Friday, November 7, 2008
Robert Ford, A(nd The) Gunman: D.C. Court Of Appeals Reaches Right Conclusion On Wrong Grounds In Manslaughter Appeal
The recent opinion of the District of Columbia Court of Appeals in Blunt v. United States, 2008 WL 4735144 (D.C. 2008), contains what I regard to be the correct conclusion but one reached upon the incorrect grounds. In Blunt, Frederick Blunt was found guilty by a jury of armed voluntary manslaughter and possession of a prohibited weapon, both arising from the death of Robert Ford. Specifically, according to Sandra Williams, she
"was outside her mother's home one evening in mid-August when she saw three men gambling on the sidewalk. One of them was Blunt, whom she had known as 'Fats' for seven years. Williams watched as a second man, 'Dayton,' snatched ten dollars from the hand of the third player, later identified as Robert Ford, whereupon Ford hit Dayton in the chest and the two began fighting. Ford soon pinned Dayton against a car and punched him repeatedly, causing Dayton to yell to Blunt for help. Blunt went to a nearby alley and picked up a cinder block which he hoisted above his head. Then, according to Williams and two other eyewitnesses, he used it to strike Ford repeatedly in the head or body while also kicking him. When Ford rose from the ground at one point and chased Blunt, Blunt retrieved a second block and again struck him on the head and ribs despite Ford's appeal to stop ('why you doing this, it [was] a one on one fight?'). After delivering further blows to Ford, Blunt ran from the scene when an eyewitness called the police."
Williams, however, did not testify concerning these events at Blunt's trial; while she did render this testimony before the grand jury, "[b]efore trial, the prosecutor informed the judge that Sandra Williams was afraid to testify and would be a reluctant witness." The prosecutor asked that Williams be allowed to explain her fear, specifically that she had been stabbed eight months earlier, that a gun had been fired through the floor of a house when she was present there, and that "random people" had warned her that "nobody likes snitches on her block." And according to the prosecutor, Williams held Blunt indirectly responsible for these actions."
Over defense counsel's objection, the trial judge allowed the prosecutor to pursue this line of questioning, and
"[w]hen Williams took the stand at trial, she admitted being home on the day of the charged crimes but denied remembering anything about them. The prosecutor sought to refresh her memory with her grand jury testimony given two days after the crimes, but Williams declined to read it. After the judge intervened, Williams apparently read the proffered transcript but testified that it did not refresh her memory of the events described therein. At a bench conference, the prosecutor sought leave to question her about why she had been crying ever since she took the witness stand. The judge granted leave, noting that 'that's such unusual behavior[,] that she's been crying throughout [her testimony]' and looking away from the jury.
The prosecutor then asked Williams the following questions:
Q.: Ms. Williams, can you tell us why you are crying?
A.: Because I hurt, right now I'm stressed.
Q.: Why are you stressed? * * *
A.: Because I have been through a lot because I testified. I have been stabbed nine times and almost lost my life by testifying. So I'm stressed and I'm scared now."
The judge thereafter instructed the jury:
"You just heard the witness testify with regard to having been stabbed and I want to make clear for the record to you there is no evidence that Mr. Blunt participated in any way connected to that incident. You are not to make [an]y negative inference from the fact that Ms. Williams may have been stabbed, nor are you to speculate that Mr. Blunt was in any way linked to the fact that Ms. Williams was stabbed.... The reason that you were hearing about that was only as it's relevant to the witness' presentation."
Subsequently, the prosecutor again tried, unsuccessfully, to refresh Williams' recollection using the grand jury testimony. Thereafter, the trial court allowed the prosecution to present her grand jury testimony pursuant to D.C. Code Section 14-102(b)(1), which indicates that
"A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is...inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition."
After Blunt was convicted, he appealed, claiming first that, even with the jury instruction, Williams' specific testimony about why she was afraid to testify was unfairly prejudicial. The District of Columbia Court of Appeals agreed, finding that "proper testimony by Williams on direct about the reason for her fear of testifying should have been limited-in Blunt's words on appeal-to a general statement that she feared retaliation." Nonetheless, the court found this error to be harmless and insufficient to warrant reversal.
Blunt's second argument was that Williams' alleged memory loss was feigned, meaning that her grand jury testimony was inadmissible under D.C. Code Section 14-102(b)(1) because (1) her trial testimony was not inconsistent with her grand jury testimony, and (2) she was not "subject to cross-examination." The appellate court disagreed, concluding that
"'A well-settled body of case law holds that where a declarant's memory loss is contrived it will be taken as inconsistent with a prior statement for purposes of applying Rule 801(d)(1)(A) [the federal counterpart to D.C. Code Section 14-102(b)(1)].' United States v. Knox, 124 F.3d 1360, 1364 (10th Cir.1997) (citing authorities). Moreover, the same witness is 'subject to cross-examination' within the meaning of the rule. Id."
And while I am dubious of the logic behind these opinions, it is true that they are the current law of the land. So, why do I think that Blunt was decided on the wrong grounds? Well,
"while the government may now impeach its own witnesses,...and there is no impropriety in calling a witness and then arguing to the jury that the witness lied on the stand,...it remains well established that 'impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.'" United States v. Zackson, 12 F.3d 1178, 1184 (2nd Cir. 1993).
And while the prosecution in Blunt would likely argue that it thought that Williams might provide probative testimony at trial, I would argue that the facts of that case are similar to Zackson, where the court found that:
"In our view, the prosecutor's questioning of Zackson went beyond the limits of zealous advocacy. The voir dire of Zackson demonstrated conclusively that Zackson would offer no testimony probative of the conspiracy. It was a virtual certainty, moreover, that nothing the government did would refresh Zackson's recollection. If any doubt remained concerning the government's motive, it was dispelled by the prosecutor's candid admission that Zackson's testimony would help the government regardless of what Zackson said on the stand. Finally, although no objection was lodged at the time, we note that the prosecutor's summation improperly invited the jury to disbelieve Zackson's claims that he did not remember anything, and to believe instead the truth of the prosecutor's questions themselves. We are left with no doubt, therefore, that the government called Zackson solely to get before the jury inadmissible hearsay that implicated LaGatta. The prosecutor's explanation that he was merely attempting to refresh Zackson's recollection was, in our view, wholly unacceptable."
It thus seems that Blunt was decided on the wrong grounds. So, on what grounds should it have been decided? Well, assuming that there was decent evidence that Blunt was responsible for the acts leading to Williams' "refusal to testify," the court could have admitted Blunt's grand jury testimony under the forfeiture by wrongdoing doctrine, which indicates that "[a] statement offered against a party that has engaged or acquiesced in wrong-doing that was intended to, and did procure the unavailability of the declarant as a witness is admissible at trial." Gatlin v. United States, 925 A.2d 594, 600 n.8 (D.C. 2007). Thus, for instance, in Gatlin, the District of Columbia Court of Appeals applied the doctrine to admit the grand jury testimony of a deceased witness when there was sufficient evidence presented that the defendant was responsible for the witness' death.