Farley v. United States

767 A.2d 225, 2001 D.C. App. LEXIS 33, 2001 WL 173334

• Court: District of Columbia Court of Appeals
• Decided: February 8, 2001
• Docket: 92-CF-1039, 95-CO-488
• Status: Published

Opinions

KING, Senior Judge:

This case is before us for the second time, following remand of the record to the trial court. In 1992, Farley was convicted by a jury of various drug trafficking and weapons charges, as well as assault with a dangerous weapon.¹ Before trial, the trial court denied Farley’s motion to compel discovery of some statements made to the police by Dennis Miles, a civilian witness. Farley noted a direct appeal, and he also appealed the trial court’s denial of his motion under D.C.Code § 23-110 alleging ineffectiveness of counsel. Dennis Miles was a witness at the hearing on the § 23-110 motion, and during his testimony he referred to a complaint he had filed with the Civilian Complaint Review Board (“CCRB”) regarding the conduct of some of the police officers who participated in the effort to arrest Farley shortly after the offenses were committed. On appeal, Farley contended that the statements to the police and the CCRB complaint were Brady2 material which had been impermissibly withheld. Appellant had not raised the Brady claim with respect to the CCRB complaint before the trial court and, thus, the trial court never had an opportunity to consider that claim.

When the case was first before us, we rejected all of Farley’s contentions except for the Brady claim and remanded the record for further proceedings. See Farley v. United States, 694 A.2d 887 (D.C.1997) (hereinafter “Farley I”). In remanding, we observed:

Unfortunately, the record was not sufficiently developed during the § 23-110 hearing to provide a sound basis for our evaluation of the government’s obligation to disclose the CCRB complaint under Brady, the impact of the CCRB complaint on the lack of documentation on Miles’ statements to the police, or the materiality of the undisclosed information in relation to other evidence adduced at trial. Therefore, we remand the record to the trial court for a hearing and determination of whether Miles’ complaint to the CCRB was Brady material and, if so, whether had it been disclosed to the defense, there is a possibility that the result of the trial would have been undermined.

Id. at 890.

On remand, the trial judge conducted a hearing and, in a comprehensive Memorandum on Remand, ruled that the CCRB complaint should have been provided to Farley under the Brady doctrine. However, the trial judge concluded, quoting Kyles v. Whitley, 514 U.S. 419, 441, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), that “disclosure of the suppressed evidence to competent counsel would [not] have made a different result reasonably probable.” The case is now back before us on the Brady issue. We affirm.³

I.

While there is a serious question in our mind whether the existence of Dennis Miles’ complaint to the CCRB was sufficiently known to the government at the time of trial to trigger a disclosure obligation on its part pursuant to Brady, we will assume for the sake of argument that the information should have been made known to the defense.⁴ Nonetheless, we hold that the trial court did not err in concluding that disclosure of the material in question “would [not] have made a different result reasonably probable.” Kyles, supra, 514 U.S. at 441, 115 S.Ct. 1555.

II.

The facts relevant to the Brady issue are summarized in our first opinion. See Farley I, supra, 694 A.2d at 888. The substance of Miles’ complaint was that he was mistreated by some police officers after they entered his apartment in pursuit of a drug seller who had assaulted an undercover police officer with a pistol. It is conceded that the only potential use of the undisclosed material would have been for impeachment to show possible bias on the part of the officers who testified at trial. Farley maintains that the identifying officers, even though they were not the subject of the complaint to the CCRB, would have been motivated to tailor their testimony in order to produce a perpetrator (presumably anyone would do) in order to justify the police action with respect to Miles. This argument is made even though there has been no showing that the officers knew, when they testified, that the complaint had been made against the other officers. In assessing the impact this material would have had on the outcome of the trial, had it been available, the trial judge observed:

While constituting Brady material, the disclosure of this material “ivould [not] have made a different result reasonably probable.” Kyles v. Whitely [sic], 514 U.S. 419, 441, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). First, the undersigned, who was on “the spot,” is completely confident that whatever bias that might have been shown, on the part of the police in general or the identifying witnesses in particular, such bias would not have undermined the force of the police officers’ identifications and the strong corroborating evidence provided by the items identifying Farley found in the coat worn by the fleeing suspect. Second, in his tape recorded interview, Miles stated that when he first saw the coat, it was being carried out of his kitchen. While not completely consistent with the testimony of police officers, it undercuts Miles’ statements in his CCRB complaint that the coat was brought into his apartment from the outside and is fully consistent with the government’s over-all theory of the case. In this court’s judgment, there is no reason to lack confidence in the outcome of Farley’s trial.

