Mercer v. US, No. 97-CF-177

• Decision Date: 28 January 1999
• Docket Number: No. 97-CF-536., No. 97-CF-177
• Parties: Dwain MERCER, Appellant, v. UNITED STATES, Appellee. Antonio M. Terrell, Appellant, v. United States, Appellee.
• Court: D.C. Court of Appeals

724 A.2d 1176

Dwain MERCER, Appellant, v. UNITED STATES, Appellee.

Antonio M. Terrell, Appellant, v. United States, Appellee.

Nos. 97-CF-177, 97-CF-536.

District of Columbia Court of Appeals.

Argued November 5, 1998.

Decided January 28, 1999.

William F. Seals, appointed by this court, for appellant Dwain Mercer.

A. Kevin Fahey, Falls Church, VA, appointed by this court, for appellant Antonio M. Terrell.

Elizabeth C. Coombe, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher and Peter R. Zeidenberg, Assistant United States Attorneys, were on the brief, for appellee.

Before FARRELL and RUIZ, Associate Judges, and NEWMAN, Senior Judge.

NEWMAN, Senior Judge:

In this appeal of their convictions of second-degree murder while armed, D.C.Code §§ 22-2401, -3202 (1997 Repl.), and related weapons offenses,¹ both Dwain Mercer, a.k.a. "Wayne" or "Wayne-Wayne," and Antonio Terrell, a.k.a. "Melvin," contend the trial court erred: (1) in admitting evidence suggesting they were involved in a plot to intimidate witnesses; and (2) in admitting a videotape of a statement of a witness after the witness had been excused. Mercer alone contends that the trial court abused its discretion by denying his severance motion. Terrell alone contends: (1) a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) ineffective assistance of counsel; and (3) evidentiary insufficiency. Concluding that the trial court abused its discretion in denying Mercer's motion for severance, we reverse his convictions. We affirm Terrell's convictions.

I.

A. FACTS

On June 1, 1995, Harvey Jewel and his brother sat outside of their house near the intersection of 46th and Hunt Streets, N.E., in a neighborhood known as Lincoln Heights. Suddenly, at about 7:00 p.m., two men on a bicycle rode past the intersection and opened fire. The shooter, described as a light-skinned African American man with plaited hair, shot in the direction of Jewel, hitting his brother in the leg, and the beer can in Jewel's hand.

Earlier that day, Omar Johnson, a.k.a. "Yappy," a light-skinned African American man with plaited hair, was seen riding on the back of a bicycle on which his friend, Jason Brooks, was also riding. After the shooting, Jason Brooks was found shot to death in an alley near 46th and Hunt Streets. An abandoned bicycle was found not far from the body.

When Lynette Brooks heard of the death of her younger brother, Jason, she immediately went to the hospital to be with her mother, Geraldine Ferrell. Ms. Ferrell had been driven to the hospital by two of Jason's friends, Mercer and Terrell, who were visibly upset by Brooks' death. Both men acted out their anger by kicking and throwing trash cans, and kicking the walls. Mercer and Terrell left the hospital, and were seen in Terrell's blue Cadillac speeding past Ms. Brooks as she drove her mother home.

Meanwhile, Yappy went to the apartment of Robin Motley on Fiftieth Street in Northeast Washington, to have his plaits removed. While he was there, Terrell's blue Cadillac pulled up to a basketball court near Motley's apartment. As Mercer and Terrell got out of their car, they were greeted by Dominic Gibson. At Mercer's request, Gibson retrieved a gun from Yappy. Gibson then asked Yappy to go outside and speak with Mercer and Terrell.

Once Yappy was outside, Mercer and Terrell began to argue with him. During this argument, Mercer was overheard asking, "Well, how could he get shot and nothing happened to you," and "Why you leave him?" After these exchanges, several witnesses testified that they heard shots fired.

After this point, what happened was related in sometimes conflicting accounts. One witness, Catrice Cunningham, testified that she saw two men chase Yappy, shooting at him. Cunningham did not identify the shooters.

Another witness, Linda Washington, testified that she saw Mercer immediately after the shots were fired with a gun in his hand. Washington further testified that she saw a person get out of Terrell's car and shoot Yappy again.

