Brooks v. United States, No. 06–CF–1561.

• Decision Date: 15 March 2012
• Docket Number: No. 06–CF–1561.
• Citation: 39 A.3d 873
• Parties: Don L. BROOKS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

39 A.3d 873

Don L. BROOKS, Appellant,

v.UNITED STATES, Appellee.

No. 06–CF–1561.

District of Columbia Court of Appeals.

Argued April 2, 2009.Decided March 15, 2012.

Peter H. Meyers, Washington, DC, for appellant.

Christopher R. Kavanaugh, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney at the time the brief was filed, Roy W. McLeese III, Elizabeth Trosman, and Gary M. Wheeler, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge,^* RUIZ, Associate Judge, Retired,^** and FARRELL, Senior Judge.RUIZ, Associate Judge, Retired:

Don L. Brooks was indicted for first-degree murder while armed ¹ and related weapons offenses ² arising out of the shooting death of Brian Taylor on September 16, 2003. Appellant's first trial resulted in a mistrial after the jury was unable to reach a unanimous verdict; after a second trial on the same charges, the jury found appellant guilty on all counts.³

Appellant's principal argument on appeal is that the government should not have been permitted to introduce at his second trial, in lieu of live testimony, the recorded testimony that was presented in the first trial by the key prosecution witness. We agree with appellant that it was error to admit the prior recorded testimony because the government did not adequately demonstrate that the witness was “unavailable” at the time of the second trial, where the government's efforts to secure her attendance at trial were not reasonably diligent in light of her critical importance to the government's case. Appellant was therefore denied the right, guaranteed by the Confrontation Clause of the Sixth Amendment, to have the jury observe the demeanor of the witness first-hand. Denial of the right to have the jury assess the credibility of the sole eyewitness in this first-degree murder case was not harmless. We, therefore, reverse and remand for a new trial.⁴

I. Factual Background

The Government's Case

All of the evidence that directly implicated appellant in the shooting was supplied by Henrietta Harling, an eyewitness whose testimony from the first trial was read to the jury at the second trial. According to that testimony, on September 16, 2003, at approximately 1:45 a.m., Harling was walking to her apartment located at 309 54th Street, N.E., when she noticed five men drinking in a parking lot. Harling knew four of the men as “Don [appellant], Greg, Shawn, and Roy,” but did not know the fifth man, Brian Taylor. Harling overheard appellant arguing with Taylor “about turf,” telling him, “man, you don't come down here and be selling nothing, this is my turf, our turf.” As appellant walked to his car, he told Taylor, “when I come back, you'll be dead”; he then drove away.

Approximately forty-five minutes later, from inside her apartment, Harling heard a car door slam outside. She looked out of her window and saw appellant holding a gun by his side as he walked toward Taylor. Harling heard appellant tell Taylor, “Nigger, I told you when I get back, you're dead.” Harling testified that appellant was “right up on [Taylor] when he held his gun “[u]p to his head” and “just shot him.” Several shots were fired and Taylor fell to the ground; he died shortly thereafter.

Police arrived in response to a radio call, and the group, including appellant, dispersed from the scene. Harling came out of her house and identified herself to a police officer as a witness. On January 14, 2004, Detective James Broadbent of the Homicide Unit of the Metropolitan Police Department (MPD) presented a photo array to Harling, from which she identified appellant as the person who shot Taylor.

Appellant was arrested on February 17, 2004, and transported to the D.C. Violent Crimes Branch, where he waived his Miranda⁵ rights prior to being interrogated. Appellant denied any involvement in the murder, and said he had rented a car on the day of the murder and had driven to New York with friends.

The Defense Case

The defense presented one witness, Parrish Taylor, who knew both appellant and the decedent, who was “like an uncle” to him Taylor testified that he was outside on a hill close to the scene of the murder when he heard gunshots and saw “a couple of dudes” run past him, one of whom was carrying a gun. He recognized the two men as “Raymond and Rob” and did not see appellant outside that night.

