Winfield v. United States

676 A.2d 1, 1996 D.C. App. LEXIS 79, 1996 WL 208465

• Court: District of Columbia Court of Appeals
• Decided: April 24, 1996
• Docket: 92-CF-723
• Status: Published

Opinions

FARRELL, Associate Judge:

We granted rehearing en bane in this case to consider the standards governing the admissibility of evidence proffered by a criminal defendant that another person or persons committed the crime alleged.¹ The issue arises at the intersection of the defendant’s constitutional right to an opportunity to present a complete defense, Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986), and the obligation of the trial court preliminarily to determine the relevance of proffered evidence and weigh its probative value against the potential it creates for undue prejudice. The issue arises specifically because of continued uncertainty, reflected in the trial judge’s ruling in this case, over the meaning and continued legitimacy of a principle enunciated by this court in Brown v. United States, 409 A.2d 1093 (D.C.1979). See also 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). Under the so-called Brown-Beale principle, “before evidence of the guilt of another can be deemed relevant and thereby admissible, the evidence must clearly link that other person to the commission of the crime.” Id. at 1097 (emphasis added).

This principle has long seemed in tension with the standard of relevance applied generally in this jurisdiction, which defines relevant evidence simply as “that which tends to make the existence or nonexistence of a fact more or less probable than would be the case without that evidence.” Punch v. United States, 377 A.2d 1353, 1358 (D.C.1977), cert. denied, 435 U.S. 955, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978); see also Fed.R.Evid. 401. That the prior effort of a division to harmonize the “clear link” principle and the usual standard of relevance, see Johnson v. United States, 552 A.2d 513, 516 (D.C.1989), has not settled the issue is apparent from this case and from the representation of the Public Defender Service, not seriously disputed by the government, that the former principle continues to “create[ ] confusion for trial judges.” Although we recognize the difficulty of laying down principles concrete enough to guide meaningfully decisions on the admissibility of nonprivileged, nonhear-say evidence, we undertake a modest effort at clarification here.

We conclude that the phrase “clearly linked” is unhelpful and should be discarded from our lexicon of terms governing the admissibility of third-party perpetrator evidence. We hold that there is only one standard of relevance, that set forth in Punch, supra, as explicated below. At the same time, as the division correctly recognized in this case, evidence of motivation of a third party to commit the crime charged risks distracting the jury from the issue of this defendant’s guilt or innocence, and in applying the relevance standard the judge may properly take account of that danger. We further hold, under the standards we announce and on the facts proffered here to support the claim of third-party perpetration, that the trial judge should not have excluded the evidence.

I. The Proffer

The evidence presented by the government, which resulted in appellant’s conviction for (inter alia) armed first degree murder, is summarized in the division opinion, supra note 1. While the proof of guilt was substantial, including the testimony of three eyewitnesses that appellant chased down and fatally shot Deborah Davis in Southeast Washington on the night of July 26, 1990, the evidence identified no motive for appellant to have committed the shooting.

The government and the defense each filed in limine motions (the government’s in opposition) concerning appellant’s desire to present evidence that a third person or persons had done the shooting without appellant’s complicity. The defense proffered (and the government did not dispute) that Deborah Davis, James Bias and Freddie Artis had committed an armed robbery together in the District of Columbia during the third week of June, 1990. All had been arrested and charged with the offense, but only Bias was detained. Upon her release from custody, Davis had begun cooperating with the government in its investigation of the crime. According to the defense proffer, on June 26, 1990, Davis was kidnapped from the District of Columbia and taken to Maryland by Artis, who was joined at some point in the abduction by Edward Huff. Artis told Davis that he was going to kill her because he feared she was “snitching.” He and Huff then stabbed her, shot her, and left her for dead in a wooded area in Prince George’s County.

Davis survived the murder attempt and identified Artis and Huff as her assailants. Artis, charged in both Maryland and the District, was arrested on June 28,1990 (Bias remained in jail), but Huff, though charged in Maryland, was still at liberty. Evidently cooperating with the government’s investigation of the abduction, Davis testified before the grand jury on July 26,1990. Later that day, according to the defense proffer, she called her mother and said, “They’re after me, They are going to get me. The word is out on the street.”² That same night Davis was shot dead outside a housing project. According to the proffer, when the male assailant shot Davis he was heard to say, “You won’t tell this.”³ The defense contended that appellant was not connected with Artis, Huff or Bias, and in fact no evidence linking him to them was adduced at trial. The government, on the other hand, represented that a photograph of Huff had been placed in a photo array and shown to several witnesses, none of whom identified him as the shooter.

