Appeal from the Superior Court of the District of Columbia (FEL 3163-96) (Hon. Robert S. Tignor, Trial Judge)
The opinion of the court was delivered by: Oberly, Associate Judge
(Submitted October 4, 2010 )
Before THOMPSON and OBERLY, Associate Judges, and NEWMAN, Senior Judge.
OBERLY, Associate Judge: Following a jury trial, appellant, Roosevelt
Richardson, was convicted on October 2, 1996, of five felonies
relating to a gun injury suffered by Lanita Spears.*fn1
He sought relief from his convictions in a consolidated
direct appeal and
collateral attack under D.C. Code § 23-110 (2001), both of which this
court rejected. Richardson v. United States, Nos. 97-CF-463 and
99-CO-1237, Mem. Op. & J. (D.C. Nov. 26, 2002). In October 2006, on
the basis of an affidavit from a witness who was not called at
appellant's 1996 trial, appellant filed a motion for relief pursuant
to the Innocence Protection Act (IPA), D.C. Code § 22-4131 et seq.
(2010 Supp.), and a second claim for relief for ineffective assistance
of counsel under § 23-110. Appellant claimed the affidavit contained
"new evidence" that proved his actual innocence. After a hearing at
which the new witness testified, the trial judge denied both claims,
and appellant now appeals from those rulings. We agree with the trial
court that the affidavit and testimony do not entitle appellant to
relief under the IPA. In addition, the trial court did not err in
denying consideration of appellant's successive § 23-110 motion, which
is barred by procedural default. We therefore affirm the judgment of
the trial court.
On April 6, 1996, Spears was shot in the neck while she was inside a house at 2123 10th Street, N.W., Washington, D.C. Immediately before the shooting, Spears had been arguing with her boyfriend while she stood outside of the house. Another man, later identified by Spears's mother as appellant, then came outside of the house diagonally across the street, and he and Spears began "cussing and fussing" at each other. When appellant left the porch of the house across the street, Spears thought he was going to get a gun so she went inside the house at 2123 10th Street to call the police.
Before Spears could exit the house again, the "door flew open" and appellant shot her in the neck. (Although Spears did not get a good look at appellant, her mother, Karen Starks, who lived in the house at 2123 10th Street, later identified appellant as her daughter's assailant.) Starks testified that she had been next door at Dana Croskey's house at 2125 10th Street, N.W., but had come outside when she heard the argument between her daughter and her daughter's boyfriend, observed the argument, and then saw the assailant (appellant), carrying a gun, walk into 2123 10th Street. Spears, who was unable to identify the assailant, testified that she had seen her mother exit 2125 10th Street after the argument, as Spears was walking into 2123 10th Street to call the police.
Croskey did not testify at the trial. Defense counsel requested a missing witness instruction for Croskey, charging the government with her absence and reasoning that "[s]he certainly would have been able to provide material information regarding the events and regarding Ms. Starks'[s] opportunity to view the events." The government objected to the request because defense counsel had failed to show that Croskey was within the control of the government and also because there was nothing to suggest that Croskey knew anything adverse to the government's position or that she had come outside during the relevant time period. Accepting the government's arguments, the trial court declined to issue a missing witness instruction.
Thereafter, as previously noted, the jury convicted appellant of five felonies and this court affirmed.
The IPA allows an individual convicted of a criminal offense to file a motion in the Superior Court to vacate his conviction or order a new trial "on grounds of actual innocence based on new evidence." D.C. Code § 22-4135 (a). In relevant part, the IPA defines "new evidence" as evidence that "[w]as not personally known and could not, in the exercise of reasonable diligence, have been personally known to the movant at the time of the trial or the plea proceeding." D.C. Code § 22-4131 (7)(A).
Appellant's purported "new evidence" was an affidavit from Croskey, executed in November 2005, in which she maintained that Starks left Croskey's house only after hearing a gun shot. The affidavit also stated that Starks and Croskey "both ran next door" to 2123 10th Street, where they found Spears lying on the floor, "holding her neck with her bloody hands," and that neither Croskey nor Starks had seen the shooter. Croskey also averred that, to her knowledge, appellant was not in the neighborhood that day. The essence of appellant's theory of "actual innocence" was that the affidavit established that Starks, who was the only witness at the 1996 trial to identify appellant as the assailant, actually could not have seen the assailant because Croskey's affidavit proved Starks did not leave Croskey's house until after the shooting and also because the affidavit stated that neither Croskey nor Starks had seen the shooter.
Pursuant to D.C. Code §§ 22-4135 (e)(1) and (2), the trial court appointed counsel for appellant and granted a hearing so that Croskey could testify in person. At the hearing, Croskey's testimony varied from the affidavit in some respects, most notably in her testimony that when they heard the gunshot, Starks ...