Before Wagner, Chief Judge, and Reid, Associate Judge, and
Kern, Senior Judge.
The opinion of the court was delivered by: Wagner, Chief Judge
Appeals from the Superior Court of the District of Columbia
(Hon. John Suda, Trial Judge)
Paul J. Zidlicky and Jeffrey T. Green, appointed by this court, for appellant McCoy.
Appellants Louis A. McCoy, Jr., Troy D. Burner, Nathaniel Harrod, and Francois D. Bracmort, were convicted following a jury trial of first-degree premeditated murder while armed of Michael Wilson (D.C. Code §§ 22-2401, -3202 (1989)), carrying a pistol without a license (CPWL) (D.C. Code § 22-3204 (a)), and possession of a firearm during a crime of violence (PFCV) (D.C. Code § 22-3204 (b)). McCoy, Burner and Harrod were charged with and convicted of an additional count of assault with intent to kill while armed (AWIK W/A) of Joseph "Go-Go" Kinard (D.C. Code §§ 22-501, -3202), which occurred the same night that Wilson was shot. Appellants Burner, Harrod, and McCoy argue for reversal on the principal grounds that the trial court erred in: (1) precluding them from introducing evidence that the government's key witness, Antoine Payton, committed the offenses; (2) admitting post-shooting hearsay statements of appellant Bracmort; (3) denying their respective motions for severance; and (4) denying post-conviction relief based upon the government's failure to disclose exculpatory evidence. Bracmort's principal challenges are that the trial court erred in: (1) admitting into evidence letters he wrote to Payton which tended to "depict him as a man of bad character, guilty by association with unsavory bandits, with a propensity to commit other crimes"; and (2) allowing improper, prejudicial rebuttal argument by the prosecutor. We conclude that none of these claimed errors require reversal. However, we reverse the convictions of Burner and Bracmort for CPWL for evidentiary insufficiency on an aiding and abetting theory, and remand the case to the trial court with instructions to vacate all appellants' convictions for PFCV, which the government concedes was not a crime at the time relevant hereto.
The case arose out of a shooting in the 600 block of Fifteenth Street, N.E. which occurred on April 21, 1990 at about 9:00 p.m. Two men wearing dark clothing and dark "hoodies" or "ski masks" chased down and shot at Michael Wilson and Joseph Kinard. Michael Wilson sustained gunshot wounds from which he later died. Wilson's friend, Gerri Shaw, along with her brother, Eric, and another friend had been talking with Wilson just prior to the shooting before returning to Ms. Shaw's car. As she drove away, Ms. Shaw heard the sound of gunfire from automatic weapons. She immediately stopped the car, looked through the rear view mirror, and spotted two men chasing after and shooting at Wilson and Kinard. *fn1 Shaw noticed that one of the gunmen chased Kinard across the street, but the gunman then resumed his chase after Wilson. *fn2 While running, Wilson fell and the two gunmen then stood over him, and from a distance of four to five feet, fired approximately fifty shots from automatic weapons. Ms. Shaw testified that she could not see the faces of the assailants because of the hoodies or ski masks covering them.
The government called as one of its key witnesses Antoine "Gangster or Short Dog" Payton. *fn3 Payton testified that he had known Bracmort, who had lived around 16th and Benning Road, Northeast, for approximately six years. *fn4 Payton testified that he met Harrod and McCoy through Bracmort in December 1989, but he had known Burner since 1987 and had a closer relationship with him than the others. In April 1990, Payton was living in Bracmort's apartment in Maryland, where he had lived since 1990. Burner, Harrod and McCoy also lived there at this time.
According to Payton's testimony, approximately two to three days prior to the shooting, Burner, Harrod, McCoy and Bracmort were in the living room of the apartment discussing plans to murder Wilson because Bracmort had heard that Wilson was planning to rob him. *fn5 Payton said that they all agreed "in principle" to participate in the shooting. They knew that Wilson was often in the area of 15th Street, Northeast, and they developed a plan to approach him in a "T"-like formation, which required three to four people for execution. The plan called for Bracmort to drive his car and meet McCoy, Harrod and Burner after the shooting.
