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DIAMEN v. UNITED STATES

February 25, 1999

MICHAEL A. DIAMEN, JOSEPH NICK SOUSA, AND JOSEPH WAYNE EASTRIDGE, APPELLANTS,
V.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia Hon. H. Carl Moultrie, Trial Judge, Hon. John H. Suda, Motions Judge. [725 A2d Page 502]

Before Schwelb and Ruiz, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Schwelb, Associate Judge:

[725 A2d Page 503]

On January 6, 1975, following a five-week trial, appellants Michael A. Diamen, Joseph Nick Sousa, and Joseph Wayne Eastridge were convicted by a jury of first-degree murder while armed, D.C. Code §§ 22-2401, — 3202 (1996), in connection with the stabbing death of Johnnie Battle. On March 16, 1979, appellants' convictions were affirmed by this court. Sousa v. United States, 400 A.2d 1036 (D.C.), cert. denied, 444 U.S. 981 (1979).

In April 1995, following earlier unsuccessful attempts by Eastridge *fn1 and Diamen *fn1 to [725 A2d Page 504]

have their convictions set aside, the three appellants filed a joint motion to vacate their convictions pursuant to D.C. Code § 23-110 (1996). The motion was based on newly discovered evidence, and the appellants also claimed that the trial judge had committed constitutional error at their trial by precluding each defendant from eliciting from any witness or codefendant any evidence that would tend to inculpate any codefendant.

The motions judge denied the motion without a hearing. The judge held that the newly discovered evidence had not been presented within two years of final judgment, as required by Super. Ct. Crim. R. 33, and that the affidavits filed in support of the motion were insufficient in any event to require the court to hold a hearing. The judge did not address the appellants' claim that constitutional error was committed at their trial, perhaps because the appellants' convictions had been affirmed on direct appeal, and because the judge may have believed that, as a judge of the Superior Court, he lacked the authority to second-guess a ruling by this court.

On appeal from the denial of their motion, the appellants reiterate the claims made in the trial court, and they contend that the motions judge erred in denying the appellants an evidentiary hearing. We affirm.

I.

PROCEDURAL BACKGROUND

The evidence adduced at the appellants' trial is set forth in detail in this court's opinion in Sousa, and we confine ourselves to a brief summary. The appellants, all three of whom are white, were members of a motor cycle club called the "Pagans." On November 1, 1974, several Pagans, including the appellants, went to the Godfather Restaurant on Wisconsin Avenue to continue a celebration of the birthday of one of the members of the group, a Pagan named Richard C. Richter. *fn2 The proprietor of the restaurant, who was familiar with Richter and his group, directed an employee to deny them service. As the Pagans left the restaurant, they encountered a group of young black men, including the decedent, Johnnie Battle. Insults and hostile words were exchanged, and a Pagan threw popcorn at one of the black men. The unpleasantness escalated into threats of violence, and Battle went to his car to arm himself with a handgun. As he was walking back towards the restaurant, Battle was confronted by several Pagans who were carrying knives. In an apparent attempt to take preemptive action, Battle shot and wounded one of the Pagans, Bruce Hunter. Battle continued to fire, but his pistol jammed, and he began to run. Several of the Pagans then pursued Battle, caught him, and stabbed him to death.

A short time after the murder, the three appellants and their codefendant, Steven Jones, were apprehended by the police when Eastridge's car, which Sousa was driving, went through a red light. Jones had severe cuts on his hand, and blood was found on his clothing and on a newspaper in the vehicle. Small amounts of blood were found on the inside of Diamen's pants and on Sousa's shirt. *fn3 Several knives were recovered from the automobile and its occupants, and there was testimony, vigorously denied by Diamen, that Diamen had discarded another knife while the vehicle was being searched. According to the testimony of Dorothy Willetts, an associate of several of the Pagans, appellants Sousa and Eastridge, who had been released on bond, admitted to Ms. Willetts that they had participated in the killing of the decedent.

Testifying in their own defense, all three appellants denied any complicity in the pursuit of the decedent or in his murder. Jones also took the stand. Jones admitted that he chased Battle after Battle had shot Hunter. Jones claimed, however, that Battle had eluded him, and that he (Jones) did not participate in the killing and had no knowledge of it. All four defendants were convicted of [725 A2d Page 505]

first-degree murder while armed. The three appellants were sentenced to prison terms of twenty years to life, and each filed a timely notice of appeal.

