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09/10/93 LARRY FREELAND v. UNITED STATES

September 10, 1993

LARRY FREELAND, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Robert A. Shuker, Trial Judge)

Before Rogers, Chief Judge, Steadman, Associate Judge, and Reilly, Senior Judge. Opinion for the court by Chief Judge Rogers. Dissenting opinion by Senior Judge Reilly.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellant Larry Freeland makes three separate, but related claims of trial court error in appealing from his convictions of second-degree murder. D.C. Code §§ 22-2403, -3202 (Repl. 1989). He contends that the trial Judge erred in excluding evidence that (1) someone else was responsible for the murder of appellant's wife, (2) threats had been made against appellant's family, and (3) appellant had reported his fears to a prosecutor before the murder. The trial Judge applied the Brown/Beale *fn1 test in concluding that appellant had not established the requisite nexus to allow admission of evidence that someone else had murdered his wife. But, the Judge also ruled that threats made by William Hawthorne and his agents against appellant were relevant to appellant's state of mind in leaving and remaining away from the jurisdiction. Indeed, the trial Judge also permitted appellant to testify that he thought Hawthorne's agents had killed his wife, in explaining why he had remained away from the jurisdiction. The Judge drew the line, however, on defense efforts to bring to the jury's attention alleged threats against appellant's family and, in order to rebut the government's claim of recent fabrication, the fact that appellant had communicated his fears to the government prior to his wife's murder as shown in a pleading filed by Assistant United States Attorney Leiser in the Eastern District of Virginia in Hawthorne's murder case.

We hold that the trial Judge too narrowly interpreted the Brown/Beale test and, hence, that the evidentiary line drawn by the trial Judge line was based on legal error. We also hold that the Judge erred in excluding the Leiser pleading as an admission of a party opponent. We conclude, in light of the prejudice to appellant's ability to present his defense and the emphasis placed by the government on appellant's failure to produce any corroboration of his pre-murder fears, that the errors were not harmless, and accordingly, we reverse.

I.

The body of appellant's wife, Louise, was discovered by her sister around 10 a.m. on May 13, 1984, after she went to the couple's apartment when Louise had failed to respond to successive telephone calls. The sister, and two other relatives, found the front door of the couple's apartment was unlocked and saw their infant son asleep in his crib; the door to an adjacent bedroom was closed. Inside the bedroom they found Louise's body, lying under a bloody sheet, apparently bludgeoned to death by blows that had crushed her face and skull. The wall beside the bed was covered with blood.

Earlier that morning, neighbors had heard a loud and prolonged argument between appellant and his wife. The building manager had knocked on the couple's door in response to complaints, and she had told appellant, when he opened the door, to keep down the noise; the manager saw Louise inside of the apartment at the time, around 2 a.m. One neighbor also saw appellant leave and return to the couple's apartment, when the argument recommenced. Later, another neighbor saw him leave and return on two occasions around 7 a.m. that morning. Around 8 or 8:30 a.m. the apartment maintenance man saw appellant sitting outside of his apartment building; appellant said he was waiting for a ride to Waldorf, Maryland. Twenty minutes later appellant was gone.

On November 28, 1986, two and one-half years after his wife's murder, appellant was arrested in Atlantic City, New Jersey, for an unrelated offense, and the police discovered that he was wanted as a fugitive.

At trial for second-degree murder, the defense presented docket sheets for the Eastern District of Virginia through testimony of a defense investigator. The investigator read the entries that William Hawthorne was charged with assault with a dangerous weapon and first-degree murder. The investigator also referred to a government motion, filed May 25, 1984, to admit appellant's grand jury testimony at Hawthorne's murder trial, and a show cause order against appellant for failing to appear as a witness in that case.