(alteration in original) (emphasis added). In so ruling, the trial judge applied the proper standards in his analysis.

The controlling cases are clear on that point. For example, we have said that when Brady information has not been timely disclosed, reversal “is warranted only where there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Edelen v. United States, 627 A.2d 968, 971 (D.C.1993) (emphasis added). Further, a “ ‘reasonable probability’ of a different result is ... shown when the government’s evidentiary suppression ‘undermines 'confidence in the outcome of the trial.’ ” Kyles, supra, 514 U.S. at 434, 115 S.Ct. 1555 (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). As the italicized passages in the trial judge’s ruling quoted above make clear, the judge was fully aware of the controlling standards.

Nor is it accurate to say that the trial judge applied a sufficiency of the evidence standard. Rather, fully cognizant of the evidence that had been presented at trial from his perch on “the spot” and being aware of the effect of that evidence on the jury, the trial judge made the judgment that there was “no reason to lack confidence in the outcome” of the trial because the undisclosed material would have had an insignificant impact. A witness’s demeanor, the certainty or uncertainty of an identification by a witness, or the physical characteristics of the trial participants which a jury or a judge observes without remark, are all factors that the trial judge who was “on the spot” absorbs and takes into account when judging whether the outcome of the trial was compromised by the absence of certain evidence. Under our case law, our review of the ruling of the trial court on this issue “is limited to a determination of whether that decision was reasonable.” Davies v. United States, 476 A.2d 658, 661 (D.C. 1984).⁵

There is a question, however, as pointed out by Judge Ruiz, whether the standard set forth in Davies, and its progeny, is the correct standard to be followed by a reviewing court considering the effect of withheld evidence on the outcome of a trial. As Judge Ruiz observes, since Brady was decided, the Supreme Court, without expressly holding what standard should govern, has in some cases conducted an independent review of the evidence, giving little, if any, deference to the trial court’s assessment.⁶ The question of which standard to apply was not addressed by the parties in their supplemental briefs — indeed, to the extent the standard was discussed at all, it was assumed that the standard was the one set forth in our cases, ie., our review “is limited to a determination of whether that decision was reasonable ... An independent review is precluded.”, Davies, supra, 476 A.2d at 661. We will not attempt to resolve that issue in this appeal,⁷ however, because we are satisfied that under either standard the withheld material “would [not] have made a different result reasonably probable.” Kyles, supra, 514 U.S. at 441, 115 S.Ct. 1555.

III.

At bottom, this case is an identification case which, because of the vagaries of that kind of proof, should always give us pause when assessing the impact of evidence that the jury should have heard, but did not. But even when we subject what was presented here, and what was not presented, to the most rigorous scrutiny, we arrive at the same result as the trial judge. That is so because this is no ordinary identification case.

The incident leading to the offenses charged in this case began more than nine years ago with three undercover police officers going to the 700 block of Langston Terrace, N.E., to make a narcotics purchase during the evening of January 18, 1992. Officer Cheryl Tillman entered a courtyard while Officers Cornell Johnson and Donnita Giles remained nearby. Tillman testified that she saw three men, one of whom she later identified as appellant Edward Farley, emerge from 732 Lang-ston Terrace. She described the man as being heavily built, with facial hair. He was wearing a black baseball cap with a white X on it, black pants, and a black coat with fur around the collar.

The two conversed and Tillman asked the man (hereafter “the seller”) if he had a twenty-dollar rock of crack cocaine to sell. The seller then asked Tillman whether she was a police officer, and she replied that she was not. He asked her whether she was wearing a wire or a gun, and she again replied no. With Tillman’s permission, the seller then searched her person. “He searched me ... around my waist, between my legs, and up around my back.” The seller then produced a brown medicine bottle from which he gave Tillman a rock in return for eighteen dollars. After the seller took the money, he announced that he was the police and that she was under arrest. The seller then placed a gun against Tillman’s head and demanded that she lie down on the ground. She refused and the seller grabbed her clothes and continued to demand that she lie down on the ground.

