Appeal from the Superior Court of the District of Columbia (F-1798-02) (Hon. Judith E. Retchin, Trial Judge).
The opinion of the court was delivered by: Washington, Chief Judge
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and FERREN, Senior Judge.
Opinion concurring in the judgment by Senior Judge FERREN, at p. 46.
On March 17, 2002, Markus Johnson, an aspiring model, killed Michael Myers, the owner of a modeling agency, by inflicting numerous wounds with, among other implements, two knives, a screwdriver, a floor buffer, and finally, a hacksaw. That Johnson committed the act is uncontested. And by all accounts, the scene of the killing was horrific.
A grand jury indicted Johnson for first-degree premeditated murder while armed with aggravating circumstances (that "the murder was especially heinous, atrocious, or cruel"),*fn1 first-degree felony murder while armed (while attempting to perpetrate robbery),*fn2 and armed robbery.*fn3 At trial, Johnson argued that he killed Myers in self-defense. Johnson claimed that after Myers pressured him about posing for nude photographs, Myers approached Johnson from behind while Johnson was dressing and pressed his groin up against Johnson's buttocks. This led to a struggle that culminated in Myers's violent death. Johnson portrayed his actions as defensive reactions to Myers's unrelenting attacks. The jury disagreed and found Johnson guilty of first-degree premeditated murder.*fn4
On appeal, Johnson asserts that the trial court erred in making three evidentiary rulings. First, Johnson claims that the court should have allowed him to testify that at the time of the murder, he was consumed with thoughts about how his step-grandfather had raped Johnson's mother with Johnson's conception being the product of that rape. Second, Johnson contends that the trial court should have allowed him to call a witness who would have testified that Myers sexually assaulted her several years before the killing. Third, Johnson argues that the court erred in denying him the right to explore a government witness's most recent employment. We affirm.
I. The Government's Evidence
Michael Myers owned Washington Models, Inc., ("WMI") a small modeling studio located in an apartment at 1133 13th Street, N.W., in Washington, D.C. WMI provided portfolio photography services and advertising for aspiring models. For $75.00, WMI would schedule a photo shoot with Myers or another photographer and then produce a composite card with the model's pictures that the model could use to seek work. For an additional amount, WMI would post the model's pictures online.
In early 2001, Markus Johnson applied to WMI and paid for a composite card. Later that year, Johnson paid to have his pictures posted on WMI's website. Two of WMI's former employees, Duane Hanlon and Crystal Wells, testified about their interactions with Johnson between early 2001 and March of 2002. Hanlon saw Johnson four to five times in person and spoke with him on the phone several times as well. Meanwhile, Crystal Wells--a woman whom Myers met while scouting for models, but whom he later had a romantic relationship with and had named vice president of WMI--testified that she met Johnson in either January or February of 2002. During their first encounter, Johnson arrived at WMI without an appointment and asked to see either Myers or Hanlon. He looked "agitated" and was "bug-eyed" and clutched his shirt and pants while looking around erratically. This scared Wells, who testified that she "felt like he wanted to do harm to [her]." She claimed that she "felt like [her] life was in danger." When Wells told Johnson that neither Hanlon nor Myers were there, Johnson informed her that Hanlon had called him about a modeling job offer from "Sean John," a popular fashion label, but that no one had called him back with further information. Wells, however, had not heard of any association between WMI and Sean John.*fn5 Nonetheless, Wells sought to keep Johnson, a client, happy, so she told him that she would set up a new photo shoot for him.*fn6
Sometime later, Johnson again arrived at WMI without an appointment, asking Wells to make copies of his composite card. While Johnson waited, Myers arrived and began to argue with Wells: Myers was upset because he did not want Wells to leave early to go see her boyfriend. Wells eventually left. Shortly thereafter Johnson approached Wells across the street from the apartment and asked about the argument. Wells explained that Myers was "overprotective." Johnson then began criticizing Myers's management of WMI. Upon learning that Wells had a fifty percent interest in WMI, Johnson suggested that she try to gain control over it. Wells agreed that Myers was not running the agency well. She then offered to print more composite cards for Johnson, but said that she would change the listed phone number from WMI's to Johnson's cell phone, so that he would not have to bother with WMI anymore.