Still another witness, Tamika Jones, testified before a grand jury that she saw Terrell pull out a gun and shoot Yappy. Jones claimed that she then saw Mercer and Terrell get back in the car. Jones further testified before the grand jury that she saw Mercer open the car door to knock Yappy down, and then stand over Yappy's body as he fired more shots into him. At trial, Jones recanted her grand jury testimony, claiming she had pieced together the story "like you put a puzzle together" in order to seek police protection. After the shooting, Terrell's car drove away. Terrell later stated to his grandmother, Elsie Terrell, that he burned his car so there would be no evidence.

B. PROCEDURAL HISTORY

The trial began on Friday, November 15, 1996. One of the witnesses called on the first day of the trial was Catrice Cunningham. After the weekend, Terrell claimed that he was not satisfied with the manner in which his attorney had cross-examined Cunningham. Terrell requested a new attorney be appointed. The trial court denied the request.

During the trial, many witnesses failed to comply with subpoenas, necessitating the use of bench warrants to compel their testimony. During the examination of Dominic Gibson and Linda Washington, on the second day of the trial, the prosecution asked about some of the spectators in the back of the courtroom from Lincoln Heights, and the witnesses' reaction to their presence. Neither Mercer nor Terrell objected.

On the third day of the trial, Mercer's attorney moved for a mistrial, claiming he was prejudiced by the inference that his client was involved in a scheme to intimidate witnesses. The trial judge denied the motion. Mercer then requested a curative instruction, which was denied.

Later, the prosecution presented the testimony of Tamika Jones. At a bench conference, the prosecution addressed the issue of Jones' admission to the witness protection program. The prosecution represented that Jones had heard that her life had been threatened, and therefore sought police protection. As a result, Jones entered the witness protection program. Jones, however, left the witness protection program after eleven months. The prosecution wanted to introduce this evidence before the jury.

Initially, both Mercer and Terrell objected to the admission of this evidence. The attorney for Terrell, however, wanted to impeach Jones with the fact that she had been paid about $525 per week while in the witness protection program, in addition to having the government cover her housing expenses. The attorney for Mercer did not want any evidence of the witness protection program admitted.

The trial judge informed both defense counsel that the fact that Jones entered the witness protection program due to fear would be admitted if either pursued the strategy of impeaching Jones over the money she was paid. The attorney for Mercer clearly stated that he would forego the impeachment value of such testimony to avoid any mention of the witness protection program. The attorney for Terrell, however, stated that he would risk the admission of the evidence of the alleged threat to Jones' life in order to impeach Jones. At this point, Mercer moved for a severance. The motion was denied.

Once on the witness stand, Jones recanted her grand jury testimony. The prosecution then proceeded to interrogate Jones further by reading transcripts of her grand jury testimony. It was revealed that before the grand jury, Jones adopted a statement she gave to police in 1995, claiming she had seen both Mercer and Terrell shoot Yappy. The substance of this statement was admitted during Jones' direct examination. Jones, however, claimed that she fabricated the story from bits and pieces that she heard from the street, in order to enter the witness protection program to protect herself and her son.

As Terrell's counsel cross-examined Jones, Jones continually denied that she was motivated to enter the witness protection program because of the money she was paid. Instead, Jones consistently stated that her motive was to protect herself and her son. Jones did reiterate, however, her claim that she lied to the police and the grand jury.

After Jones left the witness stand, the prosecution sought the admission of the videotape of the statement Jones initially gave to the police. The prosecution claimed the videotape was admissible both to impeach Jones, and to show the jury her demeanor when she made the statement. Both Mercer and Terrell objected, claiming they did not have an opportunity to cross-examine Jones on her demeanor in the videotape. The trial judge overruled the objection, and admitted the videotape.

II.

A. STANDARD OF REVIEW

Appellants contend that the trial court erroneously failed to take remedial measures after the prosecutor asked a series of questions which implied that they had intimidated witnesses. First, however, we are faced with a threshold question that affects our standard of review. The government contends that neither Mercer nor Terrell objected to the allegedly prejudicial questions, thereby requiring this court to apply a "plain error" standard. Mercer and Terrell contend that the motion for a mistrial constituted a contemporaneous objection, as it put the trial judge on notice of their opposition to the evidence. They contend that this case should be reviewed under an abuse of discretion standard.

In our adversarial system, we place the initiative of objecting to evidence that appears to be contrary to the rules of evidence on the parties, not the judge. 1 McCORMICK ON EVIDENCE § 52, 200 (4th ed.1992). "If the administration of the exclusionary rules of evidence is to be fair and workable the judge must be informed promptly of contentions that evidence should be rejected, and the reasons therefor." Id. "The function of the objection is, first, to signify that there is an...