At this point, the other two officers stepped in, identified themselves as police officers and told the seller to drop his weapon. The seller then turned toward Officers Giles and Johnson with his pistol in hand. At that point, a single shot was fired by someone else in the courtyard. This prompted Officer Giles to fire her weapon at the seller. None of the shots took effect, but the seller released Tillman and, with Officer Johnson in pursuit, ran back into 732 Langston Terrace, slamming the door behind him. In his wake, the gun and the money received from Tillman were either dropped or discarded on the ground, where they were later recovered by police officers and identified by Tillman. Johnson described the seller “as a heavyset black male wearing ... a dark-colored hat with an X on it, a dark-colored coat with fur lining by the hood, and some dark colored jeans and a goatee.”

The officers stood outside the apartment door while they waited for backup which arrived approximately one minute later. While the officers were waiting, they heard a banging noise from inside, followed by a loud crashing sound and then silence. When the backup team arrived, the officers entered the premises; the seller was not there. They discovered that a window in the kitchen was pushed out and was lying on the ground. Other than the door through which the officers gained entrance and the kitchen window, there was no other exit. According to the testimony of the officers, the tenant (Dennis Miles) was in the bedroom when they entered. Also, according to the testimony of the officers, a dark baseball cap with a white X, a brown medicine bottle containing twenty-three ziplock bags of cocaine, and a coat with a fur hood were found in the apartment. All of these items were identified by Officer Tillman as being the same as those possessed by the seller during their encounter in the courtyard. The coat contained personal papers belonging to Farley including a District of Columbia Department of Corrections property inventory receipt. Finally, Officers Tillman, Giles, and Johnson made in-court identifications of Farley as the man they encountered in the courtyard.

To summarize: It is undisputed that someone sold crack cocaine to Officer Tillman, that the seller was heavily built, that at some point the seller pulled a gun, roughed up Officer Tillman, and when confronted by the other two officers, ran into Miles’ apartment. Although the trial record does not provide a clear indication, it is fair to infer that Farley is heavily built⁸ and that both the judge and the jury were able to observe his physical characteristics as he sat in the courtroom during the trial. Further, in subsequent proceedings, Miles, who is a quadriplegic, testified that he had been in his bedroom and that someone — he did not see who — ran into his apartment and exited from the kitchen after breaking out the window. This testimony corroborates the testimony of the officers that Miles was in the bedroom when they entered the apartment moments after the seller exited by the kitchen window. Miles also testified that he had known Farley for thirty-nine years and that Farley, and some of his family members, frequented Miles’ apartment.⁹

It is also undisputed that a black baseball cap and a brown medicine bottle were recovered inside Miles’ apartment and that those two items were identified by the three undercover officers as being the same as those possessed by the seller. Moreover, the cocaine found in the bottle and the cocaine sold to Officer Tillman were nearly identical in purity (83% versus 85%). All three undercover officers identified Farley as the seller and assailant. Finally, the fur-hooded coat, identified by all three officers as the coat worn by the seller, and which contained personal papers belonging to Farley, was found either in Miles’ apartment along with the baseball cap with the white X and the medicine bottle (according to the police testimony), in Miles’ kitchen (according to one version given by Miles), or outside the apartment (according to another version by Miles). It is undisputed that the coat belonged to Farley.¹⁰

In short, the evidence presented was overwhelming. The trial judge made the same assessment,¹¹ remarking that he remembered the trial “very, very well” and he recalled that the evidence against Farley was “very strong,” “very powerful and convincing.” Farley, however, casts doubt on the strength of the identification because the officers did not select Farley’s photograph during one of the photo array sessions. That issue was thoroughly aired at trial and, as discussed below, we are satisfied that the in-court identifications by the officers were not undercut due to that circumstance.

The photo identification procedures employed were as follows. After Farley’s personal papers were found in the coat recovered at the apartment, the sergeant supervising the undercover officers assembled an array containing black and white photos. None of the officers were able to identify the photo of Farley. A few days later James Flynn, an investigator for the unit involved, was assigned to the case. He examined the photo array, which he found included photos that had been taken in the 1970’s and 1980’s. Investigator Flynn characterized the quality of the photos as being “[pjoor, very poor.” There is no record evidence challenging that characterization. However, the jury and judge were able to make their own assessment on that point because the black and white photo array was mounted on an exhibit and displayed during the trial.

Investigator Flynn then obtained an array of color photos which included a photo of Farley taken in either 1990 or 1991, a year or so before the incident. This array was mounted on the same exhibit as the black and white photos and displayed to the jury. The jury was also informed which photo, in each array, was the photo of Farley.

