June 12, 1992
LEONARD L. WATSON, JR., APPELLANT
UNITED STATES, APPELLEE
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 irrelevant to the offense charged, or too speculative with respect to the third party's guilt.
Id. In Johnson, supra, we further articulated that
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. Rather, the evidence need only tend to create a reasonable doubt that the defendant committed the offense. In this regard our focus is on the effect the evidence has upon the defendant's culpability and not the third party's culpability.
Id. at 517 (citations omitted) (emphasis in original).
"Even when such evidence is relevant, the trial court must weigh its probative value against its prejudicial impact, including its propensity to mislead the jury or confuse them , to determine whether to admit the evidence." Id. at 516; see also Shepard v. United States, 538 A.2d 1115, 1117 (D.C. 1988). There must also be "sufficient indicia that the evidence is reliable." Johnson, supra, 552 A.2d at 516. A trial Judge's determination that the proffered evidence is not sufficiently probative or too prejudicial is reviewable for abuse of discretion. Shepard, supra, 552 A.2d at 1116; Beale, supra, 465 A.2d at 803.
At trial defense counsel proffered to the trial Judge that a juvenile named "P.R.," who had similar physical characteristics to appellant, had been arrested in the same area and at approximately the same time as appellant, *fn9 and that appellant would testify that he had seen P.R. "approaching" people that night shortly before appellant's own arrest. Defense counsel also proffered Police Department Form 202A, taken from P.R.'s juvenile file, as evidence that someone else had committed the charged crimes. The form described the arrest of P.R. for possession with intent to distribute PCP at 9:10 p.m. in the 2700 block of Langston Place, the same time and place that appellant was arrested. The form also stated that P.R. was wearing a sweatshirt at the time of his arrest, and that P.R. was arrested with a great deal of money and PCP in his possession. In addition, defense counsel asked the trial Judge to take judicial notice of the fact that the trial court's lockup records for October 9, 1987, indicated that P.R. was processed through Superior Court on that date, thereby showing that he had been arrested the night before. The trial Judge denied these defense requests as more prejudicial to the government than probative of the defendant's defense theory, and too speculative. *fn10
Appellant contends that the trial Judge erred in excluding the lockup records and Form 202A from introduction into evidence by determining their admissibility on the basis of weighing the prejudice to the government's right to a fair trial, i.e., avoiding speculation by the jury, rather than on whether the proffer tended to create a reasonable doubt that appellant committed the offense under Johnson, supra, 552 A.2d at 516-17. He further contends that the proffered evidence about P.R. approaching people on the street in an area known for drug sales would have been admissible by analogy to the "surrounding circumstances" test of Toliver v. United States, 468 A.2d 958, 960 (D.C. 1983). Finally, he contends that the Judge erred in denying cross-examination regarding the charges against P.R. when he was arrested. Contrary to appellant's contention, we find no indication that the trial Judge applied an incorrect legal standard in reviewing the admissibility of the proffered evidence. We address each of the proffers.
First, defense counsel proffered that appellant would testify that he had seen P.R. "approaching" people on the street. *fn11 The trial Judge ruled that in the absence of any evidence of transfer or sighting of money or tinfoils, the proffered testimony was inadmissible because it did not "clearly link" P.R. to the commission of the crimes for which appellant was arrested. Viewed in isolation, as the trial Judge found, this is not enough to clearly link P.R. with the charged crimes. Without evidence of a transfer of drugs or money, or other conduct suggesting involvement in a drug sale, appellant's testimony that he saw P.R. "approaching" people does not "clearly link" P.R. to the commission of the crime charged. Merely placing someone similar in dress and physical size to appellant close to appellant at the time of the charged crimes, as the trial Judge observed, is "innocuous, innocent type activity . . . inviting the jury to engage in wild speculation." See Johnson, supra, 552 A.2d at 516.
Second, defense counsel proffered, and asked the Judge to take judicial notice of, the lockup records for October 9, 1987, in order to show that P.R. was processed through the trial court on that date, thereby establishing that P.R. had been arrested on October 8, 1987. The trial Judge found that the records were unreliable, noting that "we found many instances of factual mistakes and matter of fact statements are used and they're a little sloppy in preparing them."
Even if lockup records may be unreliable on occasion, it is difficult to understand the Judge's basis for altogether discarding the lockup records with regard to the identity of the person and the date he was processed in the trial court. The government did not object to admission on the ground of unreliability as to these assertions; indeed, its rebuttal witness confirmed the accuracy of the lockup records as to the person and the date of arrest. Nonetheless, because the date of P.R.'s arrest was before the jury as a result of the government's rebuttal evidence, the defense's reason for admission of the lockup records was accomplished, and admission of the records would have been cumulative. Hence, any error in refusal to admit the records into evidence was harmless. See Kotteakos v. United States, 328 U.S. 750, 764-65, 90 L.Ed. 1557, 66 S.Ct. 1239 (1946).
