Ready v. United States

• Decision Date: 18 May 1982
• Docket Number: No. 80-1025.,80-1025.
• Citation: 445 A.2d 982
• Parties: Rickie READY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

445 A.2d 982

Rickie READY, Appellant, v. UNITED STATES, Appellee.

No. 80-1025.

District of Columbia Court of Appeals.

Argued December 8, 1981.

Decided May 18, 1982.

Paul K. Regan, Washington, D. C., appointed by this court, for appellant.

Regina C. McGranery, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, and John A. Terry and Steven D. Gordon, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before NEWMAN, Chief Judge, and FERREN and PRYOR, Associate Judges.

FERREN, Associate Judge:

A jury convicted appellant, Rickie Ready, of second-degree murder while armed, D.C. Code 1973, §§ 22-2403, -3202, assault with a dangerous weapon, id., § 22-502, and carrying a pistol without a license, id., § 22-3204. The court sentenced him to concurrent prison terms of eight to twenty-four years for the murder, three to ten years for the assault, and one year for the weapons conviction. On appeal, he claims the trial court abused its discretion in (1) failing to sever his trial from that of his codefendant, Henry Fitzhugh,¹ and (2) refusing to admit grand jury testimony of a defense witness who was not present at trial.

As to the first issue, this is a case of allegedly "conflicting and irreconcilable defenses" requiring application of the principle that severance should be granted if "there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty." Rhone v. United States, 125 U.S.App.D.C. 47, 48, 365 F.2d 980, 981 (1966) (per curiam). The second issue primarily concerns the efforts a defendant must make to produce a witness for trial, before the defendant may introduce the transcript of earlier, grand jury testimony into evidence.

Finding no abuse of discretion, we affirm.

I.

According to the government's evidence, on July 13, 1979, as Tyrone Barnett, Paul Fitzhugh, and Andrew Fitzhugh left the home of Barnett's brother on Ainger Place, they saw two men shooting craps. Barnett and Paul Fitzhugh decided to join the game. The other two, Darnell Cooper and Larry Steele, apparently cheated. A fight broke out, and several youths jumped in to hell) Cooper and Steele. Eventually, Barnett's brother came out of the house to break up the fight, but by that time Fitzhugh and Barnett had fared the worst, and Barnett had lost an almost new, $150 watch.

The next day, Barnett and Paul Fitzhugh made plans to go back for Barnett's watch. Paul Fitzhugh convinced his brother, Henry Fitzhugh, to drive them. When they met Henry Fitzhugh, he was accompanied by three persons: appellant, an unidentified man, and the Fitzhughs' cousin, Alfred Matthews.²

According to Tyrone Barnett's testimony, Henry Fitzhugh and appellant displayed guns on the way to Ainger Place. Henry Fitzhugh said, "This is what we have for them." He added, however: "I'm not going to use it, unless they bring out guns." Paul Fitzhugh testified that in the car on the way appellant said (in contrast with Henry Fitzhugh's attitude): "I ain't going up there for nothing. . . . I'm going to get somebody."

Three eyewitnesses testified for the government about the shooting that occurred after the six arrived at Ainger Place. Darnell Cooper, who had been in the crap game, testified that on the night of July 14 he was outside in front of a house talking with Darryl Woodson, David Wise, and Mandell Cooper when he noticed a "deuce and a quarter" (an Electra 225 car) coming down the street carrying six or seven persons. Darnell Cooper recognized Barnett and Paul Fitzhugh. After telling his brother that he would be back, Darnell Cooper then went home to put on sneakers, for he thought that Barnett and Paul Fitzhugh might try to start another fight. After changing his shoes, Darnell Cooper heard three shots. He said his brother and friends ran into the house through the front door. Then they ran next door. Darnell Cooper followed. At the neighbor's, they discovered that Woodson had been shot. An ambulance took him away.

Tyrone Barnett testified about the shooting from his vantage point in Henry Fitzhugh's car. The group was "cruising" up Ainger Place, looking for the youths whom Barnett and Paul Fitzhugh had fought the day before. Paul Fitzhugh pointed to a group of boys standing on a corner: one was wearing Barnett's watch. Barnett got out of the car to confront the youth. Right away, however, he heard shots; he quickly got back into the car. Barnett then saw appellant "hitting on his gun, trying to get it to operate, or something, cursing the thing" because "it was jammed up on him." Henry Fitzhugh, he said, still was firing. The men who had been standing in front of Ainger Place ran, trying to get into houses. According to Tyrone Barnett, when Henry Fitzhugh and his companions drove off after the shooting, someone in the car said, "I got him. Did you hear him holler, ouch, and grab his back?" Barnett further testified that appellant had said he shot twice and then his gun jammed.

