Winfield v. United States

652 A.2d 608, 1994 D.C. App. LEXIS 251, 1994 WL 735538

• Court: District of Columbia Court of Appeals
• Decided: December 30, 1994
• Docket: 92-CF-723
• Status: Published

Opinions

Opinion for the court by Chief Judge WAGNER.

Dissenting opinion by Associate Judge SCHWELB at p. 615.

WAGNER, Chief Judge:

Appellant, Reginald Winfield, was convicted following a jury trial of first degree murder while armed (D.C.Code §§ 22-2401, -3202), possession of a firearm during a crime of violence (D.C.Code § 22-3204(b)), and carrying a pistol without a license (D.C.Code § 22-3204(a)).¹ His sole argument on appeal is that the trial court erred in precluding him from introducing evidence that another individual committed the offenses. Finding no abuse of discretion in the trial court’s ruling excluding the proffered evidence, we affirm.

I.

According to the evidence presented by the government, three eyewitnesses to the crime saw appellant chase down and fatally shoot Deborah Davis in Southeast Washington on the night of July 26, 1990. The first, Stephanie Taylor, had known appellant for two years from the neighborhood. She testified that at approximately 10:40 p.m. that night, she saw appellant chasing a woman in the direction of a basketball court in the parking lot at 700 12th Street, S.E. Ms. Taylor heard appellant say, “Do you like snitching, b[ ]?” According to her testimony, one gunshot rang out as appellant chased his victim, and she heard another just before the woman grabbed and fell on Reba Young, a young child who lived in the neighborhood. Ms. Taylor testified that although she did not see appellant’s face, she could identify him by his clothing, height, weight, voice, and distinctive walk. She said she had seen him in the same clothing before. Ms. Taylor recounted that later that night she was with a group of people, including Reba Young, when she saw appellant standing in front of 700 12th Street, S.E. At that time, she heard appellant say that “he was tired of every time he do something that little girl be around.” She further testified that appellant was wearing the same clothes that he had worn earlier that night, i.e., the dark hood and “dingy sweat material shorts.” The next day, Ms. Taylor saw appellant standing over the spot where he had shot Ms. Davis. This time, she heard him say to a group of “boys,” “This is where [I] bust the b[ ] at.” At trial, Ms. Taylor identified a photograph of appellant in which he was wearing the same clothing that he was wearing at the time of the shooting.

Arnold Young, who was about nine years old at the time of the crime and who lived in the neighborhood, testified that he had known appellant for some time. On the night of the shooting, according to Arnold, he was walking with his cousin, Reba Young, to a carry-out store when he saw appellant chasing and shooting at a woman. He testified that the appellant shot at the woman several times, and the woman grabbed his cousin, Reba, as she fell to the ground. Young testified that appellant was wearing a black sweat hood and white shorts, which was consistent with Ms. Taylor’s description of appellant’s clothing. He also testified that he recognized appellant by his face, specifically his eyes, nose, and mouth. Arnold also described the shooter by the name, Reggie, and said that he was dark-skinned with teeth which protruded. Arnold also testified that he saw appellant the next day standing in the area where appellant shot Ms. Davis. At that time, he heard him say, “That’s where I got the b[ ] at.” Arnold identified at trial a photograph of appellant in which appellant was wearing the same clothes he had worn the night of the shooting.

Reba Young, who was nine years old at the time of the shooting and eleven years old at the time of trial, testified that while on her way to the store with her cousin, Arnold, she saw a woman running through the parking lot who was screaming and holding the back of her head. According to Reba, the woman stopped beside her, and the man who had been chasing her shot her and continued to shoot her even after she fell. Reba Young testified that she saw the man’s eyes, nose, and mouth and that his teeth “stuck out.” She said that she recognized that the shooter was appellant. She also described appellant’s clothing on that night as a black sweatshirt with the hood up and beige or faded shorts. She also identified appellant by name.

The next night, according to Reba, she was walking again with her cousin to the store when she saw appellant standing in the parking lot near the spot where he had shot Ms. Davis. At that time, she heard him say to the others who were standing around, “This is where I done it, B.” Although this witness said that she could not see appellant’s face on the second night, she said that she recognized his voice. Reba Young also identified a photograph of appellant and testified that she was seeing it for the first time at trial. She testified that the photograph depicted appellant wearing the same sweatshirt which he was wearing on the night of the shooting.

