Feaster v. United States

рrohibit- building regulation which lating a down, them lying sitting

ed or ordered desist, them to stand

cease and and asked refused

up. Only after the demonstrators of Police order

to do so did Chief Lieutenant Hill and closed and

Rotunda demonstrators, order the

fellow officers leave, collectively individually, to

both opportunity to demon- giving

thus them an elsewhere,16 or face arrest.

strate

IV. appeal

Accordingly, judgment

hereby

Affirmed. FEASTER, Appellant, A.

Michael STATES, Appellee.

UNITED

No. 90-CF-1572. Appeals.

District Columbia Court

Argued Feb. 1993. Sept.

Decided

As Amended on Denial of Reconsideration 16, 1993.

Nov. Farina, Although Farina an As this court stated in alternative forum." however, case, suggest, why n. 16: "we do not see no reason this obstruction ruling we specifically apply must be told of ... demonstrators should not here. by denying

erred his motion to sever the relating complainants, to two of the counts is controlled Johnson v. United (D.C.1992),petition reh’g 610 A.2d 729 denied, upheld en which the admis- banc sion of sexual conduct under “un- preference” exception. usual sexual Drew1 I. complainants young boys were seven appellant

from homes whom took troubled “god- into home and held out as his his Ripley, Richard A. with whom Diane B. DC, brief, complainants Four Heller, sons.” of were Washington, was on the age fourteen at the time of under appellant. incidents, occurred which between Grewe, Atty., A. Asst. Barbara U.S. with early summer of 1987 and 1989. com- Atty. Jay Stephens, whom B. at the U.S. plainants they began maintained that when filed, R. time the brief was and John Fisher home, staying appellant’s he had treated Trosman, Attys., and Elizabeth Asst. U.S. “nice,” they made sure that went to them brief, DC, Wаshington, were homework, bought school and did their and appellee. However, living clothes for them. this sit- February Saturday, ended uation ROGERS, Judge, and Before Chief John, boys, away ran when one of the KING, Judges. FERREN and Associate grand- his appellant’s apartment ROGERS, Judge: Crying upset, Chief and told mother’s home. appellant had sexual- grandmother his Appellant appeals Michael A. Feaster following Monday, ly him. The assaulted from his convictions a of sexual a John examined a doctor. As was grounds offenses on the that his Sixth police investigation, a result of right Amendment a defense was charged forty-one counts of sexu- with judge violated when the trial excluded from at, ally assaulting boys lived or who defense case visited, regularly his home.3 jury testimony of Oscar Mitchell. We hold trial, boys have related a similar ac- that the will abused discre- At allegedly excluding grand jury transcript tion in count of the took events accompanied by finding place in home. The unless John, the time of the witness was not shown to be unavailable to who was twelve at incidents, possibly testify Accordingly, we remand is both and trial. illustrative respects. John testified record the trial court to make a critical some finding regarding unavailability. Appel- he had two-bed- lived contention, According to lant’s other that the trial room home for six months. type U.S.App.D.C. Appellant’s practice in this situa- Drew v. United lems. . (1964) from the tion was to secure documentation guardian custody affording temporary and Street, 1001 K The trial occurred in mid-June when the then move his home at them into John, fourteen; (1) complainants age appel- seven were Derrick that he lived N.E. testified Harald, thirteen; (3) (2) age years. his brother Der- William and Alex lant’s home for six rick, twelve; William, (4) (5) age age eighteen; that, they although had not lived with testified Alex, eleven; (6) seventeen; age Henry, age they frequent witness, Mil- appellant, been visitors. had Shawn, age involving charges nineteen. The Cheeks, a testified that ton Henry during were Shawn dismissed Oscar mothers John and Harald’s and course of the trial. problems as well. Harald, boys, Two of John were from 22-3502, -3501(a) (b), D.CCode single-heads-of-househоlds appel- §§ 3. See and lived drug (Repl.1989). prob- and -722 lant because their own mother had -502 John, appellant nineteen) of, stayed (age in the front bed Mitchell had been aware room, (John) while he and his brother Har- observed, and in some instances even (age eleven), ten), (age ald Derrick sexual misconduct that occurred. John tes- nineteen), (age stayed Oscar Mitchell in the tified that when sodomized him in rear bedroom.4 On November December Oscar Mitchell was date which John claimed to remember be that at bed them.6 Harald testified birthday cause it fell between his time, although one he could not remember Thanksgiving, watching John was televi when, into the room walked living sion in p.m. room. Around 10:30 sexually assaulting him. appellant, underwear, dressed in his told William, boy, A third testified that Oscar him to come into his room. John testified on,” going Mitchell “knew what was hav- room, that he went into and ing walked into the room and observed door, appellant bed, closed the laid on the things; William recalled an in the incident began rubbing and John’s buttocks. John summer of 1987 Oscar Mitchell had appellant claimed that told him to lie on his appellant been in the bedroom when called bed, kept buttocks, side on the touching his William and asked him if he wanted to and (age sodomized him. John and William William, According “make love.” to Oscar sixteen) described several occasions hearing Mitchell left the bedroom after this appellant, manner, in a similar sodomized statement. them .5 addition, the boys described in strik- case, government’s At the close of de- ingly similar detail appel- incidents in which sought permission fense counsel to intro- lant asked them nipple,” to “hit the direct- transcript duce the of Oscar Mitchell’s tes- ing them to nipples suck his chest while he timony grand jury before the in lieu of his John, Harald, ejaculated. masturbated and testimony.7 proffered live Counsel that explained and Derrick they that had not testify Oscar Mitchell was unavailable to anyone told appellant about what was do- trial: ing they because were afraid of time, Honor, At this Your the defense nine) and (age ashamed. Alex admitted proffer that at would first he had to Court that over police denied to the and prosecutor that the acts occurred last three months the defense has taken be- frightened. cause he was steps William testified extensive to determine the location that given had money him in ex- personally of Mr. Mitchell. Oscar I’ve change lover, being for his appel- and that him, looking been out I have had lant had told William that if he was ever trying relatives of the defendant out to caught, (appellant) he would take all of the investigators find him. I’ve had several boys down with him. trying Mr. to find Mitchell. We have However, boys John, three of been unable to do so. We have used Har- — ald, and every good William —also testified that Oscar bit of our effort and faith to cross-examination, govern- 4. Oscar Mitchell was identified 6. On John claimed that Os- potential ment to defense counsel as one of four nothing stop car Mitchell was awake but did Brady Maryland, witnesses under 373 U.S. Instead, John, appellant. according to Oscar (1963). 10 L.Ed.2d 215 that,” "go Mitchell told ahead with slang "stop.” which is cross-exаmination, 5. On John admitted that away when he ran February home on pretrial April 7. At a status conference on gotten he had into trouble sought grand the defense release girl appel- with a and school that as a result jury testimony Super.Ct.Crim.R. under angry lant was with him. Defense counsel prosecutor agreed to disclose the substance impeached John with other inconsistencies be- testimony. judge The stated that grand jury testimony, tween trial get grand jury testimony if defense would brought prosecutor out that the counsel carefully testified. Defense counsel has never testimony witness John’s rehearsed transcript grand jury of Oscar Mitchell's before he testified at trial and seen a before the jury. testimony. Mitchell, finding present find him as eminent or the court Oscar Mr. wit- ness at this time. Mitchell. requested Defense counsel trial Upon grand jury reviewing the tran- judge prosecutor disclose the direct script, hearing from defense counsel and, transcript waiving appellant’s Con- grand jury testimo- relevance of sought rights, frontation Clause counsel ny, denied the defense re- transcript have under the introduced quest to have exception case.8 admitted the defense hearsay rule as the first defense witness. stated: stated, “it clear that Defense counsel says thrust Mr. Mitchell of what unavailable,” again this witness is of- transcript any— know this is he doesn’t investiga- fered of an any- hardly he home. He didn’t see regarding unavailability. tor the witness’ anything. thing, doesn’t know response question, judge’s to the trial inquiry And was made that when the prosecutor stated that the testimony, it is clear resulted did not know where Oscar Mitchell was. prosecutor from this

