Petition for Writ of Certiorari — Blakeney v. United States

Supra Court U.S.

10-215 = aus 12 2019

No. 10

GFFICE OF THE CLERK

IN THE

Supreme Court of the United States

MICHAEL H. BLAKENEY,

UNITED STATES,

ON PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

WILLIAM R. STEIN

Counsel of Record

KATHLEEN M. FoONES

IS LIZABETH C. PUGH

HuGues Hupparp & Reep LLP

1775 I Street, N.W.

Washington, DC 20006

(202) 721-4600

stein(@hugheshubbard.com

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether the Sixth Amendment Confrontation

Clause permits the admission of grand jury

testimony at trial, where at trial the witness has no

recollection whatsoever about the facts underlying

his grand jury testimony, the substance of his grand

jury testimony. or even the act of giving his grand

jury testimony.

2. Whether the Sixth Amendment Confrontation

Clause is satisfied by an out-of-court declarant’s

presence at trial even if the declarant’s total memory

loss prevents him from providing any testimony at

trial regarding his prior statement, as the court

below and many other state and lower federal courts

have interpreted United States v. Owens, 484 U.S.

554 (1988), or whether the Confrontation Clause

requires that the declarant be able at trial to defend

or explain his prior statement, as this Court held in

Crawford v. Washington, 541 U.S. 36 (2004).

ll

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................... nee

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RP Ere OPIN BIGLIOW ................000..00ccceee. Pees usiassesesnaoe

I IM 555, sccccsscecensessccecssscesscescesesess seenapeesaies ]

CONSTITUTIONAL PROVISION INVOLVED ........2

scl ccccascccsesssesscsnscnesssessnsstscssosessesses 2

Seema es QPP SEONG CASE ..................0ccccecceescreceree 4

REASONS FOR GRANTING THE PETITION ......... 8

A. The D.C. Court Of Appeals Decision

(And Decisions Of Other State And

Federal Courts) Conflicts With This

ee 10

1. Owens does not hold that the

Confrontation Clause is satisfied

by a witness’ presence at trial

regardless of the extent of memory

loss about his prior out-of-court

aca ccucanvececenseveccesscccsccccscsccce 11

bo

The court below and other lower

courts have interpreted Owens to

make the extent of memory loss

irrelevant to Confrontation Clause

Ne i iccennarcncvassasccasseccsseccess 16

1]

B. The Issue Presented Is Critical To The

Proper Administration Of Federal And

ee CT II ii casa cs rates hnevnevecclseeel 21

ba Fa) oc) Renae OE T Neri NCCP ew Men Ons: 24

APPENDIX A:

Memorandum Opinion and Judgment of

the District of Columbia Court of Appeals

Filed December 14, 2009........ ANAK A RES veer nee la

APPENDIX B:

Excerpts of Transcript Dated April 19, 2007

Superior Court of the District of Columbia

Criminal Division — Felony Branch...................... 10a

APPENDIX C:

Order of the District of Columbia

Court of Appeals Filed May 14, 2010

1V

TABLE OF AUTHORITIES

CASES

A.E. B. V. State,

BIS Bo. Fd BSE CHIR. FOO!) ono occccccccccccccccicceccccsccsncee 17

Blunt v. United States,

Se Pe Fe CAP ie UD ooccccc a ceacovsccececchscdscners 7, 16

California v. Green,

Be ee Be Ce va soisssscectoicassxnccensdcanevcs seta passim

Coy v. lowa,

MT ET BO CI oni vevevnce di leddensksieesdsans 9 10

Crawford v. Washington,

RE ET By, Be CO vnc cncsvvennessceevsavecsoncnscnsssss passim

Davis v. Alaska.

Pv DOR Se Lk f | 10, 11, 18

Delaware v. Fensterer,

Be Be I oi gin ss csscccoveiassavvucccesecevavcsses 11, 12

Dowdell v. United States,

BT ET, Fe EO ooivnvsec eds se cnavcvaesccsevccecs 10, 11, 18

Dutton v. Evans,

ME TT BE. FATTO vices vvcvccesaccececcocssccvccsvenccsdecessecs 19

Felix v. Mayle,

379 F.3d 612 (9th Cir. 2004) 2000.0. 17

Makell v. State,

656 A.2d 348 (Md. Ct. Spec. App. 1995)........ 16, 17

Melendez-Diaz v. Massachusetts,

BST U.S. _ FAB G, Cb. BET LB) oon cccccccccsocccsee: 20

Mercer v. United States,

864 A.2d 110 (D.C. 2004) ........... .. 20

People v. Argomaniz:Ramurez,

102 P.3d 1015 (Colo. 2004)............cceeeee eee. Bs etna 20

People v. Perez,

98 Cal. Rptr. 2d 522 (Cal. Ct. App. 2000)............ 17

Ruhala v. Roby,

150 N.W.2d 146 (Mich. 1967).........000.0..0....0..2ce eee 23

State v. Fields,

201 P.3d 586 (Haw. 2005) ................0..c0.c0.0e-- 17, 20

State v. Jenkins,

23 P.3d 201 (Mont. 2001) ........ 00. oo cc cccccccccccccece cece. 17

State v. Holliday,

745 N.W.2d 556 (Minn. 2008) ................cc0ce0e- 17, 20

State v. Legere,

958 A.2d 969 (N.H. 2008) ..0....000.. oc ceccccceececeeee. 17, 20

State v. McManus,

990 A.2d 1229 (R.I. 2010) 20000. ccccccecccc cece eens. 17

State v. Pretluck,

742 N.W.2d 74 (tbl.), 2007 WL 3010550

Cree. CE, Fee. ThE. 27, BOOT) 0. i cccccescessccccacss. 17, 20

United States v. Owens,

484 U.S. 554 (1988) ...............

v1

Yanez v. Minnesota,

562 F.3d 958 (8th Cir. 2009) ............ccccccccecceseeceees 17

CONSTITUTION AND STATUTES

ee IG MI WE cies piccicsedenccscenorscsoesyseaes passim

OTHER AUTHORITIES

Christopher B. Mueller, Cross-Examuination

Earlier or Later: When is It Enough to

Satisfy Crawford? 19 Regent U.L. Rev. 319

ett sestttater ass avercseees ctisasahstwesnaxencsesns 15, 21

Christopher B. Mueller & Laird C.

Kirkpatrick, Federal Evidence (3d ed. 2010

eee ON ens travasnyicveeeesseas 15,

—t

bo

se

Judson F. Falknor, 7he Hearsay Rule and

Its Exceptions, 2 U.C.L.A. L. Rev. 43 (1954)....... 22

Richard D. Friedman, Prior Statements of a

Witness: A Nettlesome Corner of the

Hearsay Thicket, 1995 Sup. Ct. Rev. 277

ys ea siveeiracdacsiaw var souks 14, 15

David Greenwald, The Forgetful Witness, 60

in WOW, POET CUPID ssccescisnavicccctesnceiveccrences 19

David H. Kay et al., The New Wigmore: A

Treatise on Evidence — Expert Evidence

on acc ouad ciaavasencinasvanibsa wees 22

PETITION FOR A WRIT OF CERTIORARI

Petitioner Michael H. Blakeney respectfully

petitions for a writ of certiorari to review the

judgment of the District of Columbia Court of

Appeals in this case.

OPINIONS BELOW

The memorandum opinion of the District of

Columbia Court of Appeals on the initial decision is

unreported, la—9a,! as is the order denying the

petition for rehearing and/or rehearing en banc, 29a-

30a. The relevant trial proceedings and orders in

the District of Columbia Superior Court also are

unpublished. 10a-28a.

JURISDICTION

This Court has jurisdiction under 28 U.S.C.