About twenty minutes before the planned shooting, Payton met Bracmort about a block from 15th Street. Payton testified that Bracmort informed him that he was waiting for Burner, McCoy and Harrod to ambush and kill Wilson. Shortly thereafter, while driving on 15th Street, Payton spotted Wilson standing near Miner Elementary School. Payton testified that he saw Burner standing on the corner of 15th and Gales Streets, wearing a hooded sweatshirt, but his face was not covered at the time, and he did not have his gun drawn.
At approximately 9:00 p.m., Payton heard gunshots and observed one gunman chasing Wilson, and another, chasing another man, later identified as Joseph Kinard. Payton also saw someone, whom he believed to be McCoy, chasing Wilson, and he saw Harrod chasing Kinard. *fn6 Both of the gunmen were firing automatic weapons. Payton then saw Harrod join McCoy as they both stood over Wilson firing bullets into Wilson. About this time, Payton saw Burner, who was holding a gun, put his hood over his head to obscure his face and move away from the scene. Payton did not see Burner fire his weapon. Payton testified that he did not get involved in the shooting because he had recently been in trouble, was staying with his mother, and he was baby-sitting his one-year old brother, who was in the car with him.
Payton testified that he went back to the apartment about 11:00 p.m. that evening, and Bracmort, Burner, Harrod and McCoy were all there. He said that they talked about how Harrod and McCoy had carried out the plan to murder Wilson. Payton testified that McCoy and Harrod accused Burner of being a coward for failing to fulfill his part of the plan. Burner responded that he did not do anything because he feared getting caught in the cross-fire. Bracmort "recommended that [appellants] not do a lot of talking about what happened," and they all agreed. The conversation ended with Harrod and Burner getting into an altercation which led to Burner moving out.
The government also called Antonio "Hub" Johnson, a long-time friend of Bracmort and Wilson. *fn7 Johnson testified that Wilson and Bracmort had argued sometime in April 1990. As a result of this argument, Bracmort believed that Wilson might try to rob him and told Johnson that he would try to take some preemptive action. In addition, Bracmort told Johnson that he "was going to get something done to [Wilson]." On the afternoon of the shooting, Johnson was visiting Bracmort. Johnson said that while there, he saw Burner, Harrod and McCoy getting dressed in black "hoodies" and black jeans, although he did not see anyone with guns. He testified that Bracmort informed him that they were "getting ready to do something," but he did not say exactly what.
Later that day, while visiting a friend who lived in one of the Pentacle apartments, Johnson saw Wilson walking with two other individuals towards 15th Street. Approximately ten to fifteen minutes later, Bracmort arrived at the apartment. *fn8 Some fifteen minutes after Bracmort's arrival, they heard gunshots. Bracmort and Johnson ran outside where Johnson saw Wilson lying wounded on the ground. Johnson testified that he saw Bracmort walking off in the direction of his car.
Johnson testified that about a week after the shooting, he was at Bracmort's apartment and that Bracmort said that he had something to tell him. However, before Bracmort could say anything further, McCoy pulled Bracmort aside, and Bracmort told Johnson that he would talk to him later. A week later, Bracmort told Johnson that McCoy had told him not to talk to Johnson because McCoy was concerned that Johnson might say something to his buddy, Dirk Wright, who could not keep a secret. Bracmort then told Johnson how he, McCoy, Harrod and Burner had shot Wilson. Johnson testified that Bracmort told him that McCoy had a "Glock," Harrod a "nine," and Burner a ".380." Johnson further testified that Bracmort told him that Burner said he did not fire his gun because it had gotten jammed, but that Burner really "didn't want to do it anyway."
While investigating the crime scene that night, Officer Michael Gabor recovered twelve shell casings, three copper-jacketed bullets, and two bullet fragments. At trial, Cleon Mauer, a qualified expert in firearms identification, testified that the bullets and shell casings recovered at the scene were all fired from nine-millimeter, semi-automatic weapons. Mr. Mauer further testified that two of the bullets and fragments were fired by a single weapon, but the shell casings were fired by two different semi-automatic pistols, including a Glock. Mr. Mauer was unable to identify three of the bullets.