When defense counsel asserted adversarial, inquiring, ‍‌‌​‌​​‌​‌​‌‌​‌‌‌​‌​‌​​‌‌‌​‌‌‌​‌​​‌‌​‌‌​​​​‌​‌​​​‍did not assume an everything done we can to “ha[s] him,” searching, explicative approach in judge responded, find the trial “All and right,” prosecutor lay and asked the for his trying to ascertain what behind the “response request to the defense superficial responses and attitude of the grand jury testimony be submitted as evi- witness. light dence in of the witness’ unavailabili- Accordingly, testimony I find that that ty.” prosecutor responded, The “I’ve nev- supply jury oрpor- not the with would trial, thing in a er heard of such a criminal tunity to and scrutinize the understand I strongly oppose and it.” Follow- would Mitchell, testimony of Mr. and that the recess, ing prosecutor repeated a the his will, therefore, grand jury testimony not opposition to introduction the purposes at evidentiary be available for the transcript on basis that the case had hearing. this

been on hold for six weeks and that de- case, presented The its includ- defense then any fense counsel had never voiced con- they had ing who stated that two witnesses cerns locating about Oscar Mitchell. The appellant engage in sexual acts never seen prosecutor also the argued that boys house and one witness with the in the showing had made a of una- not sufficient possible a motive for John’s vailability, observing that who offered defense counsel allegations.9 jury sought gov- instigation had the assistance of the of the the had to see the his own bed. Mr. Cheeks also described When asked fold-away grand jury transcript, prosecutor briefly beds were some of the the that used Cheeks, boys. appellant According had summarized its contents: room, boys door. the in his he did not close the Honor, lengthy transcript, It’s a Your Your family a Appellant’s about mother testified sees, mainly witness’s atti- Honor due July in Carolina to which reunion in 1987 North grand jury. The tude in the substance of his brought appellant members his some of the during testimony is that he was not at home Derrick). (Milton Cheeks and household any at issue this case. He incidents in thirty-three) (age testified that Rafael Thomas acts, any participat- he never saw sexual never thirty twenty appellant he had known for house, any anybody ed sex in the nor in with apartment years had time lived in an at one any did house. he see sex acts building. He had also lived in in the same then, apartment before but he denied Milton defense called four witnesses. Cheeks, years they Mr. Thomas five had been lovers. who had known ever his August how had cared for lived in home until described had sons, appel- although explained that "adopted” he testified that he up" precur- relationshiр, "lotion was not had never seen lant’s reference to a sexual had activity simply appellant participate but an instruction with sor to sexual in sexual acts boys put boys lotion on their bodies after who lived at his home. He also testified slept bathing. had never seen He testified that he that while Oscar Mitchell sometimes in the anyone his appellant have with home. appellant, same sex room impress speaker appellant guilty of sod- cumstances found of six counts statements; liberties, solemnity omy, of his sixteen counts of indecent subject word is not to cross- four counts of minor child.10 declarant’s enticing examination; and he is not available II. credibility his demeanor and order that may jury. be assessed Amendment, Under the a criminal Sixth guaranteed right offer defendant is (citing Id. at 93 S.Ct. at 1047 Califor testimony of favor. U.S. witnesses his Green, nia v. 399 U.S. Const, Appellant amend. VI. contends (1970)). 1930, 1935, 26 L.Ed.2d 489 Numer right violated when the exceptions hearsay ous to the rule have excluded the of Oscar years, developed and one such over his convic- testimоny, and that exception prior that for recorded testimo must, therefore, He tions be reversed. ny. This has concluded that order court maintains that Oscar Mitchell’s un evidence to hearsay be admissible complain- was critical because three of the testimony exception, der the placed during him ants in the same room proponent must establish that: assaults, alleged making thus some (1) testimony of the the direct declarant only only and the eyewitness, adult unavailable; (2) the former (aside position appellant) one in a given under oath or affirmation in boys’ contradict version of what had (3) in the legal proceeding; the issues happened. Appellant the tran- asserts that proceedings substantially were two script was admissible under the re- same; party against whom testimony exception hearsay corded to the is now offered had rule because defense made a suffi- counsel opportunity to cross-examine the declar- showing of cient Oscar Mitchell’s unavaila- proceeding. ant former at the bility the and a full and 931, States, Skyers 619 A.2d v. United opportunity fair him at cross-examine (D.C.1993) (bail hearing transcript 933-34 grand jury. testimony admissible under In Mississippi, Chambers v. 410 (quoting exception) Thomas v. United 284, 1038, 93 U.S. S.Ct. L.Ed.2d 35 297 217, (D.C.1987), States, 221 530 A.2d modi (1973), Supreme Court stated that grounds, (D.C. fied 557 A.2d on other right of an accused in a criminal trial “[t]he 1989) (en banc)); see