§ 1257(a). The judgment of the District of Columbia

Court of Appeals was entered on December 14, 2009,

and the order denying rehearing and en banc review

was entered on May 14, 2010.

1. Numbers followed by “a” refer to pages in the Appendix to

this Petition. “App. __” refers to the Appendix submitted

by Blakeney to the D.C. Court of Appeals. Citations to the

transcript of Blakeney’s trial 1n D.C. Superior Court are

noted as [date] Tr. [pagel.

No

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States

Constitution provides in relevant part: “In all

criminal prosecutions, the accused shall enjoy the

right ... to be confronted with the witnesses against

him....” U.S. Const., amend. VI.

INTRODUCTION

This case provides this Court with a critical

opportunity to determine whether a witness’ mere

presence in the witness box secures a defendant's

constitutional right to be confronted by witnesses

against him. The D.C. Court of Appeals’ decision,

along with a line of other state and lower federal

court decisions, endorses a “mere presence” theory of

confrontation that permits the use of out-of-court

testimonial statements the moment a witness sits

down in the witness box — even if that witness serves

no function at trial. Such an approach goes beyond

this Court’s jumsprudence and_ reduces’ the

confrontation right to nothing more than an “empty

procedure.” Crawford v. Washington, 541 U.S. 36,

74 (2004) (Rehnquist, C.J., concurring in the

judgment).

If the right to confrontation is to serve any

purpose, the witness must be capable of answering

questions concerning some _ element of his

accusations against the defendant. To be sure, in

United States v. Owens, 484 U.S. 554 (1988), this

Court held that the Confrontation Clause is satisfied

when a witness testifies, even if the witness 1s partly

forgetful. A witness who forgets the facts underlying

his prior statement, but not the circumstances of

giving that statement, for instance, does not create

Sixth Amendment difficulties. /d. at 559.

Owens did not address a situation where a

witness cannot recall any facts related to his prior

Statement, even the fact that he had made the

statement at all. Nor did Owens imply that Sixth

Amendment concerns are obviated by a witness’

mere presence in the witness box. Other decisions of

this Court make clear that this was not the intent of

Owens. And Owens did not consider the potential

for abuse inherent in a rule permitting the use at

trial of grand jury testimony whenever the witness

sits down in the witness box, even if the witness is

unable or unwilling to provide any testimony in

court.

State and lower courts addressing the issue,

however, have interpreted Owens to mean that all

Confrontation Clause concerns are eliminated as

long as a witness is present at trial, even if the

witness cannot remember any facts relevant to his

out-of-court statement. This Court should correct

this misinterpretation. The state and lower federal!

court's application of Owens goes beyond the bounds

of that case and is in conflict with the Court's

holding in Crawford v. Washington, 541 U.S. 36

(2004), that an out-of-court statement is admissible

only if the witness is “present at trial to defend or

explain’ his prior testimony. /d. at 59 n.¥ (emphasis

added).

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D.C

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STATEMENT OF THE CASK

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Michael H. Bi;

Superior

charge

(Court of

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Ilis conviction turned

alleged eyewitness

a grand jury on January 11, 2005, that he

he saw Blakeney fire tw: hots into ir}

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App. 34°37 In his grand jury testimony, h

McNatt could not identify Blakeney with

hecause McNatt never saw the shooter's fac

39 Rather. McNatt based hi accusation

shooters clothing and postur ld hurt

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observed the shooting from mo: han a block

id. at 30°31, 203-04, too far to even hear th

window gla hatter. id at 3 '

did not have an pportunit

McNatt during grand jury proces

At tnal in April 2007, Me tt a

could not remember anythiny al hoe

his grand jury testimon ld at

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127 (THRE COURT f M ,

testimony 1s excluded the ¢

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McNatt ine pvoverni { {

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court grand jury testimony by the

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McNatt

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avoid incarceration when he gave his prior testimony

against Blakeney. /d. at 177-81. He did not know if

the police had provided him with information about

the crime before he testified to the grand jury. /d. at

172-73. He could not even say whether or not he had

testified truthfully in front of the grand jury. Jd. at

174-75.

By the time McNatt left the witness box, he

had stated that he did not remember more than fifty

times in response to defense counsel’s attempted

cross-examination. See, e.g., id. at 162-64, 174-75,

201-02. Although McNatt testified about general

matters that may relate to credibility (such as his

poor eyesight at the time of tria}l — although not at

the time of the crime — and his history of drug abuse

and crime), he was unable to provide a single answer

relevant to his accusations against Blakeney

accusations that were, in the trial judge’s view, the

linchpin of Blakeney’s conviction.

Blakeney was ultimately convicted of the

three charges against him, and he appealed his

convictions to the District of Columbia Court of

Appeals. Bound by recent precedent of that court,

see Blunt v. United States, 959 A.2d 721 (D.C. 2008),

the court concluded in a per curiam opinion that a

defendant’s right to confrontation is satisfied if the

witness takes the stand, even when total memory

loss precludes the witness from providing any

testimony at trial relevant to the accusation. 5a-6a.

With respect to the substance of his accusation

against Blakeney, McNatt was able to offer no more

than his presence at trial, yet the Court of Appeals

found that the witness’ mere presence was sufficient

to meet the _ constitutional requirement for

“confrontation.” Thus, the Court of Appeals was

“constrained to reject” Blakeney’s Sixth Amendment

argument. 8a.

The Petitioner timely filed a petition for a

rehearing and rehearing en banc. The Court of

Appeals directed the government to file a response,

but the court denied the petition on May 14, 2010.

29a-30a.

REASONS FOR GRANTING THE PETITION

This case squarely presents this Court with an

opportunity to correct the erroneous application of

the Court’s Confrontation Clause precedent by the

court below and by other state and federal courts,

and the resulting deprivation of defendants’ Sixth

Amendment rights.

Based on its interpretation of United States v.

Owens, the D.C. Court of Appeals effectively

exempted Terrence McNatt’s grand jury testimony

from the rigors of the adversarial process. In doing

so, the D.C. Court of Appeals violated Blakeney’s

constitutional right to confront his accusers. The

Court of Appeals, focused on Owens, paid no heed to

this Court’s teaching in Crawford that “the principal

evil at which the Confrontation Clause was directed

was the civil-law mode of criminal procedure, and

particularly its use of ex parte examinations as

evidence against the accused.” Crawford, 541 U.S.

at 50. If ex parte grand jury testimony may be used

at trial even where a witness can no longer recall

any relevant facts regarding either the alleged crime

or his prior testimony, that “principal evil” will be

permitted to sneak in through the back door,

unconfronted. This Court should take the

opportunity that this case provides to prevent back

door circumvention of the Sixth Amendment.

Nor did the Court of Appeals take into account

Crawfords holding that the Confrontation Clause

requires that the witness be present at trial to

“defend or explain” his out-of-court statement.

McNatt’s total memory loss precluded him from

defending or explaining any point of his grand jury

testimony, yet the Court of Appeals, relying on

Owens, found his mere presence at trial sufficed for

Confrontation Clause purposes.

Moreover, where, as here, a witness never has

to repeat any part of his story at trial, the witness

evades the moment of self-reflection inherent in

confrontation. See Coy v. lowa, 487 U.S. 1012, 1019

(1988) (“A witness may feel quite differently when he

has to repeat his story looking at the man whom he

will harm greatly by distorting or mistaking the

facts.” (quotation marks omitted; emphasis added)).

He avoids looking the defendant in the eye as he

levels his accusations. And, perhaps more

importantly, he avoids the truth test of cross-

examination.