Another witness for the government, Janell Dedrew, testified that while standing in front of 700 12th Street, S.E. on the night of the shooting, she heard gunshots and observed a man shoot Ms. Davis. According to Ms. Dedrew, the man was wearing a sweatshirt with the hood up on his head and some pants. This witness testified that she could see only the back of the man’s head.

Prior to trial, appellant filed a motion in limine seeking permission to introduce at trial evidence purportedly tending to show that it was Edward Huff who committed the murder of Deborah Davis. Appellant sought to show that Huff had a motive for killing Ms. Davis and that he had committed extremely violent acts against her previously. According to appellant’s proffer, on June 25, 1990, about one month before the fatal shooting, James Bias, Freddie Artis and Ms. Davis were arrested on charges of armed robbery, and Artis and Davis were released on bond. On June 26, 1990, Artis, who was joined at some point by Huff, kidnapped Ms. Davis, and transported her to Maryland where she was stabbed, shot and left for dead because her kidnappers suspected her of being a witness against Bias and Artis in the armed robbery case. Ms. Davis survived and identified her assailants as Artis and Huff.

On July 26, 1990, Ms. Davis testified before the grand jury. Later that day, she called her mother and said, “They’re after me. They are going to get me. The word is out on the street.” Appellant further proffered that when the black male shot Ms. Davis that night, he was heard to say, “You won’t tell this.” According to the proffer, appellant was not connected with Artis, Huff, or Bias. The government represented that a photograph of Mr. Huff was placed in a photo array and shown to several witnesses, none of whom identified him as the shooter.²

Although the trial court stated it initially thought that the evidence that Mr. Huff had a motive to kill Ms. Davis was compelling motive evidence, it was persuaded in its decision to exclude the evidence by the fact that the ultimate issue for determining the admissibility of the evidence was “whether or not Mr. Huff or any other person is clearly connected to the shooting itself.” On this issue, the trial court concluded that the requisite connection between Huff and the crimes charged was missing. Specifically, the trial court found that there was no evidence (1) that anyone who had an opportunity to view the shooter had identified Huff as the shooter even though some looked at a photo array which included his picture; (2) that Huff was anywhere near the scene of the murder that night or had the opportunity to commit the crime; (3) that Huff knew that Davis had testified in the grand jury that day; or, (4) that he knew where she could be located on the night of her death. Therefore, the trial court denied the motion, explaining its ruling, in pertinent part, as follows:

The inherent ambiguity of this evidence supposedly linking Mr. Huff to the murder would not ... tend to create a reasonable doubt that the defendant who was apparently known by many of the eye witnesses did not commit the offense.

Furthermore, given the quality of the evidence proffered and even assuming its relevance, its probity ... in clearly linking Mr. Huff to the murder is so weak and the resulting potential of the evidence to confuse and mislead the jury so great that the Court concludes that on the state of the present record the defense should be precluded from presenting any evidence to show that Mr. Huff may have killed the decedent....

The trial court also determined that “the physical description allegedly linking Mr. Huff to the shooting by the defense witnesses” to be so general that it could fit any number of people. It further found the words attributed by appellant’s proffer to the shooter, ie., “You won’t tell this,” not to be so distinctive as to tie Mr. Huff to the murder of Ms. Davis. Finally, the trial court examined a photograph of a man selected by one individual as the assailant, which appellant contended looked like Mr. Huff. As to this photograph, the trial court determined that “a recent photograph of Mr. Huff failed to demonstrate any facial similarities between the two individuals other than that both were black males of approximately the same age and complexion.³ The trial court denied appellant’s motion in limine without prejudice to his right to renew it after witnesses had testified. The court also explained that its ruling did not preclude appellant from showing that other witnesses had identified persons other than the accused as the gunman or from otherwise challenging the reliability of the government’s identification evidence, including any showing of bias on the part of its witnesses.

II.

Appellant argues that the trial court erred in precluding him from introducing the proffered evidence to show that someone else, namely Edward Huff, committed the murder. He contends that the trial court’s ruling on this issue precluded him from presenting a defense, thereby violating his constitutional rights.

Undisputedly, the right of the accused to present a defense is a fundamental one. Chambers v. Mississippi 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973); see also Nelson v. United States, 649 A.2d 301, 304 (D.C.1994). “The due process clause and the Sixth Amendment afford a defendant the right to confront and cross-examine witnesses against him” and to call witnesses in order to present a defense. Watson v. United States, 612 A.2d 179, 182 (D.C.1992); (Woredell) Johnson v. United States, 552 A.2d 513, 516 (D.C.1989). Thus, a defendant may offer in defense of a criminal charge evidence that it was not he, but someone else, who committed the offense. Nelson, 649 A.2d at 304; Watson, 612 A.2d at 182; (Woredell) Johnson, 552 A.2d at 516; Stack v. United States, 519 A.2d 147, 152 (D.C.1986); Beale v. United States, 465 A.2d 796, 803 (D.C.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984).