Appellant testified that he had witnessed Hawthorne, a fellow inmate at the Lorton Reformatory in Lorton, Virginia, stab another inmate to death in a prison dormitory. He also referred to his statements to the FBI, that were admitted into evidence, and testified that Hawthorne had a reputation in Lorton as a "very dangerous guy." Appellant denied killing his wife and testified that he thought "the Hawthorne people had killed" her. After speaking to the FBI, appellant testified, he was approached by another inmate who asked if he was the Larry Freeman who had been speaking to the FBI about Hawthorne's murder case; appellant pretended not to be that person. After he was released from Lorton, appellant testified that he continued to receive threats, being approached by two men on the street. Each time appellant claimed that he had escaped by pretending that they had him mixed up with someone else. Appellant also testified that he and his wife were frightened by the threats and that he had told the Virginia prosecutor about his fears. Then, around midnight on May 13, 1984, when appellant was walking home from the grocery store, two men ran up from behind him, and when his usual dodge did not work, they grabbed him. Appellant pulled away and ran. When he arrived home, he tried to persuade his wife to leave town with him, admitting that they had argued about whether she would leave with him. Appellant explained that he had left his family because his wife would not come with him and that he thought that his wife and son would be safe after he left.

II.

We first address appellant's contention that the exclusion of evidence that someone other than appellant had killed his wife, on the grounds that the defense had failed to meet the "clearly link" test, was error. As appellant points out, "the court implicitly recognized the [evidence regarding] Hawthorne . . . was inextricably intertwined with the question of appellant's guilt."

We conclude that in applying the Brown/Beale test, the trial Judge set too high a standard. The test only requires a defendant to proffer evidence that clearly links another person's conduct to the murder. See Beale, supra note 1, 465 A.2d at 803; Brown, supra note 1, 409 A.2d at 1097 ("evidence must clearly link that other person to the commission of the crime"). In Johnson v. United States, 552 A.2d 513, 516, 518 (D.C. 1989), decided after appellant's trial, the court explained 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." Id. at 517 (emphasis in original). The Johnson decision expounded on the meaning of the "clearly link" requirement of Brown/Beale, which a defendant must meet before evidence that a third person committed the crime for which he is charged will be introduced:

What we mean by "clearly link," as used first by this court in Brown . . . is proof of facts or circumstances which tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense. . . . The proffered evidence may, of course, be either circumstantial or direct, and may include, for example, a third party's actions, motives, opportunity, statements and declarations against penal interest.

Id. at 516. Furthermore, a defendant may meet his burden under Brown/Beale by proffering evidence that in the aggregate establishes the necessary nexus between the proffered evidence and the crime. Id. Thus, no single factor is dispositive.

The defense proffered a combination of facts and circumstances in the instant case that were sufficient, under the Brown/Beale test, to warrant admission of the evidence tending to suggest that Hawthorne's agents had murdered appellant's wife. The proffer consisted of evidence that (1) appellant was a government witness in the prosecution of Hawthorne and others; appellant was an eyewitness to Hawthorne's killing of another inmate at Lorton, and he had testified before the grand jury for the government and was scheduled to testify at Hawthorne's trial; (2) persons claiming to be Hawthorne's agents had repeatedly made threats to appellant and his family in order to intimidate appellant and to retaliate for his grand jury testimony in a context that could reasonably be interpreted as related to Hawthorne's concern about appellant's testimony against him in his murder trial; (3) appellant had made statements, before his wife's murder, to law enforcement officials expressing his fears that Hawthorne and his agents would retaliate against appellant and his family; and (4) Hawthorne had a reputation and had committed prior acts of intimidation and retaliation against potential witnesses. Based on this proffer the defense argued that appellant had shown that his testimony for the government in Hawthorne's murder case was the reason that appellant and his family were being threatened and that there was a reasonable possibility that someone else had killed appellant's wife in order to silence appellant.

