Appeal from the Superior Court of the District of Columbia; (Hon. Arthur L. Burnett, Trial Judge)
Before Rogers, Chief Judge, and Terry and Sullivan, Associate Judges.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge: Appellant Leonard Watson appeals on the ground that his due process and Sixth Amendment rights to present a defense and cross-examine witnesses were violated when the trial Judge refused to let him present evidence to indicate a reasonable probability that someone else committed the crimes with which appellant was charged. *fn1 He also contends that the trial Judge used the wrong standard in excluding his proffered "exculpatory extrinsic" evidence. We affirm.
On October 8, 1987, at nine o'clock in the evening, Detective Gatewood and Detective Bacon were working undercover, as part of Operation Clean Sweep, in the 2700 block of Langston Place, Southeast. Detective Gatewood drove into a parking lot, and upon seeing appellant asked if he had any "Boat." *fn2 Appellant answered how many and the officer responded two. Thereafter, appellant handed the officer two tinfoils containing a greenish weed with a strong chemical odor, in return for twenty dollars in prerecorded funds. Officer Bacon then broadcast a lookout for appellant, describing him as wearing a gray hooded sweatsuit and tennis shoes. The arresting officer, Officer Fulton, testified that the lookout included a description of appellant as a light-complected black man. *fn3
In response to the broadcast, Officer Fulton drove into a parking lot off of Langston Place and saw a man who matched the lookout description, standing on the stairs of 2732 Langston Place. As Officer Fulton approached appellant, he saw appellant attempt to pass an object to a woman, Barbara Payne. Officer Fulton heard Ms. Payne tell appellant: "Don't give me that, I don't want it." He also saw appellant drop money and a tinfoil object to the ground. *fn4 Officer Fulton then took appellant to the corner of Alabama Avenue and Irving Street where Detective Gatewood and Detective Bacon positively identified appellant as the man who had sold them the drugs. *fn5 Seventeen minutes elapsed between the time Detective Gatewood left the parking lot and the time he identified appellant as the seller at the showup.
Barbara Payne testified that she and a girlfriend were standing on the front steps of an apartment building for approximately an hour or so when appellant walked up to them to talk. Appellant was there for approximately five minutes when she felt him put something in her pocket. She immediately took the object out of her pocket and told appellant not to put anything in her pocket. The police arrived about a second later. *fn6 Ms. Payne also testified that she did not see appellant sell any drugs while he was in her presence.
Appellant's defense was mistaken identity. He testified that on the evening of his arrest, he had left home approximately 25 minutes before his arrest to cash a check. *fn7 He cashed his check, and on the way home stopped to talk to two women. While he was talking with them, a juvenile named P.R. came up and asked him if he had change for a twenty dollar bill. Appellant gave P.R. two fives and a ten in exchange for the twenty-dollar bill. A few seconds afterwards, the police arrived and arrested him (appellant). Appellant described P.R. as being in his same "age category," with similar skin color, height, and build as appellant, and wearing a gray sweat suit. *fn8 He also testified that he saw the police arrest P.R. that evening.
Carlton Addison, a friend of appellant's, testified that he saw appellant stop and talk to P.R. for a few seconds, but could not hear what they were saying nor see what, if anything, was in their hands. Mr. Addison saw the police grab and arrest appellant and P.R. He described P.R. as about the same height (5'8" or 5'9") as appellant, approximately 18 years old, with light brown skin.
In rebuttal, the government introduced into evidence a photograph of P.R. taken on October 8, 1987, the date of his arrest. The Judge sustained an objection to a defense question regarding the nature of the charges against P.R.
The due process clause and the Sixth Amendment afford a defendant the right to confront and cross-examine witnesses against him. (Woredell) Johnson v. United States, 552 A.2d 513, 516 (D.C. 1989). They also afford a defendant the right to call witnesses on his own behalf and to establish a defense. Id.; Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 653, 98 L.Ed.2d 798 (1988). Accordingly, a defendant may present evidence through the testimony of defense witnesses and by cross-examination of prosecution witnesses that would tend to show that someone other than the defendant committed the crimes charged. Id.; Stack v. United States, 519 A.2d 147, 152 (D.C. 1986); Beale v. United States, 465 A.2d 796, 803 (D.C. 1983); Brown v. United States, 409 A.2d 1093, 1097 (D.C. 1979). 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. Johnson, supra, 552 A.2d at 516.
What we mean by 'clearly link' . . . 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 ...