Are pretrial statements of brain-damaged witness admissible? D.C. Court of Appeals sides with prosecutors

By Pat Murphy

The Daily Record Newswire

BOSTON -- Here's an intriguing twist to the common Confrontation Clause scenarios that criminal defense attorneys grapple with every day.

Suppose a key prosecution witness suffers brain damage between the time he identifies murder suspects for police and testifies at trial. Are his out-of-court statements inadmissible because his memory loss prevents effective cross-examination?

Last week, the D.C. Court of Appeals sided with prosecutors in answering that question.

According to those prosecutors, on the afternoon of November 9, 2000, Gonzales Diggs and Odell Griffin armed themselves and opened fire on four men sitting in a white Jeep Cherokee near the 1600 block of Fairlawn Avenue in Southeast Washington.

The four occupants of the Jeep fled, but one was pursued into the nearby woods and shot in the head.

When police later tried to piece the case together, they concluded that the four victims of the shooting had earlier robbed Diggs and Griffin, taking the Jeep of Griffin's sister in the course of the robbery. The shooting allegedly occurred when Diggs and Griffin tried to even the score and recover the Jeep.

None of the survivors of the attack identified either gunman at the time.

Two weeks after the attack a man named Mark Fisher called a homicide detective and said he could help solve the case. It turned out that Fisher's ex-wife was Diggs's sister and Griffin's cousin.

Fisher told police that, before the shooting, Diggs and Griffin had approached him for help in cleaning and loading a .45-caliber automatic handgun, saying they needed it to "scare somebody" and recover the Jeep.

At the time, Fisher also told police that he refused to lend his own gun to Diggs and Griffin, but that Fisher's wife later gave them his gun without his knowledge.

Fisher also told police that, after the shooting, Diggs and Griffin came back to his apartment and described how they had found the Jeep and attacked its occupants. At this time, the pair returned Fisher's gun. Fisher observed that the gun had been fired.

Despite Fisher's statements, the case languished until 2003 when he was again contacted by police. He repeated his account in two grand jury appearances and Diggs and Griffin were indicted.

After making statements to police and testifying before the grand jury, Fisher became seriously ill. The witness suffered a total renal failure that placed him in a coma for several days and caused permanent brain damage.

By the time of trial, Fisher claimed he could not recall his interactions with Diggs and Griffin appellants in any detail.

There was some question as to the sincerity of his memory loss. In any event, the trial court concluded that Fisher was competent to testify.

Given Fisher's memory loss, prosecutors sought to make their case with his out-of-court statements to police and before the grand jury.

The defendants' attorneys objected, complaining that Fisher's brain damage left him "unavailable" for cross-examination for Confrontation Clause purposes, and that his out-of-court statements were inadmissible hearsay.

The trial court admitted the disputed evidence and a jury convicted Diggs and Griffin of second degree murder.

Last week's decision by the D.C. Court of Appeals upholds those convictions.

Regarding the defendant's Confrontation Clause claims, the court of appeals observed that it "makes no difference that Fisher claimed to be unable to remember the events in issue; the Clause 'includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion.' Thus it is settled that memory loss, whether genuine or feigned, does not deprive the defendant of the meaningful opportunity to cross-examine that the Confrontation Clause requires."

The court explained that, in either case, "the witness's claimed inability to recall is regarded as a form of the 'forgetfulness, confusion, or evasion' that cross-examination is designed to emphasize, rather than as a barrier to cross-examination. '[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination,' even if the opportunity alone does not guarantee success."

Here, the court said that Diggs and Griffin "had that opportunity in the present case: Fisher took the stand and was subject to cross-examination, and the jury could evaluate his credibility and his prior statements in light of whatever weaknesses were revealed."

Turning from the Confrontation Clause to the defendant's hearsay argument, the court likewise found no problem with the admission of Fisher's out-of-court statements.

The court concluded that Fisher's grand jury testimony was properly admitted as substantive evidence as well as to impeach pursuant to the District of Columbia's hearsay rule.

Moreover, the court decided that Fisher's statements to a police detective were admissible under the hearsay exception applicable to statements of identification.

Published: Fri, Sep 30, 2011