On direct appeal, the convictions of Diamen, Sousa, and Eastridge were affirmed. *fn4 The court held that the trial judge did not abuse his discretion by denying the appellants' motions for severance based, inter alia, on antagonistic defenses. Sousa, supra, 400 A.2d at 1042-43. *fn4 The court also "examined the multitude of other contentions made by appellants and [found] them to be without merit." Id. at 1038 n.1.

More than sixteen years after this court's affirmance of their convictions, the appellants jointly filed the § 23-110 motion which is the subject of the present appeals. They claimed that a six- year investigation conducted on their behalf by Centurion Ministries *fn5 has produced evidence exonerating the three appellants and identifying the "real" murderers. The new evidence adduced by the appellants consisted primarily of the following:

1. an affidavit executed in December 1993 by the appellants' former codefendant, Steven Jones, in which Jones admitted his own participation in the stabbing of Battle, *fn6 claimed that the three appellants were innocent, and asserted that his confederates in the killing were former Pagans Charles Jennings, John Woods, and a third man whom Jones declined to identify; it is undisputed, however, that Jennings and Woods are now deceased;

2. affidavits by three former Pagans who asserted, in 1993 and 1995 respectively, that Woods and Jennings, the two deceased men implicated by Jones, had both admitted their roles in the murder and had stated that the appellants were not involved; *fn7 these admissions by Woods and Jennings were allegedly made in the late 1970s;

3. an affidavit dated April 6, 1995, by John Gianaris, whom the appellants presented as a previously undiscovered eyewitness to the stabbing, and who stated, more than twenty years after the fact, that he saw "no more than four" men attacking Battle and that no car passed by the area at the relevant time; and

4. several affidavits expanding upon doubts cast at trial on the credibility of Ms. Willetts.

The appellants also claimed in their motion that the trial judge had committed constitutional error as described above. The motions judge, as we have noted, denied the appellants' § 23-110 motion without a hearing. This appeal followed.

II.

NEWLY DISCOVERED EVIDENCE AND THE CLAIM OF ACTUAL INNOCENCE

The appellants contend that Centurion Ministries' lengthy investigation has resulted in the discovery of new evidence demonstrating their innocence. They assert that this showing of innocence entitles them to relief pursuant to D.C. Code § 23-110. We conclude, however, that in light of the provisions of Rule 33 of the Superior Court's Rules of Criminal Procedure and the applicable case law, the appellants' reliance on newly discovered evidence comes many years too late.

Rule 33 provides in pertinent part: [725 A2d Page 506]

The Court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice . . . . A motion for a new trial based on the ground of newly discovered evidence may be made only before or within 2 years after final judgment, but if an appeal is pending, only on remand of the case may the Court grant the motion.

Super. Ct. Crim. R. 33. The appellants' motion was filed twenty years after they were convicted and sixteen years after the affirmance of their convictions.

Our local Rule 33 "is identical to the corresponding Federal Rule of Criminal Procedure." Williams v. United States, 374 A.2d 885, 889 n.6 (D.C. 1977). It is therefore to be construed consistently with the federal rule and, in the absence of applicable local precedent, *fn8 we look to the case law construing Fed. R. Crim. P. 33. See Waldron v. United States, 370 A.2d 1372, 1373 (D.C. 1977).

"The time limitations of Rule 33 are jurisdictional. The court is without power to consider an untimely motion for a new trial." 3 Charles Alan Wright, Federal Practice & Procedure § 558, at 360 (2d ed. 1982 & Supp. 1998) (footnotes omitted); see also United States v. Smith, 62 F.3d 641, 648 (4th Cir. 1995) (citing Wright). Because Rule 33 requires that a motion based on newly discovered evidence be made within two years after final judgment, the court is without power to grant a motion filed after the expiration of that period. See, e.g., Guinan v. United States, 6 F.3d 468, 470-71 (7th Cir. 1993); Jacobanis v. United States, 256 F.2d 485, 486 (1st Cir. 1958). The two- year limit is strictly enforced. Herrera v. Collins, 506 U.S. 390, 409 (1993); United States v. Kaplan, 101 F. Supp. 7, 13 (S.D.N.Y. 1951) (Weinfeld, J.). A court is precluded from considering newly discovered evidence presented after the expiration of two years even where the court is convinced that "a grave miscarriage of justice has taken place," Kaplan, supra, 101 F. Supp. at 11, and where "it is difficult to see how some of the vital evidence now presented could have been available to the defendant during the two-year period." Id. at 13.