10

Unfortunately, the D.C. Court of Appeals’

reading of Owens is not unique. Rather, state and

lower federal courts have been reading Owens to

allow use of a witness’ out-of-court, testimonial

statements as long as that witness takes the stand

at trial, even where, as here, the witness has no

memory of anything related to the extrajudicial

statement. In such cases, the witness is effectively

unavailable for Confrontation Clause purposes, and

the extrajudicial statement is nothing more than an

ex parte examination.

The Petition should be granted to correct this

pervasive error in the application of the

Confrontation Clause, and to eliminate the confusion

among state and lower federal courts about the

boundaries and implications of Owens, particularly

given the serious issues their reading of Owens

creates for the administration of the criminal justice

system.

A. The D.C. Court Of Appeals’ Decision (And

Decisions Of Other State And Federal Courts)

Conflicts With This Court’s Precedents.

This Court has long’ regarded’ the

Confrontation Clause as requiring more than mere

presence. Although “face-to-face presence” is

certainly an element of the confrontation right, Coy,

487 U.S. at 1019-20, “[clonfrontation means more

than being allowed to confront the witness

physically.” Davis v. Alaska, 415 U.S. 308, 315

(1974); see also Dowdell v. United States, 221 U.S.

1]

325, 330 (1911) (defendant is to be tried “by only

such witnesses as mect him face to face at the trial,

who give their testimony in his presence, and give to

the accused an opportunity of cross-examination”).

Indeed, this Court has observed that “[t]he main and

essential purpose of confrontation is to secure for the

opponent the opportunity of cross-examination ... ,

which cannot be had except by the direct and

personal putting of questions and obtaining

immediate answers.” Davis, 415 U.S. at 315-16

(quotations marks, internal citations, and original

emphasis omitted) emphasis added). This

opportunity cannot be a sham; it must be an

opportunity for “full and_- effective cross-

examination.” California v. Green, 399 U.S. 149, 159

(1970); accord Delaware v. Fensterer, 474 U.S. 15, 22

(1985) (requiring a “full and fair opportunity”).

i. Owens does not hold that’ the

Confrontation Clause is satisfied by a

witness’ presence at trial regardless of

the extent of memory loss about his

prior out-of-court statement.

Confrontation, including the opportunity for

full and effective cross-examination, is not possible

where the out-of-court statement of a witness is used

but the witness cannot speak at trial to any aspect of

that statement. In California v. Green, the Court

specifically left open the issue whether a witness’

“apparent lapse of memory” could “so affect{)” a

defendant's “right to cross-examine as to make a

12

_

critical difference in the application of the

Confrontation Clause.” Green, 399 U.S. at 168. On

several occasions, this Court has addressed the

Confrontation Clause consequences of a witness

(testifying at trial) who, due to memory loss, could

not testify about some aspects of his prior out-of-

court statement. See, e.g, Owens, 484 U.S. 554;

Fensterer, 474 U.S. 15. In each of these cases,

however, the witness was able to testify about some

element of his prior statement - either the

underlying facts, the content of the prior statement,

or the circumstances surrounding the giving of the

prior statement. See, e.g., Owens, 484 U.S. at 556

(witness recalled making past identification, but

could not recall basis of identification); Fensterer,

474 U.S. at 16-17 (witness recalled present opinion,

but could not recall basis for opinion).

The Court has not yet had occasion to answer

the question left open in Green, ie., whether a

witness memory loss could ever so affect a

defendant’s right to cross-examine as to run afoul of

the rights guaranteed by the Confrontation Clause.

See, e.g., Fensterer, 474 U.S. at 20 (“We need not

decide whether there are circumstances in which a

witness’ lapse of memory may so frustrate any

opportunity for cross-examination that admission of

the witness’ direct testimony violates’ the

Confrontation Clause.”). Certainly, Owens does not

answer the question whether the demands of the

Confrontation Clause can be satisfied by the

appearance at trial of a witness with zo recollection

13

whatsoever of any fact relevant to his out-of-court

statement.

In Owens, witness John Foster was attacked

and beaten, and as a result suffered injuries that

severely impaired his memory. 484 U.S. at 556. The

defendant was accused of the attack on Foster. At

trial, Foster testified about the attack and about a

prior, out-of-court statement he made identifying the

defendant as his attacker. J/d. He no longer,

however, actually recalled seeing his attacker,

though he did “clearly rememberl[] identifying

[defendant Owens] as his assailant.” Jd. The Court

concluded that this limited degree of memory loss

did not violate the Confrontation Clause, as the

defendant still possessed other “weapons . . . to

impugn the witness’ statement.” /d. at 560.

The Court in Owens echoed the view first

expressed by Justice Harlan in his concurring

opinion in Green “that a witness’ inability to ‘recall

either the underlying events that are the subject of

an extra-judicial statement or previous testimony or

recollect the circumstances under which the

statement was given, does not have Sixth

Amendment consequence.” 484 U.S. at 558 (quoting

Green, 399 U.S. at 188 (Harlan, J., concurring)). In

light of the facts of Owens — where the witness was

able to testify as to some important relevant facts,

both about his prior testimony and the underlying

crime — and in light of the Court’s other precedents,

we submit that the Court’s statement should be read

14

disjunctively. See, e.g., id. at 560 (“We do not think

that a constitutional line drawn by the

Confrontation Clause falls between a_ forgetful

witness’ live testimony that he once believed this

defendant to be the perpetrator of the crime, and the

introduction of the witness’ earlier statement to that

effect.”). Put differently, Owens establishes only the

proposition that use at trial of an out-of-court

statement does not run afoul of the Confrontation

Clause when the witness at trial cannot recall esther

(1) the facts underlying the out-of-court statement;

or (2) the substance of the out-of-court statement; or

(3) the circumstances under which the out-of-court

statement was given. Owens does not hold that the

requirements of the Confrontation Clause can be

satisfied when a witness forgets every aspect of a//

three elements.

When a witness is unable to provide any

testimony relevant to his prior statement — a

situation unlike any of the Court’s previous cases —

his simple presence at trial does not “afford the trier

of fact a satisfactory basis for evaluating the truth of

the prior statement.” Green, 399 U.S. at 161. A

defendant who wishes to attack a witness’ statement

that is now entirely forgotten is left in the untenable

position of being forced to (1) attempt to obtain

confirmation from the witness that the out-of-court

statement was, indeed, the witness’ statement and

(2) refute the very information that the defendant

was forced to elicit from the witness. See, e.g,

Richard D. Friedman, Prior Statements ofa Witness:

15

A Nettlesome Corner of the Hearsay Thicket, 1995

Sup. Ct. Rev. 277, 300-301 (1995); see also

Christopher B. Mueller, Cross-Examination Earlier

or Later: When 1s It Enough to Satisfy Crawford 7? 19

Regent U.L. Rev. 319, 335 (2007) (“[FJull and

effective’ cross-examination should mean that the

witness has answered questions about both the acts,

events, or conditions reported in the statement and

about the statement itself.”); Christopher B. Mueller

& Laird C. Kirkpatrick, 4 Federal Evidence § 8:37

(3d ed. 2010 Supp.) (“Cross-examination is useless if

a witness claims a total lack of memory, refuses to

answer any questions, or denies even making prior

statements or having knowledge of the acts, events,

or conditions described in them.”).

Here, Terrence McNatt was unable to provide

any testimony about his prior grand jury testimony,

and each and every question about his prior

testimony was effectively unanswered. McNatt was

unable to defend, explain, or even qualify his prior

statement in any way. McNatt may have answered

questions about matters arguably related to his

general credibility, such as whether he sometimes

lied when he was in school, whether he had ever

been incarcerated, and what it felt like to use PCP.

But he could offer nothing that actually spoke

directly to his prior grand jury testimony or to the

underlying facts of the crime he allegedly witnessed.