Johns v. United is, process essence, due right in to a States, (D.C.1981) 434 A.2d 473 n. 16 opportunity against fair to defend States, (citing Alston United 383 A.2d State’s accusations.” Id. at 93 S.Ct. at (D.C.1978)). Once these four ele Accordingly, right[ “the ... to call ] established, it ments have been remains in witnesses one’s long own behalf ha[s] judge’s ex the trial discretion to within recognized pro been to due essential probative if its is clude the evidence value time, At cess.” Id. the same the Court outweighed prejudicial its effect. explained: (citing Skyers, supra, 619 A.2d at 934 Johns, (evidence traditionally Out-of-court statements 434 A.2d at 473 supra, are relevant, they excluded because competent, proba lack conven- must be and its indicia reliability: they outweighed by tional of are usu- not tive value must coun ally not made other tervailing prejudice, under oath or cir- circumstanсes such as B., Appellant’s ten-year-old nephew, Appellant guilty Derrick was found not of four counts told involving testified the other Derrick had him that of and indecent liberties enticement being appellant what was true, said about was not John, declared a mistrial simply and that John and Harald were was unable to reach a unanimous jealous appellant. appellant's According of (enticement involving counts verdict on three Alex, nephew, the other Derrick had also told him (the nephew) that he sodomy liberties and indecent counts wanted to tell truth but William). involving grandmother might pun- was afraid that he him. ish Oscar opportunity to cross-examine issues, testimony, site cumulative confusion of appeared before delay)). Mitchell when and undue (“ ade jury. id. at 934 See ‘[a]n agree that two of parties Tbe cross-examine exists opportunity to quate prior recorded requisite elements under the pro in the issues both parties if the since exception been met have ”) substantially the same’ ceedings are States, 359 (quoting Epstеin v. United identity there given under oath and (D.C.1976)). concluding proceedings. in See of the issues the two assume an “ad prosecutor did not (“[t]he Thomas, A.2d at 221 supra, 530 versarial, searching, explica inquiring, issues parties and the requirement that ascertain what approach trying a means proceedings tive be the same both securing responses an ade fulfilling policy lay superficial of of behind opportunity witness,” cross-examination did quate of attitude of the such party against standard, whom is not apply proper offered”). prosecutor’s nature of the has used demanding. this court so While during his questions to Oscar characterizing the terminology in such grand jury appearance reveals actually place took cross-examination which was met. identity requirement issues Alston, cases, see, e.g., in certain A.2d at 934-35. Skyers, supra, 619 See (government conducted A.2d at 315 Oscar Mitchell prosecutor asked ap inquiry” into the extent “searching touch ever seen whether he had crime), that charac pellant’s involvement manner, in а bed lie down John in a sexual prescrip not meant to be terization was him, John, if he had or sodomize Jones v. must occur. See tion of what to take his heard ask John ever (D.C. up his butt hole.” clothes off or “lotion 1984) (insufficient to cross-ex Furthermore, prosecutor pressed Oscar appeared before amine where witness living ar nature of the Mitchell on the purpose), cert. a limited grand jury for and his rangements home denied, 471 U.S. as the relationship as well (1985); supra, 359 Epstein, L.Ed.2d 263 day John February events exists (adequate opportunity A.2d at response ques left home. Although same). are the where issues Mitchell by grand jurors, Oscar ex tions opportunity to cross-ex of the evaluation relationship panded on his own non-sexual case-by-case bas made on a amine must be question boys. the main is,11 when he appellant is correct prosecutor grand jurors ing of the applied improp judge tains that the trial accusation elicited a motive behind John’s assessing opportunity to er standard sexually molested him. at the earlier Mitchell cross-examine Oscar questioning Because the was directed proceeding. appellant’s guilt, the ultimate issue of properly characterized as the issues are ques- Moreover, actual prosecutor’s purposes of the same for grand before the tioning of Oscar Mitchell testimony exception. principal purpose jury “comported with challenge ‘wheth- reasons, of cross-examination: we also con For similar telling what sincerely requi- er was government clude that the had the the declarant Blackmun, particular concurring questioning a witness 11. Justice in a recent Su five for regarding grand preme particular Court decision issue before the respect ato Fed.R.Evid. trial_ 804(b)(1), pointed [Tjhe out: in- jury similar-motive as at Because "similar motive" does not mean concerns quiry appropriately reflects narrow motive,” inquiry "identical the similar-motive ensuring reliability of evidence admit- inherently inquiry, depending ... ted at trial.... factual part similarity underlying on the of the Salerno, - U.S. -, -, 112 States v. and on cоntext issues questioning. (Black 2503, 2509, (1992) 120 L.Ed.2d 255 S.Ct. prosecu- It cannot be that the J., mun, concurring). ‍‌‌​‌​​‌​‌​‌‌​‌‌‌​‌​‌​​‌‌‌​‌‌‌​‌​​‌‌​‌‌​​​​‌​‌​​​‍always tion either or never has a similar mo-

