Appeal from the Superior Court of the District of Columbia Criminal Division (F-8420-98) (Hon. Rufus G. King, III, Trial Judge)
Before Ruiz and Washington, Associate Judges, and Pryor, Senior
The opinion of the court was delivered by: Washington, Associate Judge
Appellant, Thomas Hager, was found guilty of voluntary manslaughter while armed. *fn1 The trial court sentenced Hager to a term of imprisonment of ten to thirty years for manslaughter and a consecutive ten years to life for the use of a firearm during the commission of the crime. Hager filed a timely notice of appeal. Hager raises two issues on appeal: 1) the trial court abused its discretion when it precluded him from arguing that one of two other named persons present at the crime scene may have committed the murder; and 2) the trial judge erred in imposing a combined sentence of twenty years to life for a conviction of voluntary manslaughter while armed. We affirm.
In the early afternoon of October 20, 1996, Hager, Londell Duvall, and Michelle Fleming were playing craps in the back of an apartment building in the 4800 block of Alabama Avenue, S.E. Duvall's brother, Charles, stopped by and noticed that Keith Fogle, John and Cedrick Shuler, and another person by the name of Don were standing around the outside of the apartment buildings. During the craps game, Hager "hit a point," but before he could collect his money from the pot, Londell Duvall took $20 and refused to return it. Duvall then left the area with his friend, John Alexander, and returned about twenty-five to thirty minutes later. Hager demanded the $20 from Duvall, who again refused. Cedrick Shuler offered Hager the $20, but Hager stated that he wanted his money from Duvall. Fleming testified that John and Cedrick Shuler, Keith Fogle, and others were standing on the "front line of 4800 block" of Alabama Avenue, within proximity to Hager and Duvall. Alexander testified that he heard someone call Duvall's name, he saw Duvall turn around, and he watched as Hager shot Duvall in the back of the head. As Alexander ducked for cover, he saw Duvall fall to the ground on his left side, and watched as Hager knelt down and shot Duvall four more times in the head.
Hager argues on appeal that the trial court abridged his "right to present a defense" when it denied him the right to argue during closing argument that "one of the Shuler brothers had committed the murder." We have stated that the trial court "has broad discretion in controlling the scope of closing argument," Peoples v. United States, 329 A.2d 446, 449 (D.C. 1974), and that we "should exclude only those statements that misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or otherwise tend to confuse the jury." United States v. DeLoach, 164 U.S. App. D.C. 116, 120, 504 F.2d 185, 189 (1974).
However, "a prosecutor (or defense attorney) may not go beyond reasonable inference and engage in impermissible speculation." Gardner v. United States, 698 A.2d 990, 1000 (D.C. 1997) (citing Mills v. United States, 599 A.2d 775, 785 (D.C. 1991)). In Gardner, we held that "the proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence." Id. (quoting Dixon v. United States, 565 A.2d 72, 77 (D.C. 1989)). Determining what constitutes a reasonable inference or impermissible speculation is "usually a task best suited to the trial judge." Id.
We have stated that counsel cannot make an argument unsupported by the evidence admitted at trial. Johnson v. United States, 121 U.S. App. D.C. 19, 21, 347 F.2d 803, 805 (1965). Therefore, for Hager to make the argument that a specific named third person committed the crime with which he was charged, the evidence must establish "proof of facts or circumstances which tend to indicate some reasonable possibility that a person other than [Hager] committed the charged offense." Winfield v. United States, 676 A.2d 1, 4 (D.C. 1996) (en banc). Despite this minimal inclusive relevance standard, the trial court should still exclude evidence that is too speculative with respect to the third party's guilt. Boykin v. United States, 738 A.2d 768, 773 (D.C. 1999).
In this case, the evidence presented by Hager to support his argument is too speculative to indicate a reasonable possibility that John or Cedrick Shuler shot Londell Duvall. The mere fact that the Shuler brothers were present at the time of the shooting fails to establish a reasonable possibility that one of them was the shooter.
The additional fact that there was an alleged shoot-out between one or both of the Shuler brothers and Duvall several months prior to the murder, strengthens appellant's argument but in the end is far too speculative to support a Winfield argument. Fleming was unable to identify the basis of her knowledge about the shoot-out and was unable to testify about any of the circumstances surrounding the shoot-out.
Duvall's brother, Charles, testified at trial that he did not think the shoot-out had ever occurred even though he was impeached with his prior grand jury testimony that a "shoot-out" had occurred. At trial, he maintained that the basis of his prior statement in the grand jury was "hearsay." Indeed, there was significant testimony at trial that John Shuler and Duvall were close friends and that they remained "buddies."
Hager also claims that the fact that John Shuler acted suspiciously by asking Duvall's brother to take him to the liquor store prior to the shooting further supports the notion that the Shulers were behind Duvall's murder. According to testimony elicited at trial, however, there was nothing suspicious about John Shuler asking Duvall's brother to take him to the store because he had done it before on numerous occasions. Finally, Hager claims that because John Shuler testified falsely before the grand jury that he was not at the scene of the ...