16

2. The court below and other lower courts

have interpreted Owens to make the

extent of memory loss irrelevant to

Confrontation Clause analysis.

The court below was nevertheless unwilling to

make any “distinction between total memory loss

and partial memory loss,” 6a, even though the

functional consequences of “partial” and “total”

memory loss are separated by leaps and bounds.

Rather, it determined that such a distinction was

foreclosed by its prior decision in Blunt v. United

States, 959 A.2d 721 (D.C. 2008). See 6a. Blunt,

however, assumed that, under Owens, “a genuine

inability to remember does not make a witness

‘unavailable’ for purposes of confrontation” and

looked only at the issue of feigned memory loss.

Blunt, 959 A.2d at 727.

Other state courts and lower federal courts

have similarly read Owens as foreclosing any

analysis of a defendant’s rights under’ the

Confrontation Clause where a witness is unable to

remember the events discussed in a_ prior

extrajudicial statement, the making of _ the

extrajudicial statement itself, and anything else

relevant to the extrajudicial statement. In Makel/ v.

State, 656 A.2d 348 (Md. Ct. Spec. App. 1995), for

example, the Maryland Court of Special Appeals

faced a fact situation quite similar to the one here —

a witness who had testified before the grand jury but

claimed at trial to have no memory of years of his life

17

because of drug use. /d. at 350. And, there, as here,

the Maryland court determined that, despite the

witness’ “multi-year drug stupor,” “[t]he Owens

holding, adopting Justice Harlan’s position in

California v. Green, makes no distinction between a

selective failure of memory and a total failure.” /d.

at 352, 358.

The decision below and Makel// are only two

examples of the numerous cases where state and

lower federal courts have allowed a witness’ out-of:

court statement to be used at trial simply because

the witness is present at trial even though the

witness was wholly incapable of defending or

explaining the prior statement due to memory loss

See, e.g., Yanez v. Minnesota, 562 F.3d 958, 960-61,

963-65 (8th Cir. 2009); Felix v. Mayle, 379 F.3d 612,

617-18 (9th Cir, 2004), rev'd on other grounds, Mayle

v. Felix, 545 U.S. 644 (2005); People v. Perez, 98 Cal.

Rptr. 2d 522, 524-26 (Cal. Ct. App. 2000); A.A. AK. v

State, 818 So. 2d 534, 535-36 (Fla. 2002); State v

Fields, 201 P.3d 586, 596, 600 (Haw. 2005); State +

Holliday, 745 N.W.2d 556, 561, 566 (Minn. 2008);

State v. Jenkins, 23 P.3d 201, 202-03, 205-06 (Mont.

2001); State v. Legere, 958 A.2d 969, 973-74, 977-80

(N.H. 2008); State v. McManus, 990 A.2d 1229, 1232:

33, 1237-38 (RI. 2010); State v. Pretluck, 742

N.W.2d 74 (tbl.), 2007 WL 3010550, at *1, *3-*4

(Wis. Ct. App. Oct. 17, 2007).

The court below and these other courts appear

to mistake mere presence at trial for the actual right

to confront accusers in so doing, however, thes

courts overlook this Court rujings in case like

Crawford, where the Court indicatea that presence

alone cannot suffice for the purposes of the

Confrontation Clause. Crawford, 541 U.S. at 59 n9

see also, e.g., Davis, 415 U.S. at 315; Dowdell 221

U.S. at 330. In fact, in Crawford, the Court held

that the out-of-court declarant must be present at

trial “to defend or explain” his prior statement

which the witness obviously cannot do if he has n:

recollection about the underlying facts of the prio:

statement. See also, e.g., Green, 399 1).S. at 157 (the

witness should be present “to repeat his story and t

explain or repudiate any conflicting prior stori

before the trier of fact”)

These courts have read too much into Owen

And they have overlooked the significance of thi

Court's other cases culminating in Crawford, which

emphasize the importance to the Confrontatio:

Clause of the witness’ presence at trial to “defend o1

explain” his prior statement and of the defendant

fair opportunity to cross‘examine the witness about

the out-of-court statement Ky so doing, the court

below and these other courts have been committing

constitutional error. CL Crawford 5941 U.S. at 53°54

(“(T)lhe Framers would not have allowed admissioi

of testimonial statements of a witne who did not

appear at trial unless he was unavailable to testify

and the defendant had had a prior opportunity for

cross-examination.”) (emphasis added)

remember” responses. See Mueller & Kirkpatrick,

supra (cross-examination not adequate simply where

“the witness is present and can be required to sit

still long enough for questions to be put”). Because

the Owens opinion leads state and lower courts into

constitutional error, the Petition should be granted

to correct these errors and clarify the import of

Owens in light of Crawford.

B. The Issue Presented Is Critical To The Proper

Administration Of Federal And State

Criminal Trials.

The issue presented is essential to the proper

administration of criminal trials in this country.

The case below’ illustrates the _ troubling

consequences of allowing a witness’ out-of-court

testimonial statement - and particularly grand jury

testimony — to be used when he cannot recall any

relevant facts. See Mueller, supra, at 335

(describing practical consequences of a_ witness’

inability to recall any relevant facts).

Because McNatt could not recall anything

related to the underlying events or, in fact, the

entire years of 2004 and 2005, cross-examination

concerning circumstances surrounding his prior

grand jury testimony was impossible. Thus, McNatt

could not be cross-examined about any potential

biases he held when he gave his prior testimony,

whether he was lying in his prior statement,

whether he was coerced, or whether he was under

the influence of drugs or alcohol. He could not

i

i)

describe his care and attentiveness at the scene of

the crime, because he could not recall having been

there.

Nor would an attack on McNatt’s memory be

useful to the defense, as McNatt’s memory loss arose

after he gave his grand jury testimony. Blakeney’s

counsel could not ask McNatt to explain ambiguities

in his prior statement or provide additional details

not mentioned in the grand jury testimony. Instead,

B!iakeney could, at best, attack tangentially related

matters — such as prior drug use and prior

incarceration — that left the substance of the prior

statement unchallenged before the jury. “[I]n this

situation cross-examination of the witness .. . 1s of

scarcely more aid in testing the dependability of the

alleged out-of-court statement than would be the

cross-examination of A to test the verity of an

alleged statement by B.” Judson F. Falknor, 7he

Hearsay Rule and Its Exceptions, 2 UCLA L. Rev.

43, 53 (1954-55). But “Crawfords language simply

does not permit cross-examination of a surrogate

when the evidence in question is testimonial.” David

H. Kay et al., The New Wigmore: A Treatise on

Evidence — Expert Evidence § 3.10.3, at 63 (Supp.

2010).

McNatt’s inability to remember anything

related to his prior, out-of-court statement also

denied Blakeney his chance to achieve the central

goal of cross-examination: total recantation of the

prior statement. As the Michigan Supreme Court

has explained:

The would-be cross-examiner is not only

denied the right to be the declarant's

adversary, he is left with no choice but

to become the witness’ friend, protector

and savior. Though he may _ be

permitted to ask questions in the form

of cross-examination, the substance of

his effort will be redirect examination

and rehabilitation. The reason is

simple. The witness cannot recant!

Every cross-examiner tries to bring the

witness to the point where he changes

his story—lterally eats his words—in

the presence of the jury.

Ruhala v. Roby, 150 N.W.2d 146, 156 (Mich. 1967).

