Zanders v. United States, No. 05-CF-246.

• Decision Date: 29 July 2010
• Docket Number: No. 05-CF-246.
• Citation: 999 A.2d 149
• Parties: Thomas ZANDERS, Appellant,v.UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

999 A.2d 149

Thomas ZANDERS, Appellant,v.UNITED STATES, Appellee.

No. 05-CF-246.

District of Columbia Court of Appeals.

Argued Sept. 8, 2008.

Decided July 29, 2010.

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M. Elizabeth Kent, Washington, DC, appointed by the court, for appellant.

Suzanne C. Nyland, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney at the time the brief was filed, and Roy W. McLeese III and Amanda Haines, Assistant United States Attorneys, were on the brief for appellee.

Before RUIZ, GLICKMAN, and BLACKBURNE-RIGSBY, Associate Judges.

RUIZ, Associate Judge:

Appellant was convicted of several felony offenses in connection with the stabbing of Allan Lancaster in May 2000, and of the murder of Lancaster and a bystander six weeks later.¹ Appellant challenges the admission of several hearsay statements on Confrontation Clause and evidentiary grounds, and claims that the government suppressed evidence in violation of his constitutional due process rights, warranting a new trial. He also argues that there was insufficient evidence of “serious bodily injury” as required for a conviction of AAWA. Having considered these claims of error and their effect on appellant's trial, we reverse his convictions for assault related to the stabbing and remand the case to the trial court for further proceedings. ² We affirm appellant's other convictions.

I. Facts

Appellant, Thomas Zanders (a.k.a. “T.J.”), and Allen Lancaster (a.k.a. “Snuff”) were residents of the D.C. neighborhood known as Lincoln Heights, where they regularly dealt in drugs. Appellant had been robbed by Lancaster at gunpoint in the past and on May 17, 2000, a fight ensued between them in which Lancaster was stabbed and shots were fired. The bleeding Lancaster started to walk away with his brother Jamar, was taken by a passerby to a nearby fire station, and, from there, by ambulance to a hospital where he was treated for an open wound in the chest cavity. At the fire station, Lancaster was questioned by Metropolitan Police Department (MPD) Officer Kevin Raynor. Lancaster told the officer that he had been approached on a basketball court by three acquaintances, one of whom, appellant, had stabbed him, and another had shot at him. Lancaster repeated the accusation at the hospital when he was questioned by MPD Detective George DeSilva. At trial, appellant took the stand and claimed that he had stabbed Lancaster in self-defense. According to appellant, Lancaster had threatened him with a knife as part of a robbery and was stabbed during the struggle when appellant attempted to disarm him.

Six weeks after the stabbing, in the early morning hours of July 1, 2000, four men wearing scarves over their faces came into a courtyard where Lancaster sat in front of 224 51st St., N.E., and unleashed a hail of bullets killing Lancaster and a bystander, Cateria Howell (a.k.a. “TT”). Three witnesses who were present at the shooting testified at trial, one of whom, Monica Brown-Robinson, identified appellant as one of the gunmen.³

That appellant was guilty of these murders was corroborated by Ernest Clark (a.k.a. “Moo-Moo”). Clark testified that he was approached by appellant and Frankie Winston (a.k.a. “Dog”), and appellant had told Clark that he had stabbed (“put the knife into”) Lancaster. Clark also said that, according to Winston, he, appellant, and two others wore scarves to cover their faces and were the “trigger-men” in the later shooting. They had wanted to “get” Lancaster, but had not intended to injure Howell. Clark recounted that appellant asked him whether he was willing to kill appellant's girlfriend (and mother of his two children), Naseea Tinney, for money, because she was the only one who knew that he had stashed the guns used in the shooting at her house. Winston asked Clark if he was willing to “hit,” or kill, the other two “trigger-men,” because he trusted only appellant, as he feared that one or both of the others would turn on them.