Investigator Flynn testified that the col- or array was shown to each of the undercover officers separately over a ten-day period following his assignment to the case. Officer Tillman, who testified at trial that she got a good look at the seller’s face because the area was well lit, positively identified the photo of Farley. She also identified Farley in court. With respect to Officer Giles’ viewing of the color array, Flynn testified that she went through the photos one at a time and when she reached Farley’s photo she said: “This is him. I was no more than ten feet from him. That’s him.” She also identified Farley in court. Giles testified that the lighting at the scene was “clear,” that she got a good look at Farley’s face and that there was nothing to obstruct her view of him. Finally, Officer Johnson could not decide between the photo of Farley and another man in the color array;¹² however, he testified that the scene was “well lit” and he unhesitatingly identified Farley in court.

Based on the foregoing, we are satisfied that the identification evidence, by itself, was very strong. It consisted of three in-court identifications by experienced police officers who, because of the very nature of the type of police activity in which they were engaged, are trained to be observant of a seller’s physical characterization so that a later identification can be made.¹³ The circumstance surrounding the non-identification at the first photo array was examined at length at trial; the photos used were displayed for the jury and judge to see, and both the jury’s verdict and the trial judge’s assessment of the impact of that evidence demonstrate that the identification testimony of the officers was credible. Although we are unable to confirm from the record whether Farley — the man sitting in the courtroom — was heavily built and in other ways fit the description provided by the officers moments after the incident, it is unlikely that the jury would have convicted, or the trial judge would have made the assessment he did, if that were not the case. Finally, the strength of the identification evidence is bolstered by the clear motivation of the officers to make an accurate identification of the drug seller who had pulled a gun on, and physically assaulted, a police officer. It defies common sense to suggest that the officers would falsify their testimony in these circumstances — their motivation was to identify correctly the person who had committed those acts, not just anyone.

As we have said, we are satisfied that the identification evidence was very strong. We do not have to rely upon the identification evidence, however, because the verdict in this case does not rest solely on that evidence. It is supported by the fact that the coat worn by the seller, which was identified as such at the scene by the three undercover officers, was recovered either in or just outside Miles’ apartment. It is undisputed that the coat contained personal papers belonging to Farley, and there was no evidence that the coat did not belong to him. Moreover, it is undisputed that the seller’s hat and medicine bottle were recovered from the apartment and there was evidence linking the drugs found in the bottle to the drugs sold to Officer Tillman. All of this evidence, taken together, in the words of the trial judge, was “very powerful and convincing.” Finally, it was later determined that Miles, who resided in the apartment, was a long time friend of Farley and that Farley was frequently in the apartment.

On remand, the trial judge was asked to weigh this “very powerful and convincing” evidence against the fact that Miles filed a formal complaint that he had been mistreated by some of the officers who entered his apartment that evening. None of the officers who testified were implicated in this complaint. Although there is no evidence that the undercover officers knew that Miles had filed a complaint against other officers when they made the color photo and in-court identifications, Farley argues that this evidence may have given the police who testified reason to tailor their testimony in order to justify the tactics of the officers on the scene by producing the perpetrator.

We agree with some of the implications of Farley’s argument because, as stated above, to the extent the officers had any motive beyond their usual interest in law enforcement, it was in their interest to identify the real perpetrator, not just anyone. One of the identifying officers had just been roughly treated by a drug seller who had leveled a pistol on her. A second officer had been so threatened by the drug seller that she was compelled to defend herself by firing her own weapon at him. The third officer observed all of these events. In these circumstances, the officers would be far more motivated to identify the actual perpetrator than they would be motivated to identify just anyone in order to justify the actions of other police officers, as Farley suggests. In sum, we are confident that the withholding of the asserted Brady material, does not “undermine!] confidence in the outcome of the trial.” Bagley, supra, 473 U.S. at 678, 105 S.Ct. 3375.

IV.

For the foregoing reasons, whether we defer to the judgment of the trial judge so long as that judgment is reasonable, or whether we are required to independently assess the record, we are satisfied that the trial court correctly ruled in rejecting this claim.

Affirmed.

1 . Farley was convicted of distribution of cocaine while armed, see D.C.Code §§ 33-541(a)(1) (1998); 22-3202 (1996); possession of cocaine with intent to distribute while armed ("PWID”), see id.; assault with a dangerous weapon ("ADW”), see D.C.Code § 22-502; possession of a firearm during a crime of violence or dangerous offense ("PFCV”), see D.C.Code § 22-3204(b); and carrying a pistol without a license ("CPWL”), see D.C.Code § 22-3204(a). He was sentenced to concurrent sentences of seven years to life imprisonment with a five-year mandatory minimum for the distribution and PWID convictions; a consecutive term of forty months to ten years for the ADW conviction; a consecutive term of one year for the CPWL conviction; and a concurrent term of five to fifteen years for the PFCV conviction.