This case is particularly troubling because it

involves grand jury testimony. Allowing prior grand

jury testimony to be used at trial where the witness

cannot recall any relevant facts creates worrying

incentives for prosecutors and witnesses alike. In

such circumstances, prosecutors could procure

testimony from witnesses in highly favorable, ex

parte circumstances like the grand jury. At trial, the

witness could then feign total memory loss or

otherwise refuse to answer, knowing that his

presence would be enough to admit his out-of-court

statement. On the other hand, a witness who is

aware that he will not be able to effortlessly avoid

cross-examination may be more careful in providing

honest and truthful testimony before the grand jury.

Similarly, a prosecutor who knows an accuser will

24

face effective cross-examination may be more likely

to carefully vet those accusations.

CONCLUSION

For the foregoing reasons, the petition for a

writ of certiorari should be granted.

Respectfully submitted,

WILLIAM R. STEIN

Counsel of Record

KATHLEEN M. FONES

ELIZABETH C. PUGH

HUGHES HUBBARD & REED LLP

1775 I Street, N.W.

Washington, D.C. 20006

(202) 721-4600

Attorneys for Michael H. Blakeney

August 12, 2010

APPENDIX

la

APPENDIX A — MEMORANDUM OPINION AND

JUDGMENT OF THE DISTRICT OF COLUMBIA

COURT OF APPEALS FILED DECEMBER 14, 2009

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 07-CF-889

FE L325-05

MICHAEL H. BLAKENEY,

APPELLANT,

V.

UNITED STATES,

APPELLEE.

Appeal from the Superior Court

of the District of Columbia

Criminal Division

(Hon. Neal E. Kravitz, Trial Judge)

(Argued November 20, 2009

Decided December 14, 2009)

Before Reip and FISHER, Associate Judges, and

WaGne_r, Senior Judge.

2a

Appendix A

MEMORANDUM OPINION AND JUDGMENT

Per Curiam: A jury convicted appellant, Michael H.

Blakeney, of first-degree premeditated murder while

armed,! possession of a firearm during a crime of

violence (“PFCV”),’ and carrying a pistol without a

license (“CPWL’).® He raises issues relating to the grand

jury testimony of a government witness, the sufficiency

of the evidence, and the prosecutor’s rebuttal. We affirm

the judgment of the trial court.

FACTUAL SUMMARY

The government presented evidence showing that

Mr. Blakeney murdered Laurisa Ryland on January 6,

2005, while she sat in a vehicle near First and Q Streets,

in the Northwest quadrant of the District of Columbia.

On the day of the murder, Ms. Ryland spoke several

times by phone with her friend of twenty years, Betty

Caughman. During one of their calls, sometime between

8 p.m. and 10 p.m., Ms. Ryland stated that she was going

to the hairdresser and that she planned to meet “Mike,”

whom she described as her boyfriend, at First and Q

Streets. Upon her arrival at First and Q, Ms. Ryland

talked with Ms. Caughman. Ms. Caughman heard Ms.

Ryland say, “There go Mike right there.”

1. D.C. Code §§ 22-2101, -4502 (2001).

2. D.C. Code § 22-4504 (b).

38. D.C. Code §22-4504 (a).

4. During her grand jury testimony, Ms. Caughman

recalled Ms. Ryland saying, “There he go.”

3a

Appendix A

Around 8:30 p.m. on January 6, 2005, Carlos Lowe

went to a pool hall in New Carollton, Maryland with

Mr. Blakeney and Pedro Rich. Upon arrival there, Mr.

Lowe lent appellant his cell phone, and he heard Mr.

Blakeney, who was arguing with his girlfriend, exclaim,

“Bi**h, you'll make me kill you.” Mr. Blakeney was

angry. The three men left the pool hall around 10:30

p.m. Mr. Lowe dropped Mr. Blakeney off at Florida and

North Capitol Streets, and watched appellant walk in

the direction of First and Q. As he left the car, Mr. Lowe

heard Mr. Blakeney declare: “[T]his bi**h is going to

make me kill her.”

Mr. Rich’s testimony confirmed that the three men

went to the pool hall together. He stated that he lent

Mr. Blakeney his cell phone “a couple of times,” and that

on the return trip appellant exited the vehicle on “North

Capitol” near a gas station, at the intersection of Florida

Avenue. However, he did not hear Mr. Blakeney make

any comment about killing or threatening anyone.

Terrance McNatt testified before the grand jury.

He lived in the area of First and Q and “hung out” there.

He had known a man named “Mike” since August 2004.

He saw him daily, including January 6, 2005. He spoke

to Mike around 9 p.m. that day. He saw Mike later that

night at First and Florida Avenue, and also noticed a

lady in a van. In addition, at about 10:45 p.m.,

Mr. McNatt witnessed Mike jogging out of an alley with

a gun; Mike ran to a van, shot twice and then ran to an

alley. Before his grand jury appearance in this case, the

police had shown Mr. McNatt a photo array and he had

4a

Appendix A

selected Mr. Blakeney’s photo as that of the person he

saw firing the gun into the van. At trial, however, Mr.

McNatt claimed that he did not “hang out” around

Florida and North Capitol, and he claimed not to

remember his grand jury testimony “too good” because

he “smoked a lot of PCP” At the government’s request,

the jury heard an audiotape of Mr. McNatt’s testimony.

Mr. Blakeney’s aunt, Beverlee Blakeney, testified

that sometime in January 2005, she heard appellant say

he was dating a woman who “was a stalker” and he

feared her husband might come after him and hurt him.

On the night of the murder, Mr. Blakeney visited his

aunt and said he thought the married woman “was shot

dead”; that the married woman kept calling him; and

that he had been at the pool hall that night. Mr. Blakeney

wanted to watch the news “[b]ecause ... I think my

friend got killed. She might be on the news.”

Metropolitan Police Department Detective Anthony

Brigidini testified that he showed Mr. McNatt a photo

array and Mr. McNatt chose Mr. Blakeney’s photograph

as that of the man he saw shooting into the van on

January 6, 2005. Furthermore, Detective Brigidini

indicated that when he met with Mr. McNatt about three

weeks before trial, Mr. McNatt was “belligerent” and

had stated that if called to testify, “he was going to say

he was high on PCP” And, Bruce Levine, an expert in

wireless phone technology, traced calls from Mr. Lowe’s

cell phone, which Mr. Blakeney had borrowed on the

night of January 6. He located calls to Ms. Ryland’s

phone originating from cellular towers in New

Sa

Appendix A

Carrollton, Maryland (the site of the pool hall) and in

the downtown area of the District at 7:04 p.m., 10:51

p.m., 10:52 p.m. and 26 seconds, and 10:52 p.m. and 59

seconds. The cellular tower sites revealed that the last

calls were made within three blocks east and six blocks

west of the crime scene.

ANALYSIS

Mr. Blakeney contends that the trial court violated

his constitutional Sixth Amendment right under the

Confrontation Clause by allowing the jury to hear

Mr. MeNatt’s grand jury testimony even though he

asserted at trial “a total memory loss” regarding both

the incident on January 6, 2005, and his grand jury

testimony. In Blunt v. United States, 959 A.2d 721 (D.C.

2008), we reiterated the fundamental principle that “the

Sixth Amendment ‘guarantees only an opportunity for

effective cross-examination, not cross-examination that

is effective in whatever way, and to whatever extent,

the defense might wish.” Jd. at 728 (quoting United

States v. Owens, 484 U.S. 554, 559 (1988)) (emphasis in

original). Moreover, “[wJhen the declarant appears for

cross-examination at trial, the Confrontation Clause

places no constraints at all on the use of his prior

testimonial statements.’” /d. (quoting Crawford v.

Washington, 541 U.S. 36, 60 n.9 (2004)) (emphasis in

original). Significantly, “a witness’ inability to recall

either the underlying events that are the subject of an

extra-judicial statement or previous testimony or

6a

Appendix A

recollect the circumstances under which the statement

was given, does not have Sixth Amendment

consequence.” /d. at 730 n.8 (quoting United States v.