On March 12, 2002, Wells moved to Los Angeles. Three days later, Johnson called her to complain that although he had scheduled a photo shoot with Myers, he had repeatedly visited or called WMI and no one had gotten in touch with him. Wells suggested that Johnson keep trying; Johnson responded that he would, but added that "if nothing was done, he would have to go there and handle it." Wells knew that Johnson was upset: his tone was serious. She told him to calm down and try to contact Myers again. She also told him that she intended to return to D.C.
The day after Johnson's conversation with Wells, he left three messages for Myers with Jung-Ah Park, who had started working at WMI after Wells left. Park did not work on the following day, Sunday, March 17, 2002. She did not believe that Johnson was scheduled for a photo shoot on that day.
On the 17th, Myers spoke to his older brother Robert on the phone from about 5:30 until 6:00 p.m. Myers was working at WMI that evening and at times seemed distracted. At 6:00 p.m., he spoke to Hanlon on the phone; he sounded normal. The two of them had planned to meet at WMI at 7:30 p.m. and then go recruit models at Platinum night club. But when Hanlon showed up at 7:15 p.m., no one at WMI answered to buzz him into the building. A resident later let him in and another resident let him up to the third floor. No one answered the door at WMI. Shortly after returning to the lobby to wait, Hanlon saw Johnson come out of the apartment stairwell, holding an electronic box and a nylon bag. Johnson looked anxious and tired. Johnson told Hanlon that he was very tired and then exited the front door.*fn7 Hanlon then saw Myers's car pull into a parking lot across the street, wait, turn around, and leave. Five minutes later, he saw the car pass the building again. Hanlon eventually left, as Myers never showed up. The next day, Park arrived at WMI and found the front door unlocked, the apartment disheveled, the walls in the waiting room covered with blood, and Myers's dead body on the floor, wrapped in plastic.
Other than Myers and Johnson, no one witnessed what happened in that apartment. But forensic evidence revealed a violent killing. Police reporting to the scene discovered no signs of forced entry.*fn8 Inside the apartment's kitchen, located next to the front door, cabinets and drawers appeared rifled. The kitchen contained, among other things, tools such as hammers and screwdrivers.*fn9 Shoe prints on the kitchen floor matched the pattern of a pair of shoes bearing Myers's blood later recovered from Johnson's apartment. Police also discovered a bloodied towel and two bloodied latex gloves on the kitchen counter. The blood on the outside of the gloves was Myers's; the inside of one contained both Myers's and Johnson's blood.
Inside the apartment's office, the police recovered a computer file, dated March 17, 2002, 5:11 p.m., featuring thirty-eight digital photographs of Johnson. In the hallway connecting the office with the agency's waiting room, police discovered a pegboard featuring explicit, nude photographs of Crystal Wells and a hacksaw with Myers's flesh caught in its teeth.
The waiting room door appeared to have been forced open. Shoeprints, again matching shoes recovered from Johnson's apartment, appeared on the exterior of the door; the door's interior featured different shoe prints. The waiting room itself was in disarray. The remnants of a bookshelf, a television set, a screwdriver, a radio, papers, a tripod, and a computer were among the items littered across the floor, many of them bearing Myers's blood. Police also recovered an unbroken but empty vodka bottle, glass from a broken bottle, and a bloodied floor buffing machine. Myers, wrapped in thick plastic, lay on the floor.
According to the medical examiner, Myers died from "multiple injuries, including blunt impact[s] and stab wound[s] to [the] head and neck with strangulation." Myers suffered blunt impact trauma, bruises, lacerations, abrasions, cuts, and stab wounds. Included in these were several stab wounds and cuts to the face made by knives and a three-to-four inch deep stab wound to Myers's right eye. That stab fractured his orbital bone; it appeared to have been made by a screwdriver. In all, Myers suffered nine blunt impact traumas to the head, fracturing his skull in three places, along with internal neck injuries consistent with strangulation.*fn10 Myers's neck also bore a three and a half inch long gaping wound; his jugular vein and carotid arteries were severed. According to the medical examiner, Myers would have died shortly after suffering the neck wound.*fn11 His body also featured further cuts, abrasions, and a two and a half inch deep stab wound to the back. His hands bore defensive wounds.