407 truth, requirement, noting he unavailability believed to whether the satisfied perceived judge slightest that trial offered crit- accurately declarant and remem never related, bered the icism of defense efforts to locate the matter he and whether wit- ness). proffered meaning declarant’s intended is ade Defense counsel steps” quately conveyed by language had taken over a three- he em “extensive ” ployed.’ Roberts, 56, 71, period month Oscar Mitchell— Ohio v. U.S. locate investigation including personal 65 L.Ed.2d as well as S.Ct. investigators (quoting Davenport, having relatives and look for David S. The Confron Co-Conspirator tation him—and stated that the defense had used Clause and Exception “every good Prosecutions: A bit of our effort faith” to Criminal However, presence Functional obtain trial. Analysis, not- Harv.L.Rev. (1972)). withstanding government’s objection Even under Rule 804(b)(1) Evidence, of the Rules of not made a sufficient Federal defense had urged upon showing unavailability, government, this court chose likely prevail. See, advantage would still not to take of defense counsel’s Miller, e.g., U.S.App. United States v. offer to from his investi- (1990)(grand gator unavailability D.C. 904 F.2d on the of Oscar Mitch- jury testimony against Indeed, govern deny- admissible ell. the trial stated ing ment because “as circuits have rec several motion new based ognized, grand had the same jury mo exclusion of the tran- question tive and opportunity script, wit that he had not made a formal find- [the brought grand ing before the as to unavailability: ness] jury trial”); as it does at United States v. actually Whether or not Mr. Salerno, (2d 237-41 Cir. address, I unavailable is an did not issue 1992), Salerno, from, on remand my proceeding interpreted — -, U.S. at (finding S.Ct. 2503 as an substantive issues ostensible cross-examine at recognition unavailability of the sufficient and rejecting policy argu same witness, speak the record will for itself by government ments advanced in the in issue, any- on that I need to add don’t case). stant thing else to it. enough showing Whether of a or not Regarding the final element to be mаde the defense render Mr. Mitch- met under the recorded testimony pursuant statutory ell unavailable exception, judge appeared to ac rule, common law or federal will be for cept proffer defense counsel’s of Oscar Appeals the Court of to decide. unavailability, but he did not explicit finding make an during finding, judicial trial. Absent a as well as a In seeking to unavailability, introduce evidence under the sufficient record to assess prior testimony whether, exception, pro question the the assuming remains ponent bears the of demonstrating unavailability, burden of the exclusion Oscar the unavailability of the grand jury testimony up- declarant. Mitchell’s can be See 74-75, Ohio v. supra, judge Roberts 448 U.S. at held on some other basis. The based 2543-44; 100 S.Ct. at Laumer v. the decision to exclude evidence on 190, (D.C.1979); 409 A.2d grounds: Ro three the of a absence sufficient Kuhlman, (2d sario v. opportunity government for the to cross- Cir.1988) “good (applying a faith appeared effort to examine Oscar Mitchell when he locate the witness” standard to grand jury, unreliability defendant before the of seeking unavailability jury demonstrate grand testimony, un Oscar Mitchell’s and der testimony exception); former juror Rosar the likelihood of confusion resulting cf. Kuhlman, io F.Supp. jurors v. from inability of the to under- (S.D.N.Y.1987)(finding that testimony.12 had stand Oscar Mitchell’s Under indicated, judge’s 12. In the grand jury words: As I've the bulk of the testimony provided colloquy between Mr. testimony.” Alston, grand jury The Johns, proper and supra, 434 A.2d judge concluded: for supra, 383 A.2d these reasons scrutiny. light testimony, not in the Viewing exclusion do withstand even defense, fails most favorable to judge has discre While the trial even persuade me ... that it contained Johns, exclude supra, under other tion Es- reliability_ of minimal indicators grounds wise admissible evidence con- I and pecially given what observed relevant, competent, that it is not or con credibility of witnesses cluded about evidentiary countervailing policy flicts with presented during the trial.... concerns, grand jury testi Oscar Mitchell’s degrees In cases varying [the relevant] present any prob mony did not of these proceedings examina- look testimony The was rele lems. tion, cross or its that examination of to the material issue vant establishing rec- equivalent, a to assist Johns, supra, 434 guilt or innocence. See reli- testimony ord which sufficient competent It evi A.2d at 473. was also emerges. my Mr. Mitch- ability view if Oscar Mitchell was unavailable. grand jury testimony provided dence ell’s no Nevertheless, judge ex id. such assurances. See concluding transcript, that Os cluded Johns, supra, 434 A.2d at and testimony Mitchell’s was unreliable car against confusing the dis- court cautioned transcript provide that the would regard cretion that the trial court has with jury under with sufficient determining is admissi- whether evidence “ judge explained, testimony. stand his ‘credibility weight to with the ble denying appellant’s for motion a new evi- assigned ” competent and admissible trial, appeared that when Oscar Wood, (quoting dence.’ Id. Fowel v. grand disparaging he made jury, before the (D.C.1948)). “It is for the homosexuals, every about and “in remarks ‘nei- weight credibility: jury to decide distancing himself way seemed bent on reviewing ther trial court nor the court ” from the defendаnt.” authority.’ that infringe upon can Id. found that Oscar Mitchell's denial that he (citations omitted). Thus, statements once relationship had a sexual satisfy testi- the four elements of in “stark to the stood contrast” necessary ‘indicia of mony exception, the witnesses, of other who did or analysis of any met and reliability’ are testify to existence of such a reliability would of the substantive relationship.13 Finally, Johns, cited as supra, inappropriate. See unreliability certainty of the lack (noting evidence at 474 exclusion grand the fact he was is no jury witness basis Kuhlman, “living testimony); roommate and was Rosario cf. Johns, su- young boys allegedly, where were F.2d at 924. As house molested, routinely 434 A.2d at “we conclude frequently pra, [which] prov- invaded certainly seriously impermissibly have undercut court would roommate, living jury. in a house Transcript while Mitchell and the defendant’s say frequently speaks boys allegedly, suffice it to young itself. But were where my molested, upon review certainly of that testimo- routinely have would ny provided Mr. therein that Mitchell's credi- proper grand sеriously testi- undercut damaged bility challenged during the mony. colloquy testimony. disparaging gay made remarks about He However, appellant not that was them, way every people, his and in reaction relationships. engage in homosexual did not distancing bent himself from he seemed that he Milton Cheeks testified Defense witness the defendant and the household’s activities. Certainly relationship. appellant and homosexual con- stands stark hand, defense witness Rafael On the other Government trast to the of other Thomas, thirty-three, age also lived in who had have witnesses who did or would indicated time, having appellant’s apartment for a denied Mr. Mitchell and the defendant were that relationship appellant. a sexual closely intimately acquainted and and related. Certainly the fact Mr. Mitchell was the that mce of the jury excluding grand jury States, Singleton v. 488 A.2d United Cf. testimony.” Although a witness’ credi (defendant’s (D.C.1985) 1369-70 view bility grand before the jury may open inherently improbable). question, concedes, appellant as ques that tion petit was for thе jury and not the trial judge properly Nor could the trial judge to decide. See Ballou v. Henri Stu conclude, circumstances, under the dios, Inc., (5th Cir. transcript testimony was excludible on the 1981) (trial judge abused discretion ex likely juror basis of confusion.16 This cluding results of blood alcohol test on court, court, as well as the trial has often ground that results conflicted with testimo acknowledged the common sense of the ny witness; of another decision “constitut jurors and relied ques on it where difficult ed a credibility choice proper which should tions prejudice of harmfulness and are at ly have been jury”). reserved for the See, States, issue. e.g., Allen v. judge’s The trial exclusion of the evi- (D.C.) (en banc), 603 A.2d dence because “countervailing circum- — denied, U.S. -, cert. stances” focused on Oscar Mitchell’s credi- (1992); 120 L.Ed.2d 916 Lemon v. United bility. fact, Oscar States, (D.C.1989). 