Given this proffer, the fact that the defense did not also proffer that it could produce direct evidence placing Hawthorne or his agents at appellant's home at the relevant time is not dispositive. *fn2 The defense proffer that retaliatory and preemptive threats had been made by Hawthorne's agents sufficed to show that there was a present ability to carry out the threats through others. Appellant even had evidence that Hawthorne was being prosecuted for threatening witnesses. See United States v. Hawthorne, No. F-6979-81. As Johnson, supra, 552 A.2d at 516, makes clear, for purposes of admissibility, the focus is properly on the reasonable possibility that someone else might have committed the crime for which the defendant stands charged and not on whether the defendant can produce proof beyond a reasonable doubt that a third person is guilty. See also Stack v. United States, 519 A.2d 147, 153-54 (D.C. 1986). The same analysis would apply to the absence of a proffer of direct evidence that Hawthorne knew prior to the murder of appellant's wife that appellant was planning to testify against him; Hawthorne knew that appellant was an eyewitness to the murder even if he was unaware (as he might have been, suggested defense counsel, through the prison grapevine) that appellant had already testified against him before the grand jury. *fn3

While a proffer of motive alone may not suffice in meeting the Brown/Beale burden, see Beale, supra note 1, 465 A.2d at 803, appellant's proffer contained much more. 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, supra note 1, 465 A.2d at 799, where three eyewitnesses testified that the defendant had shot the victim. *fn4 Under these circumstances, the exclusion of the evidence about a third person as the likely killer of appellant's wife was error.

III.

Regarding appellant's contention that it was also error to exclude evidence of threats to appellant's wife as inadmissible hearsay, the record shows that the defense made a proffer regarding threats against appellant's family in a pretrial motion in limine, during opening argument to the jury, and in bench conferences with the trial Judge. *fn5 While, in some respects, the proffer might have been clearer, the trial Judge was quite clear that he would not allow evidence to be admitted that referred to threats to appellant's family. Consequently, the evidence was not offered at trial because the trial Judge repeatedly ruled that such evidence could not be presented. *fn6

The evidence that threats had been made to appellant's family was admissible because it was offered for a non-hearsay purpose. Here, Hawthorne's confederates' statements that they would harm appellant and his family if appellant testified for the government at Hawthorne's trial were not offered for their truth, i.e., that they really would kill appellant if he testified. Rather, they were offered solely for the purpose of demonstrating the impact that they had on appellant. See Goldsberry v. United States, 598 A.2d 376, 380 (D.C. 1991); Allen v. United States, 579 A.2d 225, 228-29 (D.C. 1990); In re C.D., 437 A.2d 171, 175 (D.C. 1981). As argued in appellant's pretrial motion, the evidence was relevant to explain the reasons for appellant's flight the same day that his wife's body was discovered. In an effort to counter the government's implication that he had fled because he killed his wife, appellant sought to introduce the challenged evidence so he could argue to the jury that the threats had prompted him to leave town. On this record, we are unable to conclude that no reasonable juror could find that appellant had left town in response to these threats -- either out of concern for his own safety or because he believed that his leaving would lessen the possibility of danger to his family.

IV.

In connection with appellant's contention that further error occurred in the exclusion of the Leiser pleading from the defense case as an admission by the government, the record shows that the defense called a witness who provided a foundation for the admission of pleadings from the United States' prosecution of Hawthorne in the Eastern District of Virginia and moved for the admission of the Leiser pleading at the close of the defense case.

Lawrence J. Leiser, Assistant United States Attorney for the Eastern District of Virginia, where the District government's correctional facility (the Lorton Reformatory) is located, signed and filed a motion to permit the United States to read appellant's grand jury testimony to the jury at Hawthorne's murder trial on the ground that appellant was unavailable to testify. A memorandum in support of the motion, also filed and signed by Assistant United States Attorney Leiser, stated that "since [appellant's] grand jury appearance has met with the government in preparation for his testimony [at Hawthorne's trial], at which time he indicated a reluctance to testify due to possible retaliation by the defendants [Hawthorne and others] on his 'people.'" *fn7 Assistant United States Attorney Leiser further stated in the memorandum that "the government believes" that appellant's statements of January 21 and February 23, 1983, to the FBI and his grand jury testimony, in conjunction with corroboration by other witnesses, "more than suffices to assure circumstantial guarantees of truthworthiness." The Leiser memorandum stated that appellant "was served approximately two weeks ago. After was served, [his wife] was found dead in her residence."