Aside from the extensive forensic evidence tying Johnson to the scene (and Hanlon's testimony about seeing Johnson leave the building), Johnson's girlfriend Jacqueline Ross testified that Johnson admitted the killing to her. Ross knew Johnson was going to WMI the night of the 17th to pick up a suit. She next saw him at 9:30 p.m. and noticed that he had two band-aids on one of his hands; he claimed that he cut his hand on glass in a parking lot. Later that night, Johnson drove Ross to a liquor store in a red car that she had not seen before. Two days later, Ross saw the killing reported on television. The news featured Myers's missing red car, which matched the one Johnson had been driving. After Ross confronted Johnson, he told her that he had gotten into a fight with Myers, claiming that Myers had tried to enter the room when Johnson was changing and that Myers had been "acting gay." According to Johnson, Myers hit him with a bottle, they got into a fight, and then Myers hit him with a board. But Johnson knocked Myers to the ground, went to the kitchen, got a knife, and cut Myers's throat. According to Ross, when Johnson later discovered that the police had interviewed her, he proposed marriage so that they would not have to testify against each other.
After police arrested Johnson, they recovered from his apartment multiple items taken from WMI, including two digital cameras, a DVD player, compact disks, and Myers's wallet, along with clothing and shoes with Myers's blood on them. With Johnson's direction, they recovered two knives, one missing the tip of its blade, from woods near Johnson's apartment. Myers's car turned up in a parking lot near Johnson's apartment. The police found the car keys shoved into the backseat of the vehicle used to drive Johnson to the police station.
Johnson testified that he killed Myers in self-defense. Johnson first discussed his background with WMI. He had gone to WMI with hopes of becoming a model. Myers photographed Johnson on two or three occasions, and WMI provided Johnson with a composite card. Johnson later paid to have his pictures posted online. Yet he never earned money by modeling for WMI. Although he told the police after his arrest that he had modeled for Sean John and Perry Ellis, he conceded at trial that this was untrue.
Johnson testified that he and Myers had a good relationship and that he would regularly accompany Myers on model recruitment calls. At clubs, he noted, Myers would usually go up to the top floor where there was homosexual activity; Johnson "didn't feel that [this] was a threat to [him] in any kind of way." He also claimed to have driven to and from New York City with Myers for a photo shoot for Sean John, but the photographer had not shown up. According to Johnson, during the trip Myers asked him if he would pose nude for a male calendar shoot. Johnson initially refused, but after Myers told him how much it paid, he said he would consider it.
Johnson also confirmed certain details about his interactions with Crystal Wells: he saw her a few times at WMI; she printed composite cards for him; he was present when she fought with Myers. He also acknowledged that he called Wells on her cell phone while she was in LA. But he denied telling her that he was upset with Myers or that he told her that he would go to WMI and "take care of it."
On March 17, 2002, Johnson's aunt drove him to WMI to retrieve a suit; he did not expect Myers to be there. Myers buzzed Johnson into the building and descended in the elevator to greet him and to take him up. Myers then asked Johnson if he wanted to do a photo shoot. Johnson said that his aunt was waiting, so Myers told him to invite her up. But Johnson's aunt, upon being told about the shoot, said she was too tired to wait and left. Johnson remained. He was happy about the shoot. Back in the WMI apartment, Johnson changed into his suit and watched a DVD in the waiting room while Myers talked on the phone. Myers then took approximately thirty photographs of Johnson.*fn12 When the shoot ended, Johnson mentioned that Crystal Wells was going to return to D.C. and had offered to prepare a new composite card. Myers became upset when hearing about Wells. He then retrieved nude photographs of Wells and handed them to Johnson. Myers took another phone call, while Johnson took the pictures and went to change in the waiting room.
Johnson waited in the room for twenty to thirty minutes, but did not entirely change his clothing during that time. Myers then came into the room to show Johnson the pictures of Johnson they had just taken. After praising the pictures, Myers then told Johnson that he wanted to take nude pictures of Johnson--"like Crystal's." Johnson refused and turned his back to continue getting dressed. But Myers continued to pressure him, saying that Johnson had promised to do so. Johnson responded that he had said only that he would consider it.
