Appeal from the Superior Court of the District of Columbia. (Hon. Harold L. Cushenberry, Jr., Trial Judge).
Before Wagner, Chief Judge,* and Schwelb and King, Associate Judges. Opinion for the court by Chief Judge Wagner. Dissenting opinion by Associate Judge Schwelb.
The opinion of the court was delivered by: Wagner
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)). *fn1 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.
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 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. *fn2
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, i.e., "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. *fn3 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.
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, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973); see also Nelson v. United States, No. 91-CF-987, slip op. at 5 (D.C. Oct. 31, 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, slip op. at 5; 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, 79 L. Ed. 2d 694, 104 S. Ct. 1293 (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, slip op. at 5; (quoting Chambers, supra, 410 U.S. at 295). 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 ...