In rejecting defense counsel's argument that the Leiser pleading constituted an admission by a party opponent, the trial Judge ruled that the United States Attorneys' Offices in Virginia and the District of Columbia could not be considered one party in interest for purposes of the rule on admissions. The Judge was also unpersuaded that the pleading constituted an admission that would corroborate appellant's claim that he had complained of threats from Hawthorne's agents before fleeing. The Judge subsequently acknowledged that the document might be admissible with regard to appellant's perception of his own state of mind, but concluded that the state of mind exception was not broad enough insofar as appellant was, in the Judge's view, only fleeing out of fear for his own safety. In its brief on appeal and at oral argument the government argued, as it had in the trial court, that the Leiser pleading was not an admission or made by a party opponent.

Appellant contends that the Leiser pleading was properly admissible as a statement of a party opponent to establish that appellant "had expressed fear of retaliation by Hawthorne long before he had any reason to make up that fear to use at his murder trial." In contrast to the cases relied on by the government, appellant maintains that there was no doubt about the meaning of Assistant United States Attorney Leiser's statements in the pleading that he signed and filed in the federal court in Virginia, and hence, no unfairness in holding the United States to the statement of its agent. The government acknowledges in its brief on appeal that the Leiser pleading "contains. . . a recitation of appellant's stated belief." Thus, the Leiser pleading would have corroborated appellant's testimony that before his wife's murder he had complained to law enforcement officials about his fear of Hawthorne. It also would have countered the government's suggestion of recent fabrication by appellant during the prosecutor's extensive cross-examination of appellant in an effort to show that he had never told anyone about the threats until he testified at his trial for murdering his wife. For similar reasons it would have removed any basis on which the prosecutor could argue in his rebuttal closing argument to the jury that there was no corroboration of the threats. *fn8

The Leiser pleading contains two levels of hearsay: (1) appellant's report of his fears to Mr. Leiser, and (2) Mr. Leiser's memorandum pleading. The first level of hearsay presents no obstacle to admission of the Leiser pleading because appellant's report of his concern is admissible under the state of mind exception to the hearsay rule. See Nelson v. United States, 601 A.2d 582, 596 (D.C. 1991) ("the law is clear that when a declarant's state of mind is at issue, extra-judicial statements which reveal that state of mind are admissible"); Clark v. United States, 412 A.2d 21, 25-26 (D.C. 1980); cf. Hairston v. United States, 500 A.2d 994, 997 (D.C. 1985) (self-defense); Rink v. United States, 388 A.2d 52, 57 (D.C. 1978) (same). For the reasons that follow, the second level of hearsay also does not present an obstacle to admission of the Leiser pleading.

In Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), the United States Supreme Court made clear that within a single United States Attorney's Office " promise made by one attorney must be attributed, for [Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)] purposes, to the Government." Id. at 154 (citing RESTATEMENT (SECOND) OF AGENCY § 272 (1986); AMERICAN BAR ASSOCIATION, PROJECTION STANDARDS FOR CRIMINAL JUSTICE, DISCOVERY AND PROCEDURE BEFORE TRIAL § 2.1 (d)). The Court further observed that "to the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it." Id. Taking the point a step further, then Judge Stevens (now Justice Stevens) Dissenting in United States v. Powers, 467 F.2d 1089, 1097-98 & n.1 (7th Cir. 1972) (Stevens, J., Dissenting), cert. denied, 410 U.S. 983, 93 S. Ct. 1499, 36 L. Ed. 2d 178 (1973), viewed "the United States, like other inanimate persons," as bound by the position taken in a formal prosecution and concluded that it cannot escape a view taken in a Separate prosecution on the ground that one prosecution simply represents the views of its agents who participate in that particular prosecution. This position is reflected in decisions of several federal circuit courts of appeals. See United States v. Kattar, 840 F.2d 118, 130 (1st Cir. 1988) (entire Justice Department to be deemed a party opponent in criminal cases) (citations omitted); United States v. Morgan, 189 U.S. App. D.C. 155, 160, 581 F.2d 933, 938 (1978) ("where . . . the government has indicated in a sworn affidavit to a judicial officer that it believes particular statements are trustworthy, it may not sustain an objection to the subsequent introduction of those statements on grounds that they are hearsay"); see also Powers, supra, 467 F.2d at 1094 (because the prior government statement was not necessarily inconsistent with the one asserted in the later case and the record did not clearly present the issue, the prior position was inadmissible against the government).