Although this result may appear harsh, *fn9 see also Part IV, infra, there can be no doubt that it was intended by those who promulgated Fed. R. Crim. P. 33. Prior to 1944, defendants in federal prosecutions "enjoyed sixty days from judgment to move for a new trial on the basis of newly discovered evidence and only three days otherwise." Smith, supra, 62 F.3d at 649 (citation omitted). Thereafter,

[w]hen Rule 33 was adopted in 1944, the Advisory Committee recommended that time limits upon new trial motions based on newly discovered evidence be eliminated. The Committee and its supporters reasoned that a new trial should always be available when a criminal defendant can introduce new evidence tending to demonstrate his actual innocence. See 3 Wright, Federal Practice and Procedure § 558, at 362-63 & nn.7- 8. Although the Supreme Court rejected the Advisory Committee's proposal, and instead imposed a two-year limit on motions based on newly discovered evidence, the basic rationale for extending greater latitude to motions based on newly discovered evidence remains the same: to enable the district court to afford relief when new [725 A2d Page 507]

information bolsters a claim of actual innocence.

Id. (emphasis added); see also Herrera, supra, 506 U.S. at 409; Kaplan, supra, 101 F. Supp. at 13-14. This history demonstrates beyond peradventure the Supreme Court's determination that a new trial may not be granted on the basis of newly discovered evidence after two years have elapsed, regardless of any showing of actual innocence. *fn10 Indeed, it was for cases involving claims of actual innocence that Rule 33's two-year limitations period was purposely designed. *fn10

In the present case, the appellants predicated their motion on D.C. Code § 23-110, a provision which permits a defendant to file his motion "at any time," and not on Rule 33. They contend that the limitations of Rule 33 are not applicable, and that "the court below erred in concluding that appellants' failure to timely file a motion for a new trial under Rule 33 precluded it from entertaining a motion for a new trial based on newly discovered evidence." But "[t]he nature of a motion is determined by the relief sought, not by its label or caption." Frain v. District of Columbia, 572 A.2d 447, 450 (D.C. 1990) (citation omitted). Insofar as the presentation of newly discovered evidence is concerned, the purpose of the appellants' motion is identical to that served by Rule 33. "By merely designating this a § 2255 motion, *fn11 the time constraints applicable to a motion based on newly discovered evidence cannot be so readily circumvented." United States v. Madonna, 556 F. Supp. 260, 266 (S.D.N.Y.) (citation omitted), aff'd, 697 F.2d 293 (2d Cir. 1982), cert. denied, 459 U.S. 1108 (1983); Guinan, supra, 6 F.3d at 470-71; United States v. DeCarlo, 848 F. Supp. 354, 355-58 (E.D.N Y 1994) (Rule 33's time limits may not be avoided by styling motion as one for a writ of error coram nobis).

Moreover, the Supreme Court made it clear in Herrera that, even in capital cases, time limitations on motions for a new trial based on newly discovered evidence do not present a constitutional issue cognizable in habeas corpus. The Court pointed out that at common law, a new trial could be granted only during the term of court in which the final judgment was entered. 506 U.S. at 408. The Court also noted that a substantial majority of the states placed time limits on the filing of new trial motions based on newly discovered evidence; indeed, many of those limitations are substantially shorter than the District's two-year period. Id. at 410-11. *fn12 The Court was prepared to assume, for the sake of argument, that "in a capital case *fn12 a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal [725 A2d Page 508]

habeas relief if there were no state avenue open to process such a claim." Id. at 417 (emphasis added). The Court found it unnecessary to decide whether the lack of such a state remedy would be fatal, however, because Texas, like most jurisdictions, permitted the defendant to seek a pardon from the Governor, id. at 411, and because, according to the Court, "[h]istory shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency." Id. at 417. *fn13 Herrera thus holds that if the time for requesting a new trial has elapsed, the availability of discretionary authority in the Executive Branch to consider the defendant's newly discovered evidence and to grant him clemency *fn13 makes it constitutionally permissible to deny the defendant a further judicial forum without considering the merits of his claim of actual innocence. *fn13

III.