II. Exclusion of Third-Party Culpability Evidence
Appellants McCoy, Burner and Harrod argue that the trial court erred in prohibiting them from introducing evidence that it was the witness, Antoine Payton, who murdered Michael Wilson. They contend that in excluding this evidence, the trial court applied an erroneous standard for admissibility, which was rejected in Winfield v. United States, 676 A.2d 1 (D.C. 1996), subsequent to their trial. Exclusion of this evidence, appellants argue, left the jury with the false impression that they lacked evidentiary support for their defense which included a claim that Payton shot or was responsible for Wilson's shooting. The government argues that the trial court did not abuse its discretion in limiting cross-examination and argument concerning Payton's alleged involvement in Wilson's murder and Payton's murder of Samuel Glenn, which appellants contended was a similar crime. It is the government's position that in spite of the trial court's ruling, appellants suffered no prejudice because the court permitted them to introduce extensive evidence and argument in support of their theory that Payton participated in Wilson's murder, and therefore, the error, if any, was harmless beyond a reasonable doubt. Before addressing the parties' legal arguments, we recount briefly the factual and procedural context in which this issue arose at trial.
A. Factual and Procedural Background of Third-Party Culpability Issue
During a pre-trial conference on appellants' motions to sever, counsel for McCoy, Burner and Harrod sought permission from the trial court to mention in opening statement and to elicit during cross-examination, facts surrounding Payton's murder of Samuel Glenn. Payton had entered a plea of guilty to second-degree murder in the Glenn case. Appellants sought to use the evidence for impeachment purposes and as substantive evidence of Payton's responsibility for Wilson's murder. The trial court denied the request, concluding that appellants had proffered no evidence in support of their third-party culpability theory. On the morning the trial commenced, counsel for Burner filed a motion for reconsideration of the court's ruling, which McCoy and Harrod joined. In the reconsideration motion, appellants proffered that they sought to elicit from Payton on cross-examination and to argue before the jury that: (1) Payton knew in advance about the plan to kill Wilson and when the shooting was to take place, and he was present at the scene of the murder; (2) Payton was arrested in possession of firearms on March 12, 1990 *fn9 and again on April 2, 1990, less than one month before the shooting; (3) Bracmort wrote Payton a letter in April 1992 in which he complained about Payton talking and warned him to keep his mouth shut, a threat the government contends refers to Payton's knowledge about the Wilson murder; (4) upon solicitation by Bracmort, Payton participated in a similar murder (of Glenn) three months earlier, near the same location, with the same type of handgun, with assailants wearing similar clothing (hoodies and/or masks), and using the same modus operandi (running up on the victim on the street and firing before he could react), and getaway route and driver (i.e., Bracmort); and, (5) Bracmort provided Payton with the same inducements for both crimes (i.e., money, a car, and a place to live with Bracmort). The trial court denied the motion, concluding that the proffered evidence would not lead a reasonable person to conclude that Payton committed the Wilson murder. *fn10
Evidence that someone else committed the offense for which a defendant is on trial is admissible under the same standard of relevance which governs the admissibility of other evidence. *fn11 See Winfield, supra, 676 A.2d at 4. In the en banc opinion in Winfield, this court clarified the standard governing admissibility of third-party culpability evidence, adopting the formulation from Johnson v. United States, 552 A.2d 513 (D.C. 1989), which requires only "proof of facts or circumstances which tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense." Id. (quoting Johnson, 552 A.2d at 516) (internal quotation marks omitted) (emphasis added). Relevance in this context, "means what it generally does in the criminal context, requiring a `link, connection or nexus between the proffered evidence and the crime at issue.'" Id. (quoting Johnson, 552 A.2d at 516). To the extent that prior precedents, (e.g., Brown v. United States, 409 A.2d 1093 (D.C. 1979)) and Beale v. United States, 465 A.2d 796 (D.C. 1983), cert. denied, 465 U.S. 1030 (1984)) impose a standard of admissibility more exacting than that enunciated in Winfield, this court disavowed them. Winfield, 676 A.2d at 5. Under what is sometimes referred to as the Brown-Beale standard, "`before evidence of the guilt of another can be deemed relevant and thereby admissible, the evidence must clearly link that other person to the commission of the crime.'" Winfield, 676 A.2d at 2 (quoting Brown, supra, 409 A.2d at 1097) (emphasis in original). In Winfield, this court determined that the "clearly linked" formulation was "unhelpful and should be discarded from our lexicon of terms governing the admissibility of third-party perpetrator evidence." Id. at 3. Appellants contend that the trial court set the bar too high for admissibility, by applying the Brown-Beale standard.