Appellant correctly points out that the cases do not suggest that the party opponent rule is or should be limited to prosecutions within one office of the United States Attorney. See Kattar, supra, 840 F.2d at 130 (two United States Attorneys offices involved in two separate prosecutions); Morgan, supra, 189 U.S. App. D.C. at 159 n.10, 581 F.2d at 937 n.10 ("we note that the Federal Rules [of Evidence] clearly contemplate that the federal government is a party-opponent of the defendant in criminal cases. . . . When the government authorizes its agent to present his sworn assurances to a judicial officer . . . the statements. . . in the officer's affidavit represent the position of the government itself, not merely the views of its agent"). Regarding judicial admissions, the United States Court of Appeals for the District of Columbia Circuit has distinguished, under FED. R. EVID. 801 (d)(2)(B), *fn9 between out-of-court statements by an informant to an agent of the government and a sworn pleading filed by the government in court. Morgan, supra, 189 U.S. App. D.C. at 159, 581 F.2d at 937 (sworn affidavit to U.S. Magistrate). Concluding that because there was a sworn affidavit to a judicial officer that the government believed the particular statements of the informant to a detective to be truthworthy, the court held that the government could not object to the admission of the sworn statement on hearsay grounds and, therefore, it was a party admission admissible against the government. Id. at 160, 581 F.2d at 938. The court concluded that the trial court had abused its discretion on relevance grounds as well "since it plainly appears that the excluded evidence bears on a matter that could be determinative of guilt or innocence." Id. at 158, 581 F.2d at 936.

Although no case is directly on point, the prosecutorial situation in the District of Columbia is unique. For purposes relevant to this appeal, the local prosecutor is the United States Attorney for the District of Columbia. Hence, appellant's murder prosecution in the District of Columbia was brought by the same sovereign which was prosecuting Hawthorne in the Eastern District of Virginia for murder while he was detained in the District of Columbia's correctional facility in Lorton, Virginia. The Leiser pleading was filed in court by a federal prosecutor who spoke for the same Justice Department that was prosecuting appellant. To the extent that a singleness of prosecutorial purpose may be relevant, as the trial Judge concluded, it is present here. See Giglio, supra, 405 U.S. at 154; Kattar, supra, 840 F.2d at 127 (Justice Department's various offices treated as an entity "the left hand of which is presumed to know what the right hand is doing"); United States v. AT&T, 498 F. Supp. 353, 357-58 (D.D.C. 1980) (Greene, Harold H., J.) (statements by executive agencies binding as party admissions on the Justice Department; government party admissions not limited to those made by the Justice Department); Powers, supra, 467 F.2d at 1097-98 (Stevens, J., Dissenting). The geographical happenstance that the District of Columbia's prison facility is located in Virginia, where Hawthorne was charged with killing an inmate, cannot offer a rational basis for exclusion on the ground that the statement was not made by the same party opponent. The Justice Department is prosecuting two men for murder, although through different United States Attorneys' offices.

Appellant did not seek to introduce a pleading in which the government was vouching for the soundness of his beliefs that Hawthorne and his agents would retaliate if appellant testified at Hawthorne's trial. Appellant sought admission of the Leiser pleading to show that he had expressed his fears to law enforcement officials before his wife was murdered. The Leiser pleading was a representation by the United States to the United States District Court for the Eastern District of Virginia that appellant had expressed such fears to the government prior to the murder of his wife. *fn10 This is distinct from a suggestion that the government had endorsed the legitimacy of those fears or that any threats had in fact occurred. *fn11

Consequently, this case does not present the issues that might arise where different sovereigns are involved or the government is vouching for the credibility or accuracy of the witness' report. *fn12 Given the interrelationship of appellant and his defense in the instant case with the proceedings against Hawthorne in the Eastern District of Virginia Court, the Morgan analysis, by parity of reasoning, is persuasive here. Although there is not a sworn pleading, neither is introduction of the ...


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