Randolph v. US, No. 02-CF-110

• Decision Date: 01 September 2005
• Docket Number: No. 02-CF-110, No. 02-CF-442.
• Citation: 882 A.2d 210
• Parties: Ronald RANDOLPH and Phillip A. Stewart, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

882 A.2d 210

Ronald RANDOLPH and Phillip A. Stewart, Appellants, v. UNITED STATES, Appellee.

Nos. 02-CF-110, 02-CF-442.

District of Columbia Court of Appeals.

Argued February 15, 2005.

Decided September 1, 2005.

Thomas T. Heslep, Washington, DC, appointed by the court, for appellant Ronald Randolph.

Thomas L. Dybdahl, Public Defender Service, with whom James Klein and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant Phillip A. Stewart.

L. Jackson Thomas II, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney, and John R. Fisher, Roy W. McLeese III, Elizabeth Trosman, D. Ames Jeffress, and David J. Gorman, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge,¹ SCHWELB, Associate Judge, and KERN, Senior Judge.

SCHWELB, Associate Judge:

On November 15, 2001, a jury convicted Ronald Randolph and Phillip A. Stewart of first-degree murder while armed,² kidnapping,³ possession of a firearm during a crime of violence (PFCV),⁴ and carrying a pistol without a license (CPWOL).⁵ The case arose from the abduction and subsequent murder of Carlos Thomas on the night of October 19, 1999. On appeal, both defendants contend that the trial judge abused his discretion and committed reversible error by admitting into evidence an out-of-court narrative statement allegedly made by John Holmes. Holmes, who claimed to have been an eyewitness to the kidnapping of the decedent, made this statement to his friend, Edna Sudler, a prosecution witness, shortly after the kidnapping occurred.⁶

In its initial brief, the government contended that even if Holmes' statement, admitted over objection, was not an excited utterance—an assumption which the government did not contest—the convictions should be affirmed because the evidence was admissible as a prior identification or, in the alternative, as a prior consistent statement. We disagree with the government's position regarding either theory of admissibility. We also note that in its original submission, the government made no claim that any error in the admission of Holmes' out-of-court statement was harmless in the traditional sense.⁷ The government thus initially provided the court with no basis for affirmance other than the "prior identification" or "prior consistent statement" theory.

Following oral argument, however, the court ordered supplemental briefing on an issue not previously addressed by the government, namely, whether the court may or should find the error harmless vis-a-vis either defendant when the government had failed to make such a claim in its brief. Having considered the supplemental submissions in the light of the record as a whole, including the government's initial failure to assert a claim of harmlessness, we now conclude that the trial judge erred in admitting testimony regarding Holmes' out-of-court statement, and that the error was prejudicial as to Randolph but harmless as to Stewart.⁸ Accordingly, we reverse Randolph's convictions for armed first-degree murder, kidnapping, and PFCV, but affirm his conviction of CPWOL, because that conviction was not affected by the trial court's erroneous ruling. We affirm all of Stewart's convictions.

I. THE EVIDENCE⁹

On the afternoon of October 20, 1999, officers of the Metropolitan Police Department found the body of Carlos Thomas at an abandoned public housing development in southeast Washington, D.C. Thomas had four gunshot wounds to his head, and he had been dead for approximately twenty-four to thirty-six hours. The government's theory of the case was that Thomas was abducted by Stewart and Randolph—an incident allegedly witnessed by Holmes—and that the two men murdered Thomas a few hours later. There were no witnesses to the shooting itself.

Holmes was the prosecution's key witness, but his testimony must be placed in the context of the overall investigation. On October 22, 1999, police officers went to the southeast Washington apartment of Patricia Ball and her daughter, Kwatika Johnson. Kwatika was the then-pregnant girlfriend (and later became the wife) of appellant Stewart. Kwatika testified that she had been on the telephone with her friend Tracey Johnson (no relation), when Stewart, armed with a revolver, pointed the weapon at Kwatika's head and stomach and threatened that "I'm going to put three bullets in your head like I did Carlos Bitch Ass," or words to that effect. Stewart, who was intoxicated, apparently threatened Kwatika Johnson and her unborn child because, on account of her pregnancy, Kwatika did not want to have sex with him.

