Warran v. United States

• Decision Date: 09 October 1981
• Docket Number: No. 79-162.,79-162.
• Citation: 436 A.2d 821
• Parties: Morris J. WARREN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

436 A.2d 821

Morris J. WARREN, Appellant, v. UNITED STATES, Appellee.

No. 79-162.

District of Columbia Court of Appeals.

Argued October 23, 1980.

Decided October 9, 1981.

COPYRIGHT MATERIAL OMITTED

Richard S. Greenlee, Public Defender Service, Washington, D.C., with whom Silas J. Wasserstrom, Public Defender Service, Washington, D.C., was on the briefs, for appellant.

Richard C. Bicki, Asst. U.S. Atty., Washington, D.C., with whom Charles F. C. Ruff, U.S. Atty., John A. Terry and Harry R. Benner, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before KELLY, KERN and MACK, Associate Judges.

KELLY, Associate Judge:

Upon retrial before a jury after a prior reversal by this court,¹ appellant Morris J. Warren was convicted of three counts of kidnapping while armed, D.C. Code 1973, §§ 22-2101, -3202; two counts of rape while armed, D.C. Code 1973, §§ 22-2801, -3202; two counts of armed robbery, D.C Code 1973, §§ 22-2901, -3202; one count of assault with intent to commit sodomy while armed, D.C. Code 1973, §§ 22-503, -3202; and one count of assault with a dangerous weapon, D.C. Code 1973, § 22-502. He received seven concurrent sentences of fifteen years to life and two shorter concurrent sentences,² all to run consecutively to any other sentence previously imposed.³ He appeals his convictions on many grounds, several of which require reversal. Before discussing these claims of error, however, we review the procedural and factual background of the case.

In 1972 and 1973, over a period of eight months, a dozen women reported that they were kidnapped by persons riding in a green Chevrolet Vega or similar car and that they were sexually assaulted by their abductors. Descriptions of the car and of the driver led police to arrest one John Davis on February 11, 1973. Appellant was arrested on April 21, 1973. The two men were tried jointly in September 1973. The jury found appellant guilty of eleven counts relating to four separate incidents of kidnapping and sexual assaults.⁴ On December 30, 1976, appellant's convictions were reversed because of his prejudicial misjoinder with John Davis. Davis v. United States, D.C.App., 367 A.2d 1254 (1976), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 114 (1977).

Before his retrial, appellant moved to dismiss the indictment for want of a speedy trial and because of prejudical pretrial publicity. He also moved to sever the counts of the indictment and to suppress post-conviction statements made to a probation officer who prepared the presentence investigation report and statements made later to two police officers. The government in turn moved pretrial to introduce the transcripts of the prior trial testimony of complaining witnesses Sharon Williams, Debra Waters, Marilyn Reed and Linda Jenkins.

On May 30, 1978, then Superior Court Chief Judge Harold H. Greene denied each of appellant's motions except the one to suppress the post-conviction statements made to the two police officers. He ruled admissible the prior testimony of all of the complainants except Linda Jenkins, determining that Sharon Williams had died in an unrelated incident since the first trial, that Debra Waters could not be found, and that Marilyn Reed was "psychologically unavailable." As a result of the court's refusal to allow the government to perpetuate the prior trial testimony of Linda Jenkins, the government was left without evidence to prosecute the offenses related to her rape and abduction.

Retrial began on October 24, 1978. In that trial, the jury was instructed that appellant had previously been convicted by another jury, but that they were to disregard the outcome of the prior trial. The absence of the complaining witnesses was also briefly explained to the jury.

In its opening statement, the government explained to the jury that it expected the testimony (from the transcripts) to show that on different occasions three women were offered rides in a green Vega and taken to secluded locations where they were sexually assaulted by appellant personally or in his presence. The prosecutor's principal argument was the inconsistency between appellant's denial at his first trial of any knowledge of the complaining witnesses and his admission, in a presentence report, to sexual relations with two of these women whom he alleged consented to those relations. In his defense, appellant argued only the likelihood of misidentification.

The government presented the prior testimony of the three female complainants by having secretaries from the United States Attorney's office play the role of the complainants. The prosecutor read the questions asked by the government at the first trial and the secretary responded by reading the complainant's answers. The secretaries also read the questions asked by the attorneys for appellant and his codefendant, and the witnesses' answers upon cross-examination. Portions of testimony from a pretrial hearing on a motion to suppress identifications were read in a similar manner to the jury.

