Appeal from the Superior Court of the District of Columbia (F-3843-95) (Hon. Mary Ellen Abrecht, Trial Judge)
Before Wagner, Chief Judge, Farrell, Associate Judge, and Pryor,
The opinion of the court was delivered by: Pryor, Senior Judge
Following a jury trial, appellant William Keels was convicted of several offenses related to the homicide of Lydia Zygier. On June 26, 2000, Keels filed an initial appellate brief arguing that the trial court "improperly prohibited" defense counsel from conducting cross-examination and introducing impeachment evidence (collectively "evidentiary issues") during the trial. With leave of the court, Keels filed a supplemental brief on December 2, 2000, asserting that his sentence of life without parole should be vacated because D.C. Code § 22-2404.1 (1996), and the trial court's implementation of it, violated the principles set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), a decision of the United States Supreme Court rendered the same day Keels filed his first appellate brief. The government filed a responsive brief. We are unpersuaded by Keels's evidentiary arguments; however, in light of the arguments based on Apprendi, we remand the case to the trial court for resentencing consistent with this opinion.
At approximately 12:45 a.m. on May 8, 1995, Zygier, a sixty-two-year-old female, was killed either inside or just outside the home she shared with her mother. While there were multiple wounds on her body, according to the medical examiner, Zygier died as a result of blunt force trauma to the face, neck, and skull. The medical examiner also concluded that Zygier had been sexually assaulted, opining that abrasions on the wall of her vagina were likely caused by the insertion of an object. Her body was found under a pile of foliage on her property the morning following her death, and the police arrived on the scene a short time thereafter. Her clothes were disheveled, her undergarment was unfastened, and her underpants were found on top of the foliage covering her body. Semen stains found on Zygier's underpants contained Keels's deoxyribonucleic acid (DNA). Keels's fingerprints were found to match latent prints recovered at the murder scene. In addition, the government introduced forensic evidence of Keels's hair and clothing fibers to connect Keels to the scene of the murder.
After arriving at Zygier's house, the police became aware that her automobile, a 1968 Chrysler, was not in her garage or driveway. At approximately 6:00 p.m. on May 8, 1995, a detective assigned to canvass the area for the missing vehicle, Detective Robert Alder, observed Zygier's vehicle and navigated his unmarked cruiser alongside of it facing the opposite direction. Only one person, a male driver, was in the Chrysler. However, as Detective Alder attempted to maneuver his cruiser in order to stop the Chrysler, the driver sped off, weaving in and out of traffic. After a brief chase, Detective Alder lost sight of the vehicle and abandoned his pursuit. The Chrysler was found several days later in an alley. Detective Alder later identified Keels as the driver of the car from a photographic array.
After a warrant had been issued for his arrest, Keels turned himself in to the police and was formally arrested on May 15, 1998. At that time, the police found a set of keys to Zygier's Chrysler in one of Keels's pockets. Following the arrest, one of the detectives, Detective Greg DePasse, handcuffed Keels in an interview room. Nearly three hours later, Detective DePasse conducted a videotaped interview with Keels. Prior to his videotaped statement, Keels had been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). During the interview, Keels admitted that he had stolen Zygier's car keys from her house while visiting her the evening of May 7, 1995. When Keels returned later that night to take her car, Zygier confronted him and, according to Keels, hit him. Keels admitted that he subsequently struck Zygier on the head with an object a few times, causing her to fall to the ground. While Keels stated that he did not know that Zygier was dead, he acknowledged that he had covered her body with grass before leaving the scene. Keels specifically denied having sexual relations with Zygier. He concluded the videotaped interview, which was seen by the jury, by reaffirming the veracity of his testimony.
A central component to Keels's defense was that his videotaped statement was coerced. *fn1 Keels elected to testify on his own behalf at trial. He revealed that he had known Zygier for several years and had become sexually intimate with her. Keels testified that at approximately 4:00 p.m. on the afternoon before the murder, he went to Zygier's house and had sexual intercourse with her. According to Keels, Zygier thereafter gave him permission to borrow her automobile, and he left. *fn2 Keels disclaimed any involvement in, or knowledge of, the events surrounding Zygier's death at trial. In response to queries about his failure to return Zygier's automobile, Keels stated that the sight of the police in front of Zygier's home the following morning scared him into keeping the vehicle. Keels also testified that he had been threatened and otherwise coerced into providing his videotaped statement.