564 A.2d It testimony was similar to that of Milton hardly jurors unusual task for to sort Cheeks, a defense witness who had lived in out and choose between evidence wit appellant’s home and having denied a sexu- give nesses who different versions of al relationship seeing with him or appellant events, precisely and that what would engage in a sexual relationship with John. have occurred in the instant case had the supra See note 9. That Oscar Mitchell jurors presented been transcript with the strongly denied that he was a homosexual testimony. Oscar Mitchell’s John testi appellant sexually abusing fied that appellant sexually abused John, and took some offense at efforts present. while Oscar Mitchell was grand jury prosecutor suggest to the only being present Mitchell not denied dur contrary, and used the “faggot,” word assault, ing that portrayed ap but he also are not proper bases on which deny pellant as someone boys’ who had the inter appellant right Oscar Mitch- addition, ests at heart. Oscar Mitchell’s ell’s testimony part of the defense case testimony provided further evidence of the to the jury. Nor was it appropriate to tension that existed between exclude transcript ground immediately John away, before he ran witnesses testifiеd awas homo- portrayed boy John as a troubled who sexual and Oscar Mitchell continued to live having school, difficulties at most re with him. A review grand cently touching does not female classmate in a reveal that Oscar Mitch- (on ell’s buttocks), denials explanations sexual manner were inher- and who ently incredible or appre- punishing that he lacked an resented him as a ciation of the Moreover, seriousness of the occasion. result.17 his initial effort to dis- judge’s Mitchell, 14. Our review of jury testimony decision to Mr. and that the will, therefore, exclude the evidence as unreliable is evidentiary for abuse not be available for States, of discretion. Clark purposes hearing.” v. United 593 A.2d at this He reiterated his (D.C.1991); States, 192 n. 7 Jones v. United concern he denied motion for (D.C.1988); 548 A.2d States, Swinson v. United a new trial. (D.C.1984). gen- See erally Johnson v. United 398 A.2d 354 only 17. Oscar Mitchell also testified that John (trial (D.C.1979) discretion). court appellant's apartment during lived at the week grandmother’s and returned on weekends to his testified, faggots. Oscar Mitchell "I don’t like explained respоnsi home. He assumed faggot I would bust a absence, face in a minute. And bility young boys for the don’t even think about it.” help and he had tried to John. He also testified telephoned appellant that John’s school had stated, 16. The “I find failing cutting that that informed him that John was supply jury would opportunity not with an classes and had touched a female a classmate in Mitchell, testimony to understand and According scrutinize the of sexual manner. to Oscar he going present appellant allegedly himself molested tance from what was on at appellant’s home is not so obscure or com- directly contradicted trial testi John John’s plex petit not jury that could scrutinize mony Mitchell was a to that Oscar witness testimony. his The apparent and evaluate testimony further the assault. His offered hostility of Oscar Mitchell and his evasive appellant’s support the view of relation questions answers to some could ex- presented ship boys by that was plained by prosecutor the fact that the had a mo defense and identified both witnesses possi- wаrned Oscar Mitchell that he was a appellant against tive for accusation John’s target jury’s investigation of the grand ble why boys an stuck explanation accusing and that the was together appellant. accused His once John person who had care of Oscar Mitch- taken evidence, therefore, material went years, ell for five he and whom viewed Kuhlman, supra, points, see Rosario step-father, his of horrible criminal acts 926, jury and if the had credited at partially children.18 with The corroborat- it, testimony could have Oscar Mitchell’s ing open identity medical left complainants’ credibility undermined the person John, who had molested regard charges with all or some of their rule it did not out that John was involved against prosecutor argued appellant. sexually people at school or else- to the that the case turned on credibili Thus, perceive where. we no “countervail- ty, and all it took to convict that ing judge’s circumstances” in the trial anal- boys. was to Yet the defense believe withholding ysis justify as would tran- opportunity was denied script from the jury. directly that chal jury with question any remains whether lenged credibility. The fact John’s excluding error in Oscar testimo witness, albeit presented another ny harmless.19 was Delaware v. Van Ars appel eyewitness, not an who denied that dall, 475 U.S. 106 S.Ct. boys is sexually young lant had molested (1986); L.Ed.2d 674 Chapman v. Califor dispositive. v. Missis not See Chambers nia, 386 U.S. 87 S.Ct. sippi, 410 U.S. at (1967); L.Ed.2d 705 Bassill v. United far less (noting that “defense was States, (D.C.1986). Ap might had persuasive than it have been” pellant maintains that Oscar Mitchell’s evi an given defendant been dence “could have created reasonable evidence). Al introduce the excluded by John, charges doubt” about the made though government’s case consisted Harald, William, younger his brother witness, of the com more than one some generally impugned complainants’ initially anything plainants denied that credibility. only Oscar Mitchell was the happened, young witness defense adult witness the events described explained was why complainants one of the complainants. twenty years these He was sticking tо his accusations nevertheless. he appeared grand old when before reasons, we supra For these See note 9. and he told jury, seeking them that was school, conclude that Oscar Mitchell’s high to finish en jury, rejected couragement, might and to enter the Park Police have caused academy. complain- His agree denial that he or could on some of the was ever not ruled, deeply denying appellant’s had learned that resented John 19. The trial trial, punishing letting any him afterwards error motion for a new However, go ruling watch television or out. was based on harmless. excluding legal analysis for the evi- erroneous jury, judge, This, rather than the dence in which the as well as conversations that Oscar evidence, did not evaluated the place Mitchell testified had taken earlier in the office, address that admission of the tran- may the effect prosecutor’s explain why script had on jurors asserted could have to the that he thought prosecutor trying trial. v. United make See Davis banc). (D.C.1989) (en him look like a and a "fool" homosexual.