At trial, appellant denied ever speaking to Clark and claimed that Clark was lying. In rebuttal, the government called Melvin Wider, who had been incarcerated in D.C. jail with appellant while he was awaiting trial. Wider testified that he told appellant that he was “bitter” Clark had “snitched” on Wider by informing the police that Wider was trying to have a child witness killed. Appellant told Wider that he thought Clark was cooperating with the police about him too (appellant had confessed to Clark about stabbing Lancaster) and wanted to impeach Clark's expected testimony to that effect by having Wider testify that Clark had lied when he testified in Wider's trial. ⁴ Wider testified that after he met with appellant's trial counsel, he notified the United States Attorney's Office. The prosecutor offered, and Wider accepted, an agreement to plead guilty to offenses “involving drugs, witness tampering and conspiracy to commit murder,” for which he faced a maximum sentence of life imprisonment-as opposed to the possibility of capital punishment if convicted after trial as charged. In exchange, Wider agreed to cooperate and testify at appellant's trial. At trial, Wider testified that he had lied to appellant when he told him that Clark had fabricated the story about his arranging to kill the child witness. In fact, Wider pled guilty to that offense.⁵

II. Confrontation Clause: The Stabbing

A Lancaster's Statements to Police Concerning the Stabbing

Appellant argues that the admission of out-of-court statements made by Allen Lancaster to police officers at the fire station and hospital accusing appellant of having stabbed him violated his rights under the Confrontation Clause. Specifically, he argues that Lancaster's out-of-court statements were testimonial and do not come within the forfeiture-by-wrongdoing exception to the Confrontation Clause, as the government contends on appeal.⁶ We agree with appellant's contention.

“Under the forfeiture-by-wrongdoing doctrine, a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to the introduction of hearsay, if he wrongfully procured the unavailability of that witness with the purpose of preventing the witness from testifying.” Roberson v. United States, 961 A.2d 1092, 1095 (D.C.2008) (emphasis added) (citing Giles v. California, --- U.S. ----, 128 S.Ct. 2678, 2684, 171 L.Ed.2d 488 (2008)). “[T]he rule of forfeiture by wrongdoing ... extinguishes confrontation claims on essentially equitable grounds.” Davis v. Washington, 547 U.S. 813, 833, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (quoting Crawford, 541 U.S. at 62, 124 S.Ct. 1354). Because the government presented no evidence that appellant's purpose in murdering Lancaster was to prevent him from testifying about the stabbing, Lancaster's out-of-court testimonial statements were barred by the Confrontation Clause. See id. (noting that Federal Rule of Evidence 804(b)(6) and many state courts require a showing of motive by a preponderance of the evidence).⁷

Even so, “certain constitutional errors, no less than other errors, may [be] ‘harmless' in terms of their effect on the fact finding process at trial.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Generally, “ Chapman instruct[s] courts to ‘requir[e] the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Fields v. United States, 952 A.2d 859, 862 (2008) (second alteration original) (emphasis omitted) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). The question for a reviewing court “is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). “[I]n other words, [the inquiry] is not whether, in a trial that occurred without the error, a guilty verdict would have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Id.

Applying this demanding standard, we cannot conclude that the erroneous admission of Lancaster's hearsay statements to Officer Raynor and Detective DeSilva concerning the stabbing were harmless beyond a reasonable doubt. According to Officer Raynor, who saw Lancaster at the hospital after he had been stabbed, Lancaster said that appellant and two others (Winston and someone named Harold Dean, sometimes referred to as “Tommy Johnson”) had approached him and asked, “what you doing on my basketball court,” and that appellant had then stabbed him while one of the others (Dean) had shot at him. Lancaster's identification of appellant as the person who stabbed him was not as crucial as might appear at first blush, as it was undisputed that appellant stabbed Lancaster: Lancaster's brother, Jamar, who knew appellant, testified that from half a block away, or approximately 21 feet, he watched as appellant got into a fight, or a “tussle” with his brother and swung a knife, about six to eight inches in length, at his brother's left side. Jamar testified that he was “[o]ne hundred percent sure” it was appellant who stabbed his brother. Clark testified that appellant confessed to him that “he had put the knife into [Lancaster.]” And at trial, appellant took the stand and admitted that he stabbed Lancaster.⁸

But even though it was undisputed that appellant had stabbed Lancaster, appellant claimed that he did so in self-defense, and not without provocation as Lancaster's hearsay statement to the officers indicated. According to appellant's version of events, he had been sitting watching a basketball game when Lancaster “walked up with a knife in his hand and said let me get some money off you,” and then took appe...