In contrast to his decision to testify at his joint trial with codefendant Davis, appellant declined to take the stand at his retrial and the defense put on no evidence. On appellant's motion for judgment of acquittal, the court dismissed the counts relating to Linda Jenkins, concerning whose abduction no evidence had been presented. It also dismissed two counts of assault with a deadly weapon, ruling that they merged into the charges of armed kidnapping. Appellant was convicted on all remaining counts.

I

After pretrial hearings on November 28, 1977 and April 18, 1978,⁵ then Chief Judge Harold H. Greene disposed of pending motions of both parties by written order on May 30, 1978. Four of the seven assignments of error in this appeal pertain to the rulings contained in that order.

First, appellant contends that it was error to allow the prior trial testimony of complainants Marilyn Reed and Debra Waters to be read to the jury at his retrial.

The court's May 30 order reflects precise consideration of the limits of the Sixth Amendment's confrontation clause and of the hearsay exception for prior recorded testimony, explaining that constitutional and common law tests require the government to show (1) an adequate opportunity at the prior proceeding for the defendant to cross-examine the witness whose testimony is sought to be introduced, and (2) the unavailability of that witness. The court ruled that appellant had an adequate opportunity to cross-examine all four witnesses at his first tria1,⁶ but that only three of these witnesses were unavailable so as to justify the introduction of their prior trial testimony.

The common law of this jurisdiction recognizes that prior recorded testimony is admitted into evidence as an exception to the hearsay rule when

(1) the direct testimony of the declarant is unavailable, (2) the former testimony was given under oath or affirmation in a legal proceeding, (3) the issues in the two proceedings were substantially the same, and (4) the party against whom the testimony now is offered had the opportunity to cross-examine the declarant at the former proceedings. [Henson v. United States, D.C.App., 399 A.2d 16, 19, cert. denied, 444 U.S. 848, [100 S.Ct. 96, 62 L.Ed.2d 62] (1979) (quoting Alston v. United States, D.C.App., 383 A.2d 307, 315 (1978)).]

Appellant challenges the trial court's findings only with regard to the first of these factors, i.e., unavailability. He concedes that the court correctly permitted the reading of Sharon Williams' prior trial testimony, agreeing that the witness' death clearly established her unavailability.

With respect to Marilyn Reed, appellant's contentions are that (1) the admissibility of her testimony is governed by D.C.Code 1973, § 14-303, which requires exclusion here because Reed was not "incapable of testifying" under the plain meaning of that statute, (2) the record does not support the conclusion that she was unavailable to testify at trial even under any acceptable common law test of psychological unavailability, and (3) the trial court failed to use proper procedures to evaluate her unavailability⁷

We disagree with appellant's argument that since D.C.Code 1973, § 14-303 "appears to be applicable," the court should have construed that statutory definition of witness unavailability instead of applying the common law exception to the hearsay rule for prior testimony of unavailable witnesses.⁸ Section 14-303 treats only the admissibility of former testimony of parties and is silent on the question of former non-party witness testimony. Since none of the four witnesses whose former testimony the government sought to introduce were parties in this case, § 14-303 is inapposite. In the words of the district court in United States v. Franklin, 235 F.Supp. 338, 340 (D.D.C.1964): "[b]y its clear language, [section 14-303] is applicable only where the testimony sought to be used was given by a party and where the later proceeding in which it is offered is `between the same parties or their legal representatives'."

Appellant's objection that such an interpretation of § 14-303 means that the government could never use the statute to introduce testimony of deceased or "incapable" witnesses, as those persons would be mere "witnesses" and not "parties," supports the conclusion that § 14-303 was not designed as the exclusive means of introducing former testimony and has not displaced the common law in the area of witness unavailability.⁹ It is precisely because of the limited applicability of the statute that the question of the admissibility of the prior trial testimony was properly decided below as a matter of constitutional and common law.

Appellant argues that even under a common law test of witness unavailability, the trial court improperly permitted Marilyn Reed's testimony to be introduced. As stated above, we are not bound by statutory limitations, since the question of witness...