411 supra see 10, allegations, not afforded the ants’ note fense was develop a record on the extent of its efforts reject more or all of them. Mitchell.23 As the record to locate Oscar Accordingly, we hold that un stands, if the defense went we do not know less the defense fails to demonstrate address, contact- last known to the witness’ unavailability pur of Oscar Mitchell place of em- ed his school or contacted his poses prior testimony ex of the recorded know if the de- ployment; neither do we excluding ception, erred in subpoena the witness or ob- fense tried grand jury transcript Mitch of Oscar locating any government tain assistance testimony. ell’s Because the error could not, and, if whether there was the witness Alston, supra, harmless, have been cf explanation doing so.24 a reasonable for not (reversible 383 A.2d at 315 error to exclude Finally, information the is unclear what directly exculpatory, “facially exonerating” from the various sources defense obtained evidence), we remand the case to the trial contacted. no one factor that were While finding unavailability.20 court make a on determinative, of factors is or combination Further, because there is no Confrontation showing these are illustrative of the to be here,21 Clause barrier at issue the unavaila proponent made of the record- Ready, supra, bility requirement only imposes general See testimony. ed ‍‌‌​‌​​‌​‌​‌‌​‌‌‌​‌​‌​​‌‌‌​‌‌‌​‌​​‌‌​‌‌​​​​‌​‌​​​‍445 A.2d duty good of reasonableness faith ef (defendant at 990 must show that he or she part witness]”); forts on the “diligently the defense to secure had looked [for States, Harrison v. United 734, presence the witness’ at trial.22 The de- 435 A.2d 555, 476, reject appellant’s gov- (1987); argument Frye, 20. We 559 State v. 182 Conn. precluded 735, (1980) challenging (adopting ernment 438 A.2d 738-39 Fed. unavailability appeal. Kuhlman, 804(a)); on supra, Unlike the Rosario v. 839 R.Evid. Johns, 16, 925; situation in 434 A.2d at 473 n. F.2d at see McCormick Evidence, prosecutor object authorities, did 21, 253, to the admission of the ("Some supra note § 135 ground on the ], [804(a)(5) including require the Federal Rule failed to show that Oscar Mitchell was unаvail- through Others an effort reasonable means. able. showing require no more than a that the wit- (footnotes beyond process”) ness is the reach of heavy placed prosecutor 21. The burden omitted); 4 Jack B. A. Weinstein Margaret & unavailability, to show a witness' see Ohio v. 804(a)[01], at 804- ¶ Weinstein's Berger, Evidence Roberts, 74, supra, 448 U.S. at 100 S.Ct. at 2543 (1992) ("in inability procure civil cases ... ("if remote, possibility, there is a albeit means the declarant's attendance reasonable might produce affirmative measures ant, the declar- inability subpoena”). equivalent to serve obligation good may faith demand effectuation”), directly their stems from the proffered 23. Defense counsel that he had taken requirement Confrontation Clause of the Sixth period steps” "extensive over three-month Amendment, implicated which is not in the in- including investiga- personal locate Mitchell— Thomas, supra, stant case. See 530 A.2d at 221 having investigators tion as well as relatives and (court explore need not constitutional ramifica- look for him—and stated that the defensе had tions of denial of confrontation where former "every good bit of our effort and faith” to used testimony of unavailable witness is introduced presence obtain his at trial. defendant). by the See 2 McCormick on Evidence 253, (John ed., Strong, § 134-35 William 4th 24. These are some of the factors courts have 1992) ("In cases, showing ed. criminal re- determining considered in whether a defendant quired prosecution regard to wit- strict, has made reasonable efforts to locate a witness against nesses called the accused is de- effort,’ testimony the defendant 'good whose applicable scribed as a faith ground seeks to introduce on the that the wit prosecutions. both State and federal A lesser See, e.g., v. showing may adequate ness is unavailable. United States as to defense witness- Fenoid, 970, Cir.1991) (last (8th generally 949 F.2d es in criminal cases and witnesses 22, cases, address); Frye, supra requirements known note 438 A.2d civil where confrontation (to (footnotes omitted). subpoena apply”) apartment, left do not at 738-39 witness’ citations call; wife for witness to with instructions States, 982, insufficient ness); in absence of effort to serve wit Ready 22. See v. United 563, Jordan, 1025, (D.C.1982), denied, State 229 Neb. 427 N.W.2d v. 989-90 cert. 460 U.S. 796, (1983); (subpoena); United States v. 75 L.Ed.2d Warren (5th (D.C.1981); Fernandez-Roque, Cir. 436 A.2d 703 F.2d 826-27 Prout, 1983) Pelton, (same); State v. (1975); United States v. 115 R.I. 347 A.2d Allison, (8th Cir.1978) (same). State v. 202 Conn. 412 amalgamated jury’s in mind (D.C.1981)(en banc) (proponent ly to 5 be