II. The Trial Court’s Ruling

The trial judge found the evidence that Huff had a motive to kill Davis “compelling,” but reasoned — in apparent reliance on the Brown-Beale principle — that the ultimate issue is “whether or not Mr. Huff or any other person is clearly connected to the shooting itself’ (emphasis added). Answering in the negative, the judge found significant the absence of any proffered evidence: (1) that anyone who had been able to view the shooter identified Huff as the shooter even though some had looked at a photo array that included his picture; (2) that Huff was anywhere near the scene of the murder that night or knew where Davis could be located at the time; and (3) that Huff knew that Davis had testified in the grand jury that day. The judge found the words assertedly spoken by the killer (“You won’t tell this”) “not so distinctive that they necessarily tie Mr. Huff to the shooting” (emphasis added). The judge reasoned, in sum:

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 eyewitnesses did not [sic ] 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_ [Emphasis added].

III. Discussion

A.

The trial judge’s analysis reflects the lingering notion in our decisions that relevance means something different as regards evidence that a third party committed a crime than it does in other contexts. We now make clear that it does not. A division of this court endeavored to say so in Johnson v. United States, supra, by defining “[w]hat we mean by ‘clearly link,’ as used first by this court in Brown, supra, 409 A.2d at 1097.” Johnson, 552 A.2d at 516. That phrase, the division explained, means that there must be “proof of facts or circumstances which tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense.” Id. The “focus” of the standard is not on the third party’s guilt or innocence, but on “the effect the evidence has upon the defendant’s culpability,” and in this regard it “need only tend to create a reasonable doubt that the defendant committed the offensé.” Id. at 517 (emphasis in original). By thus employing the verb “tend,” the division explicitly tied the relevance standard to the usual meaning of that concept. See Punch, 377 A.2d at 1358 (relevant evidence is “that which tends to make the existence or nonexistence of a fact more or less probable” (emphasis added)); Fed.R.Evid. 401 (relevant evidence is “evidence having any tendency to make the existence of any fact ... more probable or less probable than it would be without the evidence”). Correlatively, the division stated, “[t]here 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.

Sitting en banc, we now adopt the “reasonable possibility” formulation of Johnson and its conclusion that relevance here means what it generally does in the criminal context, requiring a “link, connection or nexus between the proffered evidence and the crime at issue.” Id. at 516. In the roughly reverse situation where the government seeks to introduce proof of other criminal acts by the defendant, the evidence must relate to an issue other than criminal propensity, Drew v. United States, 118 U.S.App. D.C. 11, 16, 331 F.2d 85, 90 (1964), but the test remains that of relevance.⁴ Similarly, where a party seeks to impeach a witness with a prior bad act not reduced to a conviction, the act must “bear[ ] directly upon the veracity of the witness in respect to the issue involved in the trial,” Kitchen v. United States, 95 U.S.App.D.C. 277, 279, 221 F.2d 832, 834 (1955), cert. denied, 357 U.S. 928, 78 , 2 L.Ed.2d 1374 (1958), but the test is still relevance. No different rule than the Punch standard, explicated by Johnson’s reasonable possibility formulation, should govern the relevance decision in the case of evidence of third-party perpetration. That standard insures the exclusion of evidence that “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.” Johnson, 552 A.2d at 516. To the extent our decisions in Brown, Beale, and later cases, e.g., Watson v. United States, 612 A.2d 179, 182 (D.C.1992), impose a more exacting standard of relevance, we disavow them.