However, the right of an accused to present evidence is not absolute; it is subject to the requirements of relevancy or “ ‘to accommodate other legitimate interests in the criminal trial process.’ ” Nelson, supra, 649 A.2d at 304; (quoting Chambers, supra, 410 U.S. at 295, 93 S.Ct. at 1046). The evidentiary rule for admission of evidence purporting to show that another person committed the crimes charged is well settled in this jurisdiction. “Before evidence that there is a reasonable probability that someone else committed the charged offense can be deemed relevant, and thereby admissible, the evidence must ‘clearly link’ the other person to the commission of the crime.” Watson, supra, 612 A.2d at 182; (Woredell) Johnson, supra, 552 A.2d at 516. In this context, the term “clearly link” has been defined as follows:

What we mean by “clearly link,” as used first by this court in Brown [v. United States, 409 A.2d 1093 (D.C.1979) ], ... is proof of facts or circumstances which tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense. This proof permits the admission of evidence which otherwise is generally excluded because it is too remote in time and place, completely unrelated or irrelevant to the offense charged, or too speculative with respect to the third party’s guilt.

Id.; see also Watson, 612 A.2d at 182; see, e.g., Stack, supra, 519 A.2d at 153-54; Beale, supra, 465 A.2d at 803. “There is no requirement that the proffered evidence must prove or even raise a strong probability that someone other than the defendant committed the offense.” Johnson, 552 A.2d at 517. However, the focus is on the effect of the evidence upon the defendant’s culpability, rather than its effect on the third party. Id.

Although evidence of a third person’s motives, actions, opportunity and statements are of the type which may be used to establish the requisite link to the crime charged in the case, to be admissible, the proffered evidence in the aggregate must establish “the necessary link, connection or nexus between the proffered evidence and the crime at issue.” (Woredell) Johnson, supra, 552 A.2d at 516 (citations omitted). Thus, we have held that a defendant’s proffer of evidence that other individuals had even stronger motives to murder the victim than the accused was insufficient, without more, to establish the necessary link to the offense charged to render the evidence admissible at trial. Beale, supra, 465 A.2d at 803.⁴ In Beale, this court ruled that the trial court did not abuse its discretion in precluding Beale from calling four witnesses who would testify that other individuals had as much, or a greater, motive than the accused to commit the murder. Id. The critical omissions from the proffer by the defense in Beale, were “any evidence that those other individuals, assertedly with motives to kill the victim ..., were in the area at the time of the shooting” or evidence “linking these [prior] events to the subsequent murder.” Id. Since there was no showing that the proffered evidence was related to “the facts surrounding the crime at issue,” this court held that the trial court did not err in refusing to admit it.

The proffer of motive alone is not sufficient to meet the foundation for admissibility in this jurisdiction which requires a nexus between the proffered evidence and the charged crime. Freeland v. United States, 631 A.2d 1186, 1189-90 (D.C.1993). Unless the motive of the third party is connected with the act for which appellant is on trial, it has no relationship or relevance to the issues. Shepard v. United States, 538 A.2d 1115, 1118 (D.C.1988). This has long been the general rule.

Evidence of the motive of one other than the defendant to commit the crime is not admissible where there is no other proof in the case which tends to connect such other person with the offense with which the defendant is charged.

29 Am.JuR.2D Evidence § 441, p. 502 (1967).⁵

Even threats against the crime victim are not relevant, “unless the third person is an accomplice or accessory of the accused” or unless the third person is implicated by other evidence in some way to the crime charged. 1 Charles E. Torcía, WhaRTOn’s CRIMINAL Evidence, § 145, pp. 595-96 (14th. ed. 1985); see also 29 Am.Jur.2D Evidence § 441, p. 501 (1967). These general principles are consistent with our holdings requiring some nexus of the third person to the facts surrounding the crime at issue in the case. See Morris, supra note 4, 622 A.2d at 1127 (D.C.1993); Shepard, supra, 538 A.2d at 1117-18; Beale, supra, 465 A.2d at 803; Brown, supra, 409 A.2d at 1097.