Prior to the trial, the government, pursuant to its obligations under D.C. Code § 22-2404 (a) (1996), put Keels on notice that it would be seeking a sentence of life without parole ("LWOP") should he be convicted of first-degree murder. On January 26, 1998, a jury found Keels guilty of armed robbery, see D.C. Code §§ 22-2901, -3202, -3901 (a) (1996), armed car jacking, see D.C. Code § 22-2903 (1996), unauthorized use of a vehicle, see D.C. Code § 22-3815, second-degree burglary, see D.C. Code § 22-1801 (b) (1996), first-degree murder while armed (felony murder predicated on the armed robbery conviction), see D.C. Code §§ 22-2401, -3202 (1996), second-degree murder while armed, see D.C. Code §§ 22-2401, -3202 (1996), and first-degree theft from a person sixty years of age or older, see D.C. Code §§ 22-3811, -3812 (a), -3901 (a) (1996). *fn3 Following the guilty verdict, the government formally requested that Keels be sentenced to LWOP for his conviction of felony murder (robbery). Following a sentencing hearing, the trial judge agreed with the government and sentenced Keels to punishment including LWOP. The trial judge relied on three of the "aggravating circumstances" enumerated in § 22-2404.1 to support her decision: first, the murder of Zygier "was especially heinous, atrocious, or cruel," see D.C. Code § 22-2404.1 (b)(4) (1996); second, "[t]he murder was committed while committing or attempting to commit a robbery, arson, rape, or sexual offense," see D.C. Code § 22-2404.1 (b)(8) (1996); and third, "[Zygier] was especially vulnerable due to age or a mental or physical infirmity," see D.C. Code § 22-2404.1 (b)(10) (1996).
Thereafter, Keels submitted a timely notice of appeal. On June 26, 2000, Keels filed an initial appellate brief arguing that the trial court "improperly prohibited" defense counsel from conducting cross-examination and introducing impeachment evidence. With leave of the court, Keels filed a supplemental brief on December 2, 2000, asserting that his sentence of life without parole should be vacated because D.C. Code § 22-2404.1, and the trial court's implementation of it, violated the principles set forth in Apprendi v. New Jersey, supra. The government filed a brief in opposition.
Keels argues that the trial court improperly restricted defense counsel's cross-examination of Detective Alder by refusing to permit questioning about a purported violation of a Metropolitan Police Department ("MPD") General Order. At trial, the defense sought to bolster its claim that no high-speed chase ever occurred by asserting that a law-abiding police officer in Detective Alder's situation would not have engaged in a chase that was contrary to department guidelines. *fn4 Citing Allen v. United States, 603 A.2d 1219, 1223 (D.C. 1992) (en banc), Keels argues that he should have been able to impugn Detective Alder's credibility "by showing that he did not do the things a reasonable person might have done in his situation."
Similarly, Keels also urges that the trial court erroneously precluded defense counsel from cross-examining Detective DePasse regarding a purported violation of a police procedure that requires an officer to interview a witness before videotaping a statement. The defense, in attempting to buttress its contention that Keels's videotaped statement was coerced, sought to show that Detective DePasse "lied about his pre-videotaped statement conduct" by asserting that his actions prior to the videotaping conflicted with police protocol. Keels argues that because the government was permitted to ask a witness "about police procedures for consultation between junior and senior officers when taking videotaped statements," he should have been allowed to query Detective DePasse about the pre-videotape interview.
The trial court was skeptical of the probative value of these lines of cross-examination, and of the logical relationship between them and defense counsel's asserted impeachment objective. "Although the opportunity to cross-examine a witness is a fundamental right, which is guaranteed in a criminal trial through the [C]onfrontation [C]lause of the Sixth Amendment, the extent and scope of cross-examination of a witness . . . is committed to the sound discretion of the trial court." Moore v. United States, 757 A.2d 78, 85 (D.C. 2000) (citations and internal quotation marks omitted). Accordingly, we review both of these claims under an abuse of discretion standard. See Jones v. United States, 739 A.2d 348, 350 (D.C. 1999); Frost v. United States, 618 A.2d 653, 664 n.21 (D.C. 1992); Payne v. United States, 516 A.2d 484, 497-98 (D.C. 1986). A trial court may, in the exercise of its discretion, "limit cross-examination into matters having little relevance or probative value to the issues raised at trial." Payne, supra, 516 A.2d at 498 (citation omitted); accord Hawkins v. United States, 461 A.2d 1025, 1034 (D.C. 1983) ("The scope of cross-examination generally is committed to the trial court's discretion, . . . and the court in its discretion may restrict questioning about matters with little relevance or probative value."). In light of the extensive cross-examination of both witnesses and the limited relevance, if any, of the precluded line of questioning, we cannot say on these facts that the trial court abused its discretion.