Under the Johnson standard, adopted in Winfield, the focus remains "not on the third party's guilt or innocence, but on 'the effect the evidence has upon the defendant's culpability,' and in this regard it 'need only tend to create a reasonable doubt that the defendant committed the offense.'" Winfield, supra, 676 A.2d at 4 (quoting Johnson, supra, 552 A.2d at 517) (emphasis in original). However, merely presenting evidence of another's motive is insufficient to meet the test, where unattended by "proof that the party had the practical opportunity to commit the crime, including at least inferential knowledge of the victim's whereabouts." Id. at 5 (citations omitted). Finally, the trial court's determination of whether to admit such evidence should not be disturbed absent a showing of abuse of discretion. Id.
C. Analysis of Third-Party Culpability Question
The aggregation of circumstances set forth in appellants' motion in the trial court and outlined above, strongly indicate that the standard for admissibility of the evidence under Winfield was met. Briefly summarized, these circumstances include that: Payton was present when Bracmort enlisted him and the other appellants in a plan to kill Wilson, and Payton was willing to participate; Payton was at the crime scene when Wilson was shot, albeit with an explanation; *fn12 Payton had participated in a similar murder at the behest of Bracmort shortly before the Wilson murder; Payton had been arrested for having weapons in his possession shortly before the crime, one of which was similar to the one from which shots were fired the night that Wilson was killed. It was Payton whom Bracmort accused of snitching and warned not to talk about the crime after it was committed. These circumstances tend to show that Payton had the motive, opportunity, and means to commit the Wilson homicide. Such facts are probative of whether there is a reasonable possibility that Payton was involved in the homicide. See Winfield, supra, 676 A.2d at 5 (motivation attended by proof of a practical opportunity to commit the offense supports admissibility of third-party culpability evidence); see also Marshall v. United States, 623 A.2d 551, 554 (D.C. 1992) (Prior possession of a pistol, the physical means for committing the charged offense, is probative of guilt of the offense.). Thus, appellants proffered facts which would tend to indicate some reasonable possibility that it was Payton and Bracmort who killed Wilson, particularly where there were no witnesses to the actual shooting, other than Payton, who could identify McCoy, Burner and Harrod as the assailants.
The government argues that the trial court's ruling is correct even applying the Winfield standard because appellants' proffer failed to undermine the culpability of Burner, Harrod or McCoy. This, the government contends, is a fundamental requisite for admissibility of third-party culpability evidence. It is correct that the standard for admissibility of third-party culpability evidence "is not on the third party's guilt or innocence, but on `the effect the evidence has upon the defendant's culpability,' and in this regard it `need only tend to create a reasonable doubt that the defendant committed the offense.'" Winfield, supra, 676 A.2d at 4 (quoting Johnson, supra, 552 A.2d at 517) (emphasis in original). Thus, the government's argument is that even if the proffered evidence implicates Payton in the crime, it would not be admissible because it does not tend to create a reasonable doubt as to the guilt of the three appellants because: (1) there were three assailants on the scene, all dressed in black and wearing "hoodies," when two of them shot at the victims; and (2) Bracmort was not on the scene at the time of the shooting nor attired like the shooters. The government contends that the proffered evidence would show at best that Payton was ...