Tracey Johnson, who was called as a witness by Stewart's attorney, and who had no apparent reason to level a false accusation against Stewart, testified that she overheard Stewart's threat and admission, and she reported what she had heard immediately to her grandmother. The two women called the police.¹⁰ Police officers responded to Ms. Ball's apartment and arrested Stewart, who was on the premises. Kwatika led them to the .38 caliber revolver which Stewart had pointed at her, and which he had later concealed. Ballistic tests subsequently established that Carlos Thomas had been shot with the weapon which the officers recovered from Ms. Ball's apartment—i.e., the revolver which Stewart had allegedly used to threaten Kwatika.¹¹

Later on the evening of October 22, homicide detectives brought Kwatika Johnson to the police station for questioning regarding the murder of Carlos Thomas. Initially, Kwatika did not disclose to the police Stewart's acknowledgment to her that he had shot Carlos, but the detectives had already obtained information to this effect as a result of Tracey Johnson's report. As noted in the government's brief, "Kwatika only told the detectives what Stewart had said about Carlos Thomas when they were about to arrest her as an accessory to murder." According to Kwatika, the police also threatened to take away her children unless she provided the information that they were seeking. Following these pointed police warnings, Kwatika gave the detectives a videotaped statement in which she asserted that while threatening to kill Kwatika, Stewart boasted that he had shot Carlos three times.¹² Kwatika subsequently gave a statement to Stewart's attorneys in which she denied that Stewart had admitted killing Thomas. At trial, however, Kwatika (who had meanwhile been placed in the Witness Protection Program and had received a substantial amount of money from the government) confirmed that Stewart had threatened her and that, at the same time, he had admitted abducting and shooting Carlos.

On or about March 1, 2000, some four months after obtaining Kwatika Johnson's statement, the police located John Holmes, the sole alleged eyewitness to the abduction. Holmes, a heavy drinker, initially told the police that he knew nothing about the death of Carlos Thomas, but he then changed his story, stating that he had witnessed a kidnapping.¹³ Holmes later testified that he knew Thomas, and that he was also friendly with Stewart and Randolph, each of whom knew him as "Pop" or "Pops."

At trial, Holmes was initially called as a witness for the prosecution. Holmes testified that on the evening of October 19, 1999, he was visiting and drinking with his friend, Edna Sudler. Ms. Sudler asked him to go to Eddie Leonard's Carry-Out to purchase some cigarettes for her. Holmes stated that after he arrived at Eddie Leonard's, he saw Carlos Thomas arrive and order some food. The two men left together. As they emerged from the establishment, a rust-colored car pulled up, and the driver, identified by Holmes as appellant Randolph, stepped out and ordered Thomas to get into the car. According to Holmes, Randolph put his hand near his waist area, as if to draw a weapon, and Thomas got into the vehicle. Seated in the rear of the car was appellant Stewart. The driver then made a U-turn and drove off at a high rate of speed. Holmes testified that he returned to Ms. Sudler's apartment, drank a beer, and went to sleep.¹⁴

Edna Sudler, whom Holmes was visiting on the evening of October 19, 1999, was also called to testify on behalf of the prosecution. Ms. Sudler stated that Holmes had consumed a great deal of alcohol and that it did not "take that much for [him] to get drunk." Ms. Sudler further acknowledged that on the evening in question, she had consumed some gin, chased it down with beer, and was "half-drunk" herself. Over a defense hearsay objection which the trial judge overruled, Ms. Sudler described what Holmes had told her after he returned to her apartment from Eddie Leonard's. According to Ms. Sudler, Holmes reported that he had seen and conversed with Carlos Thomas at the carry-out. He related that after the two men had made their purchases,

he and Carlos came out together and this car pulled up real fast in front of the carry-out and a guy got out of the car and said Carlos, what's up like that, man. So Carlos said what's up like that with you. So he said come on. We going for a ride. And the dude got out of the car and made Carlos get in.

Ms. Sudler further testified that she asked Mr. Holmes if he knew the men who were responsible for abducting Mr. Thomas. Holmes told her that he had never seen them before but, according to Ms. Sudler, "he was lying." Sustaining a defense objection, the judge ordered stricken Ms. Sudler's comment that Holmes was lying. Ms. Sudler went on to state that she "picked" at Mr. Holmes—"[i]t's like you trying to get something out of a child and eventually they tell you"—and that Holmes told her who the men were. The prosecutor did not seek to elicit, and Ms. Sudler did not disclose, the names of the men Holmes had identified.

There were a number of other prosecution witnesses, including, in particular, Kwatika Johnson, who testified as previously noted. Both defendants called witnesses, but neither Stewart nor Randolph took the stand...