Appeal from the Superior Court of the District of Columbia (F-4302-03) (Hon. Harold L. Cushenberry, Jr., Motions Judge)
Before Reid and Glickman, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Senior Judge Kern.
Dissenting opinion by Associate Judge GLICKMAN at p. 7.
This appeal presents for our review and decision whether the trial court's bail determination for pretrial detention of an appellant who had been arrested pursuant to a warrant for committing an assault with intent to murder while armed is supported by the record. We note that our review is limited. As we said in Martin v. United States, 614 A.2d 51 (D.C. 1992), a case involving detention without bond pending trial: "[W]e are merely reviewing [the trial court's] order, not deciding the issue of release de novo. 'Our review function does not permit us to make a different decision anew as long as support (a rational basis) exists for the bail order imposed.'" Id. at 53 (quoting Ireland v. United States, 406 A.2d 1259, 1260 (D.C. 1979). *fn1 D.C. Code § 23-1322 (b)(1)(A) provides in pertinent part:
The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in § 23-1321 (c) will reasonably assure the appearance of the person as required and the safety of any other person and the community, . . . in a case that involves: [a] crime of violence, or a dangerous crime, as these terms are defined in § 23-1331 . . . .
D.C. Code § 23-1331 (4)(D) defines a crime of violence as "assault with intent to commit any offense." According to § 23-1322 (c):
There shall be a rebuttable presumption that no condition or combination of conditions of release will reasonably assure the safety of any other person and the community if the judicial officer finds by a substantial probability that the person: (1) Committed a dangerous crime or a crime of violence, as these crimes are defined in § 23-1331, while armed with or having readily available a pistol, firearm, or imitation firearm . . . .
We examined the "substantial probability" standard in United States v. Edwards, 430 A.2d 1321 (D.C. 1981) (en banc), cert. denied, 455 U.S. 1022 (1982), and concluded that: "The legislative history indicates that this standard, higher than probable cause was intended to be equivalent to the standard required 'to secure a civil injunction - likelihood of success on the merits.'" Id. at 1339 (citing H.R. REP. NO. 91-907, 91st Cong., 2d Sess. 182 (1970)). We rejected "the higher beyond a reasonable doubt standard" for detention proceedings because that standard "historically . . . has been reserved for criminal cases, which are punitive in purpose . . ., and pretrial detention is not punitive in purpose." Id. (internal quotations omitted).
We now turn to the detention order in the case before us. During the pretrial detention hearing the government presented the testimony of the police detective who was investigating the case. The court concluded after direct and cross-examination of the witness, that "the government established by a substantial probability, through the testimony of Detective Francis, that the defendant [appellant] committed the crime of assault with intent to murder while armed on or about January 22, 2003, within the District of Columbia . . . ." *fn2 The court further noted that "the defense has not rebutted this presumption." *fn3 Accordingly, the court ordered appellant held without bond pending the trial or other final disposition.
The record reflects that an eyewitness (referred to as "Witness One" in the warrant), who also admits to being a participant in the shooting, stated that three men, including appellant and himself, were on the scene of the crime that evening. All three men carried loaded guns; the appellant and one other man had nine millimeter pistols, and the third man had a thirty-two caliber pistol. All three men began to shoot at the complainant, from a distance of ten to twenty feet, striking the victim in the leg and in the back of the head where the bullet is still lodged. The victim of the shooting reported the incident to the police, who responded to the scene and found thirty-two shell casings on the same side of the street and in the same location. Twenty-five cartridge casings came from a nine millimeter gun and seven from a thirty-two caliber gun. Witness One also identified the appellant from an array of nine color photographs as one of the shooters. Witness One has known the appellant for at least two years and has seen him three or four times per week over that period. Witness One knew the appellant well and could identify him by his full name and by his nickname.
On appeal, appellant argues that "the hearsay evidence of a single accomplice witness who confessed to involvement in a shooting . . . [and] was under arrest . . . [and] had been held in jail for 'awhile' prior to cooperating with the police was insufficient to support a finding that [appellant] committed the shooting by a substantial probability." Appellant further contends that "[o]nce Witness One's status as an accomplice was revealed at the detention hearing, the judge was required to assess the hearsay presentation differently than had the information come from an uninvolved citizen bystander." Appellant relies upon this court's comment in Hawthorne v. United States, 504 A.2d 580, 587 (D.C. 1986), that "Testimony by an accomplice always carries some incentive to perjury" as well as the Criminal Jury Instructions for the District of Columbia, No. 2.22 (2002), that "the testimony of an alleged accomplice should be received with caution and scrutinized with care."
In response, the government states that the trial court did consider the unreliability of accomplice testimony in concluding that there existed a substantial probability that appellant committed the offense. Specifically, the trial court considered Witness One's role in the crime and noted that "this is a situation where a person does not deflect culpability from themselves and simply falsely accuse someone else where they said I had nothing to do with it and someone else did it. He's acknowledging his own culpability as a shooter and saying that one of the persons that participated was your client [appellant]."
We are unable to agree under the particular circumstances here that the fact that Witness One was an accomplice of appellant in the shooting rendered the evidence in this instance insufficient for the trial court to conclude that there was a substantial probability that the appellant committed the charged offense. The "measure for the weight of the evidence of the charged crime . . . [is] substantial probability, not clear and convincing evidence." Jones v. United States, 687 A.2d 574, 575 (D.C.1996). As we have noted, this standard has been held to be higher than probable cause and may be equated to likelihood of success on the merits prerequisite to securing a civil injunction. Edwards, supra, 430 A.2d at 1339. We part company with our dissenting colleague in the application of the substantial probability standard. He asserts that: "On this crucial point of identity, the government offered only a hearsay report of the uncorroborated word of an admitted accomplice to the crime." Yet, in our en banc opinion in Edwards, supra, our holding specifically permitted the use of hearsay: "[W]e hold that the government may proceed by the use of proffer and hearsay, subject to the discretion of the judge as to the nature of the proffer and the need for admissible evidence." Id. at 1337.
It may well be that at the trial of the instant case the jury will observe as well as hear Witness One testify and the victim, and conclude it cannot find beyond a reasonable doubt that appellant shot the victim with the intent to murder him. *fn4 However, a pretrial detention proceeding is not a trial but rather a procedure established by the Legislature to protect the community and its citizens for the relatively brief period of time prior to trial in those relatively rare cases where the judicial officer concludes after a hearing there is a "substantial probability" that the accused has committed an assault with intent to murder while armed. The Legislature has expressly stated that at a pretrial detention hearing "[t]he rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing." D.C. Code § 23-1322 (d)(4).
Indeed, this court in Edwards, supra, 430 A.2d at 1334, has recognized that in the statutorily-created pretrial detention proceeding "[t]he information presented to the judicial officer by either the government or the defense . . . 'need not conform to the rules pertaining to the admissibility of evidence in a court of law.'" In Edwards, we noted "the limited function of a pretrial detention hearing, i.e., to determine the appropriateness of detention . . . pending a ...