Appeals from the Superior Court of the District of Columbia (F-6639-93, F-8662-93) (Hon. Geoffrey M. Alprin, Trial Judge)
Before Farrell, Ruiz, and Washington, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Petition for rehearing en banc is denied as moot May 7, 2003.
This is the second appeal by Michael Newman and Delonte Samuels involving their conviction for the death of Rudy Williams. *fn1 In their first appeal, we held that the trial court erred when it applied the wrong standard in excluding Samuels' proffered evidence of other, similar crimes by a third party ("Winfield" *fn2 evidence), and denied Newman's motion for a new trial pursuant to D.C. Code § 23-110 without a hearing. See Newman v. United States, 705 A.2d 246, 265 (D.C. 1997). The case was remanded to determine whether Samuels' testimony should have been admitted under the proper legal standard, and, if so, to conduct a new trial, see id. at 260, and to hold a hearing on Newman's collateral attack. See id. at 265. The trial court conducted those hearings, and concluded that Samuels' Winfield evidence was properly excluded, and that Newman had failed to show ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
We hold that the trial court's determination that Samuels' Winfield evidence was irrelevant is erroneous, as well as its alternative holding that the possibility of jury confusion arising from a trial-within-a-trial would greatly outweigh any probative value that such evidence might have. "Relevant evidence is that which tends to make the existence or nonexistence of a fact more or less probable than would be the case without that evidence." Punch v. United States, 377 A.2d 1353, 1358 (D.C. 1977) (citation omitted) (emphasis added). Samuels' proposed evidence meets this standard. Although the trial court found the testimony to be less than convincing, "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." Winfield v. United States, 676 A.2d 1, 4 (D.C. 1996). The court's alternative justification is equally insufficient. Concern over a trial-within-a-trial is "subordinate to the defendant's constitutional right to mount a complete defense, including misidentification." Battle v. United States, 754 A.2d 312, 318 (D.C. 2000). Because the court undervalued the relevance of Samuels' Winfield evidence, it overstated the risks of jury confusion and a mini-trial that admission of the evidence would create, matters we have held can normally be dealt with by jury instructions, as well as limitations on the number of witnesses and the extent of their testimony bearing on the issue. See Winfield, 676 A.2d at 5. As we have already determined that if the evidence was admissible, its exclusion was not harmless beyond a reasonable doubt, see Newman, 705 A.2d at 258, we reverse the trial court's exclusion of Samuels' Winfield evidence, and remand for a new trial as to Samuels.
We see no abuse of discretion in the trial court's evaluation of Newman's ineffective assistance of counsel claim, however, and affirm the trial court's denial of his claim.
The evidence presented at appellants' second trial *fn3 showed that three friends, Rudy Williams, Robert Harvey and Reuben Nicholas, visited the home of Sharon Bost, a prostitute, to solicit sex. Id. at 249. After drinking and perhaps taking drugs in Bost's apartment, Williams asked Bost if she had any "friends." Id. Bost returned with Theresa Hungerford. Id. Although Williams flirted with Hungerford, Nicholas suggested that Williams might prefer Bost. Id. Insulted, Hungerford left, and is alleged to have returned ten minutes later with appellants Michael Newman and Delonte Samuels, who "burst" armed into the apartment and ordered Williams, Harvey and Nicholas to "give it up" or be killed. Id. at 250 Although Harvey and Nicholas complied with their assailants' requests, Williams resisted Hungerford's attempt to search his pockets. Id. This led to a struggle between Williams and Newman. Samuels stood nearby, attempting to assist Newman. During the melée, Newman's gun fell to the ground, the gun discharged, and Williams was mortally wounded. Id.
Samuels contended that Hungerford had been involved in a similar robbery with other accomplices, and offered evidence that it was those individuals who committed the Williams murder. *fn4 In his proffer, Samuels alleged that Theresa Hungerford met a man named Keith Bego and invited him to an apartment about two weeks prior to the Williams killing. When they reached the apartment, Bego saw four individuals: a woman in her 50s or 60s, two men, and a young woman. Hungerford left for a back bedroom with another young woman, inviting Bego to join them. He did. The men and women that Bego had seen earlier then burst into the bedroom, attacked Bego, and attempted to remove his pants and shoes. In the fighting, Hungerford yelled "give it up" and cut Bego on the right forearm with a pair of scissors. After taking his pants, shoes and money, the group ordered Bego out. Bego later identified Hungerford to the police as the person who cut him with scissors. After viewing Samuels at his trial, Bego said that Samuels was definitely not involved in his robbery.
The trial court excluded evidence of the Bego robbery as irrelevant. On appeal, we reversed, reasoning that because the crimes took place only two weeks apart, "concerned similar modes of operation in that Hungerford initially socialized, and attempted to negotiate a transaction, with the victims - possibly ascertaining that they had money - before attempting a robbery," "[a]nd in both cases, the robbers required the victims to remove their shoes, socks and pants, and told them to 'give it up,'" the proffered evidence satisfied the Winfield standard and was also relevant to Hungerford's bias. *fn5 Newman, 705 A.2d at 256-57. Because this court required "the benefit of the trial judge's perceptions about the reliability of that proffer," id. at 259, however, the case was remanded to "evaluate whether the evidence available is in keeping with the proffer and whether its probative value outweighs the hazard of jury confusion." Id. at 260.
At the evidentiary hearing, and under cross examination, Bego's testimony diverged from the proffer. Bego testified that his fight began not with men bursting into the bedroom, but with his decision to withdraw from a sex-for-money arrangement with the women. Bego testified that, as he withdrew, the women attempted to search his pockets. The three struggled, and Hungerford cut Bego with scissors before the male attackers entered. Bego testified that the other attackers entered because of the fight between him and the two women:
Q: What happened? Who said what to get them [the men from the front room] to rush in?
A: I guess the loud, the talking and stuff . . . I have to say the loud talking and [they] just came gang ...