court, in overruling the defense objection, deemed this argument to be a permissible rejoinder to the previously implied and anticipated impeachment of Payne — by which we presume the court meant the suggestions that the government had "bought and paid" for Payne's testimony through the Witness Protection Program. And as we have noted, by the time the prosecutor stood up to make the government's rebuttal argument, the trial court had ruled explicitly that the government could use Payne's grand jury testimony to rebut the implied charge of recent fabrication. Since a prior consistent statement is substantive evidence when used for that purpose,
More important, the prosecutors did not contend that Payne's prior consistent testimony reinforced his credibility under the flawed logic that "repetition implies veracity," nor did they explicitly urge the jury to rely on the truth of what Payne said in the grand jury as distinct from his testimony at trial. Rather, the government's main point was simply that Payne was corroborated by powerful, independent evidence. This certainly was a valid and permissible point to make; and the prosecutors emphasized it in both the initial closing argument and the rebuttal argument, usually without referring to Payne's grand jury
Thus, we consider it by no means clear that the prosecutors improperly bolstered Payne with his grand jury testimony, as appellants contend. We are satisfied that the prosecutors committed no serious impropriety, if there was any at all. Moreover, we readily conclude that appellants suffered no substantial prejudice as a result of any inappropriate bolstering that may have occurred.
Both Allen and Leaks claim the trial court abused its discretion in denying their motions for separate trials. They assert severance was required pursuant to Criminal Rule 14
Under Criminal Rule 14, a trial court may grant severance if it appears that a defendant will be prejudiced by joinder, but "[t]his discretionary authority is to be exercised with caution;" in view of the strong policy reasons and longstanding presumption in favor of joint trials, a court "should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence."
Allen and Leaks have not made that showing. In the first place, that they were not accused of having participated in any violent incidents besides the May 17 shooting does not mean substantial evidence of those other incidents would have been excluded had they been tried separately. In addition to the shooting, they were charged with having joined a conspiracy to assault and kill members, associates, and friends of the Mahdi brothers' organization. "In a conspiracy case, wide latitude is allowed in presenting evidence, and it is within the discretion of the trial court to admit evidence which even remotely tends to establish the conspiracy charged."
Even if that were not so, and Allen and Leaks might have had a better chance of being acquitted had they been tried separately, that would not suffice to demonstrate error in the denial of severance.
Ultimately, the issue of "spillover" prejudice turns on "whether the evidence presented was so complex or confusing that the jury would have been unable to make individual determinations about the guilt or innocence of each defendant."
Leaks and Allen contend the government presented insufficient evidence that they had a specific intent to kill to support their convictions for the armed first-degree murder of Hernandez
When reviewing a sufficiency challenge, "[w]e view the evidence in the light most favorable to the government, recognizing the province of the trier of fact to weigh the evidence, determine the credibility of the witnesses and to draw reasonable inferences from the testimony."
The evidence in this case showed that appellants, including Leaks and Allen, agreed upon and carried out a plan of retaliation for Nadir Mahdi's attempt to kill Arrington and his comrades earlier that day. They decided to go to Fourteenth Street to shoot Mahdi gang members. They armed themselves for the purpose with massive, lethal firepower, including two assault rifles. Upon arriving
Appellants argue that the combined prejudicial effect of the errors in this case warrants reversal of their convictions even if no single error alone was grave enough to require such relief. We have recognized that multiple errors must be evaluated in light of their cumulative impact on the fairness of the trial.
The present case is not so simple; we have identified (or assumed arguendo) preserved constitutional error in the admission of the Mahdi plea proffers; preserved non-constitutional error in the introduction of Leaks's inculpatory statements to McCoy; and (possible) unpreserved error in the admission of party-opponent statements and the joinder of indictments for trial. Each type of error is subject to a different test (Chapman, Kotteakos, plain error) for determining whether it requires reversal. This court has never addressed how to evaluate the cumulative impact of such a mixed bag of errors, and there is little pertinent authority elsewhere. The Supreme Court has yet to confront the issue. As for the federal appellate courts, it appears that only the Tenth Circuit has delved into the question. It has concluded that "[i]f any of the errors being aggregated are constitutional in nature, the cumulative error must be harmless beyond a reasonable doubt, in accordance with Chapman;"
For the foregoing reasons, we affirm appellants' convictions and the judgment of the Superior Court.
So ordered.
Finally, at the tail end of the rebuttal argument, the prosecutor made brief references to the plea proffers as supporting the government's contentions that the Mahdi Brothers criminal enterprise existed and that the Mahdis were "at war" with the Delafield organization. But, as we have said, these facts were proved virtually beyond peradventure by other evidence at trial, including the well-corroborated testimony of several cooperating witnesses from both gangs.
(Footnotes omitted.)
Id. (internal citations omitted).
Id. (internal citations omitted). We think this reasoning is sound.
United States v. Caraway, 534 F.3d 1290, 1302 (10th Cir.2008).
United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993).