Milton, 303 U.S. Anp. D.C. 386, 394, 8 F.3d 39, 47 (1993)).

Mr. Blakeney’s Confrontation Clause contention in

this case is foreclosed by our decision in Blunt, which

makes no distinction between total memory loss and

partial memory loss, so long as the declarant (here

Mr. McNatt) is available to the defense for cross

examination, as he was in this case.” Furthermore, what

we repeated in Mercer v. United States, 864 A.2d 110

(D.C. 2004) is applicable here:

It is sufficient that the defendant has the

opportunity to bring out matters as the

witness’ bias, his lack of care and

attentiveness, his poor eyesight, and even

what is often a prime |] objective of cross

examination, ... the very fact that he has a

bad memory. The ability to inquire into these

matters suffices to establish’ the

constitutionally requisite opportunity for

cross-examination ... [even] when the

witness’s past belief is introduced and he is

5. We are unconvinced by Mr. Blakeney’s statutory

argument indicating that he did not “testify” and was not

“subject to cross-examination concerning the statement,”

within the meaning of D.C. Code § 14.102 (b). See Bell v. United

States, 790 A.2d 528, 52% (1).C. 2002); Sparks v. l/nited States,

755 A.2d 394, 399-400 (D.C. 2000),

fppendin 1

unable to recollect the reuson for thut past

belief,

ld. at 114 n 1 (quoting CQeNS. “pra 1x4 | at ob4

During cross-examination of Mr. McNatt, counsel

for Mr. Blakeney concentrated on the witness’ failure

to recall his grand jury appearance or anything on that

day, aS well as his inability to remember talking to the

police before going to the grand jury. Defense counse!

posed questions concerning the effect of Mr. MeNatt’

alleged addiction to PCP on his memory, even eliciting

comments such as it “distorts your mind,” and it make

you feel “[hligh ... like walking in the sky.” Defense

counsel also stressed Mr. McNatt’s reputation for not

telling the truth in the past when he attended the

Sunrise School. In addition, counsel endeavored to cast

substantial doubt on Mr. MeNatt’s grand jury testimony

in this case by asking, “It’s certainly possible that what

, correct?” Mr. MeNatt

responded, “Yeah... 1 don’t know -- | don’t remember

what I told --.” Hence, defense counsel’s extensive ero

examination, if Mr. MeNatt’s responses were believed

you told the grand jury was a he

by reasonable jurors, had the potential effect of castiny

doubt on his eyewitness grand jury testimony against

Mr. Blakeney. Under the circumstances of this case, and

in light of Blunt, Owens, and Mercer, supra, we are

6. Mr. Blakeney’s reliance on Douglas v. Alabama, 40 |

415 (1965) is misplaced since, unlike the case before us, the

witness there could not be cross-examined because he invoked

his Filth Amendment privileye agvainst self-inerimination

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APPENDIX B — EXCERPTS OF TRANSCRIPT

DATED APRIL 19, 2007

SUPERIOR COURT OF THE DISTRICT OF

COLUMBIA CRIMINAL DIVISION -

FELONY BRANCH

Criminal No. 2005-CF1 325

Volume 3:14

Washington, D.C.

Thursday, April 19, 2007

UNITED STATES OF AMERICA,

v.

MICHAEL BLAKENEY,

Defendant

The above-entitled action came on for a trial before

the Honorable NEAL E. KRAVITZ, Associate Judge,

and a jury duly empaneled and sworn, in Courtroom

Number 302, commencing at approximately 10:20 a.m.

[commencing at page 493]

¥ * +

lla

Appenc'tx B

THE COURT: Well, let me just -- I know the defense

wants to make further argument, but let me just say

what my impression of all this is, having now heard from

[494] Mr. McNatt and having read the cases that were

cited in the defendant’s pleading and that were cited

hy government counsel yesterday.

I -- I think that the Supreme Court’s decision in

Owens versus United States -- or United States versus

Owens, 484 U.S. 554, the decision from 1988, is probably

the single most important decision here and is strongly

supportive of the government’s position.

Now, it’s always dangerous to rely too heavily on

what a dissenting justice, in complaining about the

majority’s ruling, says about it because sometimes, as

we all know, those dissents tend to overstate what the

dissenting justice thinks is the -- is going to be the result

of this misguided decision by the majority of the justices.

But if you read Justice Brennan’s dissent, which |

think in many ways is a more clear articulation of the

holding than maybe is readily apparent from Justice

Scalia’s majority opinion, it becomes more clear that

what the Supreme Court held in that ease, United States

versus Owens, is that even if -- and notwithstanding

what it may have said previously in the Green case that

the defense relied on quite heavily in its pleading,

California versus Green from 1970 -- that what the Sixth

Amendment guarantees is having a live witness there,

subject to [495] cross-examination, someone who can

answer your questions, and even if it’s not effective

12a

Appendix B

cross-examination within the meaning -- or successful

cross-examination within the notion -- consistent with

the notions that a defense lawyer might have of those

terms -- it’s cross-examination and confrontation within

the meaning of the Sixth Amendment.

And one of the things that I was interested in when

I was reading the defendant’s pleading in this case was

the suggestion that Owens might very well be decided

differently today given the Supreme Court’s recent

interest in Sixth Amendment and confrontation clause

jurisprudence, beginning with the Crawford decision,

and that -- it was interesting to the defense, at least,

that the same author, Justice Scalia, in writing Crawford,

didn’t even cite to the Owens decision.

And all of that is of some academic and intellectual

interest. The problem, I think, with the defendant’s

position or suggestion that, somehow, Owens ought to

be disregarded in light of Crawford is that our Court of

Appeals specifically addressed that question in this case

Mercer versus United States, 864 A.2d 110. In footnote

4, they say, Subsequent to oral argument in this case,

the Supreme Court decided Crawford versus

Washington -- they give a cite -- and we requested

supplemental briefing from both parties. In Crawford,

the [496] Supreme Court affirmed the principle that

when a declarant appears for cruss-examination at trial,

the confrontation clause places no constraints at all on

the use of his prior testimonial statements.

13a

Appendix B

And then this is the most important part: We are

satisfied that the requirements of Crawford were met

here. Nothing in that opinion suggests that the court --

meaning the Supreme Court -- intended to limit its

holding in Owens, and we are bound to follow Supreme

Court precedent unless it is expressly limited or

abandoned.

And then our Court of Appeals goes on to say -- still

in footnote 4 -- in Owens, a witness who had given a prior

identification of an individual was not able to recall

making that prior identification, when called at trial, due

to memory loss. The defendant argued that the memory

loss suffered by the declarant precluded him from being

cross-examined. The Supreme Court held that those

circumstances, which are essentially what occurred here

-- meaning in the Mercer case -- do not present

confrontation clause problems.

And | -- while no two eases are identical -- they never

are -- Mercer is -- and I’m sure the defense can

distinguish it because any good lawyer can distinguish

anything. But it is, in my view, analytically, incredibly

similar to the case -- to the facts and circumstances that

|497] are before us.

And I don’t think -- to go back to Owens and the

Supreme Court's treatment of the confrontation clause

issue in the context of a witness who says he doesn’t

remember anything -- the defense is not going to have

any difficulty with Mr. McNatt, showing that there are

alot of reasons why the jury should not credit or rely on

14a

Appendix B

Mr. MeNatt’s grand jury testimony, from his drug use

to his bias based on his own concerns about his own

liberty status to his prior convictions that will impeach

his credibility -- and to his bad memory, which is really

what Justice Scalia talks about in Owens.