2 . See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

3 . Farley also argues that the trial court erred in refusing to give a missing witness instruction regarding Miles and in concluding, on remand, that disclosure of the Brady material would not have influenced him to change that ruling. We are satisfied that the trial court correctly concluded that "the peculiar availability of Miles to the government ... was not shown.” See Ray v. United States, 616 A.2d 333, 334 (D.C.1992) (detailing the legal principles governing the decision whether to give a missing witness instruction). The record reflects that the government attempted, unsuccessfully, to subpoena Miles for trial. Meanwhile, appellant’s trial counsel was given Miles’ name and address, and when trial counsel attempted to contact Miles, Farley’s brother answered the door of Miles’ apartment.

4 . Cf. Cox v. District of Columbia, 821 F.Supp. 1 (D.D.C.1993), aff'd, 309 U.S.App. D.C. 219, 40 F.3d 475 (1994).

5 . Accord McCoy v. United States, 760 A.2d 164, 184 (D.C.2000); Sterling v. United States, 691 A.2d 126, 134 (D.C.1997); Matthews v. United States, 629 A.2d 1185, 1199 (D.C.1993); Brooks v. United States, 536 A.2d 1091, 1097 (D.C.1988); Derrington v. United States, 488 A.2d 1314, 1339 (D.C.1985). The Davies court relied on an early Brady case. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), where the Supreme Court affirmed the trial judge's assessment that the withheld material would not have changed the result because it was "satisfied that [the trial judge’s] firsthand appraisal of the record was thorough and entirely reasonable. ...” Id. at 114, 96 S.Ct. 2392.

6 . See generally Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); Wood v. Bartholomew, 516 U.S. 1, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995); Kyles, supra, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490; Bagley, supra, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481.

7 . It is worth noting that, except for Bagley, supra, (which does not, in our view, reject the Agurs deferential standard), all of the Supreme Court cases cited by Judge Ruiz in support of the independent review standard, supra note 6, were before the Court on federal habeas review. Therefore, the determination of the impact the asserted Brady material had upon the outcome was made by a judge other than the judge who conducted the trial. In contrast, in Davies, supra, and in all of our cases applying the deference standard, supra note 5, and in Agurs, supra, the judge making the impact determination was the same judge who presided over the trial. We need not decide whether this distinction is determinative; however, a case can be made that more deference is appropriate in the latter circumstance.

8 . Although not conclusive on this point, the affidavit in support of the arrest warrant, which was prepared several weeks after the incident, states that Farley is 6' 2" and weighs 240 pounds. In his statements complaining about his mistreatment by the police, Miles says that the police officers referred to the seller as the "fat guy.”

9 . Although none of this testimony by Miles was heard by the jury, it almost certainly would have been if Miles’ complaints of police misconduct had been aired at trial. Therefore, it should be taken into account when weighing the effect of non-disclosure on the outcome of the trial.

10 .In his original D.C.Code § 23-110 proceeding, Farley contended that trial counsel’s performance was constitutionally ineffective because he failed to present evidence to support Farley’s claim that the coat had been stolen from him earlier on the day of the incident. The trial judge, disbelieving the witnesses called at the hearing, rejected that contention, characterizing the "stolen coat” defense as "bordering on the frivolous.” In our first opinion, we affirmed that ruling. See Farley I, supra, 694 A.2d at 888 n. 2.

11 . Section 23-110 hearing, supra note 10, held in April 1995.

12 . That uncertainty was apparently prompted by the amount of facial hair of the subjects depicted in the two photos. Officer Johnson testified that the fact the seller wore a goatee stood out in his mind when he was shown the color photo array. The photos are not part of the record on appeal; however, during cross-examination of Officer Johnson, Farley’s counsel asserted that Farley was not wearing a goatee in the color photo. Although we are unable to see for ourselves whether or not Farley wore facial hair in the photo, both the jury and the judge were able to do so.

13 .The record does not tell us whether the officers were of the same race as the seller, although that fact would have been apparent to the jury and the judge. Therefore, we cannot determine whether these identifications were, or were not, cross-racial. See Sheri Lynn Johnson, Cross Racial Identification Errors In Criminal Cases, 69 Cornell L.Rev. 934 (1984).