Johnson kept dressing. But as he was putting on his socks and shoes, Myers approached him from behind and "rested his crotch up against [Johnson's] buttocks." When asked what went through his mind, Johnson testified, "I thought he was coming onto me, trying to rape me or something."*fn13 He thought this "[b]ecause [Myers] had his private parts on [Johnson's] private part." Johnson tried to leave, but Myers had locked the door. Myers tried to grab his wrist to prevent him from leaving, but Johnson deflected and then yanked at the locked door until it popped open. Just then, Myers tried to hit Johnson in the head with an empty vodka bottle; Johnson managed to block it with his hand. He claimed that the bottle caused the cuts on his hand, though the bottle did not break. Having never seen Myers act like this, Johnson was scared. He and Myers grabbed each other, wrestled, and then fell into a book shelf. Myers seized one of the shelves and swatted Johnson on the thigh. Johnson testified, "[o]nce Mike hit me with the board, the only thing I could think of now was try to get Mike, try to get him before he could get me." He did not know if Myers was "trying to kill [him] or rape [him]."
After wrestling again for a few minutes, Johnson broke free and ran out of the room. But instead of exiting the front door, Johnson went to the kitchen--adjacent to the door--and found a knife. He explained that he could not get out of the front door without a key, so he armed himself and returned to retrieve the key and the rest of his things. Returning, Johnson faced Myers, who though unarmed, lunged at him. Johnson defended himself by stabbing Myers in the back of the head until the blade broke. Myers kept fighting. So Johnson grabbed a screwdriver and stabbed Myers in the eye. But Myers kept fighting, pulling the screwdriver out of his own eye and muscling it from Johnson's hand. So Johnson grabbed a hacksaw and hit Myers with it. Still, Myers kept fighting. Johnson conceded, that at some point, he hit Myers with a floor buffer. So Johnson swung the hacksaw at Myers's neck, slitting his throat and causing Myers's death.
Afterwards Johnson sat to collect his thoughts. He tried to clean himself up in the kitchen and then put on latex gloves so that he would not leave any fingerprints.*fn14 He rolled Myers's body in plastic. He then pinned the nude Crystal Wells photos on the pegboard, along with the hacksaw, because he wanted the police to be aware that Wells might be in danger. He left the apartment, and after running into Duane Hanlon in the lobby, he took Myers's car to get home as fast as he could.
After his arrest, Johnson denied knowing anything about the pictures posted on the pegboard, but when confronted with evidence connecting him to them, he told the police that Myers had agreed to pay him $10,000 to help kill Wells. He conceded at trial that this was untrue. Johnson also explained to the jury that he took the DVD player, digital cameras, and other items because he wanted to remove items that he had touched. Yet he left behind the screwdriver, the hacksaw, and other items that he knew he had used.
Johnson asserts that the trial court deprived him of his constitutional right to present a complete defense by precluding him from testifying that when Myers pressed up against him from behind, he thought about his somewhat recent discovery that the person who he had long thought to be his step-grandfather was actually his biological father and that Johnson had been the product of a rape. At trial, Johnson claimed that these thoughts were relevant to show his subjective fear of what was going on. Although the court permitted Johnson to testify about Myers's act in pressing up against him and that Johnson feared that Myers was going to rape or kill him, it excluded the testimony about the mother's rape as irrelevant and unfairly prejudicial. We review to determine whether the court deprived Johnson of his right to present a complete defense, and if not, whether the court abused its discretion in excluding the evidence. But first we examine Johnson's trial proffer in more detail.
During opening statements, Johnson's counsel began to allude to Johnson's discovery of his mother's rape (and his discovery that he was the product of that rape):
[Y]ou will hear that around the time of his graduation from high school, [Johnson] had learned that the man he believed was his step-grandfather....
In response to the government's objection on relevance and unfair prejudice grounds, Johnson's counsel stated that the evidence was relevant because "[i]t goes to [Johnson's] frame of mind." At the bench conference, counsel sought to explain the relevance to the court:
Counsel: The proffer is, Your Honor, that his mother--he learned that the man he thought was his step-grandfather was, in fact, his biological father--essentially, was with his mother.
Court: What's the relevance of that?
Counsel: And the relevance to it is that the situation, as he will testify, had made him feel like this man he trusted, this grandfather, had ...