736 n. mass, (2) inculpatory single do into a or prior “would well to joined crimes carefully of each of comprehensively relate for evidence trials separate to at the record at trial its efforts make would be admissible ef- witness available and the reasons such of the others. Hence, proved unavailing”).25 forts have States, 231, 498 235 v. A.2d Cox United required is that the trial court remand so (citation omitted). (D.C.1985) See the defense made can determine whether 40, States, A.2d 619 Coleman v. United

reasonable efforts to locate Oscar Mitchell sever, (D.C.1993). The to 43-44 decision therefore, and, he was unavailable whether however, the sound discretion of within is testify at trial.26 to judge, trial and this court will reverse compel- showing the ‘most only “upon a II. ” States, v. ling prejudiсe.’ United West Appellant also contends that 788, (D.C.1991) In re (quoting A.2d 791 599 judge denying in motion erred (D.C.1990)). S.G., 771, 581 776 See A.2d He Super.Ct.Crim.R. to sever under 14. States, 259, 609 A.2d 264 v. Gooch United sodomy sought severance of the seven States, (D.C.1992); v. United Winestock counts and counts of assault with a three (D.C.1981). oppos- 429 A.2d 526-27 dangerous weapon involving John and Wil sever, prose- ing appellant’s motion and indecent act liam from enticement identity pre- cutor and sexual relied boys. involving counts rest of the Had disposition under Drew27 ar- exceptions severed, appellant counts main these been mutually guing the evidence would be tains that evidence that had test the in- Because the facts of admissible. positive ed HIV virus would not “un- scope stant case fall within have been in the trial on the admissible recog- preference” exception usual sexual enticement indecent liberties counts. Johnson, supra, 610 nized the court Under Rule offenses should sev- States, (citing Dyson at v. A.2d 730 United ered: (D.C.1953) controlling), we 97 A.2d 135 by the trial each find no of discretion

unless evidence as to offense abuse distinct, severance of the counts.28 seрarate judge ‍‌‌​‌​​‌​‌​‌‌​‌‌‌​‌​‌​​‌‌‌​‌‌‌​‌​​‌‌​‌‌​​​​‌​‌​​​‍denying and thus unlike- ("[t]he exception Ready, supra, While contends that this 25. 445 A.2d at 990 court Johnson permit evidentiary prior misconduct need not evasion of its rules should at least be limited victim, hearsay, involving seeks to admit case [the there is one defendant] the same strategy necessity prevent squarely not out of governmental but as a holds other- from this court which cross-examination”). States, See Rosario A.2d 135 Dyson wise: v. United Kuhlman, (“the supra, pur- at Indeed, v. (D.C.1953). only Dyson case is the diligence requirement pose of the due state [in sepa- expressly "that holds evidence (cid:127) produce is to that the failure statute] ensure may persons with different rate acts [sexual] due to indifference or a the witness was not type.” cases of this Id. 138. be received in strategic preference presenting [the witness’] may Dyson been It would have well be testimony in the more sheltered form of ... differently it had before this decided if come minutes rather than in the confrontational set- ago. thirty-nine years today court than rather stand”) personal ting appearance on of a Nevertheless, Dyson binding on us unless (citations omitted). en banc. overruled this court until it is States, See also v. United Adams 26. If the finds that (unusual (D.C.1986) preference ex- sexual a witness at was unavailable to be ception to acts with or extends committed trial, grant then the must a new trial. against persons than com- other victim) plainant (citing Dyson, supra, 97 A.2d or Drew, supra U.S.App.D.C. note 135). police Dyson, permitted officer was F.2d 85. defendant, male, testify who was assault, Despite appellant's argument charged simple had admitted the unusu- men, preference exception applies only other the court al sexual sexual conduct with concerning controlling exception Hodge prior sexual evidence conduct be- viewed as defendant, complainant U.S.App.D.C. tween the and the 126 F.2d 849 Johnson, (1942) (in offenses, stated in that at a court sexual evidence similarly disposed that: time the defendant was majority holds that Accordingly, we remand the case to the unreliable. The findings ruling, trial court to on whether make or trial court erred in so but remands respect the defense made reasonable efforts to findings for further to Mitch- testify locate Oscar Mitchell as a witness unavailability ell’s asserted at the time of trial, at if the defense did trial. so, Otherwise, grant a if new trial. a agree holding majority I of with the the granted, new trial is not the shall that, assuming trial court erred in not the findings, appropriate make are prior testimony, admitting Mitchell’s review, appellate defense on the efforts to agree error I also was not harmless.

