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Gonzales Diggs v. United States

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Argued January 11, 2011

Before GLICKMAN, Associate Judge, REID,*fn1 Associate Judge, Retired, and BELSON, Senior Judge.

Gonzales Diggs and Odell Griffin appeal their convictions, following a jury trial, of second-degree murder while armed, assault with a dangerous weapon, and related offenses. Each appellant challenges the admission in evidence of out-of-court statements made by a government witness named Mark Fisher, who reported them to the police and testified against them before the grand jury; they argue that because Fisher professed to have suffered brain damage and consequent memory loss, he was not available for cross-examination within the meaning of the Confrontation Clause, and that his statements were inadmissible hearsay. Appellants raise other Confrontation Clause claims as well, asserting the trial court erred by limiting Griffin’s cross-examination of Fisher and by admitting a certificate of no license to carry a pistol and an autopsy report without testimony from the documents’ preparers. Appellant Griffin further claims that the court abused its discretion in denying his motion for severance after it redacted his out-of-court statement to the police in order to protect his co-defendant’s confrontation rights. In addition, appellant Diggs claims that the seven-year delay in bringing him to trial violated his Fifth Amendment right to due process and his Sixth Amendment right to a speedy trial; that he was prejudiced by the addition of a conspiracy count in a superseding indictment; and that his convictions on two counts of possession of a firearm during a crime of violence merge.

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