Third, defense counsel sought admission of PD Form 202A in order to show the circumstances surrounding P.R.'s arrest. *fn12 Defense counsel relied on United States v. Smith, 172 U.S. App. D.C. 297, 305, 521 F.2d 957, 965 (1975), where the court held that a police form and broadcast transcript were admissible in a criminal proceeding as business records, either as substantive evidence or for impeachment purposes, when the record meets the test of trustworthiness and is offered by a criminal defendant to support his defense. The trial Judge found that the Form 202A established only that P.R. was arrested for drug charges on the same evening as appellant, and that the necessary link was not present because "frequently there may be two or three drug dealers in the same area in the same street and selling drugs at the same time. . . . So it appears to this Court it is not that unique or rare that you may have two or three individuals arrested in the same block operating independently." The Judge also inquired of defense counsel how the evidence was exculpatory "especially if, in fact, [P.R.] doesn't look anything like your client?"
The trial Judge never made an explicit ruling under Smith, supra, nor explicitly found that Form 202A was reliable evidence, but instead went directly to the question of its probative value compared to its prejudicial effect, focusing on the possibility of jury speculation and potential prejudice to the government. In so doing, however, the Judge appeared to rely on his own determination of an issue that, in light of appellant's defense of mistaken identity, was for the jury to decide, namely, whether appellant's acts took place apart from those of P.R. or whether the police mistook appellant for P.R. The Judge observed that it was not unusual for more than one person to be selling drugs in an area. But there was evidence that appellant and P.R. had been engaged in an encounter at the relevant time and place before appellant's arrest. To this extent, it is difficult to reconcile the Judge's ruling that Form 202A was inadmissible with "the admission of evidence," sanctioned by Johnnson, supra, 552 A.2d at 516, "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.
The defense proffered evidence of P.R.'s presence at the scene at the time of the crime, his "approaching" activity *fn13 and his encounter with appellant, and his arrest for possessing illegal drugs with the intent to distribute them. The government's evidence, in turn, showed that the broadcast description of the seller was limited in scope and that the detective's contact with the seller was also limited, *fn14 and, further, that there was a seventeen-minute gap between the sale and the show-up identification. Viewing the evidence as a whole, the trial Judge would have to "take a hard look" before ruling that the defense proffer would not have tended to show, by a reasonable possibility, that P.R. was involved in the same unlawful activities for which appellant was charged. See Collins v. United States, 596 A.2d 489, 494 (D.C. 1991).
Furthermore, once the government put on its rebuttal case, the grounds for not admitting Form 202A into evidence were more tenuous. *fn15 See Collins, supra, 596 A.2d at 495. Form 202A was not cumulative evidence since the Judge had precluded defense counsel from cross-examining the government's rebuttal witness about the crimes for which P.R. had been arrested after the witness testified that P.R. had been arrested on the same night. There was no other evidence that P.R. had a lot of money and PCP in his possession when he was arrested.
So viewed, the Judge's ruling that Form 202A was inadmissible prevented appellant from being able to show that P.R. was "clearly linked" to the same activities for which appellant was standing trial. We, nevertheless, find any error harmless for two reasons. *fn16
First, Form 202A would only have shown that P.R. was arrested for drug charges on the same evening as appellant. There was ample evidence before the jury of appellant's mistaken identity theory. Appellant was able to introduce, through his own testimony and the testimony of a witness, that P.R. was approximately the same age, height and build as appellant; that P.R. and appellant were both wearing sweatsuits on the evening of appellant's arrest; that P.R. was arrested in the same area and on the same evening as appellant; and that P.R. and appellant had engaged in some type of transaction that evening before appellant's arrest. *fn17 From this evidence there was a basis for the jury to conclude that appellant's acts did not take place apart from those of P.R., and that the police mistook appellant for P.R. The jury was also aware that the percentage of PCP in the tinfoils sold to Detective Gatewood differed from the percentage of PCP in the tinfoil recovered at the time of appellant's arrest. See note 5, (supra) .
Second, the jury had photographs of P.R. and appellant on the night of their arrests. While appellant was prevented from presenting evidence that P.R. had also been arrested the same evening for possession of PCP with intent to distribute, and that P.R. had a lot of money and PCP at the time of his arrest, he sought admission of this evidence to strengthen his defense of mistaken identity. Consequently, because, as the trial Judge observed, and the photographic exhibits confirm, P.R. did not look anything like appellant, the evidence that appellant sought to introduce through Form 202A would not have indicated "some reasonable possibility" of mistaken identity. Johnson, supra, 552 A.2d at 516; cf. Smith v. United States, 389 A.2d 1356, 1359-60 (D.C. 1978). P.R. also was not dressed in the manner described in Officer Bacon's broadcast, or in the officers' buy card; P.R. was wearing black, not white shoes, and his sweat suit was not light gray and did not have a hood. This weakness in appellant's mistaken identify defense was highlighted during closing arguments, along with the incriminating evidence of Barbara Payne. *fn18
Under these circumstances we can say with fair assurance that the visual examination of Form 202A by the jury would not have affected its verdict. See Kotteakos, supra, 328 U.S. at 764-65. Accordingly, we affirm the judgment.