II. Analysis

Appellant argues that the trial court should not have permitted the introduction of Harling's transcribed testimony from the first trial at his second trial when she failed to appear at the retrial. Appellant argues that the trial court erred in finding that Harling was “unavailable” for purposes of the Confrontation Clause and the hearsay exception for prior recorded testimony. Specifically, appellant contends that the government's efforts to secure her presence at trial fell short in light of the importance of her testimony, the seriousness of the charged crime (first-degree murder), and the government's awareness that Harling was a reluctant and unreliable witness. The government counters that appellant waived this claim and the court should consider it, if at all, for plain error. In addition, the government argues that it should not be penalized for Harling's disappearance. We conclude that appellant did not waive his claim and preserved his objection, that under the circumstances the trial court abused discretion in admitting the prior testimony of the government's key witness, and that appellant was prejudiced by the witness's absence at his retrial.

A. Waiver; Plain Error

Appellant's second trial began on Monday, August 21, 2006. On the first day, the trial judge announced that the trial was to be completed by the end of the week because of his planned leave the following week.⁶ Jury voir dire took place that day, and opening statements and testimony from several minor government witnesses consumed the following morning, Tuesday. Following the lunch recess, the prosecutor notified the court that although the government's main witness, Henrietta Harling, had been in court earlier in the day, she was not in the courtroom and could not be located. The government then asked for permission to locate her overnight and to reconvene the following morning.

On Wednesday, August 23, 2006, the prosecutor informed the court that its efforts to locate Harling the previous night, after the court adjourned, had been unsuccessful. The prosecutor represented that investigators had contacted her family, had gone to two former addresses and to her former employer, and had visited her former boyfriend. The police were “still looking, but [could not] find her.” The prosecutor then moved that Harling be declared “unavailable” so as to allow the prosecution's case-in-chief to proceed by reading the transcript of her previous trial testimony to the jury. The trial judge assumed “hypothetically” that Harling had “voluntarily chose[n] not to appear,” and began to explore the timing and manner of the presentation of her prior testimony to the jury. Defense counsel objected and the following colloquy ensued:

Defense Counsel: I think the issue is whether she is unavailable, not whether or not she is here.

....

And it seems to me that what the [prosecutor] is telling you is, they can't find her, but they are not telling you that she is unavailable and I think there's a distinction there. I don't think the testimony should be read. If they don't have her here, they can proceed with what they've got.

Court: That's not true. When a witness leaves, who's under court order, she didn't have a right to just walk away. That's not her prerogative. That order is essentially through me, through this documentation right here. She d [oes]n't have a right to walk away.

Defense Counsel: I agree with the Court, but what I'm saying is, is walking away, the remedy is they can ask for a bench warrant. They can go out and look for her and try to bring her in, but as far as reading her testimony, because she turned around and walked away, it seems to me that doesn't indicate she is not available.

Court: Well, how is she available, if the witness is dead, what would you do, you would read the witness's testimony.

Defense Counsel: If the witness was dead, she would be unavailable.

Court: Well, if you can't find her, do you think the jury is going to sit here and wait for us to find her? No. She's unavailable in my view, unless you've got some cases that say that's not unavailability. We [are] not going to wait three or four days while we're looking for some witness.

Defense counsel informed the trial judge that “there's some case law that indicates that [the government] can have some time to look for her if they want to.” ⁷ After noting that “any number of things could have happened,” the trial court commented:

The question is do we have the facility to get her back here in a reasonable amount of time given what we have. Now, you know, I could recess for a while, but I'm not going to recess forever. Now, once that recess runs out [the prior testimony will be read.]

The trial judge then stated,

So I think what I'm going to do is give you a chance to see if you can check with the hospitals and check with the police department and see if she got locked up. A lot of times people don't come back, because they are locked up. You don't know

....

So I think at a minimum, you should check the hospitals, check to make sure she's not locked up. It's a little hard to get locked up in the surrounding jurisdiction unless she went far away during the lunchtime. If she's not locked up or in the jail, if we don't find her there, then I think there's some basis to suggest that the witness was (sic) voluntarily absented herself from these proceedings for whatever her reasons might be.

Defense counsel suggested that calls should also be made to Virginia because Harling had previously been arrested there, but the prosecutor dismissed the...