A requirement that evidence “tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense,” Johnson, 552 A.2d at 516 (emphasis added), sufficiently accommodates the concern voiced by the division majority here, that surmise as to third-party responsibility for a crime risks misleading the jury by distracting it from the issue of whether this defendant is guilty or not. First, the division was correct that a mere showing that another person possessed a motive to harm the victim as strong as the defendant’s, even stronger, usually will “not [be] sufficient to meet the foundation for admissibility ... which requires a nexus between the proffered evidence and the charged crime.” Winfield I, 652 A.2d at 608.⁵ Thus, we reaffirm the specific holding of Beale, supra, as summarized in Winfield I, “that a defendant’s proffer of evidence that other individuals had even stronger motives to murder the victim than the accused [is] insufficient, without more, to establish the [required] link to the offense charged_” Id. at 612 (emphasis added). Simple proof of motivation of others to commit the crime ordinarily does not create a “real possibility” that any of them was the perpetrator. It follows from this, as the division recognized, that the trial judge ordinarily may exclude evidence of third-party motivation unattended by proof that the party had the practical opportunity to commit the crime, including at least inferential knowledge of the victim’s whereabouts. See cases cited in footnote 5 of the division majority opinion, 652 A.2d at 613.

Second, as our decisions have repeatedly emphasized, the determination that evidence is relevant does not exhaust the trial judge’s responsibility in deciding whether to admit it. The judge must also balance the probative value of the evidence “against the risk of prejudicial impact.” Punch, 377 A.2d at 1358. See Johnson, 552 A.2d at 518 (“the probative value of the evidence must outweigh any tendency to create undue prejudice”). In the context of third-party perpetrator evidence, this means the trial judge will have discretion to exclude marginally relevant evidence creating the danger that proof of prior dealings or hostility between the victim and third persons will distract the jury from the issue in this case. That risk of confusion may be exacerbated if the government, in response to the defense proffer, asserts the need to present “rehabilitative” evidence disassociating the victim from other persons allegedly harboring a motive to harm her. The judge must retain full authority to prevent this sort of trial-within-a-trial. For that reason, too, even when admitting evidence of third-party perpetration, the judge preserves wide latitude to limit the number of witnesses and the extent of their testimony bearing upon the issue.

B.

Given the uncertainty in our decisions adverted to earlier, it is not easy to fault the trial judge’s exercise of discretion in this case. Applying the standards discussed above, however, we hold that the judge should have admitted the evidence in dispute. The peculiar aggregation of circumstances proffered convinces us that to bar evidence of the potential responsibility of Huff or a confederate (unrelated to Winfield) for the killing would undermine appellant’s right to present a defense.

Decisive for the trial judge was the absence of evidence placing Huff at or near the murder scene at the relevant time (Artis and Bias could not have been there since they were in jail), and evidence that Huff knew Davis’s whereabouts at the time or that she had testified in the grand jury that day. The judge thus concluded, and the division majority agreed, that the proffer boiled down to a showing that Huff had a motive to kill Davis — even a “compelling” one — and had attempted to do so in the recent past. This was too insubstantial a link to the murder, the judge and the division thought, to outweigh the potential confusion in setting before the jury Davis’s past and her violent relationship with parties not otherwise identified with the crime.

In our judgment, the combined force of the proffered circumstances requires admission of the evidence. In its brief to the en banc court, the Public Defender Service summarizes these circumstances as follows:

First, Bias and Artis, who had committed an armed robbery with Deborah Davis and had been arrested and charged with the crime, had the motive to silence Ms. Davis to prevent her from testifying for the prosecution against them. Second, Artis, in Huffs presence, threatened to kill Ms. Davis to prevent her from “snitching.” Third, Huff and his cohort had recently [a month before the murder] acted on the motive and threats by abducting Ms. Davis, stabbing and shooting her in an attempt to cause her death. Fourth, the timing of the murder — committed within hours of Ms. Davis’s appearance before a grand jury investigating her abduction— suggested that the reason for the murder was her cooperation with authorities. Fifth, Huff had the opportunity to commit the crime in that he was at liberty and the killing occurred in the public courtyard of a housing project where Ms. Davis was easily accessible to those who [might] want to harm her. Sixth, the method of the killing, by gunfire, was also one of the methods used in the attempt on Ms. Davis’s life by Artis and Huff. Finally, the very res gestae of the crime, the killer’s words as he accomplished the murder, directly demonstrated that this killing was about “snitching” — the motive held by Huff and his cohorts but not [proven to be held] by Mr. Winfield. [Citations and intervening argument omitted].

