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Card v. United States6/28/2001
d on substantial evidence of past drug use, among other factors, defense was "successful, to a considerable degree, in impeaching [the witness] as to both bias . . . and as to credibility in general," and " failure to correct [the witness's] false testimony . . . therefore, could not, in any reasonable likelihood, have affected the judgment of the jury").
C. Edwards' Confession
Appellant Edwards argues that the trial court erroneously admitted his confession for three reasons. First, he claims that the late disclosure of Brady material -- his own confession -- adversely affected the outcome of the suppression hearing. Second, he argues that the trial court, in response to the government's late disclosure of grand jury testimony, erroneously failed to strike the police detective's testimony. Third, he alleges error in the trial court's refusal to reconsider its suppression ruling despite new evidence of Edwards' status as a cocaine addict at the time of his confession.
As previously explained, Edwards' statement made to a defense investigator was not Brady material, in that he either knew, or should have known of its existence, and knew of the "essential facts permitting him to take advantage of any exculpatory evidence." See supra note 16; Rector, supra, 120 F.3d at 560. Likewise, the trial court's adverse-inference instruction was an adequate response to the failure to timely disclose the detective's grand jury testimony. See supra Part III, A.
Finally, while newly surfaced evidence may give rise to the need for reconsideration of a pretrial suppression decision, see Scales v. United States, 687 A.2d 927, 937 (D.C. 1996), and evidence of drug use is relevant to the determination of voluntariness, see (Cullen) Byrd v. United States, 618 A.2d 596, 598 (D.C. 1992), the "new evidence" here was far from significant. Edwards claims that during trial the officer suggested that the confession may have been affected by Edwards' illegal drug use, even though at the suppression hearing the officer testified that Edwards was not under the influence of drugs. In fact, at trial, the officer testified only that Edwards was an alleged drug addict --though the officer had no first hand knowledge of this fact -- and reiterated that he saw no evidence of drug use at the time of confession. The trial court's initial ruling on the suppression of the confession was therefore still adequately supported by record evidence that Edwards was not under the influence of any type of substance at the time of the confession. Moreover, at trial, appellant's counsel extensively cross-examined the officer, using his prior grand jury testimony, regarding Edwards physical and mental state at the time of the confession, and the jury was specifically instructed to consider the confession, if and only if it determined that it was voluntarily given.
IV. Merger
Appellant Rice argues that his felony murder conviction merges with the underlying felony, in this case kidnaping. Similarly, appellants Card and Edwards argue that their felony murder convictions merge with their first degree murder convictions. We agree and the government concedes that the sentences merge. Catlett v. United States, 545 A.2d 1202, 1219 (D.C. 1988), cert. denied, 488 U.S. 1017 (1989) (felony murder merges with underlying felony); (Samuel) Byrd v. United States, 510 A.2d 1035, 1036-37 (D.C. 1986) (en banc) (first degree premeditated murder and first degree felony murder merge). We therefore remand the convictions to the trial court for the limited purpose of vacating Rice's kidnaping conviction, and Card's and Edwards' felony murder convictions, and for resentencing. In all other respects, the appellants' con
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