Next, Keels argues that the trial court improperly restricted cross-examination of Detective DePasse by precluding questioning about his lay opinion regarding Keels's guilt. "Whether an opinion is helpful to the jury and hence admissible is a question entrusted to the sound discretion of the trial court, and its admission of such testimony will not be overturned unless it constitutes a clear abuse of discretion." Carter v. United States, 614 A.2d 913, 919 (D.C. 1992) (citation and internal quotation marks omitted); accord Bedney v. United States, 684 A.2d 759, 767 (D.C. 1996); cf. Moore, supra, 757 A.2d at 85; Jones, supra, 739 A.2d at 350. The trial judge, while allowing significant cross-examination premised on the defense's theory that Detective DePasse was biased against Keels and looking to impute guilt to him, refused to permit defense counsel to ask Detective DePasse whether he believed "whoever had the car was [the] murderer." Detective DePasse had previously testified that it was a "distinct possibility" that whoever had Zygier's vehicle was the perpetrator. Moreover, defense counsel was permitted to, and did, advocate during closing argument that Detective DePasse's actions were clouded by his belief in Keels's guilt and his desire to secure a conviction. Again, on these facts we cannot say that the trial court abused its discretion. Even if we were to rule otherwise, however, such error would not be reversible under either the Kotteakos standard, see Kotteakos v. United States, 328 U.S. 750, 765 (1946), or the Chapman standard, see Chapman v. California, 386 U.S. 18, 24 (1967). Cf. Clark v. United States, 639 A.2d 76, 82 (D.C. 1993) (suggesting Kotteakos standard applicable to the instant situation).
Keels also claims that "the trial court committed error by preventing [his] attempt to prove Detective DePasse's corruption or bias through extrinsic evidence." After the government had rested its case-in-chief and, thus, after defense counsel had conducted cross-examination of Detective DePasse, the defense sought to re-call Detective DePasse during its case to attack his credibility and further demonstrate his bias with an allegedly untruthful statement in a sworn affidavit executed in support of Keels's arrest warrant. *fn5 The trial court concluded that this line of attack was improper, foreclosing both the introduction of extrinsic impeachment evidence (the affidavit) and defense counsel's examination of Detective DePasse about it. The defense was, however, permitted to assert during its closing argument that Detective DePasse's actions were affected by his belief in Keels's guilt and his desire to secure a conviction. On appeal, Keels argues that since impeachment evidence pertaining to bias can be elicited either through cross-examination or through extrinsic evidence, see Bassil v. United States, 517 A.2d 714, 716-17 (D.C. 1986); In re C.B.N., 499 A.2d 1215, 1218-19 (D.C. 1985), he should have been free to query Detective DePasse about his statement in the affidavit and introduce the affidavit into evidence.
In the context of a matter clearly contested before the trial judge, we decline to accept the government's invitation for plain error review. While it appears that defense counsel primarily sought to undermine Detective DePasse's veracity and credibility with the affidavit, the record reveals that defense counsel sufficiently articulated his bias rationale to the trial court in order to preserve the issue for appeal. However, in these limited circumstances, because Keels had the opportunity to cross-examine Detective DePasse on this issue during the government's case in-chief, it was within the trial court's discretion to disallow Keels any further examination of Detective DePasse about the affidavit during the defense's case. See Moore v. United States, supra, 757 A.2d at 86 (holding trial court did not abuse its discretion in disallowing defense to question a government witness, as a part of its case, about a subject which could have been broached during cross-examination of that witness during government's case); cf. United States v. Gaviria, 325 U.S. App. D.C. 322, 348, 116 F.3d 1498, 1524 (1997). "[O]nce a party has had an opportunity substantially to exercise the right of cross-examination, the extent of further interrogation is within the sound discretion of the trial court . . . ." Singletary v. United States, 383 A.2d 1064, 1073 (D.C. 1978) (citations omitted). If the trial court permissibly could curtail further examination of Detective DePasse about the affidavit, it follows that it could also prohibit the introduction of the affidavit as extrinsic impeachment evidence on these narrow facts as well. Furthermore, even assuming the trial court abused its discretion, reversal would not be warranted under Kotteakos, supra, or Chapman, supra. Cf. Moore, supra, 757 A.2d at 86 (quoting Singletary, supra, and suggesting Kotteakos standard applicable to the instant situation).
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court declared unconstitutional the hate crime sentencing scheme in New Jersey whereby a judge, after finding by a preponderance of the evidence that a crime was committed with a "biased purpose," could sentence a defendant to greater punishment than that prescribed for the original offense. ...