In the aggregate, these facts if proven would demonstrate more than “the coincidence of a motive, even a strong one, and prior assaults on the victim by a third party_” Winfield I, 652 A.2d at 613. The recent shooting stemmed from the same asserted motive of stifling Davis’s cooperation with the police — a motive intensified by the addition of kidnapping and attempted murder to the crimes for which Huff and Artis were being investigated. And while, as the trial court observed, expressions of an intent to kill for “snitching” are “really not so unusual” these days, the killer voiced that motivation on the very day Davis had testified against Huff and Artis in the grand jury. Lastly, having abducted and assaulted Davis before, Artis and Huff had demonstrated their ability to find her whether or not they actually knew her whereabouts. All told, as Judge Schwelb stated at the division level, exclusion of the evidence meant that the jury never learned “that the prosecutor’s case against Winfield rested on what an impartial trier of fact might reasonably view as a very unusual coincidence indeed.” Winfield I, 652 A.2d at 615 (Schwelb, J., dissenting).

The trial judge applied himself conscientiously to the admissibility issue. He received written in limine motions⁶ to admit and exclude the evidence, heard oral arguments and evaluated the proffered facts, and set forth his reasoning on the record. Even allowing for his reliance on a mistakenly heightened standard of relevance (Brown-Beale), his ruling was not capricious. Nevertheless, three considerations demonstrate why in our view the trial court must resolve close questions of admissibility in this setting in favor of inclusion, not exclusion. First, a substantial proffer that a third person committed the offense implicates the defendant’s constitutional right to “a meaningful opportunity to present a complete defense,” Crane v. Kentucky, 476 U.S. at 690, 106 S.Ct. at 2146. Second, evidence of the type appellant seeks to admit here — recent assaults against the victim stemming from identical motivation — has been considered highly probative by this court in the reverse setting of admission of “other crimes” evidence to support guilt. E.g., Hill v. United States, 600 A.2d 58, 61 (D.C.1991); Green v. United States, 580 A.2d 1325, 1328 (D.C.1990). Unduly restricting admission of third-party perpetrator evidence would raise concerns of unequal treatment. Finally, in a previous en banc decision, we cautioned against “excessive mistrust of juries” in the evaluation of relevancy. Allen v. United States, 603 A.2d 1219, 1224 (D.C.1992) (en banc) (quoting Riordan v. Kempiners, 831 F.2d 690, 698 (7th Cir.1987), cert. denied, 505 U.S. 1227, 112 S.Ct. 3050, 120 L.Ed.2d 916 (1992)). Beyond the point, made earlier, that the trial court retains broad discretion to prevent the cumulation of third-party perpetrator evidence, sifting the relevance of that evidence is largely about drawing commonsense inferences from uncomplicated facts, something we regularly entrust to juries. We should do so here as well, so long as the balancing of probative value versus prejudice does not clearly favor exclusion.

Reversed and remanded for a new trial.

KING, Associate Judge,

separate statement:

As a member of the division in this case, I voted to affirm the conviction because the trial judge committed no error when he applied the Brown/Beale¹ “clearly linked” test. The trial court was bound to apply that test, as was this court. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971) (prior decision of this court must be followed by a division of this court and may be overruled only by this court sitting en banc). Although I am still of the view that the trial judge correctly applied the test that then governed, I agree with the en banc court, as set forth in the opinion by Judge Farrell, that the “clearly linked” test is too restrictive and should be abandoned. Therefore, I endorse the new test adopted today. When that test is applied to the facts of this case, I am satisfied, for the reasons stated by the majority, that the judgment of conviction must be reversed. With that understanding, I join the opinion.

1 . For the opinion of the division, see Winfield v. United States, 652 A.2d 608 (D.C.1994), vacated, 661 A.2d 1094 (1995) (Winfield I).

2 . In view of his ultimate ruling, the trial judge made no determination whether this statement would be admissible at trial over a hearsay objection. We likewise have no occasion to consider the point.

3 . A prosecution witness later testified that the killer rhetorically asked Davis, as he shot her, whether she “like[d] snitching, bitch.”

4 . Of course, to be admissible in this jurisdiction, other crimes evidence must meet other requirements as well. See, e.g., Thompson v. United States, 546 A.2d 414, 420 (D.C.1988).

5 . As the division observed, “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.” Winfield I, 652 A.2d at 615.

6 . As with admissibility questions under Drew v. United States, supra, the issue of whether third-party perpetrator evidence will be admitted should normally be resolved as a preliminary matter before trial, as it was here.

1 . Brown v. United States, 409 A.2d 1093 (D.C.1979); Beale v. United States, 465 A.2d 796 (D.C.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984).