Ultimately, the jury will be able to see for itself --

and it will all kind of play out in front of the jury -- that

the witness has a terrible memory, for whatever reason

-- I mean, whether it’s a brain injury because of the

assault, as it was, in Owens, or whether it’s drug use,

PCP use, as it is in our case -- you don’t even need an

expert to tell the jury that PCP use can have a

devastating effect on a witness’ ability to perceive or

remember things. The witness is going to tell you that

himself.

And he’s going to tell you, presumably -- it sounds

to me like he’s going to testify that he was messed up

on PCP at the time of his grand jury testimony, which is

[498] another avenue of potentially devastating cross-

examination. | mean, obviously the jury -- it’s going to

be up to the jury to determine what parts of his

testimony here in trial and at the grand jury are

credible. But there’s certainly not going to be any

dearth of opportunity to impeach Mr. MecNatt as a

witness and, thereby to cross-examine him within the

meaning of the Sixth Amendment, even though it

appears that he’s going to maintain his position that he

does not remember any of the details of this -- well, either

of his grand jury testimony or of his -- whatever

observations he may have made on the night of January

6th, 2005.

lSa

Appendix B

It is clear to me that within -- and as Mercer makes

clear -- the Mercer decision, 864 A.2d 110 -- that

Mr. McNatt’s grand jury testimony is inconsistent within

the meaning of D.C. code section 14-102, which is trial

testimony -- if, as we expect, his trial testimony is going

to be that he doesn’t remember what happened on the

night of the murder.

And -- you know, so as a matter of evidence law, under

D.C. code section 14-102 -- is it (b)(1)? Let me just check

and make sure.

MS. BELL: I think it is.

THE COURT: Yes. It’s 14-102(b)(1), which would

define Mr. McNatt’s grand jury testimony as not hearsay

[499] because the declarant will be testifying at the trial

and will be subject to cross-examination.

And I think one of the things that the Court of

Appeals makes clear in Mercer is that subject to cross-

examination means the same thing in the context of D.C.

code section 14-102(b) as it means in the context of the

confrontation clause.

And -- he will be subject to cross-examination

concerning the statement and the statement is

inconsistent with the declarant’s testimony and was

given under oath subject to the penalty of perjury at a

trial hearing or other proceeding.

l6a

Appendix B

Now, I think that -- and then to go back to the case

that the government has cited previously, this Antwonne

(phonetic) McConnaughey versus United States --that’s

M-e-C-o-n-n-a-u-g-h-e-y, D.C. Court of Appeals 2002.

Now, we have -- I forgot to ask -- I just realized I forgot

to ask Mr. McNatt whether he could read the transcript

of the grand jury testimony, and this reminded me of it

because in this case, McConnaughey, if I’m

remembering correctly, the witness could not read,

because of a learning disability, and he refused to listen

to the tape of his grand jury testimony, in part because

the government didn’t have the technological ability to

queue up the tape of the grand jury testimony kind of

on a [500] question-by-question basis.

Judge Richter said that, under these unusual

circumstances, the whole tape can just be played, except

for certain portions that must be redacted because of

evidentiary reasons or prejudice reasons. And the

Court of Appeals said that was not an abuse of

discretion, given the circumstances.

Now, here, we have a witness who has listened to

the tape, and he says it still doesn’t refresh his memory.

And he said the other day that looking at the transcript

of his grand jury testimony doesn’t refresh his memory.

MS. BELL: See, but the government’s perspective,

| think, as in McConnaughey, I mean, | think the critical

issue is he’s saying that he doesn’t remember because

he was high on PCP And listening to the tape, I think

it’s clear -- and | think it’s very helpful and instructive -

17a

Appendix B

- the jury is going to be able to determine, does someone

who spoke with the clarity and the recall that he did at

the time of his grand jury -- and that is evident from

this tape -- is that consistent with someone who is high

on PCP? And that’s why we think --

THE COURT: Well, that’s another -- I obviously

haven’t heard the tape, but that’s another potential

similarity with the MecConnaughey decision because,

there, the witness testified that he had been tricked into

giving [501] his testimony in the grand jury, and Judge

Richter thought that playing the whole tape was -- would

give the jury a better opportunity to evaluate the

witness’ statement that he had been tricked in -- into

giving the testimony that he gave in the grand jury.

MS. BELL: And I think what’s important, Your

Honor, is particularly given the fact that, you know, he

not only has the ability to, in the grand jury -- the

testimony demonstrates not only his ability to recall and

to have a sense of direction and, really, detailed facts --

he’s able to make moral judgments, moral] decisions. |

mean, it shows someone who is operating at a very -- if

not a high, at least a very cogent, lucid level of clarity.

And that’s key, because that is clearly inconsistent

with what we presume he’s going to say is, I don’t

remember anything because I was high on PCP. I mean,

this tape is diametrically opposed to that state of mind.

MS. BUCKINGHAM: Your Honor, we disagree.

We don’t think that the tape is necessary under the

la

Appendix B

circumstances of this case. We don’t think it rebuts his

assertion that he was high on PCP. They never ask him

if he was high on PCP. We know that a lock-up test from

two days prior -- one day prior showed that he was, in

fact, under some sort of influence of PCP. It was in his

system. And he’s told us that he was smoking PCP daily.

[502] So we don’t think, under these circumstances,

that the tape -- that playing the tape is necessary.

I’d also like to address --

THE COURT: Hold on one second.

MS. BELL: If I could just briefly --

THE COURT: No, no. Hold on. It seems to me --the

witness is going to testify that -- he is going to testify

that he was high on PCP and totally out of it at the time

of his grand jury testimony.

If the government takes the position that the tape-

recording of the witness’ voice in the grand jury is

inconsistent with that testimony, it would seem to me

that absent some other reason why playing the tape --

well, it would seem to me that allowing the jury to hear

the witness’ voice is clearly relevant. In other words, to

put it more accurately, the witness’ tone of voice on the

actual tape is clearly relevant to the government’s

legitimate interest in rebutting the testimony that he

was totally out of it on PCP at the time of his testimony.

19a

Appendix B

Now, if there’s some reason why playing that for the

jury is so wildly prejudicial over and above the Sixth

Amendment issues, which I feel like I’ve already

resolved, then maybe there would be a reason for

excluding the tape as an evidentiary matter.

But I don’t see what that would be. I mean, I [503]

think that there are parts of the tape that will need to

be redacted -- and J actually marked a couple --

MS. BELL: And that’s --

THE COURT: -- while I was reading the transcript

last night, and there may be others that you all can agree

on. But I don’t -- I didn’t think there was much, quite

frankly, in the transcript that offended me in terms of

its substance. I can tell you what I came up with. I think

there were two spots. I found on page 6, lines 10 through

14 where there’s a reference to the defendant being

incarcerated.

MS. BELL: Clearly, that would come out.

THE COURT: That had to come out. And then

there was one other place where I think there was

hearsay.

MS. BELL: About him going to Florida?

THE COURT: Yes.

MS. BELL: Yes. I mean --

20a

Appendi ' B

THE COURT: Yes. The statements of, like, Jij

or

MS. BELL: Right.

THE COURT: On page 24, lines 12 through 24

MS. BELL: Right.

THE COURT: 1 thought were clearly hearsay

MS. BELL: Right. That

THE COURT: And there may be other things that

[504] the parties can agree on or, if they can’t agree,

would need to be raised.

My bigvest concern in terms of the playing of the

tape is I’m not -- maybe Mr. McNatt’s testimony that

that is his voice on the tape is sufficient. I mean, it

sounds to me he remembers -- well, maybe -- | was going

to say he remembers that he testified in the grand jury,

although I mean, he gives you know, he gives

inconsistent testimony about that. He says, I don’t

remember being there, but I remember when I wa

there 1 was stoned out of my mind on PCP. So who

knows.