In this case, although there was evidence that Huff had a motive to commit the crime and a proffer that Huff had committed other acts of violence against the victim on another occasion, no evidence was proffered tending to show that Huff was implicated in the commission of the offenses for which appellant was on trial. Appellant conceded in the motion that he was not connected to Artis, Huff, and Bias. There is no claim that Huff was at or near the scene of the crime nor that he even knew that he could find Ms. Davis there that night. Not a single person who witnessed the crime, even those who viewed photo arrays with Huffs picture in it, identified him either as the perpetrator of the crime or as someone who was even in the area of the crime scene at any time that night. It would require impermissible speculation to provide the missing link between the prior events involving Huff and his cohorts and the subsequent murder of Ms. Davis. Contrary to the position by our dissenting colleague, the coincidence of a motive, even a strong one, and prior assaults on the victim by a third party, without more, are insufficient. Some link or nexus between such proffered events and the crimes involved in the case before the court must be shown. (Woredell) Johnson, supra, 552 A.2d at 516; Beale, supra, 465 A.2d at 796.

We review the trial court’s decision that the proffered evidence did not meet the requirements of relevancy for an abuse of discretion. Shepard, supra, 538 A.2d at 1116; Beale, supra, 465 A.2d at 803; Parks v. United States, 451 A.2d 591, 607 (D.C.1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2123, 77 L.Ed.2d 1303 (1983). On this record, we cannot say that the trial court abused its discretion in determining that the proffered evidence would have no bearing on appellant’s culpability and would only confuse and mislead the jury. See Brown, supra, 409 A.2d at 1097.

We are not persuaded, as appellant argues, that our decision in Freeland supports a contrary result because the case may be distinguished upon its facts. In Freeland, this court found that the combination of facts and circumstances involving prior threats was sufficient to show the requisite nexus between the crime charged to require admission of evidence that someone else committed the murder. 631 A.2d at 1189. Unlike this case, Freeland’s proffer consisted of more than a motive to commit the offense. Free-land testified that he had witnessed an inmate named Hawthorne, who was known to be a dangerous individual, kill another inmate and that he was a witness for the prosecution arising out of these events; that he had testified before the grand jury and was scheduled to testify at Hawthorne’s trial; that persons claiming to be Hawthorne’s agents had approached him personally and threatened him and his family repeatedly for cooperating in the prosecution; that late on the night before Freeland’s wife’s body was discovered, two of these men again confronted and grabbed him, but he managed to escape to his home; that he left the home after trying unsuccessfully to persuade his wife to leave with him for her safety; and that his wife was found murdered in the home at 10:00 a.m. the next day. Id. at 1188-89. Significantly, this court observed that Freeland’s encounter with the men near his home afforded them an opportunity to find out where Freeland lived. Id. at 1189 n. 2.

In the case before this court, there is no evidence of opportunity on the night of the crime. There was no evidence that it was Huff who threatened the victim just before the murder. Moreover, the majority in Free-land, having acknowledged that motive alone may not suffice to meet the foundational requirements for admission of this type of evidence, determined that “the probative value of the proffer was strengthened by the circumstantial nature of the government’s evidence of appellant’s guilt, in contrast to Beale ... where three eyewitnesses testified that the defendant had shot the victim.”⁶ Freeland, supra, 631 A.2d at 1190. Unlike Freeland, the case against appellant was not circumstantial, but rather based upon the testimony of many witnesses who observed the crime and identified appellant as the person who committed it. In Freeland, this court was persuaded that “[t]he probative value of the proffer was strengthened by the circumstantial nature of the government’s evidence of appellant’s guilt_” Id. at 1190. In contrast, the nature of the evidence against appellant in this case does not strengthen the probative value of appellant’s proffer or support the argument that the trial court abused its discretion.