THE ALLEGED CONSTITUTIONAL VIOLATION

The five defendants who were indicted as a result of the events of November 1, 1974 — Diamen, Sousa, Eastridge, Jones, and Richter — were tried together. In an apparent attempt to avoid a perceived or actual need for severance and multiple trials, *fn14 the [725 A2d Page 509]

judge ruled, as we have noted, that no defendant would be permitted to elicit from any witness information which would tend to incriminate any other defendant. *fn15 The judge also restricted arguments of counsel accordingly. The appellants contend that this ruling unconstitutionally impaired their right, protected by the Fifth Amendment, to present a defense. *fn15

The appellants acknowledge that the constitutional claim that they now seek to raise was presented to and rejected by this court on direct appeal. See Sousa, supra, 400 A.2d at 1038 n.1. The appellants sought rehearing by the division or, in the alternative, by the full court, but their petition was denied. The Supreme Court subsequently declined to review the case. 444 U.S. 981. The appellants nevertheless assert that, in light of the newly discovered evidence, this court is free to reconsider their claim of constitutional error. The appellants also fault the motions judge for failing to address that claim in his written order denying their § 23-110 motion. They assert, in effect, that the motions judge erred by declining to overrule this court's holding in Sousa that there was no violation at the trial of the appellants' constitutional rights.

A. The binding authority of the Sousa decision.

"It is well-settled that where an appellate court has disposed of an issue on appeal, [that issue] will not be considered afresh on collateral attack in a trial court of the same judicial system, absent special circumstances." Doepel v. United States, 510 A.2d 1044, 1045-46 (D.C. 1986) (footnote and citations omitted); see also Minick v. United States, 506 A.2d 1115, 1116-17 (D.C.) (per curiam), cert. denied, 479 U.S. 836 (1986). We are also bound by the related rule that one division of the court cannot overrule the decision of a prior division. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971); Minick, supra, 506 A.2d at 116-17.

This court has not definitively construed the term "special circumstances" as used in Doepel. In Peoples v. Roach, 669 A.2d 700, 702 n.5 (D.C. 1995), we suggested that "[s]uch special circumstances might consist of an intervening change in the relevant law." *fn16 In United States v. Palumbo, 608 F.2d 529 (3d Cir. 1979), the court held that [725 A2d Page 510]

in the absence of [1] newly discovered evidence that could not reasonably have been presented at the original trial, [2] a change in applicable law, [3] incompetent prior representation by counsel, or [4] other circumstances indicating that an accused did not receive full and fair consideration of his federal constitutional and statutory claims, a § 2255 petitioner may not relitigate issues that were adjudicated at his original trial and on direct appeal.

Id. at 533 (footnotes omitted; bracketed numerals added).

An examination of the four "special circumstances" or "exceptions" identified in Palumbo reveals that none of them permits a trial judge to disregard a ruling of the appellate court, or a successor division to second-guess a predecessor division's decision, simply because the trial judge or the successor division disagrees with the earlier division's legal analysis and perceives a constitutional violation where the earlier division found none. *fn17 On the contrary, each Palumbo exception involves a circumstance which prevented the earlier division, through no legal error of its own, from correctly deciding the constitutional issue. In other words, the "special circumstances" must be such that, if the original panel had been apprised of them, its decision would have been different. See Minick, supra, 506 A.2d at 1117 (on collateral attack, the defendant must show that the initial ruling "is clearly erroneous in light of newly presented facts or a change in substantive law"). Any other reading of the phrase "special circumstances" would undermine the rule of M.A.P. v. Ryan, the doctrine of the law of the case, and the need for consistency which these rules represent. Indeed, if we were to adopt the appellants' argument, then a judge of the Superior Court would be free to rule in 1996 that the Court of Appeals erred in 1979 when the appellate court decided, on the same record, the very question which is now before the Superior Court judge. We know of no authority for such a startling proposition. *fn17

Of the four Palumbo exceptions, only the first — newly discovered evidence — has any possible application here. The appellants make no claim of a change in applicable law. *fn18 There is no allegation that their [725 A2d Page 511]

trial counsel were incompetent. *fn19 Finally, the appellants received a full and fair hearing on their constitutional claim, and they have made no persuasive showing to the contrary. *fn19

B. Newly discovered evidence and the constitutional issue.

We also conclude that the appellants' newly discovered evidence does not provide any previously unavailable support for their contention that the judge committed constitutional error at their trial. Although the appellants have presented new evidence relevant to their claim of actual innocence, that evidence has no logical or legal bearing on the constitutional issue that they now seek to relitigate.

Under the standard articulated in Palumbo, a division of this court could properly reconsider the decision in Sousa if the appellants produced newly discovered evidence "that could not reasonably have been presented at the original trial . . . ." 608 F.2d at 533. The affidavits secured by the appellants, if true, establish that the exculpatory evidence that they now present was not available in 1975, and that at that time, the appellants had no reasonable opportunity to obtain it. *fn20 We will also assume, for purposes of this appeal, that at least where newly discovered evidence of actual innocence is relevant to ...


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