It may be that if there’s not poinge to he a tipulation

that the tape is inaccurate

MS BieLL There roinv’ to ne a Stipulation tt!

if accurate

‘| Hk ( OUR’ W hat Wid roinyv LO ay Lnat |

there's not a stipulation that the tape or the transcript

are aceurate memorializations of the question ari

answers in the prand jury, that we might have to hea)

from a court reporter or from Judge Anderson to

the proper foundation

MS Biol. We have agreed Lnal We would Nn:

a stipulation because -- I actually have the court reporter

on call, and they wanted a tipulation d to M

Caughman. It’s the same court reporter. So we are going

to stipulate [505] that it’s authentic

MS. BUCKINGHAM: Your Honor, I think we'd lik

to return to the issue, first, of whether or not tl

prejudicial Lo us, playing the tape

We think that 1t would cause the jury to speculats

As Your Honor said before, there have been witness

who have testified in court who had PCP in their syster

or had been on PCP before, and they were coyvent

court and the jury could listen to them

So | don’t think that the Lnatl plaviny tne tape

going to chanye that

The jury would need an expert to testify about he

| Vv

to explain the fact that he’ peaking and responding

,

Lo questions even though he may be high on PCP and

24a

Appendix B

THE COURT: Ms. Bell, I don’t -- I mean, I’ve read

these cases. I’m not going to state an opinion as to

whether I think Owens and Mercer were correctly

decided, because it’s not my proper role. My obligation

is to follow them, and I think that -- I just think that the

government is correct, that under these circumstances,

the case law is very clear.

And as I said, no two cases will have exactly the [508]

same facts, but I think it’s very difficult to try to draw

an analytical -- meaningful analytical distinction between

the Mercer situation and our situation.

And as I said, I think that strong arguments can be

made -- and all you’ve got to do is read Justice Brennan’s

dissent in the Owens decision to see how powerful some

of these arguments can be made concerning what

perhaps ought to be viewed as the insufficiency of the

confrontation right under the Owens doctrine, such as

It 1s.

But, again, that is not for a judge of the Superior

Court of the District of Columbia to revisit. It’s just not

my call.

MS. BUCKINGHAM: Your Honor, while I

understand that, there are a few other points that I'd

like to make, at least for our record.

THE COURT: All right.

25a

Appendix B

MS. BUCKINGHAM: And that is that in this case,

Terrence McNatt is the sole eyewitness, and he is the

sole -- provides the sole direct piece of evidence in this

case with his testimony that he was an eyewitness to

the shooting, and pointing the finger at Mr. Blakeney.

And that is analogous to the situation in Douglas versus

State of Alabama -- and that is 380 U.S. 415. And in --

THE COURT: All of that is clear, and I think [509]

what it means is that if I’ve committed constitutional

error, it will not be deemed harmless beyond a

reasonable doubt.

I mean, I just don’t think that, as a matter of

analysis, that it makes any difference. We’re talking here

about the Sixth Amendment and evidence law, and for

the reasons I’ve stated, I’ve ruled the way I’ve ruled. |

fee] bound to rule the way I’ve ruled.

But | think it -- your point is a good one. This is not

-- we’re not in harmless error territory if I’m wrong.

MS. BUCKINGHAM: And, Your Honor, it’s further

our contention that this witness is unreliable and that

he is incompetent to testify. We have a situation here

where the government has had constructive notice that

he was a PCP user. The government knew he came to

them as a witness after he had been arrested. They

knew he came through ClO and was subject to a lock-up

test. The fact that they failed to get that lock-up test,

failed to ask him during their interview if he was using

PCP at the time, failed to ask him, when he’s in the grand

26a

Appendix B

jury, whether or not he’s using PCP means that they

have a failure in protecting this line of cross-examination

and in protecting the integrity of this witness.

They could have done something at a previous [510]

point where had a deposition where he was available to

Mr. Blakeney to be cross-examined, and they didn’t do

that because they closed their eyes to evidence that they

had, that they constructively were aware of, that they

just didn’t seek out. And we think that’s significant, Your

Honor.

THE COURT: Well, you know, I haven’t heard the

tape of the grand jury testimony, but I’m not -- I mean,

I’ve read the transcript, and I’ve read every word of

the transcript, and there’s certainly nothing in the

transcript that suggests to me that this witness was

bordering on incompetence at the time that he testified

in the grand jury, January 11th, 2005.

And so I’m not sure that it’s a -- I mean, part of

what you say is clearly true. The government at least

had access to information -- whether it had it or not I

don’t know, but it had access to information that

Mr. MeNatt was a PCP user at the time that. he first

spoke to the police and prosecutors and then testified

in the grand jury.

But there’s nothing in the grand jury -- in the

transcript of the grand jury testimony, at least -- that

indicates to me that the government should have been

on notice that this witness was on the verge of becoming

27a

Appendix B

incompetent. And, quite frankly, I don’t think he’s [511]

incompetent, within the meaning of that term of art.

I just questioned him for several minutes on the

record, at close range. I don’t think he has any difficulty

understanding what I’m asking him and being able to

respond in a comprehensible way.

He clearly knows that he’s under oath. Whether he’s

testifying honestly, truthfully or not, I wouldn’t venture

a guess. But he clearly understands he’s under oath.

He made reference to it several times in his testimony.

MS. BUCKINGHAM: Your Honor, I! have one other

point.

THE COURT: Okay.

MS. BUCKINGHAM: Sorry to --

THE COURT: Please try to be as brief as you can.

MS. BUCKINGHAM: I will. I will. Your Honor had

said that -- you had stated some of the reasons that we

thought we were going to be -- that you thought we

would be able to cross-examine Mr. McNatt, and I just

wanted to highlight, under Owens and the factors that

Owens went through, that we would have particular

difficulty cross-examining Mr. MecNatt, and it’s our

position he wouldn’t be subject to cross-examination as

to his lack of care of attentiveness because he has no

specifie recollection of that evening.

28a

Appendix B

[512] We don’t know if he’s dealing drugs at the time

and not paying good attention. And as to --

THE COURT: Well, first of all, I disagree with that

as a factual matter because he’s going to tell you that if

he was there, he was high on PCP I have no doubt he’s

going to tell you that. Because he’s essentially -- and if

he doesn’t, you'll impeach him with his prior sworn

testimony that he was stoned on PCP -- that’s my word,

not his -- but he was high on PCP that entire time period.

And so I just don’t think you’re -- I don’t think that’s

accurate.

It’s going to be abundantly clear to the jury that at

least -- that at least from his perspective he was high on

PCP at the time of this murder.

MS. BUCKINGHAM: That’s all. Thank you.

THE COURT: All right.

* * “

29a

APPENDIX C — ORDER OF THE DISTRICT

OF COLUMBIA COURT OF APPEALS

FILED MAY 14, 2010

DISTRICT OF COLUMBIA

COURT OF APPEALS

No. 07-CF-889

FEL3825-05

MICHAEL H. BLAKENEY,

Appellant,

UNITED STATES,

Appellee.

BEFORE: Washington, Chief Judge; Ruiz, * Reid,

Glickman, Kramer, *Fisher, Blackburne-Rigsby,

Thompson, and Oberly, Associate Judges; *Wagner,

Senior Judge.

ORDER

On consideration of appellant’s petition for

rehearing or rehearing en banc, and the opposition

thereto, it is

ORDERED by the merits division* that the petition

for rehearing is denied; and it appearing that no judge

30a

Appendix C

of this court has called for a vote on the petition for

rehearing en banc, it is

FURTHER ORDERED that the petition for

rehearing en bane is denied.

PER CURIAM