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Dowtin v. United States

August 5, 2010

JAMES W. DOWTIN, APPELLANT,
GRIFFITH D. SMITH, APPELLANT, AND GREGORY D. EPPS, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia (FEL463-01, FEL214-01 & FEL252-01) (Hon. Judith E. Retchin, Trial Judge).

The opinion of the court was delivered by: King, Senior Judge

Argued December 16, 2009

Before RUIZ and THOMPSON, Associate Judges, and KING, Senior Judge.

James Dowtin, Gregory Epps, and Griffith Smith appeal their convictions stemming from the killing of Jerod Jackson, arguing inter alia that a videotaped statement Dowtin gave to police was admitted into evidence in violation of his constitutional right against self-incrimination. We hold that any error with respect to the admission of the statement was harmless as to Dowtin, that Epps and Smith have no standing to assert such a challenge, and that the other arguments that Epps and Smith advance are without merit. Accordingly, we affirm.

I.

On December 22, 2000, fourteen-year-old Jerod Jackson, accompanied by Robert Pough and Donita Foxx, retrieved, from Harold Howard, a jacket that had previously been stolen from Jackson. Jackson and the others then drove away but were followed by a Chevrolet Caprice. A short time later, the Jackson vehicle crashed. Epps and Smith, the latter armed with a gun, emerged from the Caprice and chased and caught the fleeing Jackson. Epps and Smith then drove away in the Caprice, with Jackson in the car. Epps, Smith, and Dowtin later beat Jackson, and Michael Bradford, as he testified at trial, heard Epps tell Jackson he was "going to die tonight."

Dowtin, Epps, and Smith later met at 14th and T Streets, S.E., where Bradford saw shovels in the back seat of Dowtin's car, also a Caprice, and heard Dowtin say Jackson was in the trunk. Eric Johnson testified that he was in Dowtin's car when Dowtin arrived at 14th and T and that Dowtin told him to get out because Dowtin had to go somewhere; Johnson shortly thereafter saw Dowtin carrying a shovel. Epps told Dowtin to "take him," apparently referring to Jackson, "out to the railroad tracks." Smith gave Dowtin a gun, and Epps told Bradford to go with Dowtin. Harold Howard went with them as well.

Dowtin drove to a location behind a school and told Bradford and Howard to hit Jackson with a stick if he moved when the trunk was opened. Bradford thought better of continuing to participate and decided to walk to his home nearby. Just before leaving the scene, he saw Dowtin and Howard taking the apparently unconscious Jackson toward adjacent railroad tracks. A few minutes later, Bradford heard shots from behind the school.

Less than an hour later, when Bradford encountered Dowtin, Epps, and Smith on the street, Dowtin said he had killed Jackson. Later he also admitted killing Jackson to a cellmate, Kevin Gordon, who testified at trial; in the presence of trial witness Randy McKeever; and in a videotaped statement to police, the admissibility of which is at issue here.

The videotaped statement followed interviews of Dowtin in Philadelphia and the District. Dowtin was arrested in Philadelphia on January 11, 2001, three weeks after Jackson was murdered. District of Columbia Metropolitan Police Department personnel traveled there, obtained a Miranda waiver from Dowtin, and conducted two interviews of him during which he denied involvement in Jackson's murder. Dowtin was brought back to the District and questioned without being provided a new Miranda waiver. In the course of that questioning, Dowtin admitted his involvement in the crime. He agreed to give the videotaped statement before providing a new Miranda waiver but actually gave the statement only after providing a new written waiver. In the videotaped statement,*fn1 Dowtin described making his car available for use in the killing, which Howard wanted to carry out; placing Jackson in the trunk and driving to the location behind the school; digging a hole; carrying Jackson to the hole; and shooting Jackson.

About a week after the shooting, police found Jackson's incompletely buried body near the location where he had been shot. Jackson had two gunshot wounds to the head and apparent beating injuries.

At trial, photographs of Jackson's body were admitted into evidence without objection. Dowtin repudiated his videotaped statement. He testified that he had mentioned Smith and Epps only because police had led him to believe Smith and Epps had inculpated him. When asked whether he had any knowledge that Smith or Epps was involved in the murder, he answered, "No." Bradford's testimony included the statement that police "wanted to get him" -- apparently referring to Epps -- because "he beat a murder charge before." The trial court denied Epps' motion for a mistrial on this basis and twice instructed the jury to disregard the statement.

Another witness, Antonio Jacobs, testified on redirect after related cross-examination by counsel for Epps that he had been reluctant to cooperate fully with police because of "stuff that went on after" Jackson's death. Speaking outside the presence of the jury, Jacobs said that this was a reference to threats against his family. Government counsel chose not to pursue this line of questioning further, and defense counsel was forbidden by the court from doing so unless the government did so first. Counsel for Epps subsequently requested re-cross-examination of Jacobs to explore bias and motive issues related to the asserted threats, but the trial court denied that request, stating that Epps had already fully cross-examined Jacobs and had in fact shown bias and motive.

At two points in the trial, the defendants drew the court's attention to members of the audience in the courtroom: First, Epps' counsel, without seeking relief, advised the judge that a prosecutor in the audience had made faces in response to defense testimony, whereupon the judge asked that the trial prosecutor be alerted if the same colleague reappeared in the audience; and later, Smith's counsel advised the judge that a relative of Jackson was in the audience wearing a shirt reading "Rest in Peace [Jerod]" and possibly bearing a picture of a casket. The court directed the prosecutors to request that the shirt no longer be worn. ...


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