To support his theory that evidence that Huff had a motive to commit the murder should have been admitted at trial, appellant now relies upon a proffer of the substance of an alleged telephone call which the decedent made to her mother on the day she was murdered. He contends that the call, which conveyed that “they were out to get her,” takes the evidence beyond mere motive and “confirms Mr. Huffs knowledge of Ms. Davis’ grand jury testimony, his intent to kill her and his opportunity to do so.” First, appellant did not proffer the substance of this telephone call in his motion in limine nor in the oral proffer related to the issue.⁷ However, the government concedes that the information was placed in the record in another context before the court ruled on the motion in limine. Even assuming that the issue of the impact of the information was properly preserved for review,⁸ the reported telephone call failed to provide a nexus between the murder and Edward Huff. It does not appear that Ms. Davis ever identified any of the individuals to whom she referred when she said that “they” were out to get her. The proffer did not place the call in the context of any discussion about the prior events involving Huff, Artis, and Bias. The reference is to more than one unidentified person. While such evidence may support appellant’s claim that someone was out to get the decedent, it does not provide the connection between Huff and the crime charged in this ease. See (Woredell) Johnson, supra, 552 A.2d at 516. If evidence of a third party’s involvement in the crime were admissible based solely upon who had a motive or ill will against the victim at the time of its commission, undoubtedly, a defendant could point to many such individuals for a victim who associates with a criminal element. See People v. Hall, 41 Cal.3d 826, 226 Cal.Rptr. 112, 117-18, 718 P.2d 99, 105 (1986). No doubt, this is among the reasons that the law of this jurisdiction and elsewhere requires at least some showing of a nexus between the alleged evidence of third-party culpability and the charges on trial before the court. Shepard, supra, 538 A.2d at 1118; Beale, supra, 465 A.2d at 803. As the trial court determined, that nexus is simply absent here.

Even in cases where such evidence is admissible, the trial court retains discretion to exclude it after weighing its probative value against its prejudicial effect, including its tendency to mislead and confuse the jury. Watson, supra, 612 A.2d at 182; Brown, supra, 409 A.2d at 1097. The record reflects that the trial court undertook such an analysis and concluded that, even assuming some relevance of the proffered evidence, its probative value “was so weak and the resulting potential of the evidence to confuse and mislead the jury so great” that it should be excluded. We cannot say on this record that the trial court abused its discretion in making this determination. See id.

For the foregoing reasons, the judgments of conviction appealed from hereby are

Affirmed.

1 . Unless otherwise specified, all references to the D.C.Code are to the 1981 edition and supplement.

2 . Appellant argued that the photograph was dated and did not show Mr. Huff's substantial change in appearance at his age. However, appellant did not show a later photograph of Mr. Huff to anyone. Appellant also contended that some of the physical descriptions for the assailant ranged from 5'4", 110 pounds to 6'2", 210 pounds, all black male. Thus, appellant argued that some of these general characteristics were consistent with Huff’s appearance.

3 . We do not read appellant's brief as challenging these factual findings made by the court after examination of the proffered evidence.

4 . Similarly, evidence of "[m]ere opportunity is insufficient.” Morris v. United States, 622 A.2d 1116, 1127 (D.C.), cert. denied, — U.S. -, 114 S.Ct. 270, 126 L.Ed.2d 221 (1993).

5 . See, e.g., People v. Hall, 41 Cal.3d 826, 226 Cal.Rptr. 112, 116-17, 718 P.2d 99, 104 (1986) (en banc) (mere evidence of motive and threats of another without evidence tending to connect the other person with the crime on trial inadmissible); State v. Hill, 495 A.2d 699, 703 (Conn.1985) (evidence of another’s motive insufficient for admissibility absent other proof other proof tending to connect other person with offense charged); State v. Sturdivant, 31 N.J. 165, 155 A.2d 771, 778 (1959) (not sufficient to show some hostile event and leave to speculation its connection with crime charged); State v. Long, 95 Vt. 485, 115 A. 734, 738 (1922) (motive and threats, standing alone, insufficient to support admissibility); State v. Kwan, 174 Wash. 528, 25 P.2d 104, 106 (1933) (motive coupled with threats of third person inadmissible unless it tends to connect such person with actual commission of crime charged); State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12, 16, 17 (App.1984) (absent evidence of opportunity or direct connection of third person to the crime, evidence of that person’s motive to commit it properly excluded).

6 . In Freeland, the evidence showed that appellant had argued with his wife in the early morning hours preceding her death and that he was seen outside the apartment about two hours before the body was discovered. 631 A.2d at 1187-88. There were no eyewitnesses to the murder. Freeland contended that he had argued with his wife about whether she would leave with him and that he left the family apartment believing that his family would be safe thereafter.

7 . A party must apprise the court of all relevant factors pertaining to the issue under consideration in order for the court to make an informed and rational judgment. Hollingsworth v. United States, 531 A.2d 973, 981 (D.C.1987) (quoting (James) Johnson v. United States, 398 A.2d 354, 365 (D.C.1979)).

8 . See District of Columbia v. Barriteau, 399 A.2d 563, 569 (D.C.1979) (to properly preserve for review exclusion of evidence, offer of proof generally required); see also Jamison v. United States, 600 A.2d 65, 70 (D.C.1991).