locate Oscar Mitchell.29 properly if the evidence is otherwise admis- sible, necessary permit a remand is KING, Judge, concurring in Associate finding concerning trial court to make part and concurring in result. was in fact whether the witness unavail- I join I III of Parts the court’s Finally, agree able. I that our case law opinion and I concur in the result with requires that, us to if the conclude witness respect to Part II. unavailable, grand jury was testimony In this charged case was of Oscar Mitchell should have been admit- numerous offenses sexual committed States, ted. See Johns v. United against boys ages ranged seven whose (D.C.1981).1 my view, however, 463 eighteen approximately years ten goes allowing Johns too far in the admis- place old. The in appellant’s incidents took prior testimony sion of recorded should home between the summer of 1987 and late especially light be reevaluated in I of what February During period when regard approach to be a more reasonable alleged the offenses were to have been under of the Federal Rules Evidence. committed, Mitchell, one Oscar who was in correctly As majority observes the twenties, early late teens or resided proponent admissibility prior of re- appellant and, although related, not testimony corded must show: appellant and Mitchell referred to each oth- (1) testimony the direct of the declarant er as father July and son. On unavailable, (2) testimony the former testify was called to before the given or was under oath affirmation grand jury. testimony His contradicted the legal (3) proceeding, the issues in the two testimony of some of victims in several substantially same, proceedings were respects. party against whom the testi- During presentation trial, the defense mony opportunity had the now is offered counsel, announcing that he could declarant at the cross-examine the for- Mitchell, sought not locate the introduction proceeding. mer of grand jury testimony. Mitchell’s The request States, trial court principally denied that Alston v. United A.2d ground prior (D.C.1978). require- 314-15 In this case is relevant to the mental state of the two to show the dece- defendant unavailable witnesses charged, at the time of of the act which he is prior testimony dent’s violent character. admissible), applied Bracey and is ed 85, 88, v. Unit grand presented jury investigating had been to a States, 23, 26-27, U.S.App.D.C. charge against an unrelated murder the dece- denied, cert. U.S. S.Ct. years dent five before homicide that led to (1944). Dyson, supra, 88 L.Ed. 1589 97 A.2d at charges against the held, A divided Johns. court (admissible 137-38 to show “intent and lustful elaboration, prior without testimo- disposition"). ny priоr came within the recorded Johns, exception hearsay rule. thereafter, to the In the event of affirmance 16; v. 473 n. hut see Jones United merger court will address issue of of of- (D.C.1984) (without fenses. citation to upheld rejection Johns court's of voluntary 1. In Johns this court reversed man- grand jury testimony a witness who of testified slaughter conviction. defense of self de- case). before the in the same fense had been raised the defense had sought to introduce dispute argument: at oral Oscar Mitchell was 3 are and we ments not personally known to be close necessary for a agree that a remand is known Mitchell would and it was also unavailability the wit- determination of made dispute some of the claims requirement. Only first ness under the so, Although required do victims. ma- requirement dispute, and the last — U.S. -, Williams, United States government jority that since the concludes (1992), 118 L.Ed.2d 352 had the to cross-examine that it felt itself ob government concluded grand jury that Mitchell in the testimony to ligated met. though even pri- admissibility the federal courts a fabrication. counsel considered to be governed by Fed. or recorded is presented his the Mitchell At 804(b) provides: R.Evid. questioned by of and he was version events following by the The not excluded [is] jurors. of the trial some hearsay if the declarant is unavail- rule found, however, prosecutor “did able a witness: adversarial, inquiring, not assume an giv- Testimony. Testimony Former searching, explicative approach.” hearing en as another of a witness at of hostile witness Cross-examination a proceeding, the or a or same different argues stage proceeding, the the that of compliance in deposition in a taken exposed the sta- government, would have in of same with the law the course the investigation the and revealed the tus of if proceeding, party or the another appellant in- against identity of witnesses now against the is whom agreed may to tes- cluding those who have offered, or, proceed- in a action or civil their role would tify expectation in the that interest, ing, had an predecessor a in addition, In immediately not be reveаled. opportunity and to de- similar motive secrecy might the breach cross-examination direct, cross, velop or testimony by Moreover, revealing the grand jury. redirect examination. to close to the government’s case someone admissibility if permit our precedents Thus result threats alleged perpetrator, could “opportunity to opposing party had an evidence, witnesses, destruction of to cross-examine” while in the federal courts short, argues In defenses. fabrication of admissibility dependent upon is whether motive whatso- government, had no opposing party “opportuni both every to cross-examine Mitchell ever a to ty” develop “similar motive” course, its not to. The best reason cross-examination, testimony by or other view, nothing to the of to reveal point wise, proceeding. govern fear by cross-examining witness urges adopt the latter formula ment us anything govern- that learned about however, tion; Johns, I am light of way immediately find its ment’s case would only satisfied that the en banc court appellant. empowered Epstein so. to do But see not my government should view the (D.C. such forced a witness under question be 1976)(upholding pri- denial of admission circumstances, of under- purpose for the ground that or recorded credibility, in mining the order witness’s question no wit government had motive protect that witness become itself should during proceeding concern

ness Adoption trial. future unavailable at some proceeding). ing the central issue in second test would avoid of the “similar motive” result, panel if em- this were support request of its such a it, I vote to do so.2 presented following powered adopt in its would has brief opines motive” test was not majority even if "similar record. the "similar 2. The Since court, party had the apply "appellant applied still trial neither motive" test were to would likely prevail.” agree opportunity the factors that needed Ante I nor to address at 407. neither disagree A of whether I do not be considered. determination assertion because under that test can on this the evidence should admitted believe this court decide issue however, get not jury, will or not the wit- The On issue whether unavailable, place judgment I ness was would to make such ‍‌‌​‌​​‌​‌​‌‌​‌‌‌​‌​‌​​‌‌‌​‌‌‌​‌​​‌‌​‌‌​​​​‌​‌​​​‍heavy appellant under the facts burden on if is admitted. a live witness presented time trial did here. At no before agree Notwithstanding, I that under Johns defense counsel inform the court that he kind of judge may reject this a trial locating any had encountered difficulties in reliability questiona- evidence because its the witness. When the trial calendar was provides still one more ble. That result called, counsel announced that he was Johns, because, as over-turning reason for ready gave for trial and no indication that demonstrates, some dis- clearly this case so he was unable to locate Mitchell. Indeed judge to given to the trial cretion should be during jury remarked: voir dire counsel reliability. questionable reject evidence may also call Mr. Mitchell [as “[W]e It was not until the defense witness].” began presentation of its case that

counsel informed court that

could not be found. The record is silent

concerning whether the ever witness was

subpoenaed, and counsel informed the point

court at one that he had been search- ing for the witness for three months while LIMITED PARTNER BRANDYWINE point at another counsel said he had been SHIP, Co., and Albemarle Towers searching for six months. Partnership, Peti Co. Ltd. Shoremede tempt- Under those circumstances one is tioners, suggest ed strategic that counsel made a decision not to inform the court of his

inability anticipa- to find the witness in the RENTAL DISTRICT OF COLUMBIA presenting tion the witness’s tes- COMMISSION, HOUSING timony pre- would more effective than Respondent. senting the witness himself. A more time- ly permitted notification would have Ass’n, Brandywine Albemarle Tenants trial court to enlist the Marshal Service and Ass’n, House Tenants and Cleveland perhaps police department in an effort Ass’n, Intervenors. Tenants Ascertaining possi- to locate Mitchell. any 92-AA-885, ble success of such efforts at this late Nos. 92-AA-886 probably possible. date is I On remand and 92-AA-1302. require would the defense to show Appeals. District of Columbia Court complete- whereabouts of the witness were ly setting unknown before aside the ver- Argued June dicts because of the witness’s unavailabili- Sept. Decided ty.

Finally, argues re- should be because, found,

jected judge it sufficiently panel

was not reliable.

opinion concludes that the trial erred finding

in so because such a determination jury’s right

invades the trial to make credi-

bility determinations. Interestingly, to. assess credibility apparently found wanting despite since it chose indict it.

should be made in the first instance full record.

Case Details

Case Name: Feaster v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Nov 16, 1993

Citation: 631 A.2d 400

Docket Number: 90-CF-1572

Court Abbreviation: D.C.