Paul Fitzhugh also testified for the government. He said that after he had spotted one of the fellows with whom he had fought the day before, Henry Fitzhugh stopped the car. As Barnett started to walk over to the youth who had his wrist-watch, appellant yelled, "Bust loose" and shot twice. Appellant's gun jammed, and Henry Fitzhugh started firing into the air to scare people. After appellant had fired the first two shots, one man hollered "ouch" and grabbed his back as he ran. Henry Fitzhugh drove away with his passengers. En route, appellant said, "I got him. I got him."³

II.

Henry Fitzhugh and appellant presented substantially different defenses. Fitzhugh's witnesses corroborated government evidence that appellant's gunshots had caused the fatal wound. These witnesses (including Henry Fitzhugh himself) acknowledged that Fitzhugh had been at the scene, but they testified that he only had fired into the air to scare the youths. In sharp contrast, appellant — who did not testify — had a two-fold defense. First, he attempted to show that he was not at Ainger Place on July 14, 1979. Second, he tried to convince the jury that the first gunman — the one who shot Woodson — was Paul Fitzhugh.

A. Henry Fitzhugh's first witness, his cousin, Alfred Matthews, testified that as Tyrone Barnett got out of the car and walked toward the youth to get his watch, appellant suddenly said, "Look, they trying to run," or, "Look, they running." Appellant then reached into his jacket and fired twice, out the window into the crowd. Then, his gun jammed. After the youths outside had scattered, Henry Fitzhugh fired into the air. Those in the car drove off and appellant said, "I got him, Babe. I made that m____ f____ holler."

Paul Fitzhugh also took the stand and confirmed that Henry Fitzhugh had fired into the air.

Testifying in his own defense, Henry Fitzhugh admitted he had driven the car; but he said that as Barnett started to reclaim the watch and the young men began to run, appellant said; "They running, bust loose," and appellant fired twice. Then his gun jammed. Henry Fitzhugh admitted that he had "fired four times up into the air. But, [he] did not go up there with the intentions to killing anybody and [he was] sorry it happened." As Henry Fitzhugh and his companions drove off, appellant boasted, "We got him."

B. Appellant did not take the stand but called six witnesses — four relatives and two close friends of his family — who testified that during the evening of July 14 and the early morning of July 15, 1979, appellant was at 3229 Buena Vista Terrace, attending a birthday party for his brother, Jerry Ready.

Appellant did not limit his defense to an alibi. He also tried to show that Paul Fitzhugh was the one who, along with Henry Fitzhugh, shot at the youths in front of Ainger Place. Appellant's counsel cross-examined the government's and Fitzhugh's witnesses in an effort to show that they were biased in favor of members and friends of the Fitzhugh family. Counsel highlighted the possible motive of these witnesses to point a finger unjustly at appellant, in order to protect themselves, their relatives, and their close friends. Additionally, counsel for appellant called two eyewitnesses who testified that the first gunman had come out of the car on the passenger side (and thus had not been sitting in what government witnesses had identified as appellant's seat behind the driver, Henry). At a lineup, moreover, one of these witnesses picked out Paul Fitzhugh as the first gunman, and at trial the witness testified that he had not seen appellant in the car but would have seen him if appellant had been a passenger.

Henry Fitzhugh, in rebuttal, called Barbara June Matthews, Paul Fitzhugh's wife, and Kathy Williams, Henry Fitzhugh's fiance, who both testified that appellant had been in the car.

III.

Appellant maintains the trial court erred in refusing to sever his trial from that of his codefendant, Henry Fitzhugh, because of the prejudice created by the irreconcilable nature of their defenses. On this record the argument is not persuasive.

A. Several defendants may be joined for trial pursuant to Super.Ct. Crim.R. 8(b).⁴ Indeed, the court favors joinder, for it facilitates the administration of justice by reducing docket congestion, conserving judicial resources, and lessening the burden on citizens called as witnesses. Jennings v. United States, D.C.App., 431 A.2d 552, 556 (1981); see Carpenter v. United States, D.C.App., 430 A.2d 496, 502 (en banc) cert. denied, ___ U.S. ___, 102 S.Ct. 295, 70 L.Ed.2d 143 (1981); Johnson v. United States, D.C.App., 398 A.2d 354, 367 (1979).

To avoid undue prejudice, however, properly joined defendants may request a severance at any time under Super.Ct Crim.R. 14.⁵ Here, appellant unsuccessfully moved for severance on two occasions: once before trial and again during presentation of his defense.⁶

We will reverse the...